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
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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
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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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
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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
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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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.