Petition for Writ of Certiorari — Clemente Hernandez-Garcia, Petitioner v. United States

Supreme Court briefOct 31, 2022

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APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

CLEMENTE HERNANDEZ-GARCIA,

Defendant-Appellant.

No. 20-50228

D.C. No.

3:19-cr-04373GPC-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted February 10, 2022

Pasadena, California

Filed May 4, 2022

Before: Mary M. Schroeder, Kermit V. Lipez, * and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee

The Honorable Kermit V. Lipez, United States Circuit Judge for

the First Circuit, sitting by designation.

Pet. App. A - 1

UNITED STATES V. HERNANDEZ-GARCIA

SUMMARY **

Criminal Law

The panel affirmed a conviction for illegal reentry after

removal in a case in which a Marine Corps surveillance unit

spotted the defendant immediately after he unlawfully

entered the United States, and notified Customs and Border

Patrol agents who soon detained him.

The defendant argued that the Marine Corps surveillance

violated the Posse Comitatus Act, which codified the

longstanding prohibition against military enforcement of

civilian law. Rejecting that argument, the panel explained

that the military may still assist civilian law enforcement

agencies if Congress expressly authorized it, and here, the

2016 National Defense Authorization Act directed the U.S.

Secretary of Defense to offer military assistance to Border

Patrol in hopes of securing the southern land border. The

panel concluded that the district court therefore properly

denied the defendant’s suppression motion based on the

alleged violation of the Posse Comitatus Act.

The panel also denied the defendant’s Batson challenge

to the prosecution’s striking two Asian jurors from the

venire, concluding that the defendant failed to rebut the

prosecution’s race-neutral reasons for doing so.

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

Pet. App. A - 2

UNITED STATES V. HERNANDEZ-GARCIA

COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego

Inc., San Diego, California, for Defendant-Appellant.

Daniel E. Zipp (argued), Assistant United States Attorney;

Randy S. Grossman, Acting United States Attorney; United

States Attorney’s Office, San Diego, California; for

Plaintiff-Appellee.

OPINION

LEE, Circuit Judge:

Near the midnight hour in a remote area along the

California-Mexico border, Clemente Hernandez-Garcia

scaled a border fence and unlawfully entered the United

States. But he could not evade detection even under the

cover of darkness and desolation near the border: A Marine

Corps surveillance unit using a night vision scope spotted

him immediately. The Marines notified U.S. Customs and

Border Patrol agents, who soon detained him. He was

charged and convicted of illegal reentry into the United

States after removal.

Hernandez-Garcia now seeks to reverse his conviction,

arguing that the Marine Corps surveillance allegedly

violated the Posse Comitatus Act. That law codified the

longstanding prohibition against military enforcement of

civilian law. But the military may still assist civilian law

enforcement agencies if Congress expressly authorizes it.

Here, the 2016 National Defense Authorization Act directed

the U.S. Secretary of Defense to offer military assistance to

Border Patrol in hopes of securing the southern land border.

Pet. App. A - 3

UNITED STATES V. HERNANDEZ-GARCIA

We thus reject Hernandez-Garcia’s claim that the U.S.

Marines’ surveillance at the border violated the Posse

Comitatus Act. We also deny Hernandez-Garcia’s Batson

challenge because he failed to rebut the prosecution’s raceneutral reasons for striking two Asian jurors. We affirm

Hernandez-Garcia’s conviction.

BACKGROUND

I. Border Patrol detains Hernandez-Garcia just north

of the southern border, and he is charged with illegal

reentry after removal.

Clemente Hernandez-Garcia has racked up a long record

of immigration violations and criminal convictions. Since

first illegally entering the United States in 1994, HernandezGarcia has been removed seven times after being convicted

of drug and firearm offenses, burglary, vehicle theft, and

aggravated domestic violence. Most recently in 2019, he

was removed to Mexico after being released from prison for

his latest criminal conviction.

Hernandez-Garcia waited only ten days before

unlawfully reentering the United States yet again. Late at

night, he climbed over the border fence in a remote area

25 miles east of Tecate, California, the nearest port of entry

in southeastern San Diego County. But a Marine Corps unit

using a scope truck equipped with infrared night vision

spotted him. The Marines alerted nearby Border Patrol

agents that an individual was 10–15 feet north of the border

fence near an area known as Mercado Rock.

Border Patrol Agent Allen-Limon responded to the alert

and began searching the area. Shortly after the search began,

a separate Border Patrol surveillance unit notified him of an

individual running across a nearby highway. Allen-Limon

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combed the area near the highway and eventually found

Hernandez-Garcia hiding face-down in a dried riverbed. He

ordered Hernandez-Garcia to come out from hiding and

questioned him. Hernandez-Garcia admitted he was a

Mexican citizen and lacked proper immigration documents.

