                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 14, 2004

                                                          Charles R. Fulbruge III
                            No. 03-51237                          Clerk
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VICENTE HERNANDEZ-ECHEVESTE,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                       USDC No. P-03-CR-178-ALL
                         --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Vicente Hernandez-Echeveste was convicted by a jury of

transportation of illegal aliens, a violation of 8 U.S.C.

§ 1324(a)(1)(B)(ii).   Between the time that Hernandez’ jury was

selected and sworn and the time that his trial commenced, 11 out

of his 12 jurors served interim jury service.    On the morning of

trial, Hernandez filed a motion asserting that some of the jurors

had been on convicting juries in similar criminal cases in that

interim period.   The district court denied Hernandez’ motion as

untimely.   Hernandez now appeals that ruling.


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 03-51237
                                  -2-

     Hernandez argues correctly that his motion, filed on the

morning of trial, but before any testimony was heard, was timely.

See United States v. Jefferson, 569 F.2d 260, 261-63 (5th Cir.

1978); United States v. Capua, 656 F.2d 1033, 1036 (5th Cir.

1981).   Any challenge for cause based on interim jury service

made during voir dire would have been premature.       See United

States v. Brown, 699 F.2d 704, 708 (5th Cir. 1983); Jefferson,

569 F.2d at 262.    Any peremptory challenge based on interim jury

service made during voir dire would have been uninformed and

meaningless.     See United States v. Mutchler, 559 F.2d 955, 958

(5th Cir. 1977).

     Hernandez’ interim-jury-service challenge was timely.

However, the record is insufficiently developed to determine

whether the interim jury service at issue was done on convicting

juries in similar trials.     See United States v. Mutchler, 566

F.2d 1044, 1044 (5th Cir. 1978).    Thus, this case is remanded to

the district court for factual findings and a ruling on the

merits of Hernandez’ motion.     See Jefferson, 569 F.2d at 263.

“If the district court finds that interim service occurred in

‘other cases similar in fact and in legal issue or in cases in

which the same government witnesses’ testified, as explicated in

Mutchler, it should order that a new trial be held; otherwise, it

should reaffirm the judgment of conviction.”     Id.

     REMANDED.
