                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 19, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 13-2013
                                                      D. New Mexico
 KALVEST GANADONEGRO,                          (D.C. No. 1:09-CR-00312-JB-1)

           Defendant - Appellant.
 __________________________

 NAVAJO NATION HUMAN RIGHTS
 COMMISSION,

              Amicus Curiae.


                           ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and MATHESON, Circuit Judges.



I.    Introduction

      Appellant Kalvest Ganadonegro was charged in a superceding indictment

with one count of second degree murder, one count of voluntary manslaughter,



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
and one count of the assimilated crime of abandonment or abuse of a child

resulting in death. The jury convicted him of voluntary manslaughter and he was

sentenced to a term of 120 months’ imprisonment. Ganadonegro raises two issues

in this direct criminal appeal: (1) whether the district court erred in denying his

Batson challenge, see Batson v. Kentucky, 476 U.S. 79 (1986), and (2) whether

the prosecutor engaged in misconduct by questioning him about his use of an

interpreter during the trial. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

this court affirms the judgment of conviction.

II.   Background

      In 2008, Ganadonegro’s nine-month-old niece died while in his care.

Because Ganadonegro is Native American and the alleged crime occurred in

Indian Country, he was charged in a federal indictment with first degree felony

murder, in violation of 18 U.S.C. §§ 1153, 1111(a) and (c)(3). The underlying

felony was charged as child abuse. The jury was unable to reach a verdict and the

district court declared a mistrial. Ganadonegro was then charged in a superceding

indictment with one count of second degree murder, in violation of 18 U.S.C. §§

1153 and 1111(a); one count of voluntary manslaughter, in violation of 18 U.S.C.

§§ 1153 and 1112(a); and one count of the assimilated crime of abandonment or

abuse of a child resulting in death, in violation of 18 U.S.C. §§ 13, 1153 and

N.M. Stat. Ann. § 30-6-1(D)(1), (F).




                                         -2-
      Jury selection began on February 27, 2012. During voir dire,

Ganadonegro’s counsel asked the Native American members of the venire to raise

their hands. The only member of the jury pool who raised her hand was later one

of a group of fifteen potential jurors struck for cause. 1 The parties then exercised

their peremptory challenges. The Government exercised its third peremptory

challenge to strike Lawrence Long from the jury pool. Ganadonegro raised a

Batson objection to the strike of Mr. Long. See Batson, 476 U.S. at 89 (holding

the Equal Protection Clause prohibits the prosecution from exercising racially

motivated peremptory challenges); United States v. Joe, 8 F.3d 1488, 1498-99

(10th Cir. 1993) (applying Batson to the peremptory strike of a Native American).

Although Mr. Long did not self-identify as Native American, Ganadonegro argued

his responses to other general questions suggested he was Native American.

      In response to Ganadonegro’s objection, the Government offered the

following reasons for striking Mr. Long: “Well, I’ll start with the fact that he did

not indicate that he was Native American. But beyond that, Your Honor, he is a

young, childless individual who we feel would not make a good juror on this

case.” Ganadonegro’s counsel attempted to show the Government’s explanation

was a pretext for racial discrimination by comparing Mr. Long to another venire


      1
      During voir dire, the struck juror, Ms. Begay, stated she could not be fair
and impartial toward Ganadonegro. Ganadonegro’s counsel requested that Ms.
Begay be struck for cause, stating, “I’m afraid we have to let Begay go.” The
Government agreed.

                                         -3-
member, Eric Baca, who the Government did not strike but who Ganadonegro

struck before the Government had exercised all of its peremptory challenges.

Counsel argued the Government had earlier opposed striking Mr. Baca for cause

even though, like Mr. Long, he was young and childless. Cf. Miller-El v. Dretke,

545 U.S. 231, 241 (2005) (“If a prosecutor’s proffered reason for striking a black

panelist applies just as well to an otherwise-similar nonblack who is permitted to

serve, that is evidence tending to prove purposeful discrimination to be

considered at Batson’s third step.”).

      The district court overruled Ganadonegro’s Batson objection, stating:

             Well, I do think that juries bring to bear their experiences, and
      I think [the prosecutor] has stated a legitimate nondiscriminatory
      reason for exercising her peremptory challenge. It might be nice to
      have a Native American on the jury, but I’m not sure that he’s been
      struck for an illegitimate reason.

