### 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.
Cleoph us Feemster was convicted of one count of being a felon i n possession of ammunit ion in violation of 18 U.S.C. § 922(g)(1) (1994) and
one count of possession of an unregistered firearm in violation of 2 6 U.S.C. § 5861(d) (1994). He was sentenced to a total of 55 month s 1 imp risonment. He now appeals his conviction on the basis that th e pros ecutor's use of "peremptory" challenges to strike African America n jur ors violated the Supreme Court's decision in Batson v. Kentucky , 47 6 U.S. 79 (1986). We affirm.

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I. BACKGROUND

Feemster is an African American. The venire panel of twenty-eigh t persons included three African Americans and twe nty-eight Caucasians. The pro secution used three of its six "peremptory" challenges to strike al l three of the African American venirepersons, Nos. 13, 15, and 20, resultin g in an all-white jury and alternates. After the exercise of th e "peremptory" challeng es but before the jury was sworn in, defense counsel moved for a mistrial pursuant to Batson , claimin g that the prosecution had exercised its "peremptory" challenges in a racia lly discriminatory manner. The district court as sumed without deciding that Feemster had articulated
a prima facie case of discrimination under Batsonand asked the prosecutio n to come forward with racially neutral reasons for its use of it s "peremptory" challenges.

The prosecution first stated that it was looking to strik e 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 th e community for twenty-six years, held the same job for twenty-five years, was married, and had two adult children. The pr osecution 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 defen se then pointed out that Juror 13, an African America n woman, had been locally employed as a school teacher for four years and ha d two young children. The prosecution replied that its motivation fo r striking her also included the facts that she wa s young in relation to the
res t of the panel, had taken prior law-related classes in undergraduat e 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 bee n convicted of drug pos session had all factored into its decision to strike him. The district court ultimately found that the prosecution had no t 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 f orbids the prosecution from using its "peremptory" chal lenges to strike potential jurors based "solely on account of their race." Batson , 476 U.S. at 89. Bat son 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 defendan t has made such a showing, the prosecution bears the burden of coming forwar d 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 s kipped the third phase of the Batson analysis by blindly accepting th e prosecution's assurances once it proffered race-neutral reasons for th e exercis e of its "peremptory" challenges. A closer examination of th e record , however, shows that the district court properly weighed th e 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 specifi c finding that "the Government has not exercised their peremptories in a racially

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discriminatorymanner." See United States v. Jenkins , 52 F.3d 743, 74 7 (8th Cir. 1995).

Fe emster next asserts that the proffered race-neutral reasons wer e clearly pretextual, and that the district court's ultimate conclusion is erroneous. In additi on to bearing the ultimate burden of persuasion, the defendant also bears the burden of proving pretext once a race-neutra l explanation has been offered. United States v. Scott , 26 F.3d 1458, 1467 (8th Cir.) , cert. denied , 115 S. Ct. 584 (1994). Feemster accuratel y argues that all three of the struck African American venirepersons ha d strong community ties. Were this the sole race-neutral explanation offere d by the prosecution, we might be inclined to find pretext. The prosecution , however, offered additional alternative race-neu tral reasons that factored into its decision to strike Jurors 13, 15, and 2 0. 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 relativ e youth in comparison to the rest of the panel andher prior legal training. Bot h relative youth and prior legal training qualify as potential race

neutral factors justifying the exercise of "peremptory" challenges. Unite d 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 furthe r stated that it struck Jurors 20 and 15 largely because both men had a clos e relationship with someone who had been convictedof a serious crime. This Court has held in the past that the incarceratio n 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 becaus e 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 pan el member." Jenkins , 52 F.3d at 747. In this case, however , we find no evidence of such disparate treatment of similarl y sit uated white venirepersons. The prosecution struck Juror 11, a whit e woman whose brother had been charged with embezzlement. It also struc k Juror 27, a white woman who whose husband had been charged with felony DWI

. While the prosecutionfailed to strike Juror 14, a white man whose cousin had been convicted of fraud, the prosecution adequately distinguished the closen ess of the relationship between this particular juror and hi s convicted relative as opposed to Jurors 11, 15, 20, and 27. We agree that Juror 14 was not simi larly 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 edu cation were not struck, there were no other similarly situated whit e jurors who had taken criminal law classes or had sat for the LSAT.

Our decision would be easier had the prosecution initially com e forward with these valid race-neutral reasons instead of attempting to rel y on the clearly inapplicable "community ties" rationale. Nevertheless, thi s issue boil s down to a question of credibility, and "evaluation of th e prosec utor's state of mind based on demeanor and credibility lie s '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 ar e hardly the type of "implausible" or "fantastic" post-hoc justification s that would facially indicate pretext. Purkett v. Elem , 115 S. Ct. 1769, 1771 (1995) ( per curiam ). Consequently, we conclude that Feemster ha s 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 prosecuti on did not exe rcise its "peremptory" challenges in a racially discriminator y manner to be clearly erroneous. Consequently, we affirm its judgment

.

A true copy.

Attest:

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