FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLEMENTE HERNANDEZ-GARCIA,

Defendant-Appellant.

No. 20-50228

D.C. No.

3:19-cr-04373-

GPC-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted February 10, 2022

Pasadena, California

Filed May 4, 2022

Before: Mary M. Schroeder, Kermit V. Lipez,* and 

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee

* The Honorable Kermit V. Lipez, United States Circuit Judge for 

the First Circuit, sitting by designation.
2 UNITED STATES V. HERNANDEZ-GARCIA

SUMMARY**

Criminal Law

The panel affirmed a conviction for illegal reentry after 

removal in a case in which a Marine Corps surveillance unit 

spotted the defendant immediately after he unlawfully 

entered the United States, and notified Customs and Border 

Patrol agents who soon detained him.

The defendant argued that the Marine Corps surveillance 

violated the Posse Comitatus Act, which codified the 

longstanding prohibition against military enforcement of 

civilian law. Rejecting that argument, the panel explained 

that the military may still assist civilian law enforcement 

agencies if Congress expressly authorized it, and 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. The 

panel concluded that the district court therefore properly 

denied the defendant’s suppression motion based on the 

alleged violation of the Posse Comitatus Act.

The panel also denied the defendant’s Batson challenge 

to the prosecution’s striking two Asian jurors from the 

venire, concluding that the defendant failed to rebut the 

prosecution’s race-neutral reasons for doing so.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HERNANDEZ-GARCIA 3

COUNSEL

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.

OPINION

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.
4 UNITED STATES V. HERNANDEZ-GARCIA

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 raceneutral 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, HernandezGarcia 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 
UNITED STATES V. HERNANDEZ-GARCIA 5

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 

1 Hernandez-Garcia also argued that he was arrested without 

probable cause. The district court held that the Border Patrol agents had 

probable cause, and Hernandez-Garcia does not challenge this ruling on 

appeal.
6 UNITED STATES V. HERNANDEZ-GARCIA

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 (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:
UNITED STATES V. HERNANDEZ-GARCIA 7

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 

2 The prosecution struck a third Asian juror, Ms. Ahmad, because 

(1) Border Patrol had once searched her, and (2) she had served as a 

witness in an immigration case that left her with a “negative impression” 

of Border Patrol agents. The district court held that these reasons were 

legitimate, and Hernandez-Garcia does not raise a Batson challenge for 

the striking of Ms. Ahmad.
8 UNITED STATES V. HERNANDEZ-GARCIA

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 
UNITED STATES V. HERNANDEZ-GARCIA 9

rationale of “single with no kids” was concerning because 

there were “multiple jurors who said that” including white 

jurors. But the court responded that the “challenge is 

denied.” Hernandez-Garcia’s counsel then asked, “[I]s the 

Court making a finding there is no purposeful 

discrimination?” The district court replied, “I have made a 

finding there’s not a prima facie case. There’s not 

discrimination.”

IV. The jury convicts Hernandez-Garcia and he 

appeals.

The jury convicted Hernandez-Garcia of illegal reentry 

after removal. He then filed this appeal, raising two issues. 

First, he renews his argument that the Marine Corps 

surveillance violated the Posse Comitatus Act. Second, he 

claims that the district court erred in conducting the Batson

inquiry. He asks that we review de novo the record and hold 

that the prosecution racially discriminated against Asian 

jurors, or, at the very least, remand for the district court to 

conduct more analysis at Batson’s third step.

STANDARD OF REVIEW

We review de novo whether the Marine surveillance 

violated the Posse Comitatus Act. United States v. Dreyer, 

804 F.3d 1266, 1271 (9th Cir. 2015) (en banc). “Ordinarily, 

we review the district court’s ruling on a Batson challenge 

for clear error.” United States v. Mikhel, 889 F.3d 1003, 

1028 (9th Cir. 2018). “However, we review de novo whether 

the district court properly applied Batson,” United States v. 

Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015), and we 

“have applied de novo review [to the court’s Batson ruling] 

. . . where the court improperly applied the three-step 

framework,” Mikhel, 889 F.3d at 1028.
10 UNITED STATES V. HERNANDEZ-GARCIA

DISCUSSION

I. The district court properly denied HernandezGarcia’s suppression motion because the 2016 NDAA 

authorizes the Marine Corps surveillance.

After Reconstruction, Congress enacted the Posse 

Comitatus Act to “eliminate the direct active use of Federal 

troops by civil law authorities.” United States v. Banks, 

539 F.2d 14, 16 (9th Cir. 1976). Under the current version 

of the law, military personnel cannot assist in civilian law 

enforcement unless expressly authorized by Congress:

Whoever, except in cases and under 

circumstances expressly authorized by the 

Constitution or Act of Congress, willfully 

uses any part of the Army, the Navy, the 

Marine Corps, the Air Force, or the Space 

Force as a posse comitatus or otherwise to 

execute the laws shall be fined under this title 

or imprisoned not more than two years, or 

both.

18 U.S.C. § 1385.

Here, the Posse Comitatus Act posed no obstacle to the 

U.S. Marines assistance because Section 1059 of the 2016 

NDAA expressly authorizes surveillance by the military at 

the southern border. Section 1059(a) directs the Secretary of 

Defense to “provide assistance to [Border Patrol] for 

purposes of increasing ongoing efforts to secure the southern 

land border of the United States.” 2016 NDAA § 1059(a). 

The military may deploy “ground-based surveillance 

systems to support continuous surveillance of the southern 

land border of the United States.” Id. § 1059(c)(2). And that 

is exactly happened here.
UNITED STATES V. HERNANDEZ-GARCIA 11

Despite § 1059’s directive, Hernandez-Garcia maintains 

that the Marine Corps surveillance leading to his arrest was 

unauthorized. He again claims that the 2016 NDAA was a 

lapsed appropriations act no longer in effect at the time of 

his arrest. We reject that argument. Section 1059 of the 

2016 NDAA remains in force. In last year’s 2021 NDAA, 

Congress made minor amendments to § 1059’s 

congressional reporting requirements, confirming that the 

law remains in effect. See William M. (Mac) Thornberry 

National Defense Authorization Act for Fiscal Year 2021, 

Pub. L. 116-283, 134 Stat. 3388 (2021). Congress would 

have no reason to amend § 1059 if it was a lapsed 

appropriations act. The 2021 NDAA thus provides explicit 

evidence that § 1059 continues in full effect. See McClure 

v. United States, 95 F.2d 744, 750 (9th Cir. 1938) (“Where 

an amendment leaves certain portions of the original act 

unchanged, such portions are continued in force with the 

same meaning.”); see also United States v. Rios-Montano, 

438 F. Supp. 3d 1149, 1153 (S.D. Cal. 2020) (“Congress has 

also made substantive changes to the law and enacted new, 

longstanding programs through other NDAAs.”).

Further, § 1059—unlike other provisions in the 2016 

NDAA—has no termination date, confirming that Congress 

intended § 1059 to remain operative beyond fiscal year 

2016. See Dep’t of Homeland Sec. v. MacLean, 574 U.S. 

383, 391 (2015) (“Congress generally acts intentionally 

when it uses particular language in one section of a statute 

but omits it in another.”).

Hernandez-Garcia also argues that an earlier statute, 

10 U.S.C. § 274, defines the scope of Congressionally 

authorized military border surveillance, and that the 

surveillance here exceeds that prior limit. Section 274 

permits Department of Defense personnel to be “made 
12 UNITED STATES V. HERNANDEZ-GARCIA

available to a civilian law enforcement agency” to “operate 

equipment” for the:

Detection, monitoring, and communication 

of the movement of surface traffic outside of 

the geographic boundary of the United States 

and within the United States not to exceed 

25 miles of the boundary if the initial 

detection occurred outside of the boundary.

