United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 8, 2006
IN THE UNITED STATES COURT OF APPEALS September 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30572
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEVELAND JYNES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-00279-1
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Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit
Judges.
PER CURIUM :*
Cleveland Jynes contends on appeal that prosecution’s
exercise of its peremptory challenges against six
African-American venire persons violated the principles
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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of Batson v. Kentucky, 476 U.S. 79 (1986). Specifically,
Jynes points to the striking of two particular African-
American jurors, Ivy Hill and Glenda Price. The
prosecutors asserted several reasons as to both Hill’s
and Price’s exclusion from the jury pool.
It is well-settled that the Equal Protection Clause
forbids a prosecutor’s challenge of potential jurors
solely on account of their race. In determining whether
a prosecutor has used a peremptory challenge in violation
of Batson, we must respect the dictated standard of
review while analyzing the facts under the Batson burden
shifting structure.
Standard of Review
Imperative to our decision in this case is the
applicable standard of review. Where a district court
has “entertained and ruled on a defendant’s motion
charging a Batson violation,...we apply a ‘clearly
erroneous’ or ‘great deference’ standard of review.”
U.S. v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir.
1988). This is the case “since findings in this context
largely turn on an evaluation of the credibility or
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demeanor of the attorney who exercises the challenge.”
U.S. v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993).
Analysis
Batson and its progeny provide a three-step inquiry
for a claimant’s challenge to a peremptory strike based
on race. First, the claimant must make a prima facie
showing that the prosecutor was motivated by race in
exercising the peremptory challenge. Second, the burden
of production1 shifts to the prosecutor to come forth with
a race-neutral explanation for the strike. Third, the
court must determine whether the claimant has carried his
burden of proving purposeful discrimination.
The First Step. The claimant must illustrate that
the totality of the relevant facts gives rise to an
inference of discriminatory purpose. Johnson v.
California, 125 S.Ct. 2410, 2416 (2005). As noted in
Johnson:
(1) a claimant must show that he belongs to a
cognizable racial group and that the prosecutor has
exercised peremptory challenges to remove co-members
of his race from the venire members;
1
The ultimate burden of persuasion remains, at all
times, with the claimant.
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(2) the claimant may rely on the fact that
peremptory challenges constitute a jury selection
practice that permits those with intent to
discriminate the opportunity to do so; and
(3) the claimant must show that these facts and any
other relevant circumstances raise an inference
that the prosecutor used that practice to exclude
the veniremen on account of race.2
The court should consider all relevant circumstances in
determining whether the prima facie case can be
established including a pattern of strikes against jurors
of a certain race and a party’s statements and questions
during voir dire. Brown v. Kinney Shoe Corp., 237 F.3d
556, 560 (5th Cir. 2001). However, there is no intent
for “...[t]he first step to be so difficult as to require
the claimant to persuade the judge...that the challenge
was more likely than not the product of purposeful
discrimination.” Johnson, 125 S.Ct. at 2412.
In the case at bar, claimant Jynes has made his prima
facie showing. As an African-American, he is a member of
a cognizable racial group, and further, the prosecutors
used all six of their peremptory challenges to remove
African-Americans from the jury pool. That alone is
2
Johnson v. California, 125 S.Ct. 2410, 2416-17 (2005).
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enough to raise the inference of purposeful
discrimination.
The Second Step. Once the claimant has satisfied the
showing of a prima facie case, the burden of production
shifts to the prosecutor to show a race-neutral
explanation for the strikes against those jurors in the
arguably targeted class. Race-neutral simply means
something besides race. Hernandez v. New York, 111 S.Ct.
1859, 1866 (1991). The prosecutor must give clear and
reasonably specific explanations of his legitimate
reasons for exercising peremptory challenges, Miller-El
v. Dretke, 125 S.Ct. 2317, 2324 (2005); however, the
explanations need not be persuasive or even plausible at
this step. Purkett v. Elem, 115 S.Ct. 1769, 1771 (1995).
The prosecutor should easily be able to fulfill this
phase because “[u]nless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason
offered will be deemed race-neutral.” Id. (citing
Hernandez, 111 S.Ct. at 1866).
