United States v. Bailey

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 9, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30695
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT BAILEY,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-382-ALL
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert Bailey, who is black, appeals his conviction
following a jury trial for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). His sole argument
on appeal is that the district court erred in sustaining the
Government’s challenge under Batson v. Kentucky, 476 U.S. 79,
89 (1986), to his use of peremptory strikes to strike a white
juror, Ms. Raffray. The district court’s conclusion that
Bailey attempted to use his peremptory strike in a racially

-- 1 of 2 --

No. 03-30695
-2-
discriminatory matter is reviewed for clear error. United States
v. Pofahl, 990 F.2d 1456, 1466 (5th Cir. 1993).
Bailey has failed to demonstrate that the district court’s
conclusion was clearly erroneous. He contends that reversal is
required because the district court placed too high a burden on
him to demonstrate a legitimate reason for striking Raffray.
Bailey urges that he satisfied his burden of offering a facially
valid, race-neutral reason for striking her, to wit: her
friendship with another venire member.
Bailey’s argument is unpersuasive. Taking the district
court’s comments in toto, it is clear that the court accepted
the proffered reason but ultimately determined that it was
pretextual. The court’s determination that the proffered reason
was pretextual is entitled to great deference; moreover, it is
supported by strong prima facie evidence of discrimination, based
on the fact that Bailey had used nine of his 10 peremptory
strikes to excuse white jurors, as well as Raffray’s testimony
during voir dire that she did not socialize with the other juror
in question and would be able to make an independent decision
despite her friendship with him. See Hernandez v. New York,
500 U.S. 352, 364-65 (1991); United States v. Kelley, 140 F.3d
596, 606-07 (5th Cir. 1998).
The district court’s judgment is AFFIRMED.

-- 2 of 2 --