In a later post-Miranda interview, he admitted to crossing

the border by jumping the fence. He was then charged with

illegal reentry after removal in violation of 8 U.S.C. § 1326.

II. Hernandez-Garcia files a suppression motion based

on alleged violations of the Posse Comitatus Act but

the motion is denied.

Hernandez-Garcia moved to suppress all evidence

obtained as a result of his arrest, claiming that the Marine

Corps surveillance leading to his arrest violated the Posse

Comitatus Act, 18 U.S.C. § 1385. 1 That law broadly

prohibits the military from directly enforcing civilian law

unless authorized by Congress to do so. See id.; 10 U.S.C.

§ 275. The government maintained that Congress expressly

authorized the Marine surveillance when it enacted the

National Defense Authorization Act for Fiscal Year 2016,

Pub. L. No. 114-92, 129 Stat. 726 (2015) (“2016 NDAA”).

Section 1059 of the 2016 NDAA authorized the Secretary of

Defense to aid Border Patrol by deploying “ground-based

surveillance systems to support continuous surveillance of

the southern land border of the United States.” Id.

§ 1059(c)(2). But Hernandez-Garcia countered that the

Hernandez-Garcia also argued that he was arrested without

probable cause. The district court held that the Border Patrol agents had

probable cause, and Hernandez-Garcia does not challenge this ruling on

appeal.

Pet. App. A - 5

UNITED STATES V. HERNANDEZ-GARCIA

2016 NDAA was merely an annual appropriations bill that

had lapsed.

The district court denied Hernandez-Garcia’s motion.

The district court held that the 2016 NDAA was an

authorization act, not an appropriations act, and thus was still

effective when the government detained Hernandez-Garcia.

And because § 1059 authorized the Marine surveillance, no

Posse Comitatus Act violation occurred.

The case

proceeded to trial.

III.

Hernandez-Garcia unsuccessfully raises a Batson

challenge after the prosecution strikes Asian

jurors.

At the outset of voir dire, each juror read aloud answers

to a questionnaire about their city of residence, family

information, vocation, prior jury service, and involvement

with law enforcement or the military. Hernandez-Garcia

raised a Batson challenge, claiming that the government

improperly excluded two Asian jurors, Jocelyn Del Rosario

and Brian Sanqui. Batson v. Kentucky, 476 U.S. 79 (1986).

Ms. Del Rosario provided the following answer:

My name is Jocelyn Del Rosario, and I reside

in San Diego, I am a research scientist for

Bristol Myers Squibb. And I am not married

and I have no children. I did preside in a civil

and a criminal case about 20 years ago. The

criminal case ended in a hung jury, and the

civil case reached a verdict. My family

members are not in the law enforcement.

And I have not served in the military.

Mr. Sanqui then provided his answer:

Pet. App. A - 6

UNITED STATES V. HERNANDEZ-GARCIA

My name is Brian Sanqui. I reside in Poway.

I am a software developer. I do not have a

spouse or children. I have never served on a

jury previously. I do not work in law

enforcement, and I do not have any family

members who work in law enforcement. And

I have never served in the military.

After the jurors read their answers aloud, each side

conducted voir dire. The prosecution noted that there were

“a lot of . . . engineers here” and that “[e]ngineering is a

profession where you are often used to dealing with hard

numbers, objective facts.” Because its case relied on

circumstantial evidence, the prosecution asked whether any

of the jurors would struggle to convict if it proved its case

solely based on such evidence. One juror at first expressed

doubt, but after more questioning, stated that he could “make

[his] mind up based on evidence provided like that.”

Following voir dire, the government exercised two of its

seven peremptory challenges against Ms. Del Rosario and

Mr. Sanqui. When the court asked whether the defense had

any Batson issues, Hernandez-Garcia’s counsel noted that

the prosecution had used three of its strikes on “jurors who

appear to be Asian or have last names that would so

indicate,” 2 and that there were “four or five Asian jurors in

the venire.” So striking three out of four or five Asian jurors

The prosecution struck a third Asian juror, Ms. Ahmad, because

(1) Border Patrol had once searched her, and (2) she had served as a

witness in an immigration case that left her with a “negative impression”

of Border Patrol agents. The district court held that these reasons were

legitimate, and Hernandez-Garcia does not raise a Batson challenge for

the striking of Ms. Ahmad.

Pet. App. A - 7

UNITED STATES V. HERNANDEZ-GARCIA

supported an inference of purposeful discrimination,

according to Hernandez-Garcia.

