FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  March 13, 2012
                            FOR THE TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 11-3146
    v.                                         (D.C. No. 2:09-CR-20158-CM-1)
                                                           (D. Kan.)
    EDWARDO KINDT,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, and MATHESON, Circuit Judges.



         After a jury trial, Edwardo Kindt, a Hispanic male, was convicted of

assaulting a Bureau of Prisons officer in violation of 18 U.S.C. § 111(a)(1). He

argues that his equal protection rights were violated when the district court failed

to engage in a proper Batson v. Kentucky, 

(1986), analysis of the

government’s peremptory challenge striking a Hispanic female. Specifically, he



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
contends the court did not make factual findings concerning the prosecutor’s

discriminatory intent in exercising the peremptory challenge. We affirm.

      In making a Batson objection, Mr. Kindt noted that although the Hispanic

female and a white female were similarly situated, the government did not

challenge the white female. The government presented two race-neutral reasons

for striking the Hispanic female: (1) her body language and bored demeanor

suggested she was not engaged in the process; and (2) she was hard to understand

when she presented her biographical information and it seemed she did not

address all of the items she was asked to address, again suggesting she was

disengaged. In responding to the court’s invitation to argue the government’s

proffer was pretextual, Mr. Kindt stated only that the Hispanic female had

answered all of the biographical questions. The prosecutor conceded he may have

had difficulty understanding her, but then stated he was basing his peremptory

challenge primarily on his observations of her body language and lack of

engagement in the process. After Mr. Kindt declined to make further comment,

the court proceeded to overrule Mr. Kindt’s Batson challenge:

      The court, when made aware of the Batson challenge, has gone
      through its analysis. I had previously mentioned for the record the
      Batson challenge was made based on the ethnic background of the
      defendant as well as the use of peremptory challenge by the
      government on an individual who appears to be of the same ethnic
      background. The court then following the standard asked the
      government for their basis for their peremptory challenge. [The
      prosecutor] stated on the record his reasons as to why he believed
      this particular juror . . . was different from defendant’s reference to

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      another similarly situated juror as it relates to her responses . . . .
      [Defense counsel] is correct in regards to what the court recollects as
      the verbal responses that were given to the questions about their
      background, their spouse’s background, educational background, and
      children. [The prosecutor’s] basis, though, seems to be focused on
      his observations during the voir dire and [the juror’s] apparent lack
      of engagement, interest in these proceedings. He’s made as part of
      his record for the basis statements about how he believed that she
      was not engaged, that she appeared to be bored, and as a result, he
      believed that that would be a reason for him to use the peremptory
      challenge. Defendant believes that’s pretextual, that there still would
      have been discrimination by the use of this peremptory challenge,
      and they referred the court back to the responses that were made
      during voir dire by both [jurors]. Upon review, the court would find
      that its understanding of Batson challenge is partly also based on its
      understanding of case law relating to Batson challenges, and the case
      law the court would find that a valid peremptory challenge can be
      based on a party’s observations of a panel member’s demeanor,
      conduct, and behavior during the voir dire. The court would find
      that, in fact, has been shown to the court by the government as the
      basis. That’s a race neutral reason--in this case, ethnic neutral reason
      for the exercise of the peremptory challenge. So, at this time, the
      Batson challenge is overruled.

R., Vol. 2 at 120-22. Mr. Kindt made no further objections.

      Under 

, peremptory challenges may not be

exercised to exclude jurors based on race or ethnicity. See Hernandez v. New

York, 

, 355 (1991). Batson sets out a three-step process for a district

court to follow when deciding whether a peremptory challenge was improperly

exercised:

            First, a defendant must make a prima facie showing that a
      peremptory challenge has been exercised on the basis of race;
      second, if that showing has been made, the prosecution must offer a
      race-neutral basis for striking the juror in question; and third, in light


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       of the parties’ submissions, the trial court must determine whether
       the defendant has shown purposeful discrimination.

Snyder v. Louisiana, 

, 476-77 (2008) (brackets omitted) (internal

quotation marks omitted).

       We review for clear error the district court’s ruling on purposeful

discrimination. 1 See 

“Step three of the Batson inquiry involves an

evaluation of the prosecutor’s credibility.” 

defer to the court’s

determinations concerning credibility and demeanor, 

especially when

the court finds the prosecutor “credibly relied on demeanor in exercising a

strike,” 

       Mr. Kindt argues that the court failed to make the required findings

regarding demeanor and credibility because it did not clearly state whether it

considered the government’s explanation credible. Mr. Kindt therefore contends

the court conflated the second step’s governmental race-neutral reason with the

third step’s determination of discriminatory intent and never properly concluded

that the government struck the juror without intending to discriminate against

him. Because the court failed to make proper findings regarding the




1
      The government contends we should review for plain error because
Mr. Kindt did not challenge the district court’s factual findings in that court. We
need not decide whether plain error review is appropriate. Even applying the less
demanding clear error standard, we affirm the district court.


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government’s credibility or the court’s own observations of the juror’s demeanor,

he maintains this court is unable to review the district court’s findings.

      Mr. Kindt relies on cases from the Seventh Circuit to support his position.

See United States v. Rutledge, 

, 557 (7th Cir. 2011); United States v.

McMath, 

, 666 (7th Cir. 2009). Those cases hold that the district

court must make a credibility determination, and the Seventh Circuit will not

presume the prosecutor’s race-neutral justification was credible simply because

the district court denied the Batson challenge.

      Rutledge and McMath are distinguishable. In both cases, the defendants

presented pretext arguments to counter the government’s race-neutral reasons, and

the district court accepted the government’s race-neutral reasons without further

comment. See 

; 

. In

comparison, Mr. Kindt did not make any pretext argument concerning the body

language and demeanor components of the government’s race-neutral explanation.

Thus, he “gave the district court no reasonable basis for questioning the

government’s credibility in offering its race-neutral reasons” concerning body

language and demeanor. United States v. Smith, 

, 1226 (10th Cir.

2008) (internal quotation marks omitted). Furthermore, the district court,

although providing a short explanation that did not explicitly make a credibility

finding, did indicate familiarity with the law and recognized Mr. Kindt’s pretext

argument. This case is therefore not one where we are left with nothing we can

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defer to. Because Mr. Kindt “did not meet [his] burden of showing

discriminatory intent, the district court did not clearly err in determining that

there was no Batson violation.” 

(citation omitted).

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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