10 U.S.C. § 274(b)(2) (emphasis added). According to 

Hernandez-Garcia, because the Marines “initially detected” 

him 10–15 feet inside the United States, they exceeded their 

authority under § 274’s limitation of detection “outside” of 

the United States border.

Put another way, he argues that the previously enacted 

§ 274 trumps § 1059 of the NDAA, invoking the “generalspecific” canon. See Hellon & Assocs., Inc. v. Phoenix 

Resort Corp., 958 F.2d 295, 297 (9th Cir. 1992). Under this 

canon of construction, “the later and more specific statute 

usually controls” if two statutes conflict. Id. “[L]egislators 

are often . . . unfamiliar with enactments of their 

predecessors” and may “unwittingly contradict them.” 

Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 185 (2012). Thus, if the newer 

statute “comes closer to addressing the very problem posed 

by the case at hand,” it is as if the “later-enacted statute . . .

effectively repeal[ed]” the conflicting provisions of the 

earlier one. Id. at 183–85.

According to Hernandez-Garcia, § 1059 and § 274 

conflict because the former permits surveillance of 

individuals no matter where the initial detection occurred, 

while the latter requires the initial detection to occur outside 

the United States. And § 274 is supposedly more specific 
UNITED STATES V. HERNANDEZ-GARCIA 13

because it allows the military to surveil “with respect to . . .

a criminal violation,” while § 1059 is silent about criminal 

violations. Compare 10 U.S.C. § 274(b)(1)(A), with 2016 

NDAA § 1059.

We agree that the two statutes conflict because of § 274’s 

“initial detection” limitation. But the general-specific canon 

cuts against Hernandez-Garcia’s position. The 2016 

NDAA’s § 1059 is in fact more specific than § 274 as 

applied here, so § 1059 takes precedence over § 274. First, 

while § 274 contains only general language about 

“detection” and “monitoring,” § 1059 specifically authorizes 

the Marine Corps to surveil the California-Mexico border 

from a scoping truck. Second, while § 274 generally permits 

assistance to any “Federal, State, and local civilian law 

enforcement officials,” § 1059 authorizes the military to 

assist only a single federal agency, Customs and Border 

Patrol. Third, § 274 allows general surveillance of any 

United States boundary, while § 1059 approves surveillance 

of only the “southern land border.” Finally, § 274 broadly 

allows the operation of “equipment,” while § 1059 

specifically directs the deployment of “ground-based 

surveillance systems” such as scoping trucks. Compare

10 U.S.C. § 274(a)–(b), with 2016 NDAA § 1059(a) 

and (c).3

 Thus, we hold that the 2016 NDAA’s § 1059 is 

3 In any event, the specificity in § 274 that Hernandez-Garcia seizes 

upon—assistance with criminal violations—has little relevance here. 

See 10 U.S.C. § 274(b)(1)(A). The government’s decision to criminally 

charge Hernandez-Garcia with illegal reentry is separate from the critical 

issue here: whether Congress authorized Marine Corps surveillance that 

enabled Border Patrol to locate him. And even if § 274’s specificity 

about criminal violations was relevant, Hernandez-Garcia’s reliance on 

the “general-specific” canon would still be misplaced because then both 

statutes would be “specific in certain respects and general in others,” so 

“the general-specific canon [would] not help to clearly discern 
14 UNITED STATES V. HERNANDEZ-GARCIA

more specific than—and thus trumps—the general 

provisions in § 274.