The prosecution then stated its reasons for striking

Ms. Del Rosario and Mr. Sanqui. The prosecution struck

Ms. Del Rosario because she “was on a jury with a hung

verdict” and she was a “research scientist.” The prosecutor

struck Mr. Sanqui because:

[H]e appeared to be a loner. The only thing

he said during the inquiry was, “I am a

software developer, no spouse, no kids.” He

came dressed in a hoodie, which we

perceived to be underdressed, and that gave

us some concern that, based on his profession

and lack of comments – that was the basis for

striking him.

The district court denied the Batson challenge, stating

that it was “not prepared to find that there’s a prima facie

case that’s been established.”

It then restated the

prosecution’s proffered reasons but did so somewhat

inaccurately. For Ms. Del Rosario, the court said, “single,

no children, served on a jury where there was a hung jury on

a criminal case—the Court is satisfied that that’s a valid

explanation for the strike.” But Ms. Del Rosario’s marriage

status and lack of children were not cited by the prosecution.

For Mr. Sanqui, the court said, “single, no children, no jury

experience—it appears that there’s no illegitimate basis that

was used.” The prosecution, however, did not strike

Mr. Sanqui for lack of jury experience.

Defense counsel requested that the court conduct a

“comparative juror analysis” for Ms. Del Rosario and

Mr. Sanqui because “there are multiple jurors who said they

had been on juries that did not reach verdicts” and the

Pet. App. A - 8

UNITED STATES V. HERNANDEZ-GARCIA

rationale of “single with no kids” was concerning because

there were “multiple jurors who said that” including white

jurors. But the court responded that the “challenge is

denied.” Hernandez-Garcia’s counsel then asked, “[I]s the

Court making a finding there is no purposeful

discrimination?” The district court replied, “I have made a

finding there’s not a prima facie case. There’s not

discrimination.”

IV.

The jury convicts Hernandez-Garcia and he

appeals.

The jury convicted Hernandez-Garcia of illegal reentry

after removal. He then filed this appeal, raising two issues.

First, he renews his argument that the Marine Corps

surveillance violated the Posse Comitatus Act. Second, he

claims that the district court erred in conducting the Batson

inquiry. He asks that we review de novo the record and hold

that the prosecution racially discriminated against Asian

jurors, or, at the very least, remand for the district court to

conduct more analysis at Batson’s third step.

STANDARD OF REVIEW

We review de novo whether the Marine surveillance

violated the Posse Comitatus Act. United States v. Dreyer,

804 F.3d 1266, 1271 (9th Cir. 2015) (en banc). “Ordinarily,

we review the district court’s ruling on a Batson challenge

for clear error.” United States v. Mikhel, 889 F.3d 1003,

1028 (9th Cir. 2018). “However, we review de novo whether

the district court properly applied Batson,” United States v.

Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015), and we

“have applied de novo review [to the court’s Batson ruling]

. . . where the court improperly applied the three-step

framework,” Mikhel, 889 F.3d at 1028.

Pet. App. A - 9

UNITED STATES V. HERNANDEZ-GARCIA

DISCUSSION

I. The district court properly denied HernandezGarcia’s suppression motion because the 2016 NDAA

authorizes the Marine Corps surveillance.

After Reconstruction, Congress enacted the Posse

Comitatus Act to “eliminate the direct active use of Federal

troops by civil law authorities.” United States v. Banks,

539 F.2d 14, 16 (9th Cir. 1976). Under the current version

of the law, military personnel cannot assist in civilian law

enforcement unless expressly authorized by Congress:

Whoever, except in cases and under

circumstances expressly authorized by the

Constitution or Act of Congress, willfully

uses any part of the Army, the Navy, the

Marine Corps, the Air Force, or the Space

Force as a posse comitatus or otherwise to

execute the laws shall be fined under this title

or imprisoned not more than two years, or

both.

18 U.S.C. § 1385.

Here, the Posse Comitatus Act posed no obstacle to the

U.S. Marines assistance because Section 1059 of the 2016

NDAA expressly authorizes surveillance by the military at

the southern border. Section 1059(a) directs the Secretary of

Defense to “provide assistance to [Border Patrol] for

purposes of increasing ongoing efforts to secure the southern

land border of the United States.” 2016 NDAA § 1059(a).

The military may deploy “ground-based surveillance

systems to support continuous surveillance of the southern

land border of the United States.” Id. § 1059(c)(2). And that

is exactly happened here.

