dissenting:

I respectfully dissent.

The majority reverses the district court by retrying a question of fact the district court resolved. The majority does this by examining the cold record. This record shows neither the witnesses’ demeanor, pauses in responses to questions, manner of answering, nor the myriad of other factors which a trial judge is uniquely able to observe and rely upon in making findings of fact.

Here the trial judge did what he was supposed to do. He resolved a close question of fact. The state court did the same thing, and its finding of fact on the same issue is presumptively correct. Sumner v. Mata, 449 U.S. 539, 547 , 101 S.Ct. 764, 769 , 66 L.Ed.2d 722 . Now on appeal, the majority tosses all this aside by relying on the voir dire transcript from the state trial court, the transcript of the evidentiary hearing before the district court, and an exhibit. The majority’s analysis by which it reaches its result is flawed, and with all due respect its decision is wrong.

The majority accepts, as indeed it must, that the prosecutor’s reasons for exercising a peremptory challenge to excuse Mrs. Nichols-Garland were facially race-neutral. The majority also acknowledges that the burden shifted to the defendant to prove intentional discrimination. So far so good.

The majority then points out that the prosecutor said he had initially been willing to accept Mrs. Nichols-Garland, but his position changed when he saw defense counsel “excusing people from particular races, notably Mr. Li.” This is where the majority’s analysis starts to unravel. It characterizes this statement as a “strong suggestion” that the prosecutor excluded Mrs. Nichols-Garland because of her race. Majority at p. 1330. It then puts a questionable spin on the burden of proof by asking: “What, then, did the prosecutor present to counter this strong suggestion?” Id.

Poof! Just like that the defendant’s burden to prove intentional discrimination disappears. It is replaced by the featherweight of a “suggestion,” or perhaps by no weight at all because, according to the majority, the burden has now shifted to the prosecutor to “counter this strong suggestion.”

I disagree with this application of the burden of proof. However, even if the game is played by these rules, the defendant still loses. The prosecutor’s reference to race was made in the context of a number of reasons he articulated for excusing Mrs. Nichols-Garland as a prospective juror. When the defense accused him of excusing her because of her race, the prosecutor stated:

The only way the prosecutor’s facially race-neutral statements can be found to be pretextual is for this court to substitute its factfinding prowess for that of the district court and disbelieve the prosecutor when he said: “I felt that for those reasons alone [her age, limited education, employment at a grocery chain, evasiveness, and the belief that she was employed by defense attorneys] I would excuse her.” Were these the real reasons the prosecutor excused Mrs. Nichols-Garland? He said they were.

To determine if he was telling the truth, the district court held an evidentiary hearing. The prosecutor appeared before the court and testified. He explained that the composition of a jury changes when, in the voir dire process, one juror is replaced by another. A trial lawyer might be willing to accept one jury mix, but not another.

The prosecutor testified that when Mr. Li was excused and replaced by another juror, he was no longer willing to accept the jury mix with Mrs. Niehols-Garland as a juror. He explained why he excused Mrs. Niehols-Garland, and reiterated that the reasons he excused her had nothing to do with her race. The district court believed him. It made a factual finding that the prosecutor had not excused Mrs. Niehols-Garland because of her race. I would not disturb this finding, because in my view it is not clearly erroneous. 1

There is another reason I would affirm. Even if we assume the prosecutor’s reasons for excusing Mrs. Niehols-Garland were based in part on her race, the prosecutor gave four race-neutral reasons for excusing her. At worst, the prosecutor had a mixed motive for exercising his- peremptory challenge. Although the majority avoids the issue (Majority p. 1329, n. 3), I would apply a mixed-motive defense to the prosecutor’s statements as the Second Circuit did in Howard v. Senkowski, 986 F.2d 24, 27 (2d Cir.1993).

In Howard , the prosecutor conceded that race had been a factor in his peremptory challenge. Id. at 25 . He articulated other race-neutral reasons for his peremptory challenge. Id. The Second Circuit applied a mixed-motive analysis in considering the question whether the prosecutor’s challenge would have been made even without the improper motivation. Id. at 26-30 . The court drew upon the Supreme Court’s explanation of how the dual-motivation analysis operates in the context of a discrimination case. Id. at 26-27 , discussing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66 , 97 S.Ct. 555, 563 , 50 L.Ed.2d 450 (1977). The Second Circuit concluded that because the prosecutor was guilty of acting in part from improper motives, the burden shifted to him to show that he would have exercised his peremptory challenge regardless of the improper motive. Howard, 986 F.2d at 30 . The district court had not considered this kind of analysis, and to permit it to do so the Second Circuit remanded the case to the district court.

In the present case, the district court found that the prosecutor excused Mrs. Nieh-ols-Garland for race-neutral reasons. This is *1333 the equivalent of finding that the prosecutor would have excused her regardless of any-asserted improper motive. Remand is unnecessary. I would affirm.

. The district court further noted that the record showed that during voir dire the prosecutor repeatedly tried to remove race as an issue in the case. It was defense counsel who repeatedly referred to race and questioned jurors about it. "The prosecutor took pains to tell the jurors that race had nothing to do with the case.” Johnson v. Vasquez, No. CV 90-2033-WPG (GHK), U.S.Dist.Ct., C.D.Cal., Report and Recommendation of Magistrate Judge filed Sept. 10, 1991, p. 9.