             It seems that trying to pick people that have children or
      familiarity with children or those things is a legitimate way of
      exercising a peremptory challenge, so I’m not sure I can deny the
      challenge just because she’s trying to maneuver or come up with a
      better racial composition, so I think that the Government’s properly
      exercised its peremptory challenge, and I’ll overrule the Batson
      challenge.

Mr. Long was not returned to the venire and the trial proceeded.

      In his opening statement, defense counsel addressed Ganadonegro’s

admission to law enforcement that he had shaken his niece three times on the




                                         -4-
afternoon she died. 2 Counsel asserted the “case is not about whether

[Ganadonegro] shook [his niece] . . . . The question . . . is about what he meant

when he said he shook her and whether that had anything to do with her

collapse.” He explained that Ganadonegro used an interpreter intermittently

during his FBI interrogation because he did not speak “perfect” English. He also

stated Ganadonegro would testify the word “shaking” does not translate directly

from English to Navajo so it meant something “a little bit different [to

Ganadonegro] than what it might mean to someone who’s not Navajo.” During

the trial, a witness for the defense, Dr. Samuel Roll, testified about

Ganadonegro’s use of language. Dr. Roll opined that Ganadonegro might respond

appropriately during a conversation without fully understanding the conversation.

Roll attributed this, in part, to the fact English was Ganadonegro’s second

language. He opined that Ganadonegro was “not competent in understanding

language at certain levels or social interactions or written language.”

      Ganadonegro testified in his own defense. He spoke through an interpreter

at least twenty-five times during his direct examination. During cross-

examination, the prosecutor questioned him about his more extensive use of the

interpreter during the current trial than during the first trial. Ganadonegro’s

counsel objected, arguing any questioning about the use of the interpreter was a


      2
      The Government’s motion to supplement the record with the transcript of
Ganadonegro’s statement to investigators is denied.

                                         -5-
violation of Ganadonegro’s right to a fair trial. The district court permitted the

cross-examination to continue after ruling that Dr. Roll’s direct testimony about

Ganadonegro’s English competency put the matter in issue. The prosecutor asked

Ganadonegro several additional questions about his use of the interpreter,

eliciting a concession from Ganadonegro that he had used the interpreter only

once during his first trial—when he asked for a translation of the Navajo word

“naałhę́ ę ́ s h.” 3

         Ganadonegro was convicted of voluntary manslaughter and sentenced to a

term of 120 months’ imprisonment. He filed a timely direct appeal, challenging

the rejection of his Batson objection and arguing the prosecution engaged in

misconduct by questioning him about his use of an interpreter during the trial.

III.     Discussion

         A.       Batson Objection

         The Supreme Court has established a three-step process to assist district

courts in evaluating whether the exercise of a peremptory challenge is a violation

of a defendant’s equal protection rights. “First, a defendant must make a prima

facie showing that a peremptory challenge has been exercised on the basis of

race; second, if that showing has been made, the prosecution must offer a race-


         3
        At Ganadonegro’s first trial, the word was interpreted as “sluggish and
listless.” Ganadonegro testified during cross-examination at the second trial that
the word was interpreted during his interview with the FBI as “lethargic” but he
didn’t know what lethargic meant.

                                          -6-
neutral basis for striking the juror in question; and third, in light of the parties’

submissions, the trial court must determine whether the defendant has shown

purposeful discrimination.” Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008)

(alterations and quotations omitted). Although the burden of production shifts to

the prosecution at the second stage, the party raising the Batson objection carries

the ultimate burden of persuading the district court that the prosecution has

engaged in purposeful discrimination. Hidalgo v. Fagen, Inc., 206 F.3d 1013,

1019 (10th Cir. 2000). The prosecution’s racially neutral explanation is a legal

issue this court reviews de novo. Id. The trial court’s ultimate finding on the

question of intentional discrimination, however, is reviewed for clear error. Id.

      The Government disputes that Ganadonegro satisfied his first-step burden

of establishing a prima facie case, arguing this court can affirm the district court’s

ruling on his Batson objection because he failed to show juror Long was Native

American. Relying on the Supreme Court’s opinion in Johnson v. California, 545

U.S. 162 (2005), the Government argues a defendant cannot attempt to show an

inference of discrimination unless he first shows the potential juror is a “member

of a particular cognizable race.” Appellee Brief at 18-19. Johnson, however,

does not so hold. It, instead, reiterated that a defendant’s burden at the prima

facie stage is light and he may meet that burden by pointing to any evidence that

merely raises an inference of a discriminatory purpose. Johnson, 545 U.S. at 169.