Pet. App. A - 10

UNITED STATES V. HERNANDEZ-GARCIA

Despite § 1059’s directive, Hernandez-Garcia maintains

that the Marine Corps surveillance leading to his arrest was

unauthorized. He again claims that the 2016 NDAA was a

lapsed appropriations act no longer in effect at the time of

his arrest. We reject that argument. Section 1059 of the

2016 NDAA remains in force. In last year’s 2021 NDAA,

Congress made minor amendments to § 1059’s

congressional reporting requirements, confirming that the

law remains in effect. See William M. (Mac) Thornberry

National Defense Authorization Act for Fiscal Year 2021,

Pub. L. 116-283, 134 Stat. 3388 (2021). Congress would

have no reason to amend § 1059 if it was a lapsed

appropriations act. The 2021 NDAA thus provides explicit

evidence that § 1059 continues in full effect. See McClure

v. United States, 95 F.2d 744, 750 (9th Cir. 1938) (“Where

an amendment leaves certain portions of the original act

unchanged, such portions are continued in force with the

same meaning.”); see also United States v. Rios-Montano,

438 F. Supp. 3d 1149, 1153 (S.D. Cal. 2020) (“Congress has

also made substantive changes to the law and enacted new,

longstanding programs through other NDAAs.”).

Further, § 1059—unlike other provisions in the 2016

NDAA—has no termination date, confirming that Congress

intended § 1059 to remain operative beyond fiscal year

2016. See Dep’t of Homeland Sec. v. MacLean, 574 U.S.

383, 391 (2015) (“Congress generally acts intentionally

when it uses particular language in one section of a statute

but omits it in another.”).

Hernandez-Garcia also argues that an earlier statute,

10 U.S.C. § 274, defines the scope of Congressionally

authorized military border surveillance, and that the

surveillance here exceeds that prior limit. Section 274

permits Department of Defense personnel to be “made

Pet. App. A - 11

UNITED STATES V. HERNANDEZ-GARCIA

available to a civilian law enforcement agency” to “operate

equipment” for the:

Detection, monitoring, and communication

of the movement of surface traffic outside of

the geographic boundary of the United States

and within the United States not to exceed

25 miles of the boundary if the initial

detection occurred outside of the boundary.

10 U.S.C. § 274(b)(2) (emphasis added). According to

Hernandez-Garcia, because the Marines “initially detected”

him 10–15 feet inside the United States, they exceeded their

authority under § 274’s limitation of detection “outside” of

the United States border.

Put another way, he argues that the previously enacted

§ 274 trumps § 1059 of the NDAA, invoking the “generalspecific” canon. See Hellon & Assocs., Inc. v. Phoenix

Resort Corp., 958 F.2d 295, 297 (9th Cir. 1992). Under this

canon of construction, “the later and more specific statute

usually controls” if two statutes conflict. Id. “[L]egislators

are often . . . unfamiliar with enactments of their

predecessors” and may “unwittingly contradict them.”

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 185 (2012). Thus, if the newer

statute “comes closer to addressing the very problem posed

by the case at hand,” it is as if the “later-enacted statute . . .

effectively repeal[ed]” the conflicting provisions of the

earlier one. Id. at 183–85.

According to Hernandez-Garcia, § 1059 and § 274

conflict because the former permits surveillance of

individuals no matter where the initial detection occurred,

while the latter requires the initial detection to occur outside

the United States. And § 274 is supposedly more specific

Pet. App. A - 12

UNITED STATES V. HERNANDEZ-GARCIA

because it allows the military to surveil “with respect to . . .

a criminal violation,” while § 1059 is silent about criminal

violations. Compare 10 U.S.C. § 274(b)(1)(A), with 2016

NDAA § 1059.

We agree that the two statutes conflict because of § 274’s

“initial detection” limitation. But the general-specific canon

cuts against Hernandez-Garcia’s position. The 2016

NDAA’s § 1059 is in fact more specific than § 274 as

applied here, so § 1059 takes precedence over § 274. First,

while § 274 contains only general language about

“detection” and “monitoring,” § 1059 specifically authorizes

the Marine Corps to surveil the California-Mexico border

from a scoping truck. Second, while § 274 generally permits

assistance to any “Federal, State, and local civilian law

enforcement officials,” § 1059 authorizes the military to

assist only a single federal agency, Customs and Border

Patrol. Third, § 274 allows general surveillance of any

United States boundary, while § 1059 approves surveillance

of only the “southern land border.” Finally, § 274 broadly

allows the operation of “equipment,” while § 1059

specifically directs the deployment of “ground-based

surveillance systems” such as scoping trucks. Compare

10 U.S.C. § 274(a)–(b), with 2016 NDAA § 1059(a)

and (c). 3 Thus, we hold that the 2016 NDAA’s § 1059 is

In any event, the specificity in § 274 that Hernandez-Garcia seizes

upon—assistance with criminal violations—has little relevance here.

