United States v. Hernandez-Garcia

44 F.4th 1157

UNITED STATES of America, Plaintiff-Appellee,

v.Clemente HERNANDEZ-GARCIA, Defendant-Appellant.

No. 20-50228

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 10, 2022 Pasadena, California

Filed May 4, 2022

Amended August 17, 2022

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.

Tarik S. Adlai, Law Offices of Tarik S. Adlai, Pasadena, California; Robin E. Wechkin, Sidley Austin LLP, Issaquah, Washington; for Amicus Curiae National Association of Criminal Defense Lawyers.

Before: Mary M. Schroeder, Kermit V. Lipez,^* and Kenneth K. Lee, Circuit Judges.

Order; Opinion by Judge Lee

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).

LEE, Circuit Judge:

Near the midnight hour in a remote area along the California-Mexico border, Clemente 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 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 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 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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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 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.

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 ...