NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50111 Plaintiff-Appellee, D.C. No. v. 3:22-cr-01009-JO-1 Southern District of California, San Diego LUIS ANGEL CRUZ-CRUZ, AKA Angel Sanchez-Cruz, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Jinsook Ohta, District Judge, Presiding
Submitted December 5, 2023** Pasadena, California
Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.
Defendant-appellant, Luis Angel Cruz-Cruz, appeals from his misdemeanor
conviction for attempting to enter the United States by misrepresentation. Cruz-
Cruz asserts that the prosecution’s peremptory strike of a young Latino juror
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). violated his right to equal protection (a Batson1 challenge) and that there was
insufficient evidence to support the jury’s conviction. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We presume the parties’ familiarity with the facts of
the case and do not discuss them in detail here. The district court’s judgment is
affirmed.
1. “Purposeful racial discrimination in selection of the venire violates a
defendant’s right to equal protection because it denies him the protection that a
trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986).
Ruling on a Batson challenge invokes a three-step process: (1) a defendant must
make a prima facie showing that the peremptory challenge was exercised on the
basis of race; (2) if such a showing is made, the prosecution must offer a race-
neutral reason for the strike; and (3) in light of the response, the trial court must
determine whether the defendant has shown the prosecution’s race-neutral reasons
masked purposeful discrimination. United States v. Mikhel, 889 F.3d 1003, 1028
(9th Cir. 2018) (citing United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir.
2015)).
Ordinarily, we review a district court’s ruling on a Batson challenge for clear
error. Id. at 1028 (citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).
1 “Batson” is a shorthand description of a claim that a juror was stricken for an improper racial reason. See Batson v. Kentucky, 476 U.S. 79 (1986).
2 However, we “sometimes appl[y] 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.” United States v.
Hernandez-Garcia, 44 F.4th 1157, 1166 (9th Cir. 2022). Still, the defendant bears
the ultimate burden of showing purposeful discrimination. Alvarez-Ulloa, 784
F.3d at 566. Also, we give “broad deference to district judges, who observe voir
dire first hand.” United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994);
see also Hernandez v. New York, 500 U.S. 352, 365 (1991).
Here, the district court followed Batson’s three steps: it held that Cruz had
made a prima facie showing of racial discrimination, it required that the
prosecution proffer race-neutral reasons for the strike, and it then evaluated
whether Cruz had shown the prosecution’s race-neutral reasons masked purposeful
discrimination. Thus, we review the district court’s determination of no purposeful
discrimination for clear error. Mikhel, 889 F.3d at 1028.
Cruz first argues that the government failed, at Batson’s second step, to offer
a race-neutral reason for striking Juror 22, “a young Latino man,” when the
prosecutor “said, in quite plain terms, that he chose not to strike a similar juror
[Juror 10] because, in part, ‘she also was an Asian female.’” Cruz asserts that the
prosecutor implicitly admitted that he struck a juror because of his race when he
expressly justified keeping another person on the jury because of her race. But this
3 argument is a step too far, when, as here, the prosecutor asserted a number of race-
neutral traits for striking Juror 22 (he was young, unmarried, and unemployed, with
no children and no prior jury experience), and the district court found that the
strike was not racially motivated. Although the district court might have
concluded that the prosecution’s comment concerning Juror 10 reflected an
underlying bias, Cruz has not shown that the district court clearly erred absent
additional evidence refuting the prosecution’s race-neutral reasons.
Cruz further alleges that the district court erred at Batson’s third step
because (1) in comparing jurors, Cruz was incorrectly required to show an
empaneled juror identical to Juror 22, rather than merely similar; (2) it failed to
engage in a meaningful analysis when it did not recognize the prosecutor’s shifting
reasons as pretextual justifications; and (3) it incorrectly ruled that the jury’s
overall diversity “undercut any claim of discrimination against Latinos.”
