United States v. Clemente Hernandez-Garcia ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50228
Plaintiff-Appellee,
D.C. No.
v. 3:19-cr-04373-GPC-1
CLEMENTE HERNANDEZ-
GARCIA, ORDER AND
Defendant-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted February 10, 2022
Pasadena, California
Filed May 4, 2022
Amended August 17, 2022
Before: Mary M. Schroeder, Kermit V. Lipez, * and
Kenneth K. Lee, Circuit Judges.
Order;
Opinion by Judge Lee
*
The Honorable Kermit V. Lipez, United States Circuit Judge for
the First Circuit, sitting by designation.
2 UNITED STATES V. HERNANDEZ-GARCIA
SUMMARY **
Criminal Law
The panel filed (1) an order denying a petition for panel
rehearing and denying on behalf of the court a petition for
rehearing en banc, and (2) an opinion that amends a May 4,
2022, opinion affirming a conviction for illegal reentry after
removal, in a case in which a Marine Corps surveillance unit
spotted the defendant immediately after he unlawfully
entered the United States, and notified Customs and Border
Patrol agents who soon detained him.
The defendant argued that the Marine Corps surveillance
violated the Posse Comitatus Act, which codified the
longstanding prohibition against military enforcement of
civilian law. Rejecting that argument, the panel explained
that the military may still assist civilian law enforcement
agencies if Congress expressly authorized it, and here, the
2016 National Defense Authorization Act directed the U.S.
Secretary of Defense to offer military assistance to Border
Patrol in hopes of securing the southern land border. The
panel concluded that the district court therefore properly
denied the defendant’s suppression motion based on the
alleged violation of the Posse Comitatus Act.
The panel also denied the defendant’s Batson challenge
to the prosecution’s striking two Asian jurors from the
venire, concluding that the defendant failed to rebut the
prosecution’s race-neutral reasons for doing so.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERNANDEZ-GARCIA 3
COUNSEL
Kara Hartzler (argued), Federal Defenders of San Diego
Inc., San Diego, California, for Defendant-Appellant.
Daniel E. Zipp (argued), Assistant United States Attorney;
Randy S. Grossman, Acting United States Attorney; United
States Attorney’s Office, San Diego, California; for
Plaintiff-Appellee.
ORDER
The panel voted to deny the petition for panel rehearing.
Judges Lee and Schroeder voted to deny the petition for
rehearing en banc, and Judge Lipez recommended denying
the petition for rehearing en banc. The full court has been
advised of the petition for rehearing en banc and no judge
has requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35. The petition for panel rehearing and
rehearing en banc (Dkt. No. 47) is DENIED. No future
petitions for rehearing or rehearing en banc will be
entertained.
The Clerk shall file the opinion submitted with this order
that amends the opinion submitted on May 4, 2022 (Dkt.
No. 44).
OPINION
LEE, Circuit Judge:
Near the midnight hour in a remote area along the
California-Mexico border, Clemente Hernandez-Garcia
4 UNITED STATES V. HERNANDEZ-GARCIA
scaled a border fence and unlawfully entered the United
States. But he could not evade detection even under the
cover of darkness and desolation near the border: A Marine
Corps surveillance unit using a night vision scope spotted
him immediately. The Marines notified U.S. Customs and
Border Patrol agents, who soon detained him. He was
charged and convicted of illegal reentry into the United
States after removal.
Hernandez-Garcia now seeks to reverse his conviction,
arguing that the Marine Corps surveillance allegedly
violated the Posse Comitatus Act. That law codified the
longstanding prohibition against military enforcement of
civilian law. But the military may still assist civilian law
enforcement agencies if Congress expressly authorizes it.
Here, the 2016 National Defense Authorization Act directed
the U.S. Secretary of Defense to offer military assistance to
Border Patrol in hopes of securing the southern land border.
We thus reject Hernandez-Garcia’s claim that the U.S.