See 10 U.S.C. § 274(b)(1)(A). The government’s decision to criminally

charge Hernandez-Garcia with illegal reentry is separate from the critical

issue here: whether Congress authorized Marine Corps surveillance that

enabled Border Patrol to locate him. And even if § 274’s specificity

about criminal violations was relevant, Hernandez-Garcia’s reliance on

the “general-specific” canon would still be misplaced because then both

statutes would be “specific in certain respects and general in others,” so

“the general-specific canon [would] not help to clearly discern

Pet. App. A - 13

UNITED STATES V. HERNANDEZ-GARCIA

more specific than—and

provisions in § 274.

thus

trumps—the

general

We also reject Hernandez-Garcia’s contention that

applying § 1059 here would render § 274 superfluous. See

D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208

(1932) (“[I]f possible, effect shall be given to every clause

and part of a statute.”). Section 274’s “initial detection”

limitation would still apply if the military were surveilling

other United States boundaries (i.e., the non-Southern

border) or aiding other law enforcement agencies (i.e., nonBorder Patrol agencies). See Scalia & Garner, supra at 185

(“The specific provision does not negate the general one

entirely, but only in its application to the situation that the

specific provision covers.”). Congress passed § 1059 to

explicitly address acute security issues amid the surge of

migrants at the southern border. In doing do, Congress was

not hamstrung by § 274’s constraints. See United States v.

Juvenile Male, 670 F.3d 999, 1007–08 (9th Cir. 2012)

(holding earlier statute prohibiting identification of juvenile

delinquents does not prevent application of a later statute

specifically requiring juvenile sex offenders to join a

registry). 4

We thus hold that § 1059 of the 2016 NDAA authorized

the Marine Corps’ surveillance of Hernandez-Garcia at the

Congress’s intent as to which section should take precedence here.” See

Perez-Guzman v. Lynch, 835 F.3d 1066, 1075–76 (9th Cir. 2016)

(emphasis in original).

While the parties have not raised it, 10 U.S.C. § 284(b)(6) allows

the Secretary of Defense to provide support for “detection” and

monitoring” outside the U.S. border to combat “counterdrug activities”

and “transnational organized crime.” It does not apply here because of

its limitation to certain criminal activities.

Pet. App. A - 14

UNITED STATES V. HERNANDEZ-GARCIA

southern border, and that the district court rightly denied his

suppression motion based on the alleged violation of the

Posse Comitatus Act. 5

II. We deny Hernandez-Garcia’s Batson challenge

because he has failed to show that the prosecution

purposefully discriminated against Asian jurors.

Batson v. Kentucky established a three-step burdenshifting framework for evaluating a defendant’s claim that

the prosecution exercised peremptory strikes in a racially

discriminatory manner. See Hernandez v. New York,

500 U.S. 352, 358–59 (1991). The defendant must first

make a prima facie showing that the prosecution exercised

its strikes based on race. Id. at 358. Then, the burden shifts

to the prosecution to provide a “race-neutral explanation for

striking the jurors in question.” Id. at 359. If the prosecution

provides race-neutral reasons, the district court must

determine based on the record whether the “defendant has

carried his burden in proving purposeful discrimination.” Id.

Because the prosecution offered race-neutral reasons for

striking Ms. Del Rosario and Mr. Sanqui, the only remaining

inquiry is whether the district court erred at step three. See

Mikhel, 889 F.3d at 1029. While we normally review a

district court’s step three finding for clear error, we have

sometimes applied de novo review when the district court’s

analysis was deficient, either because the court did not

engage in a meaningful analysis or failed altogether to

conduct a step three Batson assessment. See, e.g., AlvarezBecause we hold that the 2016 NDAA authorized the Marines’

surveillance, we do not address the government’s argument that it

amounted to only indirect assistance not subject to the Posse Comitatus

Act.

Pet. App. A - 15

UNITED STATES V. HERNANDEZ-GARCIA

Ulloa, 784 F.3d at 565 (failing to reach step three); United

States v. Alanis, 335 F.3d 965, 968–69 (9th Cir. 2003)

(failing to conduct meaningful analysis at step three).

Hernandez-Garcia insists that the district court’s analysis

was flawed and urges us to conduct our own de novo review

at step three. First, Hernandez-Garcia argues that the district

court failed to conduct a step three analysis because, after

listening to the prosecution’s race-neutral reasons, the

district court twice stated that there is not “a prima facie

case,” seemingly making a step one finding. Even if the

district court reached step three, its analysis was not

meaningful, according to Hernandez-Garcia, because the

district court misstated the prosecution’s proffered reasons

for striking Ms. Del Rosario and Mr. Sanqui. 6

We acknowledge that the district court’s oral Batson

ruling is not a paragon of clarity. But when reviewing a

district court’s oral pronouncements in court, we must be

careful “not to formally parse the sentences contained in a

transcript of an oral ruling or to demand absolute linguistic

precision from the trial judge.” See United States v.