To Cruz’s first argument, even under his standard he fails to show first that
there was a similar juror to Juror 22. Cruz points to other jurors who shared
individual traits with Juror 22, (one who was single, one who was unemployed,
and one who was young and had no prior jury experience) but having one trait in
common does not make two jurors similar. The juror who came closest to being
comparable to Juror 22 was Juror 10, who was young, unemployed, had no
children, and had no prior jury experience. But she was married, and her husband
4 was self-employed. These traits suggest that Juror 10 had a different life
experience from Juror 22.
To Cruz’s second point, the district court accepted that the five traits
mentioned by the prosecutor (young, unemployed, unmarried, had no children, and
had no prior jury experience) are race-neutral grounds for striking a juror, and
Cruz’s briefs on appeal do not sufficiently argue otherwise. Perhaps the district
court might have been more skeptical of the prosecution’s additional reasons for
striking Juror 22, but, giving “broad deference to district judges, who observe voir
dire first hand,” Vasquez-Lopez, 22 F.3d at 902, Cruz has not shown that the
district court clearly erred.
To Cruz’s third argument, the district court did not perceive “the presence of
various races on the jury [to] undercut any claim of discrimination against
Latinos.” Rather, after concluding that the prosecutor’s motive was not purposeful
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-50111 Plaintiff-Appellee, D.C. No. v. 3:22-cr-01009-JO-1 Southern District of California, San Diego LUIS ANGEL CRUZ-CRUZ, AKA Angel Sanchez-Cruz, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Jinsook Ohta, District Judge, Presiding
Submitted December 5, 2023** Pasadena, California
Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.
Defendant-appellant, Luis Angel Cruz-Cruz, appeals from his misdemeanor
conviction for attempting to enter the United States by misrepresentation. Cruz-
Cruz asserts that the prosecution’s peremptory strike of a young Latino juror
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). violated his right to equal protection (a Batson1 challenge) and that there was
insufficient evidence to support the jury’s conviction. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We presume the parties’ familiarity with the facts of
the case and do not discuss them in detail here. The district court’s judgment is
affirmed.
1. “Purposeful racial discrimination in selection of the venire violates a
defendant’s right to equal protection because it denies him the protection that a
trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986).
Ruling on a Batson challenge invokes a three-step process: (1) a defendant must
make a prima facie showing that the peremptory challenge was exercised on the
basis of race; (2) if such a showing is made, the prosecution must offer a race-
neutral reason for the strike; and (3) in light of the response, the trial court must
determine whether the defendant has shown the prosecution’s race-neutral reasons
masked purposeful discrimination. United States v. Mikhel, 889 F.3d 1003, 1028
(9th Cir. 2018) (citing United States v. Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir.
2015)).
Ordinarily, we review a district court’s ruling on a Batson challenge for clear
error. Id. at 1028 (citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008)).
1 “Batson” is a shorthand description of a claim that a juror was stricken for an improper racial reason. See Batson v. Kentucky, 476 U.S. 79 (1986).
2 However, we “sometimes appl[y] 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.” United States v.
Hernandez-Garcia, 44 F.4th 1157, 1166 (9th Cir. 2022). Still, the defendant bears
the ultimate burden of showing purposeful discrimination. Alvarez-Ulloa, 784
F.3d at 566. Also, we give “broad deference to district judges, who observe voir
dire first hand.” United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994);
see also Hernandez v. New York, 500 U.S. 352, 365 (1991).
Here, the district court followed Batson’s three steps: it held that Cruz had
made a prima facie showing of racial discrimination, it required that the
prosecution proffer race-neutral reasons for the strike, and it then evaluated
whether Cruz had shown the prosecution’s race-neutral reasons masked purposeful
discrimination. Thus, we review the district court’s determination of no purposeful
discrimination for clear error. Mikhel, 889 F.3d at 1028.