Marines’ surveillance at the border violated the Posse
Comitatus Act. We also deny Hernandez-Garcia’s Batson
challenge because he failed to rebut the prosecution’s race-
neutral reasons for striking two Asian jurors. We affirm
Hernandez-Garcia’s conviction.
BACKGROUND
I. Border Patrol detains Hernandez-Garcia just north
of the southern border, and he is charged with illegal
reentry after removal.
Clemente Hernandez-Garcia has racked up a long record
of immigration violations and criminal convictions. Since
first illegally entering the United States in 1994, Hernandez-
Garcia has been removed seven times after being convicted
UNITED STATES V. HERNANDEZ-GARCIA 5
of drug and firearm offenses, burglary, vehicle theft, and
aggravated domestic violence. Most recently in 2019, he
was removed to Mexico after being released from prison for
his latest criminal conviction.
Hernandez-Garcia waited only ten days before
unlawfully reentering the United States yet again. Late at
night, he climbed over the border fence in a remote area
25 miles east of Tecate, California, the nearest port of entry
in southeastern San Diego County. But a Marine Corps unit
using a scope truck equipped with infrared night vision
spotted him. The Marines alerted nearby Border Patrol
agents that an individual was 10–15 feet north of the border
fence near an area known as Mercado Rock.
Border Patrol Agent Allen-Limon responded to the alert
and began searching the area. Shortly after the search began,
a separate Border Patrol surveillance unit notified him of an
individual running across a nearby highway. Allen-Limon
combed the area near the highway and eventually found
Hernandez-Garcia hiding face-down in a dried riverbed. He
ordered Hernandez-Garcia to come out from hiding and
questioned him. Hernandez-Garcia admitted he was a
Mexican citizen and lacked proper immigration documents.
In a later post-Miranda interview, he admitted to crossing
the border by jumping the fence. He was then charged with
illegal reentry after removal in violation of 8 U.S.C. § 1326.
II. Hernandez-Garcia files a suppression motion based
on alleged violations of the Posse Comitatus Act but
the motion is denied.
Hernandez-Garcia moved to suppress all evidence
obtained as a result of his arrest, claiming that the Marine
Corps surveillance leading to his arrest violated the Posse
6 UNITED STATES V. HERNANDEZ-GARCIA
Comitatus Act, 18 U.S.C. § 1385. 1 That law broadly
prohibits the military from directly enforcing civilian law
unless authorized by Congress to do so. See id.; 10 U.S.C.
§ 275. The government maintained that Congress expressly
authorized the Marine surveillance when it enacted the
National Defense Authorization Act for Fiscal Year 2016,
Pub. L. No. 114-92, 129 Stat. 726 (2015) (“2016 NDAA”).
Section 1059 of the 2016 NDAA authorized the Secretary of
Defense to aid Border Patrol by deploying “ground-based
surveillance systems to support continuous surveillance of
the southern land border of the United States.” Id.§ 1059(c)(2). But Hernandez-Garcia countered that the
2016 NDAA was merely an annual appropriations bill that
had lapsed.
The district court denied Hernandez-Garcia’s motion.
The district court held that the 2016 NDAA was an
authorization act, not an appropriations act, and thus was still
effective when the government detained Hernandez-Garcia.
And because § 1059 authorized the Marine surveillance, no
Posse Comitatus Act violation occurred. The case
proceeded to trial.
III. Hernandez-Garcia unsuccessfully raises a Batson
challenge after the prosecution strikes Asian
jurors.
At the outset of voir dire, each juror read aloud answers
to a questionnaire about their city of residence, family
information, vocation, prior jury service, and involvement
Hernandez-Garcia also argued that he was arrested without
1
probable cause. The district court held that the Border Patrol agents had
probable cause, and Hernandez-Garcia does not challenge this ruling on
appeal.
UNITED STATES V. HERNANDEZ-GARCIA 7
with law enforcement or the military. Hernandez-Garcia
raised a Batson challenge, claiming that the government
improperly excluded two Asian jurors, Jocelyn Del Rosario
and Brian Sanqui. Batson v. Kentucky, 476 U.S. 79 (1986).
