                                                                             FILED
                            NOT FOR PUBLICATION                              MAR 17 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50221

               Plaintiff-Appellee,               D.C. No. 8:11-cr-00247-JST-1

    v.

OSMAN NORALES,                                   MEMORANDUM*

               Defendant-Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                    Josephine L. Staton, District Judge, Presiding

                             Submitted March 4, 2015**
                                Pasadena, California

Before: GOULD and TALLMAN, Circuit Judges, and KORMAN, Senior District
Judge.***



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         ***
              The Honorable Edward R. Korman, Senior District Judge for the United
States District Court for the Eastern District of New York, sitting by designation.
         Osman Norales was convicted of conspiracy and false claims against the United

States. He raises three issues on appeal, none of which warrants reversal. We deal

with them seriatim.

         First, Norales argues that the district judge erred in denying his motion to

dismiss based upon the under-representation of Hispanics on the grand and petit juries.

This claim could arguably have some merit under our en banc decision in United States

v. Hernandez-Estrada, which was decided while Norales’s appeal was pending, and

which significantly modified the legal framework for assessing fair cross-section

claims. 749 F.3d 1154, 1164–65 (9th Cir. 2014) (en banc). Nevertheless, even there,

we did not categorically reject the “absolute disparity test,” which the district judge

applied in denying Norales’s under-representation claim. Id. at 1165 n.6. Instead, we

held that district courts “must consider the evidence proffered by the defendant . . . and

employ the most appropriate method, or methods, applicable to the specific challenge

in the context of the particular jury pool at issue.” Id. at 1165. Consequently, we

granted a stay of the proceedings to allow Norales to supplement or amend his opening

brief.

         Against his counsel’s advice, Norales replied that “he d[id] not wish the

intervening change in the case law to delay his matter.” Based on this position,

Norales’s counsel advised us that he would not make any further submission, and that


                                            2
defendant “stands on the counseled opening merits brief previously filed before the

Court.” This brief does not explain why the absolute disparity test applied by the

district judge remains “the most appropriate” analytical measure here. Nor does

Norales offer any arguments as to which alternative method would be better suited for

his case.

      Under these circumstances, Norales’s rejection of the opportunity to supplement

his opening brief constitutes a waiver of his under-representation argument to the

extent that it was affected by our en banc decision in Hernandez-Estrada. See United

States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006) (“‘We will not manufacture

arguments for an appellant’ who has failed ‘to present specific, cogent arguments for

[the court’s] consideration’ . . . .” (alterations in original) (citation omitted)).

Moreover, without the benefit of our en banc decision, Norales cannot prevail on his

fair cross-section claim. Indeed, he expressly acknowledged in his opening brief that

he could not succeed under then-prevailing Ninth Circuit precedent.

      Second, Norales argues that the district judge abused her discretion in denying

his request to replace appointed counsel. This claim fails because each of the factors

relevant to this exercise of discretion were met here. See United States v. Mendez-

Sanchez, 563 F.3d 935, 942 (9th Cir. 2009). First, because the trial was set to begin

in just four days and because there had already been two previous continuations, the


                                          3
district judge reasonably concluded that Norales’s motion was untimely. Id. Second,

the district judge engaged in an “extensive[]” inquiry into the concerns voiced by

Norales. Id. at 943. Third, the district judge found that defense counsel would not

have been able to “represent[] Mr. Norales, as well as he has represented him, had there

been a breakdown in the relationship,” and there is no evidence to suggest that this

finding was erroneous. Indeed, just before the start of the ex parte proceedings on this

motion, Norales stated: “Mr. Kewalramani, who is my counsel for the last 11 months,

he has been diligently preparing for trial.”

      Norales’s final claim is that the district judge erred in overruling his objection

to the removal of a prospective juror under Batson v. Kentucky, 476 U.S. 79 (1986).

This claim fails at the threshold because “[a] defendant cannot satisfy his ‘ultimate

burden’ [of establishing racial motivation] if he does not offer any evidence to rebut

the prosecutor’s race-neutral explanation.” Boyde v. Brown, 404 F.3d 1159, 1171 (9th

Cir. 2005), as amended on reh’g, 421 F.3d 1154 (9th Cir. 2005). After the prosecutor

here gave his reasons for the exercise of the peremptory strike, Norales’s attorney said

nothing. Moreover, after carefully analyzing the plausibility of the prosecutor’s race-

neutral explanations, the district judge rejected the objection to the peremptory

challenge. Because this finding “turns largely on an ‘evaluation of credibility[,]’ [t]he

trial court’s determination is entitled to ‘great deference’ and ‘must be sustained unless


                                            4
it is clearly erroneous.’” Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011) (per curiam)

(citations omitted). Our review of the record persuades us that the district judge’s

ruling was not clearly erroneous.

      AFFIRMED.




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