                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 08 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT




UNITED STATES OF AMERICA,                         No. 10-50118

              Plaintiff - Appellee,               D.C. No. 3:08-cr-00918-L-1
                                                  Southern District of California,
  v.                                              San Diego

FE S. GARRETT,
                                                  MEMORANDUM *
              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    M. James Lorenz, District Judge, Presiding

                      Argued and Submitted December 5, 2011
                               Pasadena, California

Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.

       Fe S. Garrett was convicted for aiding and assisting in the preparation of

false tax returns, filing false income tax returns, and willful failure to pay tax. She

was sentenced to 65 months imprisonment and now appeals her conviction and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
sentence. We affirm.

      Garrett first argues that she is entitled to a new trial because the prosecutor

struck F.M., the only Filipino juror on the venire, in violation of Batson v.

Kentucky, 476 U.S. 79 (1986). Steps one and two of the Batson framework are not

in dispute. Only step three of the Batson inquiry is at issue and thus the sole

question is whether the trial court clearly erred in concluding that there was no

purposeful discrimination. Tolbert v. Page, 182 F.3d 677, 680 n.5 (9th Cir. 1999).

We conclude that the district judge did not clearly err. The prosecutor’s proferred

reasons for striking F.M. were his youthful age and lack of employment history.

The government alleged it sought jurors who had a history of working and filing

taxes, experience relevant to the critical issues in this tax fraud case. The

prosecutor’s race-neutral explanations were permissible and plausible.

      Garrett next contends that a new trial is warranted because the prosecutor

made statements in her closing argument that constituted improper vouching.

Because defense counsel objected to the statements at trial, our review is for abuse

of discretion. United States v. Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999).

Garrett complains of three statements made during the prosecution’s rebuttal

argument. At least one of the statements is an argument from evidence properly

before the jury. Even assuming the second and third statements, one of which the


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government concedes constitutes prosecutorial vouching, were improper, any error

was harmless in light of the independent and overwhelming evidence against

Garrett, including a tape-recorded conversation where she made incriminating

statements and numerous witnesses’ testimony that corroborated the government’s

investigation.

      Garrett’s third argument is that her waiver of her right to counsel at

sentencing was not “knowing, intelligent, and unequivocal.” United States v.

Farhad, 190 F.3d 1097, 1099 (9th Cir. 1999). Garrett’s statements make clear that

she wanted to represent herself because the district court was unwilling to provide

her with new counsel. But that fact alone does not compel the conclusion that her

request was equivocal. See Adams v. Carroll, 875 F.2d 1441, 1444-45 (9th Cir.

1989); United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000). Garrett

repeatedly and articulately requested to proceed pro se. The trial judge engaged

Garrett in a meaningful and extensive dialogue on the inherent drawbacks of self-

representation. He also explained that she has no right to counsel of her choice.

There is no evidence that Garrett’s request was impulsive or the product of whim

and caprice. Considering the “record as a whole,” Garrett’s request to represent

herself was clear and unequivocal. See United States v. Gerritsen, 571 F.3d 1001,

1008 (9th Cir. 2009) (“We have explained that a defendant’s waiver must be


                                          3
evaluated in light of the record as a whole.” ).

      Finally, Garrett argues that the district court erred by denying her request for

a continuance to allow her to prepare for sentencing. District courts have broad

discretion on matters of continuance. United States v. Flynt, 756 F.2d 1352, 1358

(9th Cir. 1985). The district judge had previously granted a continuance to provide

Garrett more time. Nothing in the record suggests that the trial court’s denial of

Garrett’s second request for a continuance was arbitrary or unreasonable.

             AFFIRMED.




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