The Honorable James M. Rosenbaum, United States *

 District Judge for the District of Minnesota, 

 sitting by designation.

 The Honorable Catherine D. Perry, United States District 1

Judge for the Eastern District of Missouri.

___________

No. 96-1262

 ___________

United States of America, *

 *

Plaintiff-Appellee, *

 * Appeal from the United States

 v. * District Court for the Eastern

 * District of Missouri

Cleophus Feemster, * 

 *

Defendant-Appellant. *

 *

____________________

Submitted: June 11, 1996

 Filed: October 25, 1996

____________________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Circuit Judge,

and ROSENBAUM, District Judge. *

____________________ 

FLOYD R. GIBSON, Circuit Judge.

Cleophus Feemster was convicted of one count of being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g)(1) (1994) and

one count of possession of an unregistered firearm in violation of 26

U.S.C. § 5861(d) (1994). He was sentenced to a total of 55 months

1

imprisonment. He now appeals his conviction on the basis that the

prosecutor's use of "peremptory" challenges to strike African American

jurors violated the Supreme Court's decision in Batson v. Kentucky, 476

U.S. 79 (1986). We affirm.
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I. BACKGROUND

Feemster is an African American. The venire panel of twenty-eight

persons included three African Americans and twenty-eight Caucasians. The

prosecution used three of its six "peremptory" challenges to strike all

three of the African American venirepersons, Nos. 13, 15, and 20, resulting

in an all-white jury and alternates. After the exercise of the

"peremptory" challenges but before the jury was sworn in, defense counsel

moved for a mistrial pursuant to Batson, claiming that the prosecution had

exercised its "peremptory" challenges in a racially discriminatory manner.

The district court assumed without deciding that Feemster had articulated

a prima facie case of discrimination under Batson and asked the prosecution

to come forward with racially neutral reasons for its use of its

"peremptory" challenges.

The prosecution first stated that it was looking to strike

venirepersons who lacked strong ties to the community. The defense then

pointed out that Juror 20, an African American man, had owned a home in the

community for twenty-six years, held the same job for twenty-five years,

was married, and had two adult children. The prosecution then stated that

it had struck Juror 20 because it was troubled by his close relationship

with his stepson, who had been convicted of fraud. 

The defense then pointed out that Juror 13, an African American

woman, had been locally employed as a school teacher for four years and had

two young children. The prosecution replied that its motivation for

striking her also included the facts that she was young in relation to the

rest of the panel, had taken prior law-related classes in undergraduate

school, and had sat for the Law School Admissions Test (LSAT). 

Finally, the defense argued that Juror 15, an African American man,

though unemployed, was a longstanding St. Louis resident with
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significant community ties. The prosecution replied that the facts that

Juror 15 was young, single, unemployed, and had a brother who had been

convicted of drug possession had all factored into its decision to strike

him. The district court ultimately found that the prosecution had not

exercised its "peremptory" strikes in a racially discriminatory manner and

denied Feemster's motion. 

II. DISCUSSION

The Equal Protection Clause of the United States Constitution forbids

the prosecution from using its "peremptory" challenges to strike potential

jurors based "solely on account of their race." Batson, 476 U.S. at 89.

Batson dictates a three-step analysis: First, the defendant must make a

prima facie showing that the prosecution has used its "peremptory"

challenges to strike a potential juror because of race. Once the defendant

has made such a showing, the prosecution bears the burden of coming forward

with a race-neutral explanation for challenging the juror in question.

Finally, the district court must determine whether the defendant met his

burden of proving purposeful discrimination. Hernandez v. New York, 500

U.S. 352, 358-59 (1991) (citing Batson, 476 U.S. at 96-98). We review the

district court's ultimate finding of purposeful discrimination for clear

error. United States v. Logan, 49 F.3d 352, 357 (8th Cir. 1995).

We find none. Feemster first asserts that the district court skipped

the third phase of the Batson analysis by blindly accepting the

prosecution's assurances once it proffered race-neutral reasons for the

exercise of its "peremptory" challenges. A closer examination of the

record, however, shows that the district court properly weighed the

persuasiveness of the proffered race-neutral reasons as it should have at

that stage, Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir. 1996), petition

for cert. filed, (June 7, 1996) (No. 95-9543), and made a very specific

finding that "the Government has not exercised their peremptories in a

racially
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discriminatory manner." See United States v. Jenkins, 52 F.3d 743, 747

(8th Cir. 1995). 