Coutchavlis, 260 F.3d 1149, 1156 (9th Cir. 2001). And even

indulging Hernandez-Garcia’s request that we apply de novo

review, we conclude that Hernandez-Garcia did not prove

Hernandez-Garcia also contends that the district court’s step three

analysis was flawed because the court refused to conduct a “comparative

juror analysis.” But comparative juror analysis “is one of many tools

that a court may employ” at step three, and “[t]rial courts . . . are not

required to conduct such an analysis.” United States v. You, 382 F.3d

958, 969 (9th Cir. 2004).

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UNITED STATES V. HERNANDEZ-GARCIA

that the prosecution purposefully discriminated against

Asian jurors. 7

The “ultimate burden of persuasion regarding racial

motivation rests with, and never shifts from, the opponent of

the strike.” Purkett v. Elem, 514 U.S. 765, 768 (1995). The

“critical question” in determining whether HernandezGarcia has proven “purposeful discrimination at step three is

the persuasiveness of the prosecutor’s justification for his

peremptory strike.” Miller-El v. Cockrell, 537 U.S. 322,

338–39 (2003). At step three, “implausible or fantastic

justifications may (and probably will) be found to be pretexts

for purposeful discrimination.” Id. at 339 (quoting Purkett,

514 U.S. at 768). But a “legitimate reason” is not necessarily

a “reason that makes sense,” but is instead “a reason that

does not deny equal protection.” Purkett, 514 U.S. at 768–

69. 8 Ultimately, we must determine whether the “stated

reasons were the prosecutor’s genuine reasons for exercising

a peremptory strike.” Green v. LaMarque, 532 F.3d 1028,

1030 (9th Cir. 2008).

The prosecution struck Ms. Del Rosario because she

served on a hung jury and works as a research scientist.

Ms. Del Rosario’s prior service on a hung jury was a

We do not hold that the district court’s analysis was erroneous such

that de novo review is required. Rather, we assume without deciding

that the district court erred because Hernandez-Garcia’s Batson claim

still fails under de novo review.

There is no requirement, as Hernandez-Garcia urges, that the

prosecution’s reasons be directly relevant to the crime charged. Purkett

clarifies that Batson’s warning that the prosecution’s reasons must be

“related to a particular case to be tried” was “meant to refute the notion

that a prosecutor could satisfy his burden of production by merely

denying that he had a discriminatory motive.” See id.

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UNITED STATES V. HERNANDEZ-GARCIA

legitimate reason. See United States v. Rudas, 905 F.2d 38,

41 (2d Cir. 1990). And it was permissible to strike Ms. Del

Rosario based on her occupation because the prosecution

stated “a genuine, race-neutral reason for believing that the

occupation would make the juror unfavorable.” Jamerson v.

Runnels, 713 F.3d 1218, 1235 (9th Cir. 2013). During voir

dire, the prosecution expressed concern that jurors with

engineering backgrounds, who are used to dealing with

“hard numbers, objective facts,” would be skeptical of the

government’s case built on circumstantial evidence. It was

reasonable for the prosecution to be concerned that Ms. Del

Rosario, a research scientist, also possessed this same

distrust of circumstantial evidence.

Still, Hernandez-Garcia maintains that the reasons were

pretextual because the prosecution failed to strike four white

jurors who had also allegedly served on hung juries. But if

the prosecution cites multiple reasons for striking a juror and

“no unchallenged juror possesse[s] all the cited

characteristics,” then the record does not support a finding

of purposeful discrimination. See United States v. Lewis,

837 F.2d 415, 417 n.5 (9th Cir. 1988). Here, none of the

white jurors were researchers or worked in a related field.

(Mr. Avecilla: “I am a default assistant at [a] law firm.”);

(Mr. Hogan: “I am retired.”); (Mr. Westfall: “I am a retired

CPA and finance manager.”); (Mr. Brownlow: “I am a

construction consultant, a former teacher.”). We thus

conclude that Hernandez-Garcia did not show that the

prosecution purposefully discriminated against Ms. Del

Rosario.

We also hold that Hernandez-Garcia failed to prove that

the prosecution struck Mr. Sanqui for racially discriminatory

reasons. The prosecution struck Mr. Sanqui because “he

appeared to be a loner” as the “only thing he said during [voir

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UNITED STATES V. HERNANDEZ-GARCIA

dire] was ‘I am a software developer, no spouse, no kids.’” 9

Mr. Sanqui also “came dressed in a hoodie,” which the

prosecution “perceived to be underdressed.”

Striking a perceived “loner” is permissible because “a

loner may hamper the jury’s ability to reach a unanimous

verdict.” United States v. Daly, 974 F.2d 1215, 1219 (9th

Cir. 1992). And the prosecution may legitimately strike a

juror based on his casual dress because it conveys a possible

lack of enthusiasm for jury service. See United States v.

Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987). We

recognize that these reasons are subjective and largely based

on a prosecutor’s “instinct about a prospective juror.” Id.

