                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1578
                                   ___________

Tyrone Devoil-El,                    *
                                     *
           Appellant,                *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Missouri.
Michael Groose, Superintendent,      *
                                     *
           Appellee.                 *
                                ___________

                             Submitted: September 25, 1998

                                 Filed: November 13, 1998
                                  ___________

Before WOLLMAN, LOKEN, and KELLY,1 Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

      Tyrone Devoil-El appeals from the district court’s2 judgment dismissing his 28
U.S.C. § 2254 petition for writ of habeas corpus. We affirm.



      1
       The Honorable John D. Kelly died on October 21, 1998. The opinion is
consistent with his vote at the panel’s conference following oral argument on
September 25, 1998.
      2
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
                                            I.

       Devoil-El was found guilty of stealing from a person and was sentenced to
sixteen years’ imprisonment. His motion for post-conviction relief was denied by the
trial court. In a summary opinion, the Missouri Court of Appeals affirmed both the
conviction and the denial of post-conviction relief. See State v. Devoil, 865 S.W.2d
896 (Mo. Ct. App. 1993).

        The sole issue on appeal is whether the State improperly exercised peremptory
strikes to exclude six African-American potential jurors from the venire in violation of
the Equal Protection Clause of the Fourteenth Amendment. See Batson v. Kentucky,
476 U.S. 79 (1986).

        The State used all six of its peremptory strikes to remove African-American
venirepersons. Devoil-El objected to the strikes as discriminatory. In response to the
objection, the prosecutor contended that each juror was removed because of one or
more of the following factors: body language, having been a crime victim, stating
dissatisfaction with the manner in which the police had handled a previous matter,
having been charged with a crime, having a relative in jail, or being unemployed. The
trial court found that none of the strikes had been exercised in a racially discriminatory
manner.

       Devoil-El contends that these explanations for exercising the peremptory strikes
are pretextual. Specifically, he claims that the strike based upon body language must
be found discriminatory because it was subjective and was used to remove only an
African-American juror. In addition, he argues that the other reasons violate Batson
because they result in a disparate impact upon African-Americans.




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                                           II.

       We conduct a three-part analysis under Batson to determine the validity of
peremptory strikes. See United States v. Jenkins, 52 F.3d 743, 746 (8th Cir. 1995).
First, the defendant must make a prima facie showing that the State exercised a
peremptory strike because of race. Second, if such a showing is made, the burden
shifts to the State to articulate a race-neutral explanation for striking the prospective
juror. Third, the trial court must decide whether the defendant has proven purposeful
discrimination. See id.

       Although the trial court failed to rule on whether a prima facie showing had been
made, this lapse is inconsequential, because once the State has offered a race-neutral
explanation for exercising the strikes, “the preliminary issue of whether the defendant
had made a prima facie showing becomes moot.” Hernandez v. New York, 500 U.S.
352, 359 (1991); see also United States v. Bishop, 959 F.2d 820, 824 (8th Cir. 1992)
(quoting Hernandez).

      Step two of Batson requires the State to articulate a race-neutral reason for the
strike. See Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997). At this step, the court
need not decide whether the explanation for the strike is “persuasive, or even
plausible.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam); see also Gee, 110
F.3d at 1351. The State’s reason may not be a mere denial of racial motive, however.
See Gee, 110 F.3d at 1351. Here, the State met its burden by articulating a race-neutral
reason for striking each juror.

       “Once the prosecutor offers a race-neutral basis for his exercise of peremptory
challenges, ‘[t]he trial court then [has] the duty to determine if the defendant has
established purposeful discrimination.’” Hernandez, 500 U.S. at 363 (quoting Batson,
476 U.S. at 98). The trial court’s findings regarding pretext are on questions of fact,
which we will set aside only if clearly erroneous. See Hernandez, 500 U.S. 364-66.