We also reject Hernandez-Garcia’s contention that 

applying § 1059 here would render § 274 superfluous. See 

D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 

(1932) (“[I]f possible, effect shall be given to every clause 

and part of a statute.”). Section 274’s “initial detection” 

limitation would still apply if the military were surveilling 

other United States boundaries (i.e., the non-Southern 

border) or aiding other law enforcement agencies (i.e., nonBorder Patrol agencies). See Scalia & Garner, supra at 185 

(“The specific provision does not negate the general one 

entirely, but only in its application to the situation that the 

specific provision covers.”). Congress passed § 1059 to 

explicitly address acute security issues amid the surge of 

migrants at the southern border. In doing do, Congress was 

not hamstrung by § 274’s constraints. See United States v. 

Juvenile Male, 670 F.3d 999, 1007–08 (9th Cir. 2012) 

(holding earlier statute prohibiting identification of juvenile 

delinquents does not prevent application of a later statute 

specifically requiring juvenile sex offenders to join a 

registry).4

We thus hold that § 1059 of the 2016 NDAA authorized 

the Marine Corps’ surveillance of Hernandez-Garcia at the 

Congress’s intent as to which section should take precedence here.” See 

Perez-Guzman v. Lynch, 835 F.3d 1066, 1075–76 (9th Cir. 2016) 

(emphasis in original).

4 While the parties have not raised it, 10 U.S.C. § 284(b)(6) allows 

the Secretary of Defense to provide support for “detection” and 

monitoring” outside the U.S. border to combat “counterdrug activities” 

and “transnational organized crime.” It does not apply here because of 

its limitation to certain criminal activities.
UNITED STATES V. HERNANDEZ-GARCIA 15

southern border, and that the district court rightly denied his 

suppression motion based on the alleged violation of the 

Posse Comitatus Act.5

II. We deny Hernandez-Garcia’s Batson challenge 

because he has failed to show that the prosecution 

purposefully discriminated against Asian jurors.

Batson v. Kentucky established a three-step burdenshifting framework for evaluating a defendant’s claim that 

the prosecution exercised peremptory strikes in a racially 

discriminatory manner. See Hernandez v. New York, 

500 U.S. 352, 358–59 (1991). The defendant must first 

make a prima facie showing that the prosecution exercised 

its strikes based on race. Id. at 358. Then, the burden shifts 

to the prosecution to provide a “race-neutral explanation for 

striking the jurors in question.” Id. at 359. If the prosecution 

provides race-neutral reasons, the district court must 

determine based on the record whether the “defendant has 

carried his burden in proving purposeful discrimination.” Id.

Because the prosecution offered race-neutral reasons for 

striking Ms. Del Rosario and Mr. Sanqui, the only remaining 

inquiry is whether the district court erred at step three. See 

Mikhel, 889 F.3d at 1029. While we normally review a 

district court’s step three finding for clear error, we have 

sometimes applied 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. See, e.g., Alvarez5 Because we hold that the 2016 NDAA authorized the Marines’ 

surveillance, we do not address the government’s argument that it 

amounted to only indirect assistance not subject to the Posse Comitatus 

Act.
16 UNITED STATES V. HERNANDEZ-GARCIA

Ulloa, 784 F.3d at 565 (failing to reach step three); United 

States v. Alanis, 335 F.3d 965, 968–69 (9th Cir. 2003) 

(failing to conduct meaningful analysis at step three).

Hernandez-Garcia insists that the district court’s analysis 

was flawed and urges us to conduct our own de novo review 

at step three. First, Hernandez-Garcia argues that the district 

court failed to conduct a step three analysis because, after 

listening to the prosecution’s race-neutral reasons, the 

district court twice stated that there is not “a prima facie 

case,” seemingly making a step one finding. Even if the 

district court reached step three, its analysis was not 

meaningful, according to Hernandez-Garcia, because the

district court misstated the prosecution’s proffered reasons 

for striking Ms. Del Rosario and Mr. Sanqui.6

We acknowledge that the district court’s oral Batson 

ruling is not a paragon of clarity. But when reviewing a 

district court’s oral pronouncements in court, we must be 

careful “not to formally parse the sentences contained in a 

transcript of an oral ruling or to demand absolute linguistic 

precision from the trial judge.” See United States v. 

