     Case: 15-50118   Document: 00513545517        Page: 1   Date Filed: 06/13/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 15-50118                            FILED
                                                                        June 13, 2016

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
             Plaintiff - Appellee

v.

JUAN AGUILAR,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      During jury selection at Juan Aguilar’s trial for sexual abuse of a ward,
the district court restricted the time for Aguilar to complete the peremptory
challenge form, which listed which jurors he wished to challenge. Aguilar
contends that, for this reason, he was able to exercise only nine peremptory
challenges, instead of the eleven to which he was entitled. On appeal, Aguilar
argues that imposing this limited time was error and that this error justifies
reversal of his conviction. We disagree, and therefore affirm the jury verdict
and the judgment.
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                                       No. 15-50118
                                              I.
       On September 15, 2014, the district court conducted voir dire. At the
opening of court that morning, the court first entertained several motions and
then proceeded to question the jury at length.                These questions included
extensive questioning about whether jurors could be impartial even though the
defendant was accused of sexually assaulting someone of the same sex. After
the questioning, twelve jurors were stricken for cause or excused.
       At approximately 12:43 PM, the court told the jurors that “[t]he lawyers
need to submit their strikes to the jury clerk and go through the list and
compile the names of the selected jurors, so that is going to take us about five
minutes or so.” The court recessed the jury for between seven and ten minutes.
During this recess, the court instructed the parties to write down their
peremptory challenges. The government complied, and used all eight of its
peremptory strikes; Aguilar had twelve strikes but supplied only nine names. 1
Aguilar’s counsel wrote “we need more time” on his form before returning it to
the jury clerk.
       After the jury returned from recess, the courtroom deputy read a list of
fourteen names and asked those jurors to come forward. The district court
then asked the parties if there were any objections, and defense counsel
responded, “Other than to not being able to complete our list, Your Honor, we
do object to that. We were working as hard as we could.” The district court
noted and overruled the objection and the courtroom deputy swore in the
impaneled jurors. The district court excused the remaining venire members
and recessed for lunch sometime after 1:00. The trial began promptly after
lunch.



       1Aguilar was only statutorily entitled to eleven strikes, but the court provided twelve.
See Fed. R. Crim. P. 24(b)(2), (c)(4)(A)
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                                 No. 15-50118
                                       II.
      The parties dispute the proper standard of review. Aguilar argues that
the challenge is reviewed de novo, citing United States v. Brigham, 569 F.3d
220, 224 (5th Cir. 2009). We assume without deciding that Aguilar is correct
because the district court did not err under any standard of review.
                                       III.
      Aguilar argues that the district court, by allowing him only minutes to
make his peremptory challenges, denied his “right to meaningfully and
intelligently exercise the peremptory challenges to which he was entitled.” See
United States v. Delgado, 350 F.3d 520, 524 (6th Cir. 2003). This argument,
however, does not capture the nature of voir dire in an active trial.
      The trial began in the morning, most of which consisted of voir dire and
impaneling the jury. The morning of examining the witnesses during voir dire
was ample time to consider and make decisions about which jurors to strike.
Indeed, consideration of which jurors to strike could have begun well before
voir dire, using all information he possessed about the potential jurors. With
proper preparation and effective use of his time, Aguilar could have prioritized
which jurors he most wanted to strike, and could have used the recess only to
submit the names of those jurors. We observe that the government apparently
had no trouble responding in a timely manner.
      Here, when voir dire began in the morning, the jury had been extensively
questioned, and jurors had been examined and challenged for cause, it was
neither legal error nor an abuse of discretion for the court to require Aguilar
to have his selections ready by the close of voir dire. Thus, any failure to
exercise all statutorily granted strikes might well be ascribed to irresolute
counsel and not to a resolute district court.
      Accordingly, the judgment is, in all respects,
                                                                   AFFIRMED.
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                                 No. 15-50118
      JENNIFER WALKER ELROD, Circuit Judge, concurring in the
judgment:
      Aguilar conceded at oral argument that any error was not automatically
reversible but rather subject to harmless error analysis.         Because it is
uncontroverted that the impaneled jury was impartial, and the evidence of
Aguilar’s guilt was overwhelming, Aguilar’s substantial rights were not
violated and any error was harmless. See Fed. R. Crim. P. 52(a) (“Any error,
defect, irregularity, or variance that does not affect substantial rights must be
disregarded.”). Accordingly, I concur in the judgment.




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