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       The State struck one of the venirepersons because of his body posture. The
prosecutor stated that this venireperson had covered his face with his hands, slouched
in his seat, rolled his eyes, and looked uninterested. We have upheld a finding that
scowling, body language, and facial expressions were race-neutral, see Jenkins, 52 F.3d
at 745-46, and likewise we do so here.

       Devoil-El contends that the strikes exercised on the basis of the venireperson’s
unemployment, having a relative in jail, dissatisfaction with the police, having been
charged with a crime, and having been a crime victim all result in the removal of
African-Americans more often than Caucasians and thus are pretextual. We have found
similar reasons to be sufficiently race-neutral to withstand a Batson challenge. See
Malone v. Vasquez, 138 F.3d 711, 720 n.13 (8th Cir.), cert. denied, No. 98-6018, 1998
WL 651087 (U.S. Oct. 19, 1998) (allowing strike of potential juror who had been the
victim of an armed robbery, where no Caucasian venirepersons had been victims of
violent crimes); United States v. Gibson, 105 F.3d 1229, 1231-32 (8th Cir. 1997)
(upholding strike of potential juror who was the victim of a rape and who reported that
she had received unfair treatment from law enforcement as race neutral, in the absence
of a showing of pretext); Bowersox, 78 F.3d at 373-74 (permitting removal of potential
juror who had relatives that had previously been tried or convicted of a criminal
offense); United States v. Carr, 67 F.3d 171, 175-76 (8th Cir. 1995), cert. denied, 516
U.S. 1182 (1996) (stating that unemployment is race-neutral reason for strike when
defendant makes no attempt to show that unemployment was pretextual reason); United
States v. Jackson, 914 F.2d 1050, 1052-53 (8th. Cir. 1990) (upholding explanation for
strike that venireperson’s nephew was incarcerated). Although Devoil-El argued that
these reasons were pretextual because Caucasian jurors sharing the same characteristics
were not removed, the trial court found that because the combination of characteristics
was different in the non-stricken venirepersons, the state’s proffered reasons were
nondiscriminatory.




                                          -4-
       Nevertheless, Devoil-El claims that because peremptory challenges based upon
these reasons result in disparate impact on African-Americans, they violate Batson. As
we have noted, however, disparate impact alone, without the showing of intent to
discriminate, will not “trigger the strictest level of scrutiny.” United States v. Greene,
995 F.2d 793, 796 (8th Cir. 1993). “An argument relating to the impact of a
classification does not alone show its purpose.” Hernandez, 500 U.S. at 362.
Therefore, even if the reasons given by the prosecutor result in the use of strikes against
African-Americans more often than against Caucasian venirepersons, the strikes will
not violate Batson without some showing that the prosecutor removed the potential
jurors “because of” their race. See Hernandez, 500 U.S. at 359-60.

        Devoil-El argues that discriminatory intent to remove African-American jurors
may be shown by looking to the totality of the circumstances. He contends that the trial
court erred by evaluating each strike individually, instead of looking to the pattern of
strikes exercised by the prosecutor. A trial court may indeed look to the
disproportionate removal of minority jurors to show discriminatory intent. See
Hernandez, 500 U.S. at 363-64; United States v. Brooks, 2 F.3d 838, 841 (8th Cir.
1993). A trial court’s findings of discriminatory intent will turn largely on its
assessment of the credibility of the proffered reasons for removing a venireperson. See
Hernandez, 500 U.S. at 365; United States v. Scott, 26 F.3d 1458, 1467 (8th Cir.
1994). With the exception of the venireperson removed because of his body language,
all of the other African-American venirepersons were removed for a combination of
reasons, such as being unemployed and having a relative in jail, which distinguished
them from the non-challenged Caucasian venirepersons. Accordingly, we conclude
that the trial court’s finding that the state’s peremptory strikes were not racially
motivated cannot be said to be clearly erroneous.

      The judgment is affirmed.




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A true copy.

      Attest:

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




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