                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1631
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Don Juan Maxwell,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 26, 2006
                                Filed: January 12, 2007
                                 ___________

Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.
                          ___________

BOWMAN, Circuit Judge.

       A jury found Don Juan Maxwell guilty of two counts of possession with intent
to distribute a controlled substance. On appeal, Maxwell argues that the District
Court1 erred in rejecting his Batson2 challenge, which alleged that the government
used its peremptory strikes in a racially discriminatory manner to remove three of the
five African-American veniremembers. We affirm.


      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
      2
       Batson v. Kentucky, 476 U.S. 79 (1986).
       There were five African-Americans on a panel of thirty-one persons from which
the jury was to be selected for Maxwell's trial. After voir dire, the government used
three of its seven peremptory challenges to strike three of the four African-American
males from the venire. The defense used a peremptory challenge to strike the only
African-American female from the venire. The one remaining African-American male
was seated on the jury. The defense made a timely Batson objection, arguing that the
government's use of its peremptory strikes to remove African-Americans from the
venire was racially motivated and therefore violated Maxwell's constitutional rights.
The District Court found that Maxwell had presented a prima facie case of racial
discrimination. In response, the government articulated its race-neutral reasons for
striking the three African-American venire members.

       The government explained that it struck Juror 29 because one of his immediate
family members was facing drug charges and because he expressed an opinion the
government interpreted as favoring the legalization of certain drugs. The defense
countered that Juror 21 was a similarly situated white woman whom the government
did not strike from the venire. The government responded by noting that Juror 21 was
not similarly situated because this juror's family member, her father, had been
convicted of murder, not possession with intent to distribute a controlled substance.
Moreover, the government stated that it did not strike Juror 21 because it believed that
the juror's statement during voir dire that she did not "think [her father] got treated
hard enough" because "[h]e murdered somebody and he got only four years," was
favorable to its position. Trial Tr. at 26.

      The government stated that it struck Juror 26 because the government observed
him "chuckling and smirking" during questioning regarding the credibility of police
testimony—behavior that the government viewed as antagonistic to its position. Id.
at 68. In addition, the government believed that Juror 26 lacked strong ties to the
community because the juror had lived in his current residence only two months and
had been employed at his current job for only one year. The defense responded that

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it had not observed the juror's alleged antagonistic behavior and that the District Court
had not afforded the defense an opportunity to inquire into the juror's reaction.
Although neither the District Court nor the defense observed Juror 26's "smirking and
chuckling," the court credited the government's observations, stating that it would not
"dispute" them. Id. at 74–75.

        Finally, the government explained that it struck Juror 25 because he was
employed as a teacher and because the government believed that he lacked strong ties
to the community, as he had lived in his residence only four months. The District
Court remarked that Juror 5 and Juror 12 had each resided in his respective home "for
a short period of time" and neither juror was struck by the government. Id. at 69. The
government responded that Juror 5 and Juror 12 had each been living in his respective
home for roughly two years, unlike Juror 25, who had lived in his home for only four
months. The government further argued that neither Juror 5 nor Juror 12 was a
teacher, making these jurors dissimilar to Juror 25. In addition, the government noted
that it struck Juror 11, a college professor who was not African-American, and Juror
16, a teacher who was not African-American and who had been living in her residence
for less than a year.

      After hearing the government's explanations, the District Court expressed
skepticism regarding the government's reasons for striking Juror 26 and Juror 25:

      I think these are very, very, very inadequate reasons for striking two
      African-American males when the defendant is an African-American
      male and when we only have one African-American who's also a male
      on the jury. . . . I am very, very concerned about counsel having rather
      lame excuses in my judgment for those two peremptory strikes . . . .

Id. at 75. Nevertheless, the District Court credited the government's race-neutral
explanations and denied Maxwell's Batson challenge, noting specifically that it would



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"honor [government] counsel's integrity" with respect to the observations of Juror 26's
negative demeanor. Id.

       On appeal, Maxwell argues that the District Court clearly erred in finding that
the government's explanations for striking the three African-American veniremembers
were race-neutral and in concluding that the government did not engage in purposeful
race discrimination. The government responds that the District Court properly
rejected Maxwell's Batson challenge.

