                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 95-30259
                               Summary Calendar
                            _____________________

                               RUSSELL SAYRIE,

                                                         Plaintiff-Appellant,

                                    versus

                            PENROD DRILLING CORP.,

                                                         Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                            (93-CV-1982)
_________________________________________________________________
                          August 31, 1995


Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

PER CURIAM:1

     Russell Sayrie appeals an adverse judgment on a jury verdict,

contending     that   the    district    court   erred    in   ruling   on   his

objections under Batson v. Kentucky, 476 U.S. 79 (1986).                      We

AFFIRM.

                                        I.

     Sayrie, a black male, sued Penrod, now known as Ensco Offshore

Company, under the Jones Act to recover damages for injuries he


1
     Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that rule, the court has determined that this opinion
should not be published.
allegedly sustained while working aboard an Ensco vessel.               Ensco

used its peremptory challenges to strike three venirepersons, one

of whom was female.     After the court empaneled the jury, and the

venire had been released, Sayrie objected under Batson, claiming

that the venirepersons peremptorily struck by Ensco were black, and

contending   that   Ensco   had   used    its   peremptory      challenges   to

discriminate against the two male venirepersons because of their

race, and against the female venireperson because of her race,

gender, and economic status.2

     The   district   court   immediately       conducted   a   comprehensive

Batson hearing, and Ensco offered discrimination-neutral reasons

for the strikes.    Among other things, Ensco's counsel provided his

notes taken during voir dire to the court, and they are in the

record.    The court found the explanations of Ensco's counsel to be

credible, and overruled Sayrie's Batson objection.                  The jury

returned a verdict in favor of Ensco.

                                    II.

     A party in a civil action may challenge another party's use of

a peremptory strike that excludes a prospective juror on the basis

of that juror's race or gender.      Great Plains Equip., Inc. v. Koch

Gathering Sys., Inc., 45 F.3d 962, 964 (5th Cir. 1995); J.E.B. v.

2
     Sayrie's objection was untimely, to say the least. See United
States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir. 1989) (Batson
objections must be made before dismissal of the venire), cert.
denied, 494 U.S. 1084 (1990).      A contemporaneous objection is
required because "[t]he nature of the claim requires that it be
raised when the strikes are made". See Jones v. Butler, 864 F.2d
348, 369 (5th Cir. 1988), cert. denied, 490 U.S. 1075 (1989).
Moreover, except for the assertions of Sayrie's counsel, the record
does not reflect the race of the challenged venirepersons.

                                   - 2 -
Alabama ex rel. T.B., ___ U.S. ___, 114 S. Ct. 1419 (1994).

             [T]he complaining party must make a prima facie
             showing that opposing counsel has exercised a
             peremptory challenge on the basis of race [or
             gender].   Once this showing has been made, the
             burden shifts to the striking party to articulate a
             race [or gender]-neutral explanation for the
             strike.    Thereafter, the court must determine
             whether the Batson claimant has proven purposeful
             discrimination.

Great Plains, 45 F.2d at 964-65.3           "[T]he ultimate inquiry for the

judge is not whether counsel's reason is suspect, or weak, or

irrational, but whether counsel is telling the truth in his or her

assertion that the challenge is not race [or gender]-based".

United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993).

       "We   pay   great   deference   to     the   trial   judge's   decision

regarding a Batson motion".        Palmer v. Lares, 42 F.3d 975, 979 (5th

Cir.   1995).      Because   the   decision     rests   upon   a   credibility

determination, we will interfere with it "only if it is clearly

erroneous or an abuse of discretion".           Id.

                                       A.

                                       1.

       Ensco stated that it challenged venireperson Spain because he

never made eye contact with its counsel, but freely made eye

contact with Sayrie and his counsel, and because Spain's nephew had


3
     Ensco contends that, because the record is silent as to the
race of all but one of the venirepersons, Sayrie failed to
establish a prima facie case. But, when the striking party has
offered a race-neutral explanation for the peremptory challenges
and the district court has ruled on the ultimate question of
intentional discrimination, the preliminary issue whether the
challenging party has made a prima facie showing becomes moot.
Hernandez v. New York, 500 U.S. 352, 359 (1991).

                                    - 3 -
had back     surgery,     and   might    sympathize    with   Sayrie,   who   had

undergone back surgery also.        Sayrie contends that Spain's alleged

failure to make eye contact was pretextual, because Ensco's counsel

did   not   ask   Spain     any   questions.      He    asserts    that   other

venirepersons indicated that there was a back injury or an injury

from a work-related accident within their family history, but Spain

was the only venireperson struck for this reason.

      Failure to make eye contact with counsel during voir dire is

an acceptable race-neutral ground for a peremptory challenge.                 See

Polk v. Dixie Ins. Co., 972 F.2d 83, 86 (5th Cir. 1992), cert.

denied, ___ U.S. ___, 113 S. Ct. 982 (1993).             The fact that other

venirepersons with back problems were not struck is irrelevant,

because there is no evidence that those venirepersons refused to

make eye contact with defense counsel.          The district court did not

abuse its discretion.

                                         2.

      Ensco stated that it challenged venireperson Dauphine because

he was the only member of the venire who had attended school with

Sayrie.     Counsel anticipated that some witnesses would not be

truthful, and he did not want, on the jury, a "wild card" who knew

Sayrie.     Sayrie points out that the record indicates that he and

Dauphine were casually acquainted, at most; that nothing suggested

that the two socialized together or had seen one another since

attending school together; and that Dauphine testified that their

friendship would not affect his decision.

