T he Honorable John D. Kelly died on October 21, 1998. The opinion i s 1 con sistent with his vote at the panel’s conference following oral argument o n September 25, 1998. The Ho norable Jean C. Hamilton, United States District Judge for the Eastern 2 District of Missouri. 

## 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, Circuit Judges. 1

___________ WOLLMAN, Circuit Judge. Tyrone De voil-El appeals from the district court’s judgment dismissing his 28 2 U.S.C. § 2254 petition for writ of habeas corpus. We affirm.-2- I.
Devoil-El w as found guilty of stealing from a person and was sentenced t o sixteen years’ imprisonment. His motion for post-conviction relief was denied by the trial cour t. In a summary opinion, the Missouri Court of Appeals affirmed both th e conviction and the denial of post-conviction relief. See State v. Devoil , 865 S.W.2d 896 (Mo. Ct. App. 1993).
The sole issu e on appeal is whether the State improperly exercised peremptory strikes to exclude six African-A merican 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-America n 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 o r mor e of the following factors: body language, having been a crime victim, statin g dissatisfaction with the manner in which the police had handled a previous matter , having been charged with a cr ime, 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 prete xtual. Specifically, he claims that the strike based upon body language must be found discriminatory because it was subjective and was used to remove only a n African-Americanjuror. In addition, he argues that the other reasons violate Batso n because they result in a disparate impact upon African-Americans.-3- II.
We conduc t a three-part analysis under Batson to determine the validity o f peremp tory 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 burde n shift s to the State to articulate a race-neutral explanation for striking the prospectiv e 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 f acie showing had been
ma de, this lapse is inconsequential, because once the State has offered a race-neutral explanation for exer

cising 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 (19 91); 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 th is step, the court need not decide whether the explanation for the strike is “persuasive, or eve n plausible.” Purkett v. Elem , 514 U.S. 765, 768 (1995) (per curiam); see also Gee , 110 F.3d at 1351. The State’s re ason may not be a mere denial of racial motive, however. See Gee , 110 F.3d at 1351. Here, the State met its burden by articulatin g a race-neutral reason for striking each juror.
“Once theprosecutor offers a race-neutral basis for his exercise of peremptory challeng es, ‘[t]he trial court then [has] the duty to determine if the defendant ha s 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, whichwe will set aside only if clearly erroneous. See Hernandez , 500 U.S. 364-66

.-4-

Th e State struck one of the venirepersons because of his body posture. Th e 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 tha t scowling, body language, and facial expressions were race-neutral, see Jenk ins , 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
un employment, having a relative in jail, dissatisfaction with the police, having bee n charged wi th a crime, and having been a crime victim all result in the removal o f African-Americans more often than Caucasians and thus are pretextual. We h ave found sim ilar reasons to be sufficiently race-neutral to withstand a Batson challenge. Se e Malone v. Vasquez , 138 F.3d 711, 720 n.13 (8th Cir.), cert. denied , N o. 98-6018, 1998 WL 651087 (U.S. O ct. 19, 1998) (allowing strike of potential juror who had been the victimof an armed robbery, where no Caucasian venirepersons had been victims o f viole nt crimes); United States v. Gibson , 105 F.3d 1229, 1231-32 (8th Cir. 1997 ) (upholding strike of potential juror who was t he 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 (pe rmitting removal of potential juror who had relatives that had previously been tried or convicted of a crimina l offense); United States v. Carr , 6 7 F.3d 171, 175-76 (8th Cir. 1995), cert. denied , 516 U.S. 1182 (1996) (stating that unemployment is race-neutral reason for strike whe n defendant makes no attempt to show that unemployment was pretextual rea son); United States v. Jackson , 914 F.2d 1050, 10 52-53 (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 cha racteristics were not removed, the trial court found tha t because the combination of characteristics
was different in the non-stricken venirepersons, the state’s proffered reasons wer e nondiscriminatory.-5-

Nevertheless, Devoil-El cla ims that because peremptory challenges based upon these reasons result in disparate impact on African-American s, they violate Batson . As
we ha ve noted, however, disparate impact alone, without the showing of intent t o 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 classifica tiondoes not alone show its purpose.” Hernandez , 500 U.S. at 362

. Therefore, even if the reasons given by the prosecutor result in the use o f strikes against African-Americans more often than against Caucasian venirepersons, the strikes will not vi olate Batson without some showing that the prosecutor removed the potentia l 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 ex ercised by the prosecutor. A trial court may indeed look to th e disprop ortionate removal of minority jurors to show discriminatory intent. Se e Hernandez , 50 0 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 it s assessment of the credibility of the proffered reasons for removing a veni reperson. 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 o f
rea sons, such as being unemployed and having a relative in jail, which distinguishe d th em from the non-challenged Caucasian venirepersons. Accordingly, we conclud e that the trial court’s finding that the state’s peremptory strikes were not raciall y motivated cannot be said to be clearly erroneous. The judgment is affirmed.-6-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.