This section contains the nature of the case and procedural background.

Ds were convicted of violations of federal narcotics laws after two separate trials in federal court. During jury selection, the government attempted to exercise a peremptory challenge to a juror who would later be impaneled as Juror #5. Defense counsel objected because he was the only black juror in a panel that was going to try black defendants. The government responded that #5 failed to make eye contact with the Government's counsel during voir dire. The court found that application was not based on race but in a misapplication of Batson, denied the challenge on grounds of race and that failure to make eye contact was insufficient. Eventually during trial, a group of six jurors expressed concern about #5 by his actions that distracted them; he squeaked his shoe against the floor, and rustled cough drop wrappers and showed agreement with the defenses position by slapping his leg and saying 'yeah, yes' during defense summations. The judge seriously considered removing #5 by holding an in camera interview of all the jurors. D was opposed to such a move. The court conducted the in camera interviews to determine the extent of #5's distractions. All but one had no real problem with his behavior. #5 eventually assured the court that he would have no problems applying the law and that at times, he was carried away and he would restrain himself in the future. Eventually, the judge just decided to retain #5 and then charged the jury that same day for deliberations. Problems were quickly encountered with #5 holding out. The Government argued that #5 was engaged in nullification. The judge removed him as a distraction in that he feigned vomiting and that #5 was ignoring the evidence and refusing to convict because of preconceived, fixed, cultural, economic, or social reasons. A verdict of guilty was returned. D appealed.

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