 

Feemster next asserts that the proffered race-neutral reasons were

clearly pretextual, and that the district court's ultimate conclusion is

erroneous. In addition to bearing the ultimate burden of persuasion, the

defendant also bears the burden of proving pretext once a race-neutral

explanation has been offered. United States v. Scott, 26 F.3d 1458, 1467

(8th Cir.), cert. denied, 115 S. Ct. 584 (1994). Feemster accurately

argues that all three of the struck African American venirepersons had

strong community ties. Were this the sole race-neutral explanation offered

by the prosecution, we might be inclined to find pretext. The prosecution,

however, offered additional alternative race-neutral reasons that factored

into its decision to strike Jurors 13, 15, and 20. The prosecution stated

that it struck Juror 13, who had taken some business law and criminal law

undergraduate courses and had sat for the LSAT, due in part to her relative

youth in comparison to the rest of the panel and her prior legal training.

Both relative youth and prior legal training qualify as potential raceneutral factors justifying the exercise of "peremptory" challenges. United

States v. Hoelscher, 914 F.2d 1527, 1540-41 (8th Cir. 1990), cert. denied,

500 U.S. 943 (1991); Scott, 26 F.3d at 1466. The prosecution further

stated that it struck Jurors 20 and 15 largely because both men had a close

relationship with someone who had been convicted of a serious crime. This

Court has held in the past that the incarceration of a close family member

is a legitimate race-neutral reason justifying the use of a "peremptory"

strike. United States v. Jackson, 914 F.2d 1050, 1052-53 (8th Cir. 1990).

Feemster contends that these explanations are pretextual because they

were not consistently applied to similarly situated white jurors. We are

mindful that pretext may be shown where "non-stricken white panel members

share the characteristics of a
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stricken minority panel member." Jenkins, 52 F.3d at 747. In this case,

however, we find no evidence of such disparate treatment of similarly

situated white venirepersons. The prosecution struck Juror 11, a white

woman whose brother had been charged with embezzlement. It also struck

Juror 27, a white woman who whose husband had been charged with felony DWI.

While the prosecution failed to strike Juror 14, a white man whose cousin

had been convicted of fraud, the prosecution adequately distinguished the

closeness of the relationship between this particular juror and his

convicted relative as opposed to Jurors 11, 15, 20, and 27. We agree that

Juror 14 was not similarly situated to the other jurors struck because of

their close relationship with a convicted relative. As such, we believe

the prosecution applied this factor evenhandedly and find no evidence of

pretext to support Feemster's claim on this issue. We similarly find no

evidence that the prosecution failed to challenge white jurors similarly

situated to Juror 13. While other white jurors with some degree of legal

education were not struck, there were no other similarly situated white

jurors who had taken criminal law classes or had sat for the LSAT. 

Our decision would be easier had the prosecution initially come

forward with these valid race-neutral reasons instead of attempting to rely

on the clearly inapplicable "community ties" rationale. Nevertheless, this

issue boils down to a question of credibility, and "evaluation of the

prosecutor's state of mind based on demeanor and credibility lies

'peculiarly within a trial judge's province.'" United States v. Darden,

70 F.3d 1507, 1531 (8th Cir. 1995) (quoting Hernandez, 500 U.S. at 365),

cert. denied, 116 S. Ct. 1449 (1996)), and these proffered criteria are

hardly the type of "implausible" or "fantastic" post-hoc justifications

that would facially indicate pretext. Purkett v. Elem, 115 S. Ct. 1769,

1771 (1995) (per curiam). Consequently, we conclude that Feemster has

failed to carry his burden of demonstrating pretext.
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III. CONCLUSION

We do not find the district court's decision that the prosecution did

not exercise its "peremptory" challenges in a racially discriminatory

manner to be clearly erroneous. Consequently, we affirm its judgment.

A true copy.

Attest:

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