thank you your honor and good morning and may have please the court my name is cyrus cuban and i represent the plaintiff appellant cozier well today we ask this court to reverse the district court denial that's a motion we respectfully submit that the district court committed clear error in doing so the district court's clearly erroneous analysis led to a clearly erroneous conclusion the district court mistakenly focused its credibility analysis not on the city's motivation but on the city's description of the black jurors physical movement as if that movement a vague momentary movement were the only relevant circumstance in the totality of circumstances analysis the district court should have ducked it in doing so the district court committed the very error that this court found in dolphy the mantello two thousand and nine the mistake being that the district court treated a single race neutral factor as  sufficient because of its fundamentally flawed framing of the issue district court not only failed to properly weigh all the relevant facts and circumstances ignored and glossed over the most crucial fac circumstances compelling circumstances that have been recognized by the supreme court as demonstrating discriminatory intent the circumstances established by clear preponderance of the evidence that race was a substantial credited description of a head movement given by the city but the district court did not analyze the credibility of the other for race neutral reasons offered by the city and those are those are previously served as a juror was another reason they struck him but they did not strike another juror who had served previously as a juror and the city did not inquire or ask to enquire about the jurors prior jury whether it credit the not moving parties race neutral explanations for striking the relevant panelist and it said that we have repeatedly emphasized that a trial court may not deny a patent motion without determining whether a credit the race neutral the district court here improperly fail to consider the other four as well as some other circumstances but how do you are as bad as you respond to this that in the you know apparently in the in circumstances and it said and i quote taking all the circumstances into account including the americans as disparity and the fact that the pen and not just struck another juror but also sat in  jury before a credible representation about juror number twelve behavior stated its conclusion that acknowledged the totality of circumstances case but its analysis was insufficient to address the totality of circumstances here while it may have stated that it addressed the totality of circumstances it analysis really should have explicit excuse me explicitly addressed each of the studies race neutral explanations including those that raised pretext to ality the fact that it failed to do so explicitly description it failed to explicitly rule on the credibility of all the studies i've explanations for the strike it just focuses now on one and it also ignored i mean it ignored one of the most important has been acknowledged by the supreme court as a very significant circumstance that that lends itself to pretext to ality the district courts and now it is not even acknowledge that fact and it's a very significant one and while it may have mentioned some of the other factors it did not properly analyze it and there were many other statement goes well the city made in providing explanations for their strike that raised that were discussed in our brief that raised ality concerns that the strip district court simply glossed over or ignored and so where is the question about whether it's its analysis was was proper in this case even circumstances case the record does not make clear that it actually conducted the totality of circumstance case in a way that batson deserves and so there's maybe a threshold question here about whether the district court properly conducted the totality of circumstances case and if that did not then the proper remedy would be to remand for that test and for all of the city's explanations to be properly addressed in the alternative if that this court finds that the district court did conduct the totality of circumstance case and clear error analysis wise than the many factors addressed in our briefing can be addressed there's the comparative analysis factor which the supreme court has acknowledged being an inconsistency that needs to be considered for establishing pretextual ality the failure to inquire about the jurors prior jury service is a lack of congress between words and action that lends itself to protect that's a just pretext to ality and flip flopping about the race of this juror from initially admitting that you was an african american or black juror to then questioning whether it's even possible to discern a person's race without asking you'll have you'll relative tries to sidestep this unambiguous record by making what really amounts to an artificial distinction that just doesn't hold up on closed on close scrutiny she claims that when the district court made its credibility assessment step three really all it was saying was that it believed ms mitchell's description of juror number twelve had movement and not that it believe that the head movements were the real reason for the str strike so that was obviously an effort to ascertain not just an accurate description of the head movement but also whether it was believable that the head movements or the fact the quote grounds for the strike and that there were any doubts about exactly what the district court was doing if you just look to the court's order the nine relative motion for a new trial the order lays it out very clear the court outlines an inquiry the court evaluated the totality of the circumstances and then hold that because the city quote provided a credible race neutral explanation for the strike well hasn't shown purposeful discrimination so this idea that that the relative that the district court somehow doesn't understand about something is just not true and the distinction that route was drawing illusory the the answer to the st question what did juror number twelve actually do inform the answer to the nd question why did the city strike your name and the district court's questioning bordighera plainly sought to answer both question both the credibility of the observation and the credibility of the race neutral reason and this court doesn't require the level of specificity and tailed explanation district court is required to recite instead of this court said in dulcie it what the district court have to do here and make an unambiguous rejection of the blocks and challenge and as part of that on him but us rejection the trial court has to make clear whether it credit the nonmoving parties race neutral explanation for the strike and that's what the district court did here and they did the courts this court is also hel that because evidence is step three of that that the inquiry is often very vague and ambiguous the best evidence is going to be the demeanor and the credibility of the attorney who exercises that challenge and again that exactly what the district court did here she requested that ms mitchell quote look her in the eye and provide a factual representation to the court and that's the way for the district court to assess ms mitchell demeanor and that's assess the credibility of the city the certain needs and for the strike if you attorney's description of the jurors head movement is credible and that means that more likely that the head movements are the real reason for the  to considered explicitly numerical disparity which is another way of saying relative strike rate and then quote the fact the defendant had not struck another juror who had sat on a jury before that comparative  the trial court on the court also said quote i'm satisfied that is a race neutral explanation where the strikes than the trial court in dopey never accept the credibility of the attorney proper in the race neutral challenge and never even mention the word credibility and that's just completely different from the situation we have here where the district court clearly analyzed the credibility question both in the  characterize as a central issue as saying whether defense counsels description of a juror's movement was credible and that is a tension that reflects an ambiguity in the  record and in terms of this relationship between the credibility of this one race neutral reason as being dispositive of the ultimate credibility determination that the district court should have conducted that maps very very directly with the analytical flaw identified and dulcie when the court observed that the proffer  of that single race neutral reason was not decisive in sufficient and it would be in this case your honor if the movement was so significant that says a demeanor that expressed hostility throughout the proceedings that in itself may have been decisive and sufficient because it would have been so significant that the other totality of circumstances would have sort of faded or become in significant here i asked the court to look at what was was described a vague momentary movement that nobody else observed that may have been a physical tick and to tether this entire analysis on a single observation that was momentary vague and did not express what courts have found as significant which is demeanor attitudes of impatience or negativity a there is a relationship and need to be a proper analysis of the tension between this single race neutral a description which was vague and the total the other circumstances that do express hostility towards this juror and a determination to strike and that relationship should have been  or the stability and predictability that entails our submission is that the rule given the stakes here are given equal protection in the significance of serving on a jury as being essential to our democracy the rule of law is better served by ensuring the district court conducts the proper analysis and as required by the supreme court and by the circuit as well thank you thank you thank you very much sir