Ms. Del Rosario provided the following answer:
My name is Jocelyn Del Rosario, and I reside
in San Diego, I am a research scientist for
Bristol Myers Squibb. And I am not married
and I have no children. I did preside in a civil
and a criminal case about 20 years ago. The
criminal case ended in a hung jury, and the
civil case reached a verdict. My family
members are not in the law enforcement.
And I have not served in the military.
Mr. Sanqui then provided his answer:
My name is Brian Sanqui. I reside in Poway.
I am a software developer. I do not have a
spouse or children. I have never served on a
jury previously. I do not work in law
enforcement, and I do not have any family
members who work in law enforcement. And
I have never served in the military.
After the jurors read their answers aloud, each side
conducted voir dire. The prosecution noted that there were
“a lot of . . . engineers here” and that “[e]ngineering is a
profession where you are often used to dealing with hard
numbers, objective facts.” Because its case relied on
circumstantial evidence, the prosecution asked whether any
of the jurors would struggle to convict if it proved its case
solely based on such evidence. One juror at first expressed
8 UNITED STATES V. HERNANDEZ-GARCIA
doubt, but after more questioning, stated that he could “make
[his] mind up based on evidence provided like that.”
Following voir dire, the government exercised two of its
seven peremptory challenges against Ms. Del Rosario and
Mr. Sanqui. When the court asked whether the defense had
any Batson issues, Hernandez-Garcia’s counsel noted that
the prosecution had used three of its strikes on “jurors who
appear to be Asian or have last names that would so
indicate,” 2 and that there were “four or five Asian jurors in
the venire.” So striking three out of four or five Asian jurors
supported an inference of purposeful discrimination,
according to Hernandez-Garcia.
The prosecution then stated its reasons for striking
Ms. Del Rosario and Mr. Sanqui. The prosecution struck
Ms. Del Rosario because she “was on a jury with a hung
verdict” and she was a “research scientist.” The prosecutor
struck Mr. Sanqui because:
[H]e appeared to be a loner. The only thing
he said during the inquiry was, “I am a
software developer, no spouse, no kids.” He
came dressed in a hoodie, which we
perceived to be underdressed, and that gave
us some concern that, based on his profession
and lack of comments – that was the basis for
striking him.
2
The prosecution struck a third Asian juror, Ms. Ahmad, because
(1) Border Patrol had once searched her, and (2) she had served as a
witness in an immigration case that left her with a “negative impression”
of Border Patrol agents. The district court held that these reasons were
legitimate, and Hernandez-Garcia does not raise a Batson challenge for
the striking of Ms. Ahmad.
UNITED STATES V. HERNANDEZ-GARCIA 9
The district court denied the Batson challenge, stating
that it was “not prepared to find that there’s a prima facie
case that’s been established.” It then restated the
prosecution’s proffered reasons but did so somewhat
inaccurately. For Ms. Del Rosario, the court said, “single,
no children, served on a jury where there was a hung jury on
a criminal case—the Court is satisfied that that’s a valid
explanation for the strike.” But Ms. Del Rosario’s marriage
status and lack of children were not cited by the prosecution.
For Mr. Sanqui, the court said, “single, no children, no jury
experience—it appears that there’s no illegitimate basis that
was used.” The prosecution, however, did not strike
Mr. Sanqui for lack of jury experience.
Defense counsel requested that the court conduct a
“comparative juror analysis” for Ms. Del Rosario and
Mr. Sanqui because “there are multiple jurors who said they
had been on juries that did not reach verdicts” and the
rationale of “single with no kids” was concerning because
there were “multiple jurors who said that” including white
jurors. But the court responded that the “challenge is
denied.” Hernandez-Garcia’s counsel then asked, “[I]s the
Court making a finding there is no purposeful
discrimination?” The district court replied, “I have made a
finding there’s not a prima facie case. There’s not
discrimination.”
IV. The jury convicts Hernandez-Garcia and he
appeals.
