United States v. Hernandez-Echeveste

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
July 14, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-51237
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE HERNANDEZ-ECHEVESTE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-03-CR-178-ALL
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Vicente Hernandez-Echeveste was convicted by a jury of
transportation of illegal aliens, a violation of 8 U.S.C.
§ 1324(a)(1)(B)(ii). Between the time that Hernandez’ jury was
selected and sworn and the time that his trial commenced, 11 out
of his 12 jurors served interim jury service. On the morning of
trial, Hernandez filed a motion asserting that some of the jurors
had been on convicting juries in similar criminal cases in that
interim period. The district court denied Hernandez’ motion as
untimely. Hernandez now appeals that ruling.

-- 1 of 2 --

No. 03-51237
-2-
Hernandez argues correctly that his motion, filed on the
morning of trial, but before any testimony was heard, was timely.
See United States v. Jefferson, 569 F.2d 260, 261-63 (5th Cir.
1978); United States v. Capua, 656 F.2d 1033, 1036 (5th Cir.
1981). Any challenge for cause based on interim jury service
made during voir dire would have been premature. See United
States v. Brown, 699 F.2d 704, 708 (5th Cir. 1983); Jefferson,
569 F.2d at 262. Any peremptory challenge based on interim jury
service made during voir dire would have been uninformed and
meaningless. See United States v. Mutchler, 559 F.2d 955, 958
(5th Cir. 1977).
Hernandez’ interim-jury-service challenge was timely.
However, the record is insufficiently developed to determine
whether the interim jury service at issue was done on convicting
juries in similar trials. See United States v. Mutchler, 566
F.2d 1044, 1044 (5th Cir. 1978). Thus, this case is remanded to
the district court for factual findings and a ruling on the
merits of Hernandez’ motion. See Jefferson, 569 F.2d at 263.
“If the district court finds that interim service occurred in
‘other cases similar in fact and in legal issue or in cases in
which the same government witnesses’ testified, as explicated in
Mutchler, it should order that a new trial be held; otherwise, it
should reaffirm the judgment of conviction.” Id.
REMANDED.

-- 2 of 2 --