Argued and Submitted December 11, 2014 San Francisco California
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeals from the United States District Court for the District of Arizona. D.C. No. 2:11-cr-2268-NVW-1. D.C .No. 4:07-cr-1972-NVW-1. Neil V. Wake, District Judge, Presiding.
The panel affirmed a conviction for illegal reentry under 8 U.S.C. § 1326(a), and the district court's order revoking supervised release based on that conviction, in a case in which the defendant contended that the district court erred in rejecting his Batson challenges and that a supplemental jury instruction impermissibly coerced the jury and constructively expanded the indictment.
The panel held that the district court erred in failing to reach the third step of the Batson framework, where it dispensed with each challenge by determining that the government had asserted facially neutral grounds for its peremptory strikes of three Hispanic individuals in the venire, without evaluating the persuasiveness of the government's facially neutral reason. The panel held, however, that the defendant failed to show purposeful discrimination and that the record does not support such a finding on de novo review.
The panel held that the district court's supplemental instruction -- which clarified that the insanity defense would not apply if, while the defendant was illegally present in the United States, he was sane for a long enough period to have left the country -- was substantively correct and not coercive. The panel rejected the defendant's contention that the supplemental jury instruction constituted a constructive amendment of the indictment. The panel wrote that because it is well-established in this circuit that an indictment under § 1326(a) need not specifically denote the duration of a defendant's illegal presence, the indictment provided the defendant with adequate notice that he was being charged with a course of criminal conduct that began when he reentered the United States; and that the supplemental jury instruction was not " distinctly different" from the indictment.
Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger (argued), Assistant Federal Public Defender, Phoenix, Arizona, for Defendant-Appellant.
John S. Leonardo, United States Attorney, Mark S. Kokanovich, Deputy Appellate Chief, and Kiyoko Patterson (argued), Assistant United States Attorney, Phoenix Arizona, for Plaintiff-Appellee.
Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Frederic Block, Senior District Judge.[*]
A. Wallace Tashima, Circuit Judge.
Jesus Alvarez-Ulloa (" Ulloa" ) appeals his conviction for illegal reentry under 8 U.S.C. § 1326(a) and the district court's order revoking his supervised release based on the jury's guilty verdict in the illegal reentry case. During jury selection, Ulloa unsuccessfully challenged three of the government's peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). At trial, Ulloa asserted the insanity defense, arguing that as a former boxer he suffered from brain damage that prevented him from understanding the nature of his presence in the United States. After the jury deadlocked, the district court clarified that the insanity defense would not apply if while Ulloa was illegally present in the United States he was sane for a long enough period to have left the country. The jury subsequently returned a guilty verdict.
On appeal, Ulloa contends, first, that the district court erred in rejecting his Batson challenges, and, second, that the supplemental instruction impermissibly coerced the jury and constructively expanded the indictment. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Over a period of about twelve years, between approximately 1984 and 1996, Ulloa was first an amateur and later a professional boxer. Although Ulloa was raised and appears to have lived primarily in Arizona, he is a citizen of Mexico, a designation responsible for many of his recent legal problems.
In 2010, Ulloa was removed to Mexico following a conviction for attempted illegal reentry after deportation, in violation of 8 U.S.C. § § 1326(a), (b)(2). Ulloa subsequently reentered the United States. Local police found and detained Ulloa in October 2011 at a resort in Phoenix after he reportedly attempted to steal a copy of the roster of the Arizona Cardinals.
After concluding that Ulloa was a citizen of Mexico subject to a previous deportation order, the government charged Ulloa with illegal reentry. The indictment charged, in full:
On or about October 23, 2011, at or near Phoenix, in the District of Arizona, JESUS ALVAREZ-ULLOA, an alien, was found in the United States of America after having been previously denied admission, excluded, deported, and removed from the United States at or near San Ysidro, California, on or about December 17, 2010, and not having obtained the express consent of the Attorney General or the Secretary of Homeland Security to reapply for readmission.
In violation of Title 8, United States Code, Sections 1326(a) and (b)(1).
During jury selection, Ulloa raised three Batson challenges to the government's peremptory strikes. Ulloa alleged that the government's strikes of Panelists 25, 29, and 30 were motivated by impermissible racial discrimination. According to Ulloa's counsel, there were five Hispanic individuals in the venire of thirty-six potential jurors, and the government used three of its seven peremptory strikes on Hispanic individuals.
The district court discussed each of the prospective strikes with the government and Ulloa's counsel.
At the court's prompting, the government first addressed the strike of Panelist 25. The government asserted it struck Panelist 25 because he " was a pre-med major in sports medicine and [had] experience in that area and [was] involved in football, karate, and boxing." Additionally, Panelist 25 had previously attended a pro-immigration reform rally with his mother, which, the government suggested, might indicate potential bias in an immigration-related prosecution.
Panelist 29 was struck, according to the government, because she was a third-year law student and had previously worked for a criminal defense firm. The government contended that this background was " indicative of somebody who would be less ...