But reliance on instinct is permissible and “wholly within the

prosecutor’s prerogative.” Id.

Hernandez-Garcia quarrels with the prosecution’s

assumption that Mr. Sanqui’s brief response suggests he is a

loner. According to Hernandez-Garcia, Mr. Sanqui’s 58word response was longer than at least six non-Asian jurors

whom the prosecution did not strike, so the loner explanation

must be pretextual. We disagree. The prosecution’s

conclusion about a juror’s demeanor is often based on a

“hunch.” See Burks v. Borg, 27 F.3d 1424, 1429 n.3 (9th

Hernandez-Garcia interprets the prosecution’s reference to Mr.

Sanqui’s profession as an independent reason for its challenge and urges

us to conduct a comparative juror analysis with respect to other jurors

sharing the same occupation. But the prosecution did not strike

Mr. Sanqui because of his profession. Rather, it struck Mr. Sanqui

because of his brief response, and in explaining its thinking to the court,

the prosecution incidentally repeated Mr. Sanqui’s reference to his

profession. Thus, we decline to conduct a comparative juror analysis as

to occupation.

Pet. App. A - 19

UNITED STATES V. HERNANDEZ-GARCIA

Cir. 1994). The veracity of such an inherently subjective

perception cannot be doubted based solely on a word count.

Lastly, Hernandez-Garcia argues that our decision in Ali

v. Hickman, 584 F.3d 1174 (9th Cir. 2009), prohibits reliance

on Mr. Sanqui’s casual dress. In Ali, we considered

“casualness” an “exceedingly weak” justification because it

was contradicted by the prosecution’s other reason that the

juror “would ‘over-intellectualize’ the decisionmaking

process.” Id. at 1195. But here, there is no conflict between

the prosecution’s loner and casualness rationales. If

anything, the two reasons reinforce one another because they

both suggest that Mr. Sanqui has low enthusiasm for jury

service and may hinder a unanimous verdict. And

Hernandez-Garcia has failed to identify a single similarly

dressed non-Asian juror who went unchallenged. See

Thompson, 827 F.2d at 1260 (Casual dress is a “legitimate

reason, unless a nonexcluded juror also wore jeans or other

casual dress.”).

CONCLUSION

We hold that the Marine Corps did not violate the Posse

Comitatus Act by surveilling Hernandez-Garcia just north of

the southern border. We also hold that Hernandez-Garcia

failed to prove that the prosecution racially discriminated by

striking two Asian jurors from the venire. We AFFIRM

Hernandez-Garcia’s conviction.

Pet. App. A - 20

APPENDIX B

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

CLEMENTE HERNANDEZGARCIA,

Defendant-Appellant.

No. 20-50228

D.C. No.

3:19-cr-04373-GPC-1

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Southern District of California

Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted February 10, 2022

Pasadena, California

Filed May 4, 2022

Amended August 17, 2022

Before: Mary M. Schroeder, Kermit V. Lipez, * and

Kenneth K. Lee, Circuit Judges.

Order;

Opinion by Judge Lee

The Honorable Kermit V. Lipez, United States Circuit Judge for

the First Circuit, sitting by designation.

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UNITED STATES V. HERNANDEZ-GARCIA

SUMMARY **

Criminal Law

The panel filed (1) an order denying a petition for panel

rehearing and denying on behalf of the court a petition for

rehearing en banc, and (2) an opinion that amends a May 4,

2022, opinion affirming a conviction for illegal reentry after

removal, in a case in which a Marine Corps surveillance unit

spotted the defendant immediately after he unlawfully

entered the United States, and notified Customs and Border

Patrol agents who soon detained him.

The defendant argued that the Marine Corps surveillance

violated the Posse Comitatus Act, which codified the

longstanding prohibition against military enforcement of

civilian law. Rejecting that argument, the panel explained

that the military may still assist civilian law enforcement

agencies if Congress expressly authorized it, and here, the

2016 National Defense Authorization Act directed the U.S.

Secretary of Defense to offer military assistance to Border

Patrol in hopes of securing the southern land border. The

panel concluded that the district court therefore properly

denied the defendant’s suppression motion based on the

alleged violation of the Posse Comitatus Act.

The panel also denied the defendant’s Batson challenge

to the prosecution’s striking two Asian jurors from the

venire, concluding that the defendant failed to rebut the

prosecution’s race-neutral reasons for doing so.

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

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UNITED STATES V. HERNANDEZ-GARCIA

COUNSEL

Kara Hartzler (argued), Federal Defenders of San Diego

Inc., San Diego, California, for Defendant-Appellant.

Daniel E. Zipp (argued), Assistant United States Attorney;

Randy S. Grossman, Acting United States Attorney; United

States Attorney’s Office, San Diego, California; for

Plaintiff-Appellee.

