                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-2156
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Emmanuel Jones,                        * Eastern District of Missouri.
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: January 11, 2001

                                 Filed: April 4, 2001
                                  ___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and DOTY,1
      District Judge.
                          ___________

BEAM, Circuit Judge.




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
       A jury convicted Emmanuel Jones, an African American, of various firearms
possession offenses and the district court2 sentenced him to 192 months' imprisonment.
During jury selection, the government used peremptory strikes to dismiss two of four
African American veniremembers. Jones argues that, pursuant to Batson v. Kentucky,
476 U.S. 79 (1986), the court clearly erred in its determination that the government's
proffered reasons for one of the strikes were race neutral and not merely pretextual.3
Because the record supports the court's findings, we affirm.


        Upon his challenge to the prosecution's peremptory strike, the court found Jones
had made a prima facie showing that the strike was based on race.4 In response, the
government offered various justifications for the strike, including the veniremember's
attire, profession, and familiarity with the vicinity in which the incident occurred. The


      2
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
      3
       In his brief, Jones addresses only one of the peremptory strikes and we,
therefore, limit our review accordingly. Malone v. Vasquez, 138 F.3d 711, 716 (8th
Cir. 1998) (finding appellant abandoned several claims made to the district court by not
presenting them in his appellate brief).
      4
          The Supreme Court has stated:

      [T]he prosecutor's questions and statements during voir dire examination
      and in exercising his challenges may support or refute an inference of
      discriminatory purpose. . . . We have confidence that trial judges,
      experienced in supervising voir dire, will be able to decide if the
      circumstances concerning the prosecutor's use of peremptory challenges
      creates a prima facie case of discrimination against black jurors.

 Batson, 476 U.S. at 97; see also United States v. Davis, 154 F.3d 772, 781 (8th Cir.
1998) (indicating that we need not address whether defendant asserting Batson
challenge made prima facie case when government has offered race-neutral
explanations for peremptory strikes).

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prosecutor also indicated that the veniremember appeared tired. The court found these
explanations to be race neutral. Jones only addressed the clothing and fatigue
justifications, and asked that all the veniremembers be photographed to preserve their
manner of dress for the record. Indicating that cameras were prohibited in that
courthouse, the court refused this request, but added that counsel could photograph the
jurors as they exited.5 The court agreed with the prosecutor that the veniremember
appeared "somewhat restless and tired," and rejected the contention that the
government had treated the veniremember differently than others similarly situated. It
concluded Jones had failed to prove purposeful discrimination and denied his challenge.

       A Batson challenge requires a three-step, burden-shifting analysis. United States
v. Elliott, 89 F.3d 1360, 1365 (8th Cir. 1996). First, the opponent of a peremptory
strike must make a prima facie case of racial discrimination. Purkett v. Elem, 514 U.S.
765, 767 (1995). The burden of production then shifts to the proponent of the strike,
who must tender a race-neutral explanation. Id. Finally, if a race-neutral explanation
is presented, the trial court must determine whether the opponent of the strike has
proven purposeful racial discrimination. Id. We review for clear error the court's
ultimate evaluation of whether discriminatory intent motivated the government. Elliott,
89 F.3d at 1365.

       "In view of the heterogenous population of our Nation, public respect for our
criminal justice system and the rule of law will be strengthened if we ensure that no
citizen is disqualified from jury service because of his race."6 Batson, 476 U.S. at 99.


      5
       We note that the defense could have achieved its desired result by merely
describing, on the record, what veniremembers were wearing.
      6
        The prosecutor is an integral component of the criminal justice system. As
such, the government shares the responsibility of strengthening that system in this
respect to prevent Batson from becoming a "meaningless charade." See Elem, 514
U.S. at 777 (Stevens, J., dissenting); see generally Model Rules of Prof'l Conduct R.

