                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                  REVISED SEPTEMBER 8, 2006
            IN THE UNITED STATES COURT OF APPEALS September 7, 2006
                    FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk


                            No. 05-30572



                   UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                               versus

                          CLEVELAND JYNES,

                        Defendant-Appellant.

                     --------------------
         Appeal from the United States District Court
             for the Eastern District of Louisiana
                   USDC No. 2:03-CR-00279-1
                     --------------------

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit
Judges.

PER CURIUM :*

     Cleveland Jynes contends on appeal that prosecution’s

exercise     of   its    peremptory     challenges   against       six

African-American venire persons violated the principles



     *
       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this opinion should not be published and is not precedent except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.

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of Batson v. Kentucky, 476 U.S. 79 (1986).               Specifically,

Jynes points to the striking of two particular African-

American   jurors,      Ivy    Hill    and    Glenda     Price.        The

prosecutors asserted several reasons as to both Hill’s

and Price’s exclusion from the jury pool.

      It is well-settled that the Equal Protection Clause

forbids a prosecutor’s challenge of potential jurors

solely on account of their race.             In determining whether

a prosecutor has used a peremptory challenge in violation

of Batson, we must respect the dictated standard of

review while analyzing the facts under the Batson burden

shifting structure.

                        Standard of Review

      Imperative   to   our    decision      in   this    case    is   the

applicable standard of review.               Where a district court

has   “entertained      and   ruled    on    a    defendant’s     motion

charging   a   Batson     violation,...we         apply    a     ‘clearly

erroneous’ or ‘great deference’ standard of review.”

U.S. v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir.

1988).   This is the case “since findings in this context

largely turn on an evaluation of the credibility or

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                               -3-

demeanor of the attorney who exercises the challenge.”

U.S. v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993).

                            Analysis

     Batson and its progeny provide a three-step inquiry

for a claimant’s challenge to a peremptory strike based

on race.    First, the claimant must make a prima facie

showing that the prosecutor was motivated by race in

exercising the peremptory challenge.        Second, the burden

of production1 shifts to the prosecutor to come forth with

a race-neutral explanation for the strike.           Third, the

court must determine whether the claimant has carried his

burden of proving purposeful discrimination.

     The First Step.     The claimant must illustrate that

the totality of the relevant facts gives rise to an

inference    of   discriminatory       purpose.     Johnson   v.

California, 125 S.Ct. 2410, 2416 (2005).           As noted in

Johnson:

     (1) a claimant must show that he belongs to a
     cognizable racial group and that the prosecutor has
     exercised peremptory challenges to remove co-members
     of his race from the venire members;

     1
          The ultimate burden of persuasion remains, at all
times, with the claimant.

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                               No. 05-30572
                                    -4-

      (2) the claimant may rely on the fact that
      peremptory challenges constitute a jury selection
      practice   that  permits   those   with  intent   to
      discriminate the opportunity to do so; and
      (3) the claimant must show that these facts and any
      other relevant circumstances raise an inference
      that the prosecutor used that practice to exclude
      the veniremen on account of race.2

The court should consider all relevant circumstances in

determining      whether      the     prima       facie    case     can    be

established including a pattern of strikes against jurors

of a certain race and a party’s statements and questions

during voir dire.        Brown v. Kinney Shoe Corp., 237 F.3d

556, 560 (5th Cir. 2001).             However, there is no intent

for “...[t]he first step to be so difficult as to require

the claimant to persuade the judge...that the challenge

was   more    likely   than     not       the    product   of     purposeful

discrimination.”       Johnson, 125 S.Ct. at 2412.

      In the case at bar, claimant Jynes has made his prima

facie showing.      As an African-American, he is a member of

a cognizable racial group, and further, the prosecutors

used all six of their peremptory challenges to remove

African-Americans       from    the       jury    pool.    That    alone   is


      2
          Johnson v. California, 125 S.Ct. 2410, 2416-17 (2005).

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                              No. 05-30572
                                   -5-

enough     to      raise     the         inference    of      purposeful

discrimination.

    The Second Step. Once the claimant has satisfied the

showing of a prima facie case, the burden of production

shifts     to   the     prosecutor        to   show   a     race-neutral

explanation for the strikes against those jurors in the

arguably    targeted       class.        Race-neutral      simply   means

something besides race.          Hernandez v. New York, 111 S.Ct.

1859, 1866 (1991).          The prosecutor must give clear and

reasonably      specific     explanations        of   his     legitimate

reasons for exercising peremptory challenges, Miller-El

v. Dretke, 125 S.Ct. 2317, 2324 (2005); however, the

explanations need not be persuasive or even plausible at

this step.      Purkett v. Elem, 115 S.Ct. 1769, 1771 (1995).