       In Batson, the Supreme Court described a three-part analysis for determining
whether a party impermissibly struck a potential juror on account of the juror's race.
476 U.S. at 96–98. First, the party objecting to the strike must make a prima facie
showing that the strike was racially motivated. Id. at 96–97. The burden then shifts
to the striking party to present a race-neutral explanation for the strike. Id. at 97–98.
Once the striking party offers a race-neutral explanation for the strike, the objecting
party may come forward with a reason or reasons why the proffered explanation is
really a pretext for discrimination. United States v. Scott, 26 F.3d 1458, 1467 (8th
Cir.) (noting that an objecting party bears the burden of establishing pretext once a
race-neutral explanation has been offered), cert. denied, 513 U.S. 1019 (1994).
Finally, the district court must determine whether the party objecting to the strike has
carried the burden of proving that the strikes were motivated by purposeful race
discrimination. Batson, 476 U.S. at 98; see Purkett v. Elem, 514 U.S. 765, 767 (1995)
(per curiam). The Supreme Court has recognized that the findings underlying a
district court's Batson analysis depend largely on credibility evaluations and has
directed reviewing courts to "give those findings great deference." 476 U.S. at 98
n.21. Therefore, we review the District Court's Batson ruling for clear error, United
States v. Pherigo, 327 F.3d 690, 695 (8th Cir.), cert. denied, 540 U.S. 960 (2003),
according great deference to the court's findings, United States v. Roebke, 333 F.3d
911, 912 (8th Cir. 2003), and keeping in mind that "the ultimate burden of persuasion



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regarding racial motivation rests with, and never shifts from" the party opposing the
strike, Purkett, 514 U.S. at 768.

       Here, the government used three of its seven peremptory strikes to remove three
of the five African-American veniremembers. Maxwell objected to these strikes, and
the government came forward with race-neutral explanations for each strike. The
government explained that it struck Juror 29 because he appeared to favor the
legalization of drugs and because one of his immediate relatives was facing state drug
charges. Maxwell was charged with several drug-related offenses, and therefore the
government's explanation for the strike was appropriate and nondiscriminatory.
United States v. McKay, 431 F.3d 1085, 1092 (8th Cir. 2005) (concluding that striking
a juror in a drug conspiracy case because the juror's family members had been
convicted of drug offenses was an appropriate, race-neutral reason for strike), cert.
denied, 127 S. Ct. 46 (2006). In response to the government's explanation, Maxwell
argued that Juror 21 was similarly situated to Juror 29, but was not struck by the
government. Juror 21, however, was not similarly situated because she had a close
family member who was convicted of murder, not a drug offense. And Juror 21's
comments that she believed her father was not punished harshly enough for his crime
reflected no potential bias in Maxwell's favor, whereas Juror 29's comments about the
legalization of drugs tended to favor Maxwell. Because Maxwell failed to establish
that the government's proffered reasons for the strike were a pretext for race
discrimination, the District Court did not err in rejecting Maxwell's Batson challenge
with respect to Juror 29.

       The government explained that it struck Juror 26 because the juror lacked
strong ties to the community, and because the juror's body language suggested to the
government that he held significant doubts about the credibility of police officers'
testimony. The absence of community attachment is a legitimate, race-neutral reason
for striking a juror. See United States v. Atkins, 25 F.3d 1401, 1406 (8th Cir.)
(recognizing that party may strike a veniremember who "lacks an attachment or