The jury convicted Hernandez-Garcia of illegal reentry
after removal. He then filed this appeal, raising two issues.
First, he renews his argument that the Marine Corps
surveillance violated the Posse Comitatus Act. Second, he
claims that the district court erred in conducting the Batson
inquiry. He asks that we review de novo the record and hold
10 UNITED STATES V. HERNANDEZ-GARCIA
that the prosecution racially discriminated against Asian
jurors, or, at the very least, remand for the district court to
conduct more analysis at Batson’s third step.
STANDARD OF REVIEW
We review de novo whether the Marine surveillance
violated the Posse Comitatus Act. United States v. Dreyer,
804 F.3d 1266, 1271 (9th Cir. 2015) (en banc). “Ordinarily,
we review the district court’s ruling on a Batson challenge
for clear error.” United States v. Mikhel, 889 F.3d 1003,
1028 (9th Cir. 2018). “However, we review de novo whether
the district court properly applied Batson,” United States v.
Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015), and we
“have applied de novo review [to the court’s Batson ruling]
. . . where the court improperly applied the three-step
framework,” Mikhel, 889 F.3d at 1028.
DISCUSSION
I. The district court properly denied Hernandez-
Garcia’s suppression motion because the 2016 NDAA
authorizes the Marine Corps surveillance.
After Reconstruction, Congress enacted the Posse
Comitatus Act to “eliminate the direct active use of Federal
troops by civil law authorities.” United States v. Banks,
539 F.2d 14, 16 (9th Cir. 1976). Under the current version
of the law, military personnel cannot assist in civilian law
enforcement unless expressly authorized by Congress:
Whoever, except in cases and under
circumstances expressly authorized by the
Constitution or Act of Congress, willfully
uses any part of the Army, the Navy, the
Marine Corps, the Air Force, or the Space
UNITED STATES V. HERNANDEZ-GARCIA 11
Force as a posse comitatus or otherwise to
execute the laws shall be fined under this title
or imprisoned not more than two years, or
both.
18 U.S.C. § 1385.
Here, the Posse Comitatus Act posed no obstacle to the
U.S. Marines assistance because Section 1059 of the 2016
NDAA expressly authorizes surveillance by the military at
the southern border. Section 1059(a) directs the Secretary of
Defense to “provide assistance to [Border Patrol] for
purposes of increasing ongoing efforts to secure the southern
land border of the United States.” 2016 NDAA § 1059(a).
The military may deploy “ground-based surveillance
systems to support continuous surveillance of the southern
land border of the United States.” Id. § 1059(c)(2). And that
is exactly happened here.
Despite § 1059’s directive, Hernandez-Garcia maintains
that the Marine Corps surveillance leading to his arrest was
unauthorized. He again claims that the 2016 NDAA was a
lapsed appropriations act no longer in effect at the time of
his arrest. We reject that argument. Section 1059 of the
2016 NDAA remains in force. In last year’s 2021 NDAA,
Congress made minor amendments to § 1059’s
congressional reporting requirements, confirming that the
law remains in effect. See William M. (Mac) Thornberry
National Defense Authorization Act for Fiscal Year 2021,
Pub. L. 116-283, 134 Stat. 3388 (2021). Congress would
have no reason to amend § 1059 if it was a lapsed
appropriations act. The 2021 NDAA thus provides explicit
evidence that § 1059 continues in full effect. See McClure
v. United States, 95 F.2d 744, 750 (9th Cir. 1938) (“Where
an amendment leaves certain portions of the original act
12 UNITED STATES V. HERNANDEZ-GARCIA
unchanged, such portions are continued in force with the
same meaning.”); see also United States v. Rios-Montano,
438 F. Supp. 3d 1149, 1153 (S.D. Cal. 2020) (“Congress has
also made substantive changes to the law and enacted new,
longstanding programs through other NDAAs.”).