Coutchavlis, 260 F.3d 1149, 1156 (9th Cir. 2001). And even 

indulging Hernandez-Garcia’s request that we apply de novo 

review, we conclude that Hernandez-Garcia did not prove 

6 Hernandez-Garcia also contends that the district court’s step three 

analysis was flawed because the court refused to conduct a “comparative 

juror analysis.” But comparative juror analysis “is one of many tools 

that a court may employ” at step three, and “[t]rial courts . . . are not 

required to conduct such an analysis.” United States v. You, 382 F.3d 

958, 969 (9th Cir. 2004).
UNITED STATES V. HERNANDEZ-GARCIA 17

that the prosecution purposefully discriminated against 

Asian jurors.7

The “ultimate burden of persuasion regarding racial 

motivation rests with, and never shifts from, the opponent of 

the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995). The 

“critical question” in determining whether HernandezGarcia has proven “purposeful discrimination at step three is 

the persuasiveness of the prosecutor’s justification for his 

peremptory strike.” Miller-El v. Cockrell, 537 U.S. 322, 

338–39 (2003). At step three, “implausible or fantastic 

justifications may (and probably will) be found to be pretexts 

for purposeful discrimination.” Id. at 339 (quoting Purkett, 

514 U.S. at 768). But a “legitimate reason” is not necessarily 

a “reason that makes sense,” but is instead “a reason that 

does not deny equal protection.” Purkett, 514 U.S. at 768–

69.8

 Ultimately, we must determine whether the “stated 

reasons were the prosecutor’s genuine reasons for exercising 

a peremptory strike.” Green v. LaMarque, 532 F.3d 1028, 

1030 (9th Cir. 2008).

The prosecution struck Ms. Del Rosario because she 

served on a hung jury and works as a research scientist. 

Ms. Del Rosario’s prior service on a hung jury was a 

7 We do not hold that the district court’s analysis was erroneous such 

that de novo review is required. Rather, we assume without deciding 

that the district court erred because Hernandez-Garcia’s Batson claim 

still fails under de novo review.

8 There is no requirement, as Hernandez-Garcia urges, that the 

prosecution’s reasons be directly relevant to the crime charged. Purkett

clarifies that Batson’s warning that the prosecution’s reasons must be 

“related to a particular case to be tried” was “meant to refute the notion 

that a prosecutor could satisfy his burden of production by merely 

denying that he had a discriminatory motive.” See id.
18 UNITED STATES V. HERNANDEZ-GARCIA

legitimate reason. See United States v. Rudas, 905 F.2d 38, 

41 (2d Cir. 1990). And it was permissible to strike Ms. Del 

Rosario based on her occupation because the prosecution 

stated “a genuine, race-neutral reason for believing that the 

occupation would make the juror unfavorable.” Jamerson v. 

Runnels, 713 F.3d 1218, 1235 (9th Cir. 2013). During voir 

dire, the prosecution expressed concern that jurors with 

engineering backgrounds, who are used to dealing with 

“hard numbers, objective facts,” would be skeptical of the 

government’s case built on circumstantial evidence. It was 

reasonable for the prosecution to be concerned that Ms. Del 

Rosario, a research scientist, also possessed this same 

distrust of circumstantial evidence.

Still, Hernandez-Garcia maintains that the reasons were 

pretextual because the prosecution failed to strike four white 

jurors who had also allegedly served on hung juries. But if 

the prosecution cites multiple reasons for striking a juror and 

“no unchallenged juror possesse[s] all the cited 

characteristics,” then the record does not support a finding 

of purposeful discrimination. See United States v. Lewis, 

837 F.2d 415, 417 n.5 (9th Cir. 1988). Here, none of the 

white jurors were researchers or worked in a related field. 