The prosecutor should easily be able to fulfill this

phase    because      “[u]nless     a     discriminatory      intent   is

inherent in the prosecutor’s explanation, the reason

offered    will    be   deemed      race-neutral.”          Id.   (citing

Hernandez, 111 S.Ct. at 1866).

    In the instant case, the prosecutors gave several

race-neutral reasons for the strikes.                 As to Hill, the

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                                  -6-

prosecutors asserted: (1) her menial job (and inferential

poverty); (2) her residence in New Orleans; (3) her

presumptive      run-ins     with     the        police;    and     (4)    her

outspoken manner of speaking.                    Certainly, the first,

second, and fourth reasons are race-neutral in that they

are something besides race.               Though the third reason is

presumptuous, as the prosecutor seems to be implying that

those who work in menial jobs, are poor, and live in New

Orleans are more likely to have run-ins with the police,

it is not necessarily a race-based stereotype, i.e., it

could apply just as easily to races other than African-

Americans.      As to Price, the prosecutor provides the

following reasons for the strike: (1) her menial job; (2)

crime   in    the    location    of        her    employment;       (3)    her

outspoken nature; (4) her loud, firm voice; and (5) the

prosecutor’s     own    “instinct.”              All   of   these    reasons

clearly are “something other than race.”                       Accordingly,

the prosecutors have survived this phase of the analysis.

    The      Third   Step.      The       district     court    judge     must

determine whether the claimant has carried his burden of

proving purposeful discrimination. The ultimate question

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                                   -7-

in   a   Batson   challenge      is       whether      the    prosecutor’s

justifications are persuasive to the judge.                   Miller-El v.

Cockrell, 123 S.Ct. 1029, 1040, (2003).                           In U.S. v.

Bentley-Smith,    2    F.3d    1368,          1375,   (1993),      the    court

explained, “[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-

based.”    “Credibility can be measured by, among other

factors, the prosecutor's demeanor; by how reasonable, or

how improbable, the explanations are; and by whether the

proffered rationale has some basis in accepted trial

strategy.”    Id. at 1040.

     In the case at bar, the district judge concluded that

the claimant failed to satisfy this burden.                              Such a

conclusion is entitled to great weight and deference.

Further,   case   law       within    this       Circuit     supports       the

prosecution’s         use       of        employment,             residence,

outspokenness, and loud voice as race-neutral reasons to

allow the strike.

     Residence, Employment, Instinct

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                                 No. 05-30572
                                      -8-

      In Lewis v. Poole, 114 Fed. Appx. 144 (5th Cir.

2004), an unpublished opinion, this court affirmed a

district court finding of no Batson violation.                In Lewis,

defense counsel stated that the jurors had been struck

because they were from an area of Louisiana that was

notoriously plaintiff-friendly, and because they held

lower income, traditionally subservient jobs.3                  Further,

the       defense    attorney      relied     on   “instinct”      as   an

explanation         for   the    peremptory     strikes.     The    court

accepted this explanation, noting “the ‘decisions of this

court have made it plain that the process of choosing a

jury may be influenced by the “intuitive assumptions” of

the attorneys.’” Id. at 145 (citing Bentley-Smith at

1374).        As    no    discriminatory      intent   is   inherent    in

defense       counsel's         explanation     that   he    relied     on

“instinct,” the explanation must be deemed race-neutral.

Id. (referencing Purkett). Like defense counsel in Lewis,

the prosecution based its decision to strike, in part, on


      3
        See also, U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993)
where this Court held that the prosecutor’s desire to exclude
venire persons who earned low wages and were not employed full
time was sufficient.

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                               -9-

Hill and Price’s residence in New Orleans, menial jobs,

and their own instinct.

     Outspoken and Loud Voice:

     In Washington v. Johnson, 90 F.3d 945, 953 (5th Cir.

1996), the court held that the prosecutor’s perception of

a   juror   as   strong-willed   and   obstinate,   among   other

factors, was a legitimate ground for a peremptory strike.

Similar to the prosecutor in Washington, who found a

prospective juror to be “strong-willed” and “obstinate,”

the prosecutors in the instant case alleged that Hill and

Price seemed “outspoken.”        They further explained that

Price had a “loud voice.”

     The record contains little to no evidence to support

this assertion.      However, outspokenness and loud voices

are not assertions easily gleaned from reading words on

paper and are more easily discernible by presence in the

courtroom.       Since the district judge was present and

observed these exchanges, we must give her the requisite

deference and accept her finding.

                          Conclusion



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                        No. 05-30572
                            -10-

    Though defendant Jynes made his prima facie showing

of an inference of discriminatory purpose, as required by

Batson, the government rebutted it with numerous race-

neutral explanations.   The jurisprudence in this Circuit

allows acceptance of the reasons asserted.      Further,

given the high degree of deference to the district court

demanded in the review of a district court’s conclusion

regarding a Batson challenge, the government has met its

requisite burden.   The district court’s conclusion is

AFFIRMED.




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