The Government’s argument, however, implicates an issue never directly

                                           -7-
addressed by this court: i.e., whether a defendant can prevail under Batson

without proving the challenged juror belongs to a protected class. 4 Because we

can affirm the district court’s ruling without addressing Ganadonegro’s prima

facie burden, it is unnecessary to address this question. 5

      At the second step of the Batson analysis, “the issue is the facial validity of

the prosecutor’s explanation. Unless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed race neutral.”



      4
       It is unclear whether the Government is arguing (1) a defendant cannot
even proceed to the first step of the Batson process without first proving the
challenged juror belongs to a protected class or (2) a defendant can never raise an
inference of discrimination at the prima facie stage by relying on evidence that
merely suggests, rather than proves, the challenged juror was a member of a
protected class. If it is the latter, we note a defendant can meet his prima facie
burden when “the sum of the proffered facts gives rise to an inference of
discriminatory purpose.” Johnson v. California, 545 U.S. 162, 169 (2005)
(quotation omitted). Evidence supporting a conclusion the prosecutor believed
the challenged juror was a member of a protected class would appear to satisfy
this burden. Cf. Saiz v. Ortiz, 392 F.3d 1166, 1178-79 (10th Cir. 2004) (assuming
defendant met his prima facie burden as to two challenged jurors who “had
Hispanic surnames”). While the prosecutor noted Mr. Long did not identify
himself as Native American when asked, Ganadonegro argued Long’s other
responses suggested he was Native American. The district court made no findings
related to this argument.
      5
       It is likewise unnecessary to address the Government’s additional
argument that a defendant’s prima facie burden does not become moot on appeal
when the challenged juror “affirmatively denies membership in a protected class.”
Appellee Brief at 18. But see Hernandez v. New York, 500 U.S. 352, 359 (1991)
(“Once a prosecutor has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had made a prima
facie showing becomes moot.”); United States v. Barrett, 496 F.3d 1079, 1104
(10th Cir. 2007) (same).

                                          -8-
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (quotation omitted).

Here, the prosecutor stated she challenged Mr. Long because he was young and

childless and she did not believe he would make a good juror on a case involving

allegations of shaken baby syndrome. Ganadonegro concedes this was a

legitimate, nondiscriminatory reason for striking Mr. Long. See United States v.

Helmstetter, 479 F.3d 750, 753-54 (10th Cir. 2007) (holding jury-selection

decisions predicated on age do not violate equal protection).

      Thus, we move to the third step of the Batson process. At this stage, the

district court was required to decide whether Ganadonegro demonstrated that the

prosecutor’s proffered reason was a pretext for racial discrimination. Purkett,

514 U.S. at 767. “This final step involves evaluating the persuasiveness of the

justification proffered by the prosecutor, but the ultimate burden of persuasion

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

strike.” United States v. Nelson, 450 F.3d 1201, 1207 (10th Cir. 2006)

(quotations omitted). Here, the district court invited Ganadonegro’s counsel to

respond to the prosecutor’s facially neutral explanation for challenging Mr. Long.

See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 855 (10th Cir. 2000) (“A

trial court should ask challenging counsel to respond to the race-neutral reasons

which have been proffered.”). Counsel responded by comparing juror Long to

juror Baca and arguing the Government struck Mr. Long, a young and childless

Native American, but retained Mr. Baca, who was also young and childless. Even

                                         -9-
if we assume Mr. Long was Native American or the prosecution believed him to

be, 6 this comparison is unavailing in this case. Mr. Baca was never seated on the

jury; he was removed from the venire by Ganadonegro himself before the

prosecution removed Mr. Long and before it exercised all its strikes. 7

Recognizing this flaw in the comparison, Ganadonegro argued to the district court

that the prosecution’s opposition to his attempt to strike Mr. Baca for cause was

evidence supporting his claim of intentional discrimination. It is not.

       Because there were legitimate reasons for the Government to oppose the

for-cause strike of Mr. Baca, that opposition adds nothing to the Batson calculus.

As the Government pointed out at oral argument, the record shows Mr. Baca was

a college student who was majoring in criminal justice and leaning toward

becoming a police officer. His father was a retired law enforcement officer. The

Government clearly had an interest in keeping a juror with his characteristics in

the jury pool. 8




       6
       Although Ganadonegro identified Long’s place of residence, high school,
and employment history as indicating he was Native American, he alternatively
speculated that Mr. Long was Hispanic.
       7
        Ganadonegro exercised his second overall peremptory challenge in the
first round of strikes to remove Mr. Baca; Mr. Long was removed by the
prosecution in the third round of strikes.
       8
      Additionally, the Government’s strategy in opposing the for-cause strike of
Mr. Baca may have been to force Ganadonegro to use a peremptory challenge to
remove him.

