IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-2126
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTIAS MUNOZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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(February 17, 1994)
Before JOHNSON, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Mattias Munoz, Jr. (Munoz) appeals his
conviction, following a jury trial, of violating 18 U.S.C. §
922(g), by possessing "a firearm, namely, a New England Firearms
Company, model Pardner SB-1, 20 gauge shotgun," when he had been
convicted of a felony.
Munoz asserts that the evidence is insufficient because there
was no showing the weapon in question was a "firearm" in that there
was no evidence it met the 18 U.S.C. § 921(a)(3)(A) definition as
a weapon that "will or is designed to or may readily be converted
to expel a projectile by the action of an explosive." We reject
this contention. The government's witness testified that he
purchased and received a "shotgun" from Munoz and that Munoz then
informed him that it worked; the shotgun itself was identified by
the witness and introduced in evidence; and the prosecution and
defense stipulated before the jury that "the firearm alleged in the
indictment was in and affecting interstate commerce"; there was no
evidence that the shotgun was not designed to (or would not or
could not readily be converted to) expel a projectile by the action
of an explosive. We hold that the evidence was sufficient. See
United States v. Polk, 808 F.2d 33, 34 (8th Cir. 1986); United
States v. Rouco, 765 F.2d 983, 996 (11th Cir. 1985), cert. denied,
475 U.S. 1124 (1986).
Munoz's remaining two complaints relate to jury selection.
Munoz first asserts that the district court erred in
overruling his challenge for cause to venire member Rowley, whom
Munoz contended was biased in favor of law enforcement. Neither
Rowley nor his wife were shown to be, or to have ever been, engaged
in law enforcement, or to have had any knowledge of any of the
events at issue or any of the participants therein. Nor was Rowley
shown to have had any experience with any criminal offense, other
than the fact that he had a brother-in-law who had been convicted
of an unidentified felony, whom Rowley said "got what he deserved."
Rowley was a member of the National Rifle Association and said that
would not affect his decision in the case. His two sons, his only
children, were police officers in Huntsville, Texas; a brother was
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a retired police chief in Mississippi; and a brother-in-law was or
had been a chief of police in Bee County, Texas, for whom "the last
new penitentiary" was named. The events in issue and the trial
occurred in Houston, Texas, and none of the law enforcement
agencies with which Rowley's relatives were or had been affiliated
were involved; nor was there any indication of any specific
experience of any of these (or any other) relatives of Rowley. In
response to questions by the court, Rowley indicated that his
family history, and any of his family's job experiences that might
have related to him, would not prevent him from being fair to all
sides and he could keep an open mind and follow the court's
instructions.
Rowley did express several pro-law enforcement opinions. In
response to questioning by the court he said "sometimes I don't
think they [criminal defendants] get enough." However, he assured
the court that he could put aside any general feelings he had and
follow the court's instructions on the burden of proof and
presumption of innocence and decide the case on the evidence and
the court's instructions. On questioning by defense counsel,
Rowley said that if all he knew about it was that the defendant had
been indicted, he would think he was guilty. Defense counsel then
asked whether, if the court instructed that a guilty verdict could
not be based on the indictment (no instructions in that respect had
then been given), Rowley could follow that instruction, knowing
that the defendant had been indicted and was a convicted felon.
Rowley answered that he could. He further stated that he could put
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aside any contrary feeling. On further inquiry by defense counsel,
Rowley stated that he believed law enforcement officers by virtue
of their training would be "better able to recognize someone." On
questioning by the court, Rowley said that with respect to
identification he would be able to make his decision on the basis
of the evidence and the court's instructions.
In challenging Rowley, defense counsel noted that "[t]he Court
appeared to rehabilitate him. He appeared to be saying I can
follow the court's instructions. I think he has a rather pro
government bias he can't put aside in this case." The court denied
the challenge, noting that Rowley expressed belief in his ability
to be fair and keep an open mind. After peremptory challenges were
exercised, defense counsel renewed her motion, noting she had
stricken Rowley but had used all her peremptory challenges,
identifying two jurors she would have stricken if she had not. The
court denied the renewed motion, finding that based on her
colloquies with Rowley and observation of his demeanor, she was
satisfied Rowley had answered truthfully as to his ability to be
fair and that he could be fair.
