UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUN 26 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 22-50111

Plaintiff-Appellee, D.C. No. 3:22-cr-01009-JO-1 Southern District of California, v. San Diego

LUIS ANGEL CRUZ-CRUZ, AKA Angel ORDER Sanchez-Cruz,

Defendant-Appellant.

Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.

The memorandum disposition filed on December 8, 2023, is hereby

amended as follows. The sentence on page 4 of the disposition that reads:

“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” is deleted, and is replaced with the following sentence: “To

the extent that Cruz’s arguments are directed at Batson’s second step, we review

those arguments de novo, and find that the prosecutor proffered race-neutral

reasons for striking Juror 22.” The amended memorandum disposition will be filed

concurrently with this order.

The panel has voted to deny the petition for panel rehearing and to deny 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 rehearing and the petition for rehearing en banc are denied.

2

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 26 2024

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,

AMENDED

Defendant-Appellant. MEMORANDUM*

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. To the extent that Cruz’s arguments are directed

at Batson’s second step, we review those arguments de novo, and find that the

prosecutor proffered race-neutral reasons for striking Juror 22.

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.

7