                                        -10-
      Further, the record wholly supports the district court’s conclusion that Mr.

Baca should not have been removed for cause. Ganadonegro argued Mr. Baca

was a hardship case because he had school on Tuesday and Thursday and had a

test on Thursday. The Government opposed striking Mr. Baca for cause, correctly

asserting he had represented to the court that his test could be rescheduled. The

district court denied Ganadonegro’s request to remove Mr. Baca for cause,

stating: “When I asked him about his schedule, . . . he didn’t seem to have a

problem. He seemed to actually be interested in serving, so I’m going to overrule

the objection to Mr. Baca and leave him on. He didn’t seem to be indicating he

couldn’t serve.” The district court’s rendition of the record and its decision to

keep Mr. Baca in the venire are completely correct. Thus, the Government’s

opposition to striking Mr. Baca for cause does not show the prosecution’s

peremptory strike of Mr. Long was racially motivated. See Johnson v. Gibson,

169 F.3d 1239, 1248 (10th Cir. 1999) (holding that state trial courts have no

independent duty to “pore over the record and compare the characteristics of

jurors, searching for evidence of pretext, absent any pretext argument or evidence

presented by counsel”).

      On appeal, Ganadonegro does not directly address his failure to create a

record from which a finding of discrimination could be made. Instead, he asserts

the district court committed a legal error by failing to properly apply Batson’s

three-part test. This argument lacks merit.

                                         -11-
      Before denying the challenge, the district court stated, “It seems that trying

to pick people that have children or familiarity with children or those things is a

legitimate way of exercising a peremptory challenge, so I’m not sure I can deny

the challenge just because [the prosecutor is] trying to maneuver or come up with

a better racial composition . . . .” Ganadonegro argues this statement constitutes a

finding that the prosecutor engaged in racial discrimination when she exercised

the peremptory challenge and exposes the court’s erroneous legal conclusion that

it could not sustain his Batson challenge even in light of that fact.

      Admittedly, the district court’s statement is ambiguous. Read in context,

however, we conclude the court was restating Ganadonegro’s objection rather

than finding the prosecutor engaged in purposeful discrimination. The court was

correctly stating it could not grant relief simply because Ganadonegro asserted

the prosecutor exercised the peremptory strike to affect the racial composition of

the jury. Understood this way, the district court’s basis for overruling the Batson

challenge was a credibility determination. The district court believed the

Government when it stated that Mr. Long was excluded because of his youth and

childlessness. When the district court makes such a determination, we must defer

to its conclusion. 9 See Hernandez v. New York, 500 U.S. 352, 365 (1991).

      9
       We nonetheless remind district courts that they play “a pivotal role in
evaluating Batson claims.” Snyder, 552 U.S. at 477. Their task at the third stage
of a Batson ruling is to “evaluat[e] the persuasiveness of the justification
proffered by the prosecut[ion].” United States v. Nelson, 450 F.3d 1201, 1207
                                                                        (continued...)

                                         -12-
      This interpretation of the court’s statement is consistent with the record

because, as we have previously concluded, it does not support a finding the strike

of Mr. Long was racially motivated. The interpretation is also supported by the

subsequent actions of the parties. Ganadonegro did not make a contemporaneous

objection to the district court’s application of Batson or ask the district court to

return Mr. Long to the venire. See Batson, 476 U.S. at 99 n.24 (stating remedies

for a Batson error are “to discharge the venire and select a new jury from a panel

not previously associated with the case, or to disallow the discriminatory

challenges and resume selection with the improperly challenged jurors reinstated

on the venire” (citation omitted)). This inaction indicates he, too, did not believe

the court made a finding of discriminatory intent. Instead, Mr. Long was

removed and the parties proceeded with their peremptory challenges.

      We do not accept Ganadonegro’s interpretation of the district court’s

statement for an additional reason. It would require us to conclude the court was

wholly unaware of binding Supreme Court precedent, first articulated more than

      9
        (...continued)
(10th Cir. 2006) (quotation omitted). A clear and thorough ruling is of crucial
importance because trial courts are usually in the best position to evaluate the
sincerity of the prosecution’s proffered reason for a peremptory strike. See
Hernandez, 500 U.S. at 365 (“In the typical peremptory challenge inquiry, the
decisive question will be whether counsel’s race-neutral explanation for a
peremptory challenge should be believed. . . . [T]he best evidence often will be
the demeanor of the attorney who exercises the challenge. As with the state of
mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor
and credibility lies peculiarly within a trial judge’s province.” (quotations
omitted)).