We review the district court's ruling as to juror impartiality
only for manifest abuse of discretion. United States v. Bryant,
991 F.2d 171, 174 (5th Cir. 1993). Munoz relies on United States
v. Apodaca, 666 F.2d 89 (5th Cir.), cert. denied, 103 S.Ct. 53
(1982), where "the case had been initiated and prepared by the
FBI," the challenged juror, who had heard of the case in the
newspapers, had worked for the FBI and her husband had done so for
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thirty years, she knew "how much investigation went into a case
before presentment to a grand jury," and thus "might . . . give a
little more credence to the prosection." Id. at 93. We held the
district court did not abuse its discretion in denying the
challenge for cause, but stressed that "the proposed FBI witnesses
did not appear" and noted that "some place along the line we must
know, no matter what a witness says, that he or she has an
institutional bias he cannot overcome." Id. at 94. In the present
case, however, neither Rowley nor his wife had been in law
enforcement and Rowley's relatives then or previously so employed
were never affiliated with any of the law enforcement agencies
involved in this case, nor did it arise within their area of
operation. We recognize that extra precautions may be appropriate
to guard against assumptions by jurors that favor law enforcement
witnesses over others where the case is one "pitting police
testimony against that of a defense witness." See United States v.
Amerson, 938 F.2d 116, 117 (8th Cir. 1991); United States v. Evans,
917 F.2d 800, 807 (4th Cir. 1990) ("this case was going to be
decided on the basis of whether the jury believed Valentine,
testifying for the government, or the defendants, testifying for
themselves"). Here, however, although a law enforcement officer
testified, his testimony was not meaningfully challenged, there was
no defense evidence whatever, and the government's case was strong
and wholly unrebutted.
We are unable to conclude that the district court abused its
discretion in overruling the challenge for cause to venireman
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Rowley, and hence reject Munoz's complaint in this respect.1
Munoz's final contention is that two of the government's
peremptory strikes, one as to an Hispanic and the other as to an
African-American, violated Batson v. Kentucky, 106 S.Ct. 1712
(1986).
After strikes, defense counsel raised the matter with the
court as follows:
". . . [I]t appears that the government has struck
the only Hispanic member of the jury, Salazar. They also
struck one black member, Cleo Thomas. For the record,
although I don't think it matters anymore, the defendant
is Hispanic. We would suggest that makes out a prima
facie case of racial discrimination and ask that the
government be required to explain its peremptories.
THE COURT: Mr. Davis [the prosecutor].
MR. DAVIS: Judge, with regard to juror number 2
1
As we agree with the government on this issue, we do not reach
its alternative contention, based on United States v. Prati, 861
F.2d 82, 87 (5th Cir. 1982), that any error was harmless because
Rowley did not serve. Prati may be distinguishable as it involved
sustaining a challenge for cause (and does not expressly reflect
that the government used all its peremptory challenges). There may
be something to be said for not penalizing the grant of challenges
for cause in close or doubtful cases. Cf. Queen v. Hepburn, 7
Cranch (11 U.S.) 290, 297-98, 3 L.Ed. 348, 350 (1813) (trial court
may properly excuse juror for possible predisposition to one side
even though that was not to such an extent as to require sustaining
of challenge for cause). If Prati is not so construed, it may be
inconsistent with earlier decisions of this Court such as United
States v. Nell, 526 F.2d 1223, 1229-1230 (5th Cir. 1976). See also
Bryant, 991 F.2d at 174 n.3. Moreover, Prati relies on Ross v.
Oklahoma, 108 S.Ct. 2273 (1988), which applied constitutional
standards in reviewing a state criminal conviction and death
sentence. It is not clear that we are restricted to such standards
in reviewing a federal criminal conviction on direct appeal, where
reversal may be proper even though the error complained of is not
of constitutional magnitude. While peremptory challenges, or the
number provided by Fed. R. Crim. P. 24(b), may not be
constitutionally required, it does not follow that a trial court's
wrongful reduction of the number so provided is not reversible
error on direct appeal.
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[Roger Salazar], he indicated that he spoke Spanish. And
[we] also struck juror number 18 [Paula Price], who spoke
Spanish as well because I anticipate there are going to
be Spanish in the tapes. I didn't want any arguments in
the jury as to their possible translation of the tapes
versus what is provided in the transcript to English
speakers.
. . . .
Judge, with regard to juror number 22 [Cleo Thomas]
had indicated that she has got children who were on
welfare. That apparently this person does not work. I
didn't feel that that was the type of person that I
wanted on the jury. And also just for the record, there
is a black female who is seated on the jury.
THE COURT: Anything further?
MS. MEYERS [defense counsel]: We would just argue
that the reasons for striking the Hispanic member are
insufficient. There is no dispute about the accuracy of
the tape in this case.
THE COURT: Anything further that you have, Mr.
Davis?
MR. DAVIS: No, Judge.
THE COURT: . . . [A]s to juror member number 2 who
was the only Hispanic on the panel, I find that the
government's statement of reasons for having exercised a
peremptory challenge with regard to that member of the
panel not to be based on any impermissible factor. The
other member of the panel who indicated a familiarity
with Spanish was also struck.
