Friday, November 03, 2017

US v. Hernandez-Quintania, No. 16-50171 (Freudenthal w/Fletcher & Ikuta). 

This is an appeal from a 1326 illegal reentry conviction. Two interesting issues: (1) when does permission to reenter need to take place; and (2) Batson.

The defendant was removed from the United States in 2015.  In 2016, law enforcement found him lying down in an intersection.  A 1326 charge, and a SR violation (from 2014), followed. At trial, the government presented evidence that permission was not given since the 2015 removal.  However, an agent made reference to an application for admission in 2004.  On appeal, the argument was that the application could have been granted or was still pending or there was insufficient evidence to convict. 

The 9th rejected the argument.  The 9th examined the statute, and the plain text, and held that: "In examining the language of the statute, we conclude that the Attorney General's consent to reapply must come after the most recent deportation."

As for Batson, the prosecutor struck two minorities from the jury pool.  The defendant raised a Batson challenge.  The district court found that no prima facie case was established to give to an inference of discriminatory purpose.  The court observed that the pool was very mixed; and that there were a number of minorities seated on the jury. The 9th agreed.  The 9th found that the court's musing why the prosecutor may have struck the jurors were not structural error.  The defense failed to show that these minority prospective jurors were questioned differently, exercised a pattern of striking minority jurors, struck a large number of minority jurors, or that the pool was disproportionate.
The decision is here:


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