      Sayrie relies on Bennett v. Collins, 852 F. Supp. 570 (E.D.


                                        - 4 -
Tex. 1994), a habeas case in which the district court determined,

despite Bennett's failure to object during jury selection, that the

apparently legitimate, race-neutral reasons provided by the State,

years after    the   original      criminal    trial,     were   a   pretext    for

challenging venirepersons because they were black, in violation of

Batson.      Bennett,   852   F.    Supp.     at   584-85.       The    court   was

unpersuaded by the prosecutor's explanation that a challenged

venireman was excluded because he knew the defendant's mother. Id.

at 578-80.     Sayrie contends that because his case arose in New

Iberia, Louisiana, a small community, it is not surprising that one

of   the   venirepersons   was     acquainted      with   him,    and    that   the

exclusion of someone on that basis would have an impermissible

effect of excluding a disproportionate number of blacks.

      Even assuming that Bennett was correctly decided, it is

distinguishable.     Unlike in Bennett, the district court held a

nearly contemporaneous hearing to assess Ensco's intentions.                    The

district court is in the best position to evaluate an attorney's

justification for striking a prospective juror.              See United States

v. Lance, 853 F.2d 1177, 1181 (5th Cir. 1988).                   The court found

counsel's explanations credible.              That finding is not clearly

erroneous.

                                      3.

      Finally, Ensco stated that it challenged venireperson Pierre,

who was unemployed, single, and had no discernible source of

income, because of her lack of background and her poor demeanor.

Sayrie contends that Ensco excluded Pierre because of her race,


                                     - 5 -
gender,    and   economic    status.     Sayrie    maintains      that   Ensco's

explanation was pretextual because it did not strike two white

jurors who were unmarried, unemployed, and had no source of income.

     Sayrie urges us to extend Batson to prohibit the use of

peremptory challenges to exclude a venireperson on the basis of

economic status, citing 28 U.S.C. § 1862's proscription against

"economic status" as a basis for exclusion from jury service.4                  He

contends    further   that    strikes    based    on   unemployment      have   a

disparate impact on minorities.

     Our    court   has   accepted     economic    status    as   a   non-racial

motivation for a peremptory strike.            See United States v. Pofahl,

990 F.2d 1456, 1466 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.

Ct. 266, 560 (1993).          And, we recently considered a similar

contention in United States v. Jackson, 50 F.3d 1335, 1341 & n.11

(5th Cir. 1995).      We noted that, in extending Batson to prohibit

gender-based strikes, the Supreme Court had expressly disavowed the

implication that peremptory challenges were being eliminated.                 Id.

(citing J.E.B., ___ U.S. at ___, 114 S. Ct. at 1429).                 We stated

also that it was "most arguable that extending Batson [to prohibit

strikes on the basis of economic status] would go far toward

achieving that precise result".          Id.    We did not reach the issue,

however,    because   the    strike    was     motivated    not   only   by   the

venireman's economic status, but also because of the prosecutor's


4
     28 U.S.C. § 1862 provides that "[n]o citizen shall be excluded
from service as a grand or petit juror in the district courts of
the United States ... on account of race, color, religion, sex,
national origin or economic status".

                                      - 6 -
perception that the venireman had given him a hostile look.                     Id. at

1341.   We agreed with the district court that such was the "sort of

intuitive judgment that courts generally must rely on counsel to

exercise in good faith".       Id.

     Likewise, we need not reach the issue in this case, because

the record reflects that Ensco struck Pierre not simply because of

her economic status, but in large part because of her demeanor.

Ensco   explains    that    Pierre    had    no   history    of    employment      or

schooling,    unlike   the    unemployed       white     jurors,    one    of    whom

previously had owned and operated two businesses, and the other of

whom was attending college. The district court agreed with Ensco's

counsel that Pierre "was negative".               The district court had the

benefit of observing Ensco's counsel first-hand and, as noted, of

reviewing counsel's notes taken during voir dire.                         The court

determined that counsel was "giving honest reasons".                The district

court   did   not   abuse    its     discretion     in    accepting       counsel's

explanation, and Sayrie has not established that the court's

finding was clearly erroneous.

                                       B.

     Sayrie    contends      that     the     district      court     erroneously

interpreted Batson and its progeny to mean that the presence of a

black on the jury was sufficient to cure an equal protection

violation.    When a black juror is accepted by the party alleged to

have violated Batson, the contention that its peremptory strikes

were based solely on race is weakened.            United States v. Mixon, 977

F.2d 921, 923 (5th Cir. 1992).              Accordingly, the district court


                                      - 7 -
properly considered the fact that one of the empaneled jurors was

black in making its ultimate determination that Sayrie had not

established purposeful discrimination.5

                               III.

     For the foregoing reasons, the judgment is

                            AFFIRMED.




5
     Sayrie contends, for the first time on appeal, that the
district court tainted the jury and its verdict by requesting only
one juror to identify her race.       We refuse to consider this
contention because Sayrie did not present it to the district court.
See Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d
1027, 1031-32 (5th Cir. 1994) (applying, in civil case, plain error
analysis of United States v. Olano, ___ U.S. ___, 113 S. Ct. 1770
(1993)), cert. denied, ___ U.S. ___, 115 S. Ct. 903 (1995).

                              - 8 -