Further, § 1059—unlike other provisions in the 2016
NDAA—has no termination date, confirming that Congress
intended § 1059 to remain operative beyond fiscal year
2016. See Dep’t of Homeland Sec. v. MacLean, 574 U.S.
383, 391 (2015) (“Congress generally acts intentionally
when it uses particular language in one section of a statute
but omits it in another.”).
Hernandez-Garcia also argues that an earlier statute,
10 U.S.C. § 274, defines the scope of Congressionally
authorized military border surveillance, and that the
surveillance here exceeds that prior limit. Section 274
permits Department of Defense personnel to be “made
available to a civilian law enforcement agency” to “operate
equipment” for the:
Detection, monitoring, and communication
of the movement of surface traffic outside of
the geographic boundary of the United States
and within the United States not to exceed
25 miles of the boundary if the initial
detection occurred outside of the boundary.
10 U.S.C. § 274(b)(2) (emphasis added). According to
Hernandez-Garcia, because the Marines “initially detected”
him 10–15 feet inside the United States, they exceeded their
authority under § 274’s limitation of detection “outside” of
the United States border.
UNITED STATES V. HERNANDEZ-GARCIA 13
Put another way, he argues that the previously enacted
§ 274 trumps § 1059 of the NDAA, invoking the “general-
specific” canon. See Hellon & Assocs., Inc. v. Phoenix
Resort Corp., 958 F.2d 295, 297 (9th Cir. 1992). Under this
canon of construction, “the later and more specific statute
usually controls” if two statutes conflict. Id. “[L]egislators
are often . . . unfamiliar with enactments of their
predecessors” and may “unwittingly contradict them.”
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 185 (2012). Thus, if the newer
statute “comes closer to addressing the very problem posed
by the case at hand,” it is as if the “later-enacted statute . . .
effectively repeal[ed]” the conflicting provisions of the
earlier one. Id. at 183–85.
According to Hernandez-Garcia, § 1059 and § 274
conflict because the former permits surveillance of
individuals no matter where the initial detection occurred,
while the latter requires the initial detection to occur outside
the United States. And § 274 is supposedly more specific
because it allows the military to surveil “with respect to . . .
a criminal violation,” while § 1059 is silent about criminal
violations. Compare 10 U.S.C. § 274(b)(1)(A), with 2016
NDAA § 1059.
We agree that the two statutes conflict because of § 274’s
“initial detection” limitation. But the general-specific canon
cuts against Hernandez-Garcia’s position. The 2016
NDAA’s § 1059 is in fact more specific than § 274 as
applied here, so § 1059 takes precedence over § 274. First,
while § 274 contains only general language about
“detection” and “monitoring,” § 1059 specifically authorizes
the Marine Corps to surveil the California-Mexico border
from a scoping truck. Second, while § 274 generally permits
assistance to any “Federal, State, and local civilian law
14 UNITED STATES V. HERNANDEZ-GARCIA
enforcement officials,” § 1059 authorizes the military to
assist only a single federal agency, Customs and Border
Patrol. Third, § 274 allows general surveillance of any
United States boundary, while § 1059 approves surveillance
of only the “southern land border.” Finally, § 274 broadly
allows the operation of “equipment,” while § 1059
specifically directs the deployment of “ground-based
surveillance systems” such as scoping trucks. Compare
10 U.S.C. § 274(a)–(b), with 2016 NDAA § 1059(a)
and (c). 3 Thus, we hold that the 2016 NDAA’s § 1059 is
more specific than—and thus trumps—the general
provisions in § 274.
We also reject Hernandez-Garcia’s contention that
applying § 1059 here would render § 274 superfluous. See
D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208
(1932) (“[I]f possible, effect shall be given to every clause
and part of a statute.”). Section 274’s “initial detection”
limitation would still apply if the military were surveilling
other United States boundaries (i.e., the non-Southern
border) or aiding other law enforcement agencies (i.e., non-
Border Patrol agencies). See Scalia & Garner, supra at 185
(“The specific provision does not negate the general one
3
In any event, the specificity in § 274 that Hernandez-Garcia seizes
upon—assistance with criminal violations—has little relevance here.
