                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         MAR 21 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    16-50430

                Plaintiff-Appellee,              D.C. No.
                                                 3:16-cr-01285-BEN-1
 v.

GRACIELA POTENCIANO,                             MEMORANDUM*

                Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                       Argued and Submitted March 7, 2018
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and CHRISTENSEN,** Chief
District Judge.

      Defendant-Appellant Graciela Potenciano appeals her criminal conviction

for importing methamphetamine, heroin, and fentanyl in violation of 21 U.S.C.

§§ 952, 960, following a jury trial. On appeal, Potenciano asserts that the district



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
court violated her rights under the Confrontation Clause of the Sixth Amendment

and improperly reviewed her challenge under Batson v. Kentucky, 476 U.S. 79

(1986). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      On appeal, Potenciano asserts that the district court violated her rights under

the Confrontation Clause of the Sixth Amendment when the district court

terminated defense counsel’s recross examination of the government’s expert

witness. It is not clear whether defense counsel’s questioning truly qualified as

recross examination because the district court had allowed defense counsel to

exceed the scope of direct examination and use the government’s expert to support

the defense’s theory of the case. Additionally, defense counsel failed to object to

the district court’s decision to terminate her examination. See United States v.

Anekwu, 695 F.3d 967, 973 (9th Cir. 2012) (noting that if defendant fails to object

to admission of evidence under the Confrontation Clause, the court reviews for

plain error). Potenciano’s Confrontation Clause challenge fails under plain error

review. See id. (“Plain error occurs when (1) there is an error; (2) the error is clear

or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant’s substantial rights, which in the ordinary case means it affected the

outcome of the district court proceedings; and (4) the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.” (internal quotation

marks omitted)).



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      However, even assuming that defense counsel was conducting a true recross

examination, and that defense counsel properly preserved Potenciano’s

Confrontation Clause challenge for appeal, any error by the district court here was

harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding that the

court reviews Confrontation Clause errors to see whether the error was harmless).

      The government initially called the expert to testify about the value of some

of the drugs found in the vehicle. It was defense counsel, through cross-

examination, who elicited testimony about the expert’s knowledge relating to drug

trafficking organizations and the use of blind mules. Therefore, contrary to

Potenciano’s argument on appeal, the government expert’s testimony regarding the

defense’s blind mule argument was not critical to the prosecution’s case in chief.

See Van Arsdall, 475 U.S. at 684 (identifying the importance of the witness’s

testimony to the prosecution’s case in chief to be one of the factors the court

considers in determining whether the error was harmless). Additionally, although

Potenciano asserts she should have been able to elicit testimony that the expert

could not say for certain that the types of traffickers in her case would never use

blind mules, this testimony essentially would have been cumulative to the expert’s

earlier testimony that the majority of blind mule cases he researched involved a

different type of drug trafficking. See id. (identifying whether the testimony was

cumulative to be one of the factors the court considers in determining whether the



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error was harmless). In sum, even if the damaging potential of the omitted

testimony were fully realized, this is not the type of testimony that would have

affected the outcome of the case. See United States v. Vargas, 933 F.2d 701, 709

(9th Cir. 1991). Therefore, even assuming the district court erred in terminating

defense counsel’s recross and the objection properly was preserved for appeal, any

Confrontation Clause error here was harmless.

      Finally, during jury selection, Potenciano raised a Batson challenge after the

prosecution struck the only black juror. The district court denied Potenciano’s

challenge on the basis that the prosecution had stated a race neutral reason for

striking the black juror. On appeal, Potenciano asserts that the district court failed

to apply the correct legal standard to her challenge. The court generally reviews the

district court’s determination that the government did not exercise a preemptory

challenge based on race for clear error. United States v. Collins, 551 F.3d 914, 919

(9th Cir. 2009). However, when a defendant contends that the district court applied

the incorrect legal standard, the court reviews the decision de novo. Id.

      A defendant’s Batson challenge invokes a three-step inquiry, and Potenciano

asserts that the district court applied the incorrect standard because it did not apply

the final step. See Rice v. Collins, 546 U.S. 333, 338 (2006). The final step of a

Batson challenge requires the court to evaluate the persuasiveness of the

prosecutor’s justification and determine whether the defendant had met her burden



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of showing “purposeful discrimination.” Ali v. Hickman, 584 F.3d 1174, 1180 (9th

Cir. 2009). To make its determination, the district court should evaluate the

“totality of the relevant facts” to determine whether “counsel’s race-neutral

explanation” should be believed. Id.

      Here, the district court erred when it failed to evaluate the third step of the

Batson analysis. The district court merely concluded that the prosecutor’s reason

for striking the only black juror was non-discriminatory: “It [] appears to me that

[the prosecution] has stated a non-discriminatory reason for excluding [juror No.

22].” The district court engaged in no further analysis of the issue, and therefore,

did not reach the third step of the Batson framework. See United States v. Alvarez-

Ulloa, 784 F.3d 558, 565 (9th Cir. 2015) (finding that the district court erred by

determining that “the government had asserted facially neutral grounds” and

conducting no further analysis on the issue).

      “Faced with an improper application of the Batson framework, [the court]

may decide de novo whether the government’s strikes were motivated by

purposeful discrimination.” Id. Alternatively, the court may remand to the district

court for either a factual hearing or new trial. Id. at 566.

      We review Potenciano’s Batson challenge de novo. Nothing else about the

circumstances surrounding the Batson challenges suggests that the government’s

stated reason for striking juror No. 22 was pretext for purposeful discrimination.



                                            5
The government’s reason for striking juror No. 22 appeared race neutral and

specific to juror No. 22. See 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.”).

Potenciano has failed to carry her burden to show that the prosecutor’s reason for

striking juror No. 22 was purposeful race discrimination. Therefore, even though

the district court improperly applied the Batson framework, Potenciano’s

conviction should not be overturned on this issue.

      AFFIRMED.




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