                                          -13-
twenty-seven years ago when the Batson Court clearly and unequivocally held

that the use of peremptory strikes to purposefully affect the racial composition of

a jury violates the Equal Protection Clause. “We traditionally presume, absent

some indication in the record suggesting otherwise, that trial judges are presumed

to know the law and apply it in making their decisions.” United States v. Ruiz-

Terrazas, 477 F.3d 1196, 1201 (10th Cir. 2007) (quotations and alteration

omitted). Here, in conformity with Batson, the court permitted Ganadonegro to

set out his prima facie case. It then invited the prosecutor to articulate her

nondiscriminatory reason for striking Mr. Long. At the next step, the court

prompted Ganadonegro’s counsel to address the prosecutor’s explanation and then

ruled on the merits of the challenge. The district court was clearly aware of

Batson and its three-step process. Accordingly, the record does not clearly

indicate the district court misapplied the law. See id.

      In light of the record as a whole, there is only one logical reading of the

court’s statement: it constitutes a ruling that Ganadonegro’s Batson challenge

should be rejected because he failed to carry his burden of showing purposeful

discrimination. See Saiz v. Ortiz, 392 F.3d 1166, 1171 (10th Cir. 2004) (“The

party objecting to the use of peremptory strikes . . . carries the ultimate burden of

persuasion.” (quotation omitted)). So read, there was no legal or factual error

committed by the court.

      B.     Prosecutorial Misconduct

                                         -14-
      Ganadonegro also argues the Government committed prosecutorial

misconduct when it cross-examined him about his use of an interpreter during the

trial. Properly preserved allegations of prosecutorial misconduct are reviewed de

novo. 10 United States v. Anaya, 727 F.3d 1043, 1052 (10th Cir. 2013). Here,

Ganadonegro objected to his cross-examination multiple times. He first asserted

the questioning was argumentative. This objection was overruled. He next

argued “he should not be penalized because [he was] using the interpreter.” That

objection was also overruled. Finally, he objected on the grounds the questioning

misstated the record, was not relevant, was more prejudicial than probative,

penalized him for his use of the interpreter, and violated his rights to due process

and a fair trial. The district court overruled the multiple objections, concluding

Ganadonegro’s witness, Dr. Roll, put his use of English in issue with his

testimony.

      Because the district court overruled the objections, “we [must] first decide

whether the conduct was improper.” Id. Ganadonegro concedes the Government

was entitled “to question the effect of his language skills on his comprehension of

agents’ questions at the time of his statement.” Appellant Brief at 32. His

appellate argument centers on his allegation the prosecutor’s “badgering about


      10
        The Government argues Ganadonegro’s claim should be reviewed only for
plain error because he never specifically objected to his cross-examination based
on prosecutorial misconduct. Because Ganadonegro’s claim fails even under the
de novo standard, we do not address the Government’s plain error argument.

                                        -15-
utilization of an interpreter’s assistance at trial crossed the line, unjustly

demeaned him, and allowed the government to appeal to jurors’ deeply rooted

ethnic prejudice.” Id. at 43. After reviewing the record, this court has no

hesitation concluding the prosecutor’s conduct was not improper. Ganadonegro’s

defense relied heavily on his language proficiency. 11 The Government, therefore,

was entitled to pursue this theory of defense. Further, Ganadonegro has failed to

identify particular questions in his cross-examination that would violate his fair

trial rights, instead objecting only to the length of that line of questioning.

Contrary to Ganadonegro’s assertions that the Government’s cross-examination

was “relentless” and amounted to “badgering,” we conclude the questioning was

appropriate in scope and tone given that the defense invited questions about

Ganadonegro’s linguistic abilities.

IV.   Conclusion

      The judgment of conviction is affirmed.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge



      11
        Dr. Roll testified about Ganadonegro’s use of the English language at
length, the defense mentioned Ganadonegro’s language abilities in its opening
argument, Ganadonegro himself testified about his use of an interpreter, and the
defense cross-examined FBI Special Agent Bourgeois about Ganadonegro’s use of
an interpreter during his initial statement to the FBI.

                                          -16-