(Mr. Avecilla: “I am a default assistant at [a] law firm.”);

(Mr. Hogan: “I am retired.”); (Mr. Westfall: “I am a retired 

CPA and finance manager.”); (Mr. Brownlow: “I am a 

construction consultant, a former teacher.”). We thus 

conclude that Hernandez-Garcia did not show that the 

prosecution purposefully discriminated against Ms. Del 

Rosario.

We also hold that Hernandez-Garcia failed to prove that 

the prosecution struck Mr. Sanqui for racially discriminatory 

reasons. The prosecution struck Mr. Sanqui because “he 

appeared to be a loner” as the “only thing he said during [voir 
UNITED STATES V. HERNANDEZ-GARCIA 19

dire] was ‘I am a software developer, no spouse, no kids.’”9 

Mr. Sanqui also “came dressed in a hoodie,” which the 

prosecution “perceived to be underdressed.”

Striking a perceived “loner” is permissible because “a 

loner may hamper the jury’s ability to reach a unanimous 

verdict.” United States v. Daly, 974 F.2d 1215, 1219 (9th 

Cir. 1992). And the prosecution may legitimately strike a 

juror based on his casual dress because it conveys a possible 

lack of enthusiasm for jury service. See United States v. 

Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987). We 

recognize that these reasons are subjective and largely based 

on a prosecutor’s “instinct about a prospective juror.” Id. 

But reliance on instinct is permissible and “wholly within the 

prosecutor’s prerogative.” Id.

Hernandez-Garcia quarrels with the prosecution’s 

assumption that Mr. Sanqui’s brief response suggests he is a 

loner. According to Hernandez-Garcia, Mr. Sanqui’s 58-

word response was longer than at least six non-Asian jurors 

whom the prosecution did not strike, so the loner explanation 

must be pretextual. We disagree. The prosecution’s 

conclusion about a juror’s demeanor is often based on a 

“hunch.” See Burks v. Borg, 27 F.3d 1424, 1429 n.3 (9th 

9 Hernandez-Garcia interprets the prosecution’s reference to Mr. 

Sanqui’s profession as an independent reason for its challenge and urges 

us to conduct a comparative juror analysis with respect to other jurors 

sharing the same occupation. But the prosecution did not strike 

Mr. Sanqui because of his profession. Rather, it struck Mr. Sanqui 

because of his brief response, and in explaining its thinking to the court, 

the prosecution incidentally repeated Mr. Sanqui’s reference to his 

profession. Thus, we decline to conduct a comparative juror analysis as 

to occupation.
20 UNITED STATES V. HERNANDEZ-GARCIA

Cir. 1994). The veracity of such an inherently subjective 

perception cannot be doubted based solely on a word count.

Lastly, Hernandez-Garcia argues that our decision in Ali 

v. Hickman, 584 F.3d 1174 (9th Cir. 2009), prohibits reliance 

on Mr. Sanqui’s casual dress. In Ali, we considered 

“casualness” an “exceedingly weak” justification because it 

was contradicted by the prosecution’s other reason that the 

juror “would ‘over-intellectualize’ the decisionmaking 

process.” Id. at 1195. But here, there is no conflict between 

the prosecution’s loner and casualness rationales. If 

anything, the two reasons reinforce one another because they 

both suggest that Mr. Sanqui has low enthusiasm for jury 

service and may hinder a unanimous verdict. And 

Hernandez-Garcia has failed to identify a single similarly 

dressed non-Asian juror who went unchallenged. See 

Thompson, 827 F.2d at 1260 (Casual dress is a “legitimate 

reason, unless a nonexcluded juror also wore jeans or other 

casual dress.”).

CONCLUSION

We hold that the Marine Corps did not violate the Posse 

Comitatus Act by surveilling Hernandez-Garcia just north of 

the southern border. We also hold that Hernandez-Garcia 

failed to prove that the prosecution racially discriminated by 

striking two Asian jurors from the venire. We AFFIRM

Hernandez-Garcia’s conviction.