     Case: 10-40775     Document: 00511832522         Page: 1     Date Filed: 04/24/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 24, 2012
                                     No. 10-40775
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAMON EMANUEL ELLIOTT,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 1:08-CR-121-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges
PER CURIAM:*
        A jury found Damon Emanuel Elliott guilty of two counts of assault of a
corrections officer and one count of possession of contraband. He was sentenced
to a total of 150 months in prison. On appeal, he challenges the Government’s
use of a peremptory strike to excuse venireperson Margie Jacques, arguing that
it violated his constitutional rights in light of Batson v. Kentucky, 476 U.S. 79
(1986). In Batson, the Court delineated a three-step analysis for evaluation of
a defendant's claim that a prosecutor used a peremptory strike in a racially

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-40775   Document: 00511832522      Page: 2   Date Filed: 04/24/2012

                                  No. 10-40775

discriminatory manner: (1) a defendant must make a prima facie showing that
the prosecutor exercised his peremptory challenges on the basis of race; (2) the
burden then shifts to the prosecutor to articulate a race-neutral reason for
striking the juror in question; and (3) the trial court must determine whether the
defendant carried his burden of proving purposeful discrimination. Moody v.
Quarterman, 476 F.3d 260, 266 (5th Cir. 2007).
      We review the district court’s Batson determination for clear error. See
United States v. Denman, 100 F.3d 399, 404 (5th Cir. 1996). The district court’s
decision that a prosecutor had a race-neutral reason for striking a member of the
venire is a credibility determination which is entitled to deference. United
States v. De La Rosa, 911 F.2d 985, 991 (5th Cir. 1990).
      The record supports the district court’s finding that the Government
provided racially-neutral reasons for the peremptory challenge at issue.
Specifically, Jacques’s demeanor and her inattentiveness and disinterest were
valid reasons for her exclusion. See Hernandez v. New York, 500 U.S. 352, 360-
61 (1991); United States v. Lance, 853 F.2d 1177, 1180-81 (5th Cir. 1988); Moore
v. Keller Industries, Inc., 948 F.2d 199, 202 (5th Cir. 1991). Moreover, the
district court itself confirmed on the record that Jacques was “quick, timid, and
in a hurry to sit down and to disengage from this whole process.” The district
court was in the best position to observe and judge Jacques’s demeanor during
voir dire. See United States v. Valley, 928 F.2d 130, 136 (5th Cir. 1991). Elliott
has not shown that the district court’s decision was clearly erroneous. See
Denman, 100 F.3d at 404. The judgment of the district court is AFFIRMED.




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