See 10 U.S.C. § 274(b)(1)(A). The government’s decision to criminally
charge Hernandez-Garcia with illegal reentry is separate from the critical
issue here: whether Congress authorized Marine Corps surveillance that
enabled Border Patrol to locate him. And even if § 274’s specificity
about criminal violations was relevant, Hernandez-Garcia’s reliance on
the “general-specific” canon would still be misplaced because then both
statutes would be “specific in certain respects and general in others,” so
“the general-specific canon [would] not help to clearly discern
Congress’s intent as to which section should take precedence here.” See
Perez-Guzman v. Lynch, 835 F.3d 1066, 1075–76 (9th Cir. 2016)
(emphasis in original).
UNITED STATES V. HERNANDEZ-GARCIA 15
entirely, but only in its application to the situation that the
specific provision covers.”). Congress passed § 1059 to
explicitly address acute security issues amid the surge of
migrants at the southern border. In doing do, Congress was
not hamstrung by § 274’s constraints. See United States v.
Juvenile Male, 670 F.3d 999, 1007–08 (9th Cir. 2012)
(holding earlier statute prohibiting identification of juvenile
delinquents does not prevent application of a later statute
specifically requiring juvenile sex offenders to join a
registry). 4
We thus hold that § 1059 of the 2016 NDAA authorized
the Marine Corps’ surveillance of Hernandez-Garcia at the
southern border, and that the district court rightly denied his
suppression motion based on the alleged violation of the
Posse Comitatus Act. 5
II. We deny Hernandez-Garcia’s Batson challenge
because he has failed to show that the prosecution
purposefully discriminated against Asian jurors.
Batson v. Kentucky established a three-step burden-
shifting framework for evaluating a defendant’s claim that
the prosecution exercised peremptory strikes in a racially
discriminatory manner. See Hernandez v. New York,
4
While the parties have not raised it, 10 U.S.C. § 284(b)(6) allows
the Secretary of Defense to provide support for “detection” and
monitoring” outside the U.S. border to combat “counterdrug activities”
and “transnational organized crime.” It does not apply here because of
its limitation to certain criminal activities.
5
Because we hold that the 2016 NDAA authorized the Marines’
surveillance, we do not address the government’s argument that it
amounted to only indirect assistance not subject to the Posse Comitatus
Act.
16 UNITED STATES V. HERNANDEZ-GARCIA
500 U.S. 352, 358–59 (1991). The defendant must first
make a prima facie showing that the prosecution exercised
its strikes based on race. Id. at 358. Then, the burden shifts
to the prosecution to provide a “race-neutral explanation for
striking the jurors in question.” Id. at 359. If the prosecution
provides race-neutral reasons, the district court must
determine based on the record whether the “defendant has
carried his burden in proving purposeful discrimination.” Id.Because the prosecution offered race-neutral reasons for
striking Ms. Del Rosario and Mr. Sanqui, the only remaining
inquiry is whether the district court erred at step three. See
Mikhel, 889 F.3d at 1029. While we normally review a
district court’s step three finding for clear error, we have
sometimes applied de novo review when the district court’s
analysis was deficient, either because the court did not
engage in a meaningful analysis or failed altogether to
conduct a step three Batson assessment. See, e.g., Alvarez-
Ulloa, 784 F.3d at 565 (failing to reach step three); United
States v. Alanis, 335 F.3d 965, 968–69 (9th Cir. 2003)
(failing to conduct meaningful analysis at step three).
Hernandez-Garcia insists that the district court’s analysis
was flawed and urges us to conduct our own de novo review
at step three. First, Hernandez-Garcia argues that the district
court failed to conduct a step three analysis because, after
listening to the prosecution’s race-neutral reasons, the
district court twice stated that there is not “a prima facie
case,” seemingly making a step one finding. Even if the
district court reached step three, its analysis was not
meaningful, according to Hernandez-Garcia, because the
district court misstated the prosecution’s proffered reasons
for striking Ms. Del Rosario and Mr. Sanqui.
