                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            AUG 12 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 10-50109

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00414-DSF-1

  v.
                                                 MEMORANDUM *
DANIEL OSAZUWA, JR.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                       Argued and Submitted August 4, 2011
                               Pasadena, California

Before: REINHARDT, WARDLAW, and BERZON, Circuit Judges.

       Daniel Osazuwa appeals from a judgment of conviction following a jury trial.

He argues that the district court erred in denying his motion under Batson v. Kentucky,

476 U.S. 79 (1986), to prevent the government from exercising a peremptory strike




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
against a potential juror on the basis of her sexual orientation. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      As in Johnson v. Campbell, 92 F.3d 951 (9th Cir. 1996), “[w]e need not decide

the question whether a challenge based on sexual orientation falls within the rule of

Batson; we assume for purposes of decision that it does.” Id. at 951. Even if Batson

extends to sexual orientation, however, the district court did not clearly err in finding

that Osazuwa had failed to carry his burden of showing purposeful discrimination.

      As a threshold matter, we find that the district court did conduct the inquiry

required at the third stage of the Batson framework: it “made a deliberate decision on

the ultimate question of purposeful discrimination.”1 United States v. Alanis, 335 F.3d

965, 968 n.2 (9th Cir. 2003). The district court’s analysis was by no means as

thorough as would be desirable. But the judge did conduct a comparative-juror

analysis when rejecting two of the government’s proffered reasons as pretextual,

before both stating that the third reason was legitimate and then “accept[ing]” it—that

is, finding that it was an actual reason for the strike. In the end, the decision-making


      1
         The first two stages of the Batson framework are not at issue here.
Although the trial court never explicitly found that Osazuwa had made a prima
facie showing of discrimination, the question is now moot. Hernandez v. New
York, 500 U.S. 352, 359 (1991) (plurality opinion). And all three of the reasons
that the government proffered for striking juror J.T.—that she was single, that she
had never served on a jury, and that she had Nigerian friends—were clearly neutral
as to her sexual orientation.

                                           2
process was not so insufficient as to require de novo review of the issue of purposeful

discrimination.

      We therefore review for clear error the district court’s determination that the

government did not purposefully discriminate on the basis of juror J.T.’s sexual

orientation. Tolbert v. Page, 182 F.3d 677, 680 n.5 (9th Cir. 1999). Review under this

“standard is significantly deferential, requiring for reversal a definite and firm

conviction that a mistake has been made.” United States v. Asagba, 77 F.3d 324, 326

(9th Cir. 1996).

      We lack such a definite or firm conviction here. Juror J.T.’s friendship with a

Nigerian couple was at least plausibly “related to the . . . case,” Batson, 476 U.S. at

98, in the sense that the prosecutor might reasonably have thought that it would make

her more inclined to accept the defense theory that Osazuwa’s altercation began with

a cultural misunderstanding. The strongest sign of purposeful discrimination is that

the government proffered two pretextual reasons for striking juror J.T.; the use of even

one “‘pretextual explanation naturally gives rise to an inference of discriminatory

intent,’ even where other, potentially valid explanations are offered.” Ali v. Hickman,

584 F.3d 1174, 1192 (9th Cir. 2009) (quoting Snyder v. Louisiana, 552 U.S. 472, 485

(2008)). But the “evaluation of the prosecutor’s state of mind based on demeanor and

credibility lies ‘peculiarly within a trial judge’s province.’” Hernandez, 500 U.S. at


                                           3
365 (plurality opinion) (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)).

Applying this deferential review, we cannot say that the district court clearly erred in

holding that the Nigerian-friends explanation was “the prosecutor’s genuine reason[]

for exercising a peremptory strike, rather than [a] pretext[] invented to hide purposeful

discrimination.” Green v. LaMarque, 532 F.3d 1028, 1030 (9th Cir. 2008).

      AFFIRMED.




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