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commitment to the community"), cert. denied, 513 U.S. 953 (1994); United States v.
Day, 949 F.2d 973, 979 (8th Cir. 1991) (same), cert. denied, 511 U.S. 1130 (1994).
Additionally, a juror's demeanor and body language may serve as legitimate, race-
neutral reasons to strike a potential juror. United States v. Davidson, 449 F.3d 849,
852–53 (8th Cir.) ("Body language and demeanor can be appropriate reasons to strike
jurors."), cert. denied, 127 S. Ct. 609 (2006); United States v. Martinez, 168 F.3d
1043, 1047 (8th Cir. 1999) (affirming where district court concluded that a
veniremember's negative body language was a permissible, race-neutral reason for
government's peremptory strike). Although neither the District Court nor Maxwell's
attorney directly witnessed Juror 26's behavior, the court expressly credited the
government's observation and was in the best position to evaluate the government's
credibility. See United States v. Hill, 249 F.3d 707, 714 (8th Cir. 2001); United States
v. Darden, 70 F.3d 1507, 1531 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996).
Maxwell argues that the District Court did not afford him an opportunity to develop
the record regarding Juror 26's behavior. A review of the record belies this assertion.
The defense challenged the government's body-language explanation, and the District
Court considered and rejected the argument. The District Court's findings on this
issue are entitled to "great deference," and we see no reason to disturb them. See
Pherigo, 327 F.3d at 696. Because Maxwell failed to counter the government's race-
neutral explanations with persuasive evidence of pretext, the District Court committed
no clear error in rejecting Maxwell's Batson challenge with respect to Juror 26.

       The government explained that it struck Juror 25 because he was employed as
a teacher, which the government believed might make the juror biased in favor of
Maxwell. The inference that a juror's employment might make the juror more
sympathetic to a criminal defendant is a valid, race-neutral reason for striking a juror.
See, e.g., id. at 696 (concluding that employment in the drug industry is a race-neutral
ground for striking a potential juror in a drug case). Moreover, the government
applied this rationale consistently and without regard to race, striking two other
veniremembers who were employed as teachers and were not African-American. See

                                          -6-
Atkins, 25 F.3d at 1406 (stating that government's consistent use of government
employment as a reason for peremptory strikes supported race-neutral motivation for
strikes). In addition to concerns about Juror 26's employment, the government
explained that the juror's lack of community ties motivated the strike. As discussed
above, the absence of community attachment is a valid, race-neutral reason for striking
a juror. Consequently, we conclude that Maxwell has failed to carry his burden of
demonstrating pretext with respect to Juror 25.3

       The reasons articulated by the government for striking the three African-
American veniremembers were race neutral and appropriate. The District Court did
not clearly err in rejecting Maxwell's Batson challenge because Maxwell failed to
establish that the government engaged in purposeful race discrimination in its use of
peremptory strikes. Accordingly, we affirm the judgment of the District Court.

BRIGHT, concurring in the result.

      I concur in the result.




      3
        In ruling on the Batson challenge, the District Court erroneously attributed the
government's negative-body-language explanation for striking Juror 26 to the
government's separate reasons for striking Juror 25. The issue apparently arose when,
during the defense's argument that the government's explanations were pretextual, the
defense confused the government's various race-neutral reasons for striking the two
jurors. See Trial Transcript at 71 ("The government did not seek to inquire of jurors
25 or 26 as to whether or not, and I must admit I did not observe the smile or the smirk
on behalf of either jurors 25 or 26."). Because the record shows that the District Court
properly considered the actual reasons given by the government for striking Juror
25—employment and lack of community ties—and determined that those reasons
were race neutral and not pretextual, we cannot say in these circumstances that the
District Court's conclusion was clearly erroneous. See, e.g., Pherigo, 327 F.3d at 695
(standard of review).

                                          -7-
      I agree with the district court that defendant's objection to the striking of
African-American veniremen by the prosecution made out a prima facie case of
discrimination against African-Americans in selecting the jury.

      Moreover, in my examination of the record, I view the explanations provided
by the prosecutor for striking the jurors in question as weak.

       The district judge noted regarding jurors 25 and 26, "I think these are very,
very, very inadequate reasons for striking . . . ." The trial judge, who is an able,
experienced, and fair-minded jurist, accepted the prosecutor's views, although with
some misgivings. It is proper, I agree, to defer to the trial judge's exercise of
discretion to permit the strikes here in question to stand. I add, however, my view that
a contrary determination by the district judge would have been free of error.

       Appellate judges must rely on trial judges to be vigilant doorkeepers in seeing
that prosecutors do not slam the door on African-Americans called to serve on a jury
by using pretext to mask race discrimination. The litany of approved strikes recited
in this and other cases should not stand where the reason or reasons given are
pretextual.
                        ______________________________




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