We acknowledge that the district court’s oral Batson
ruling is not a paragon of clarity. But when reviewing a
UNITED STATES V. HERNANDEZ-GARCIA 17
district court’s oral pronouncements in court, we must be
careful “not to formally parse the sentences contained in a
transcript of an oral ruling or to demand absolute linguistic
precision from the trial judge.” See United States v.
Coutchavlis, 260 F.3d 1149, 1156 (9th Cir. 2001). And even
indulging Hernandez-Garcia’s request that we apply de novo
review, we conclude that Hernandez-Garcia did not prove
that the prosecution purposefully discriminated against
Asian jurors. 6
The “ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of
the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995). The
“critical question” in determining whether Hernandez-
Garcia has proven “purposeful discrimination at step three is
the persuasiveness of the prosecutor’s justification for his
peremptory strike.” Miller-El v. Cockrell, 537 U.S. 322,
338–39 (2003). At step three, “implausible or fantastic
justifications may (and probably will) be found to be pretexts
for purposeful discrimination.” Id. at 339 (quoting Purkett,
514 U.S. at 768). But a “legitimate reason” is not necessarily
a “reason that makes sense,” but is instead “a reason that
does not deny equal protection.” Purkett, 514 U.S. at 768–
69. 7 Ultimately, we must determine whether the “stated
6
We do not hold that the district court’s analysis was erroneous such
that de novo review is required. Rather, we assume without deciding
that the district court erred because Hernandez-Garcia’s Batson claim
still fails under de novo review.
7
There is no requirement, as Hernandez-Garcia urges, that the
prosecution’s reasons be directly relevant to the crime charged. Purkett
clarifies that Batson’s warning that the prosecution’s reasons must be
“related to a particular case to be tried” was “meant to refute the notion
that a prosecutor could satisfy his burden of production by merely
denying that he had a discriminatory motive.” See id.; see also Kesser
18 UNITED STATES V. HERNANDEZ-GARCIA
reasons were the prosecutor’s genuine reasons for exercising
a peremptory strike.” Green v. LaMarque, 532 F.3d 1028,
1030 (9th Cir. 2008).
The prosecution struck Ms. Del Rosario because she
served on a hung jury and works as a research scientist.
Ms. Del Rosario’s prior service on a hung jury was a
legitimate reason. See United States v. Rudas, 905 F.2d 38,
41 (2d Cir. 1990). And it was permissible to strike Ms. Del
Rosario based on her occupation because the prosecution
stated “a genuine, race-neutral reason for believing that the
occupation would make the juror unfavorable.” Jamerson v.
Runnels, 713 F.3d 1218, 1235 (9th Cir. 2013). During voir
dire, the prosecution expressed concern that jurors with
engineering backgrounds, who are used to dealing with
“hard numbers, objective facts,” would be skeptical of the
government’s case built on circumstantial evidence. It was
reasonable for the prosecution to be concerned that Ms. Del
Rosario, a research scientist, also possessed this same
distrust of circumstantial evidence.
Still, Hernandez-Garcia maintains that the reasons were
pretextual because the prosecution failed to strike four white
jurors who had also allegedly served on hung juries. But
none of the white jurors were researchers or worked in a
related field. (Mr. Avecilla: “I am a default assistant at [a]
law firm.”); (Mr. Hogan: “I am retired.”); (Mr. Westfall: “I
am a retired CPA and finance manager.”); (Mr. Brownlow:
“I am a construction consultant, a former teacher.”). As we
v. Cambra, 465 F.3d 351, 364 (9th Cir. 2006) (en banc) (noting that the
prosecutor’s “[r]easons must be related to the particular case to be
tried,” and that “implausible or fantastic justifications may (and probably
will) be found to be pretexts for purposeful discrimination”) (emphasis
added) (cleaned up).
UNITED STATES V. HERNANDEZ-GARCIA 19
just explained, Ms. Del Rosario's scientific background is a
persuasive reason for striking her. See United States v.