Cruz first argues that the government failed, at Batson’s second step, to offer
a race-neutral reason for striking Juror 22, “a young Latino man,” when the
prosecutor “said, in quite plain terms, that he chose not to strike a similar juror
[Juror 10] because, in part, ‘she also was an Asian female.’” Cruz asserts that the
prosecutor implicitly admitted that he struck a juror because of his race when he
expressly justified keeping another person on the jury because of her race. But this
3 argument is a step too far, when, as here, the prosecutor asserted a number of race-
neutral traits for striking Juror 22 (he was young, unmarried, and unemployed, with
no children and no prior jury experience), and the district court found that the
strike was not racially motivated. Although the district court might have
concluded that the prosecution’s comment concerning Juror 10 reflected an
underlying bias, Cruz has not shown that the district court clearly erred absent
additional evidence refuting the prosecution’s race-neutral reasons.
Cruz further alleges that the district court erred at Batson’s third step
because (1) in comparing jurors, Cruz was incorrectly required to show an
empaneled juror identical to Juror 22, rather than merely similar; (2) it failed to
engage in a meaningful analysis when it did not recognize the prosecutor’s shifting
reasons as pretextual justifications; and (3) it incorrectly ruled that the jury’s
overall diversity “undercut any claim of discrimination against Latinos.”
To Cruz’s first argument, even under his standard he fails to show first that
there was a similar juror to Juror 22. Cruz points to other jurors who shared
individual traits with Juror 22, (one who was single, one who was unemployed,
and one who was young and had no prior jury experience) but having one trait in
common does not make two jurors similar. The juror who came closest to being
comparable to Juror 22 was Juror 10, who was young, unemployed, had no
children, and had no prior jury experience. But she was married, and her husband
4 was self-employed. These traits suggest that Juror 10 had a different life
experience from Juror 22.
To Cruz’s second point, the district court accepted that the five traits
mentioned by the prosecutor (young, unemployed, unmarried, had no children, and
had no prior jury experience) are race-neutral grounds for striking a juror, and
Cruz’s briefs on appeal do not sufficiently argue otherwise. Perhaps the district
court might have been more skeptical of the prosecution’s additional reasons for
striking Juror 22, but, giving “broad deference to district judges, who observe voir
dire first hand,” Vasquez-Lopez, 22 F.3d at 902, Cruz has not shown that the
district court clearly erred.
To Cruz’s third argument, the district court did not perceive “the presence of
various races on the jury [to] undercut any claim of discrimination against
Latinos.” Rather, after concluding that the prosecutor’s motive was not purposeful
racial discrimination, it noted the panel’s diversity. This was not a factor in
evaluating the prosecution’s motive for striking Juror 22 so much as observation
that Cruz’s assertion of discriminatory motive did not find support in the overall
context of the jury selection.
2. We review de novo the denial of a Rule 29 motion for judgment of acquittal.
United States v. Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005).
However, “we ask whether, ‘after viewing the evidence in the light most favorable
5 to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” United States v. Niebla-Torres, 847
F.3d 1049, 1054 (9th Cir. 2017) (internal quotation marks omitted) (quoting United
States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir. 2000)).
Cruz argues that the government failed to prove two elements of his
misdemeanor conviction: (1) it did not offer sufficient evidence that he was an
alien at the time of his attempted entry, and (2) it failed to prove that he willfully
made a false statement for the purpose of gaining entry.
Cruz’s challenge to the sufficiency of the evidence of his alienage is not
persuasive because there was sufficient corroborating evidence supporting his
admission that he was not a United States citizen. He sought to enter the United
States using a Washington state driver’s license that stated, “Federal Limits
Apply.” After he twice asserted that he had a U.S. passport, database searches
revealed that he did not have a U.S. passport and had never applied for one.
Moreover, his admission of alienage came after he had been fully Mirandized and
his effort to reenter the U.S. without documentation had been thwarted.
Cruz’s challenge to the sufficiency of his willful false statement is similarly
unpersuasive. The jury could reasonably find that Cruz, having lived in the U.S.
for over a decade, fully understood Officer Hobbs and deliberately (i.e. willfully)
told him that he had a passport in the hope that the officer would allow him to
6 reenter. Perhaps the jury could have disbelieved Officer Hobbs’ testimony. But
Cruz has not shown that, when viewing the evidence in the light most favorable to
the government, no rational trier of fact could have found his statement was made
willfully.
The district court’s judgment is AFFIRMED.