There is a black female who is a member of the
seated jury. And the Court is satisfied that there is no
impermissible ground that was used as a basis for the
exercise of any challenges on the part of the government.
Anything further at this point?
MS. MEYERS: No, Your Honor."
Striking a juror on the basis of race, including Hispanic
ethnicity, clearly violates Baton. See Hernandez v. New York, 111
S.Ct. 1859 (1991). If the prosecutor articulates a race-neutral
explanation for a challenged strike, the district court's decision
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to credit the explanation is reviewed under the clearly erroneous
rule. Id. at 1869; United States v. Pofahl, 990 F.2d 1456, 1466
(5th Cir. 1993).
Turning first to the Hispanic venireman, we note that the
stated reason was not ethnicity, but rather that the prosecutor did
not want Spanish-speaking jurors because the prosecutor "didn't
want any arguments in the jury as to their possible translation of
the tapes versus what is provided in the transcript to English
speakers." There was indeed a tape introduced of Munoz's
conversation with the government's witness when Munoz sold and
delivered the gun to him, and part of what Munoz said on the tape
was in Spanish. While defense counsel then said "[t]here is no
dispute about the accuracy of the tape," there is nothing in the
record to reflect that this previously had been communicated to,
much less stipulated with, the prosecutor; further, the relevant
subject was the accuracy of translation, not of the tape. At all
events, the concern expressed by the prosecutor was arguments or
differences among the jurors as to the proper translation, not
simply an overt challenge by the defense. That defense counsel
thought the matter had possible relevance is reflected by the fact
that she brought it up earlier on voir dire:
"MS. MEYERS: You may hear a tape recording that has
some Spanish on it. Is there any member of the panel who
speaks or understands Spanish?
MR. SALAZAR: Number 2, Roger Salazar. I do.
MS. MEYERS: And number?
MS. PRICE: 18, Paula Price.
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MS. MEYERS: Anyone else? I thought I saw one more
hand.
Anything I have said here today that makes you think
you couldn't be a fair and impartial juror in this case?"
Finally, that language, rather than ethnicity, was the basis
of the prosecutor's strike in this respect is reflected by the fact
that he also struck Paula Price, who spoke Spanish but was not
Hispanic, and who was cross-struck by the defense (her brother had
been with the FBI and his wife was a police officer in Corpus
Christi).
Munoz argues that any striking based on Spanish-speaking
ability, at least in Texas, is the equivalent of a strike based on
ethnicity. It may be that in certain, or even most, situations in
Texas striking on such a basis would be the equivalent of or a
pretext for prohibited striking for ethnicity. But not in all
cases, as Hernandez indicates. The plurality there stated that "a
policy of striking all who speak a given language, without regard
to the particular circumstances of the trial or the individual
responses of the jurors, may be found to be a pretext for racial
discrimination." Id., 111 S.Ct. at 1873 (emphasis added). Here we
are unable to conclude that the trial court was clearly erroneous
in determining that the prosecutor's explanation for striking
Salazar was race neutral, was tied to the particular circumstances
of the trial, and was not pretextual. We hence overrule Munoz's
contention as to Salazar.
Finally, we turn to the complained of strike of the female
African-American venire member Cleo Thomas. The prosecution's
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stated reason for the strike was that she had children on welfare
and apparently was unemployed. The prosecution noted that another
female African-American served on the jury.2 This explanation was
accepted by the district court as race-neutral. The explanation is
not facially racial. See Pofahl, 990 F.2d at 1466 (employment and
economic status are nonracial). See also United States v. Moreno,
878 F.2d 817, 820 (5th Cir.), cert. denied, 110 S.Ct. 508 (1989)
("young, single, unemployed and inexperienced"). Moreover, when
the district court ruled, defense counsel had questioned the
explanation for the strike of Salazar but had not questioned in any
way the explanation for the Cleo Thomas strike; nor did defense
counsel ever do so in the trial court. While defense counsel
belatedly attempts to do so on appeal, which we do not approve, the
government in any event responds by correctly pointing out that no
other prospective juror indicated that they were unemployed and had
family members on welfare. Cf. Moore v. Keller Industries, Inc.,
948 F.2d 122, 202 (5th Cir. 1991). We reject the complaint as to
the striking of Cleo Thomas.
Having rejected all of Munoz's complaints on appeal, his
conviction and sentence are accordingly
AFFIRMED.
2
There is no indication whether any male African-Americans
served on the jury. For the sake of argument only, we assume none
did; by the same token, however, we cannot assume that any were
among the relevant venire and/or were struck by the prosecution.
Nor can we assume that the prosecution struck any African-American
other than Cleo Thomas.
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