In the instant case, the prosecutors gave several
race-neutral reasons for the strikes. As to Hill, the
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prosecutors asserted: (1) her menial job (and inferential
poverty); (2) her residence in New Orleans; (3) her
presumptive run-ins with the police; and (4) her
outspoken manner of speaking. Certainly, the first,
second, and fourth reasons are race-neutral in that they
are something besides race. Though the third reason is
presumptuous, as the prosecutor seems to be implying that
those who work in menial jobs, are poor, and live in New
Orleans are more likely to have run-ins with the police,
it is not necessarily a race-based stereotype, i.e., it
could apply just as easily to races other than African-
Americans. As to Price, the prosecutor provides the
following reasons for the strike: (1) her menial job; (2)
crime in the location of her employment; (3) her
outspoken nature; (4) her loud, firm voice; and (5) the
prosecutor’s own “instinct.” All of these reasons
clearly are “something other than race.” Accordingly,
the prosecutors have survived this phase of the analysis.
The Third Step. The district court judge must
determine whether the claimant has carried his burden of
proving purposeful discrimination. The ultimate question
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in a Batson challenge is whether the prosecutor’s
justifications are persuasive to the judge. Miller-El v.
Cockrell, 123 S.Ct. 1029, 1040, (2003). In U.S. v.
Bentley-Smith, 2 F.3d 1368, 1375, (1993), the court
explained, “[t]he ultimate inquiry for the judge is not
whether counsel's reason is suspect, or weak, or
irrational, but whether counsel is telling the truth in
his or her assertion that the challenge is not race-
based.” “Credibility can be measured by, among other
factors, the prosecutor's demeanor; by how reasonable, or
how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial
strategy.” Id. at 1040.
In the case at bar, the district judge concluded that
the claimant failed to satisfy this burden. Such a
conclusion is entitled to great weight and deference.
Further, case law within this Circuit supports the
prosecution’s use of employment, residence,
outspokenness, and loud voice as race-neutral reasons to
allow the strike.
Residence, Employment, Instinct
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In Lewis v. Poole, 114 Fed. Appx. 144 (5th Cir.
2004), an unpublished opinion, this court affirmed a
district court finding of no Batson violation. In Lewis,
defense counsel stated that the jurors had been struck
because they were from an area of Louisiana that was
notoriously plaintiff-friendly, and because they held
lower income, traditionally subservient jobs.3 Further,
the defense attorney relied on “instinct” as an
explanation for the peremptory strikes. The court
accepted this explanation, noting “the ‘decisions of this
court have made it plain that the process of choosing a
jury may be influenced by the “intuitive assumptions” of
the attorneys.’” Id. at 145 (citing Bentley-Smith at
1374). As no discriminatory intent is inherent in
defense counsel's explanation that he relied on
“instinct,” the explanation must be deemed race-neutral.
Id. (referencing Purkett). Like defense counsel in Lewis,
the prosecution based its decision to strike, in part, on
3
See also, U.S. v. Pofahl, 990 F.2d 1456 (5th Cir. 1993)
where this Court held that the prosecutor’s desire to exclude
venire persons who earned low wages and were not employed full
time was sufficient.
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Hill and Price’s residence in New Orleans, menial jobs,
and their own instinct.
Outspoken and Loud Voice:
In Washington v. Johnson, 90 F.3d 945, 953 (5th Cir.
1996), the court held that the prosecutor’s perception of
a juror as strong-willed and obstinate, among other
factors, was a legitimate ground for a peremptory strike.
Similar to the prosecutor in Washington, who found a
prospective juror to be “strong-willed” and “obstinate,”
the prosecutors in the instant case alleged that Hill and
Price seemed “outspoken.” They further explained that
Price had a “loud voice.”
The record contains little to no evidence to support
this assertion. However, outspokenness and loud voices
are not assertions easily gleaned from reading words on
paper and are more easily discernible by presence in the
courtroom. Since the district judge was present and
observed these exchanges, we must give her the requisite
deference and accept her finding.
Conclusion
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Though defendant Jynes made his prima facie showing
of an inference of discriminatory purpose, as required by
Batson, the government rebutted it with numerous race-
neutral explanations. The jurisprudence in this Circuit
allows acceptance of the reasons asserted. Further,
given the high degree of deference to the district court
demanded in the review of a district court’s conclusion
regarding a Batson challenge, the government has met its
requisite burden. The district court’s conclusion is
AFFIRMED.
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