Lewis, 837 F.2d 415, 417 n.5 (9th Cir. 1988) (noting that “the
decision whether to strike a venireman hinges upon the
interplay of various factors”). We thus conclude that
Hernandez-Garcia did not show that the prosecution
purposefully discriminated against Ms. Del Rosario. 8
We also hold that Hernandez-Garcia failed to prove that
the prosecution struck Mr. Sanqui for racially discriminatory
reasons. The prosecution struck Mr. Sanqui because “he
appeared to be a loner” as the “only thing he said during [voir
dire] was ‘I am a software developer, no spouse, no kids.’” 9
Mr. Sanqui also “came dressed in a hoodie,” which the
prosecution “perceived to be underdressed.”
Striking a perceived “loner” is permissible because “a
loner may hamper the jury’s ability to reach a unanimous
verdict.” United States v. Daly, 974 F.2d 1215, 1219 (9th
Cir. 1992). And the prosecution may legitimately strike a
juror based on his casual dress because it conveys a possible
lack of enthusiasm for jury service. See United States v.
8
Hernandez-Garcia faults the district court for not conducting a
comparative juror analysis at step three. But our own de novo
comparative analysis demonstrates that, if error occurred, it was
harmless.
9
Hernandez-Garcia interprets the prosecution’s reference to Mr.
Sanqui’s profession as an independent reason for its challenge and urges
us to conduct a comparative juror analysis with respect to other jurors
sharing the same occupation. But the prosecution did not strike
Mr. Sanqui because of his profession. Rather, it struck Mr. Sanqui
because of his brief response, and in explaining its thinking to the court,
the prosecution incidentally repeated Mr. Sanqui’s reference to his
profession. Thus, we decline to conduct a comparative juror analysis as
to occupation.
20 UNITED STATES V. HERNANDEZ-GARCIA
Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987). We
recognize that these reasons are subjective and largely based
on a prosecutor’s “instinct about a prospective juror.” Id.But reliance on instinct is permissible and “wholly within the
prosecutor’s prerogative.” Id.Hernandez-Garcia quarrels with the prosecution’s
assumption that Mr. Sanqui’s brief response suggests he is a
loner. According to Hernandez-Garcia, Mr. Sanqui’s 58-
word response was longer than at least six non-Asian jurors
whom the prosecution did not strike, so the loner explanation
must be pretextual. We disagree. The prosecution’s
conclusion about a juror’s demeanor is often based on a
“hunch.” See Burks v. Borg, 27 F.3d 1424, 1429 n.3 (9th
Cir. 1994). The veracity of such an inherently subjective
perception cannot be doubted based solely on a word count.
Lastly, Hernandez-Garcia argues that our decision in Ali
v. Hickman, 584 F.3d 1174 (9th Cir. 2009), prohibits reliance
on Mr. Sanqui’s casual dress. In Ali, we considered
“casualness” an “exceedingly weak” justification because it
was contradicted by the prosecution’s other reason that the
juror “would ‘over-intellectualize’ the decisionmaking
process.” Id. at 1195. But here, there is no conflict between
the prosecution’s loner and casualness rationales. If
anything, the two reasons reinforce one another because they
both suggest that Mr. Sanqui has low enthusiasm for jury
service and may hinder a unanimous verdict. And
Hernandez-Garcia has failed to identify a single similarly
dressed non-Asian juror who went unchallenged. See
Thompson, 827 F.2d at 1260 (Casual dress is a “legitimate
reason, unless a nonexcluded juror also wore jeans or other
casual dress.”).
UNITED STATES V. HERNANDEZ-GARCIA 21
CONCLUSION
We hold that the Marine Corps did not violate the Posse
Comitatus Act by surveilling Hernandez-Garcia just north of
the southern border. We also hold that Hernandez-Garcia
failed to prove that the prosecution racially discriminated by
striking two Asian jurors from the venire. We AFFIRM
Hernandez-Garcia’s conviction.