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Although "the prosecutor's explanation [for his strike] need not rise to the level
justifying exercise of a challenge for cause," he "may not rebut the defendant's prima
facie case of discrimination by stating merely that he challenged jurors of the
defendant's race on the assumption–or his intuitive judgment–that they would be partial
to the defendant because of their shared race." Id. at 97. At the second step of
analysis, the prosecution's reason does not necessarily have to make sense, but it must
be one that does not deny equal protection. Elem, 514 U.S. at 769. Therefore,
discriminatory intent cannot be inherent in the reason. Williams v. Groose, 77 F.3d
259, 261 (8th Cir. 1996). For instance, the veniremember's grooming may be a
sufficiently race neutral explanation, Elem, 514 U.S. at 769, as may his style of dress,
United States v. Swinney, 970 F.2d 494, 496 (8th Cir. 1992), and his inattentiveness
and demeanor, United States v. Marrowbone, 211 F.3d 452, 456 (8th Cir. 2000). But
see United States v. Sherrills, 929 F.2d 393, 395 (8th Cir. 1991) (indicating "a
prosecutor's explanation of challenges on the grounds of inattentiveness deserves
careful scrutiny by the district court, and special care by counsel to fully develop the
record concerning the specific behavior" because determining whether such general
assertions are accurate "requires subjective judgments that are particularly susceptible
to the kind of abuse prohibited by Batson"). Because the burden of persuasion remains
with the defendant, even if the court finds the prosecutor's justification"implausible or
fantastic," if it is race neutral, the court must proceed to the third step. Elem, 514 U.S.
at 768.

       The plausibility or persuasiveness of the justification becomes relevant at this
final step, where the court determines whether the opponent of the strike has met his
burden of proving purposeful discrimination. Id. Here, genuineness is a proper basis



3.8 & cmt. (1998) ("A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate."); Model Code of Prof'l Responsibility EC 7-13 (1981)
("The responsibility of a public prosecutor differs from that of the usual advocate; his
duty is to seek justice, not merely to convict.").

                                           -4-
for finding a peremptory strike to be racially motivated. Id. at 769. Therefore, even
though the government's stated reason is race neutral, a defendant may be able to prove
it merely pretextual. Williams, 77 F.3d at 261. Although determination of the
prosecution's motivation turns primarily on the court's assessment of credibility and
demeanor, Elliott, 89 F.3d at 1365, "[a] party can establish an otherwise neutral
explanation is pretextual by showing that the characteristics of a stricken black panel
member are shared by white panel members who were not stricken," Davidson v.
Harris, 30 F.3d 963, 965 (8th Cir. 1994). "Pretext can also be based on a finding that
the factors used to explain the strike are irrelevant to a person's ability to perform as a
juror in the particular case." United States v. Jenkins, 52 F.3d 743, 747 (8th Cir.
1995).

       In the present case, the district court properly followed the process set forth in
Elem, finding the prosecution's reasons for the peremptory strike to be race neutral, and
proceeding to the final step.             The prosecutor struck similarly situated
veniremembers–one who was familiar with the vicinity and another who shared the
defendant's profession. These factors were relevant because, as the prosecutor
explained, he wanted jurors to whom he could provide a fresh conceptualization of the
scene and, also, because those who shared the defendant's line of work might be
sympathetic to him for reasons other than his culpability. The defense rebutted neither
explanation, nor developed the record to address the assertions that the veniremember
appeared tired and was inappropriately dressed. Cf. United States v. Jones, 195 F.3d
379, 382 (8th Cir. 1999) (indicating the defense failed to present evidence supporting
its theory of pretext); Sherrills, 929 F.2d at 395 (highlighting the need to carefully
develop the record).

       Having reviewed the record, we find it supports the district court's determination
that the defense failed to meet its burden. See Swinney, 970 F.2d at 496 ("The district
court was in a unique position to judge the Government's peremptory challenges in light


                                           -5-
of the voir dire, and the district court's observations in this regard are particularly
crucial."). We, therefore, find no clear error and, accordingly, affirm.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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