ORDER

The panel voted to deny the petition for panel rehearing.

Judges Lee and Schroeder voted to deny the petition for

rehearing en banc, and Judge Lipez recommended denying

the petition for rehearing en banc. The full court has been

advised of the petition for rehearing en banc and no judge

has requested a vote on whether to rehear the matter en banc.

Fed. R. App. P. 35. The petition for panel rehearing and

rehearing en banc (Dkt. No. 47) is DENIED. No future

petitions for rehearing or rehearing en banc will be

entertained.

The Clerk shall file the opinion submitted with this order

that amends the opinion submitted on May 4, 2022 (Dkt.

No. 44).

OPINION

LEE, Circuit Judge:

Near the midnight hour in a remote area along the

California-Mexico border, Clemente Hernandez-Garcia

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UNITED STATES V. HERNANDEZ-GARCIA

scaled a border fence and unlawfully entered the United

States. But he could not evade detection even under the

cover of darkness and desolation near the border: A Marine

Corps surveillance unit using a night vision scope spotted

him immediately. The Marines notified U.S. Customs and

Border Patrol agents, who soon detained him. He was

charged and convicted of illegal reentry into the United

States after removal.

Hernandez-Garcia now seeks to reverse his conviction,

arguing that the Marine Corps surveillance allegedly

violated the Posse Comitatus Act. That law codified the

longstanding prohibition against military enforcement of

civilian law. But the military may still assist civilian law

enforcement agencies if Congress expressly authorizes it.

Here, the 2016 National Defense Authorization Act directed

the U.S. Secretary of Defense to offer military assistance to

Border Patrol in hopes of securing the southern land border.

We thus reject Hernandez-Garcia’s claim that the U.S.

Marines’ surveillance at the border violated the Posse

Comitatus Act. We also deny Hernandez-Garcia’s Batson

challenge because he failed to rebut the prosecution’s raceneutral reasons for striking two Asian jurors. We affirm

Hernandez-Garcia’s conviction.

BACKGROUND

I. Border Patrol detains Hernandez-Garcia just north

of the southern border, and he is charged with illegal

reentry after removal.

Clemente Hernandez-Garcia has racked up a long record

of immigration violations and criminal convictions. Since

first illegally entering the United States in 1994, HernandezGarcia has been removed seven times after being convicted

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UNITED STATES V. HERNANDEZ-GARCIA

of drug and firearm offenses, burglary, vehicle theft, and

aggravated domestic violence. Most recently in 2019, he

was removed to Mexico after being released from prison for

his latest criminal conviction.

Hernandez-Garcia waited only ten days before

unlawfully reentering the United States yet again. Late at

night, he climbed over the border fence in a remote area

25 miles east of Tecate, California, the nearest port of entry

in southeastern San Diego County. But a Marine Corps unit

using a scope truck equipped with infrared night vision

spotted him. The Marines alerted nearby Border Patrol

agents that an individual was 10–15 feet north of the border

fence near an area known as Mercado Rock.

Border Patrol Agent Allen-Limon responded to the alert

and began searching the area. Shortly after the search began,

a separate Border Patrol surveillance unit notified him of an

individual running across a nearby highway. Allen-Limon

combed the area near the highway and eventually found

Hernandez-Garcia hiding face-down in a dried riverbed. He

ordered Hernandez-Garcia to come out from hiding and

questioned him. Hernandez-Garcia admitted he was a

Mexican citizen and lacked proper immigration documents.

In a later post-Miranda interview, he admitted to crossing

the border by jumping the fence. He was then charged with

illegal reentry after removal in violation of 8 U.S.C. § 1326.

II. Hernandez-Garcia files a suppression motion based

on alleged violations of the Posse Comitatus Act but

the motion is denied.

Hernandez-Garcia moved to suppress all evidence

obtained as a result of his arrest, claiming that the Marine

Corps surveillance leading to his arrest violated the Posse

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UNITED STATES V. HERNANDEZ-GARCIA

Comitatus Act, 18 U.S.C. § 1385. 1 That law broadly

prohibits the military from directly enforcing civilian law

unless authorized by Congress to do so. See id.; 10 U.S.C.

§ 275. The government maintained that Congress expressly

authorized the Marine surveillance when it enacted the

National Defense Authorization Act for Fiscal Year 2016,

Pub. L. No. 114-92, 129 Stat. 726 (2015) (“2016 NDAA”).

Section 1059 of the 2016 NDAA authorized the Secretary of

Defense to aid Border Patrol by deploying “ground-based

surveillance systems to support continuous surveillance of

the southern land border of the United States.” Id.

§ 1059(c)(2). But Hernandez-Garcia countered that the

2016 NDAA was merely an annual appropriations bill that

had lapsed.

The district court denied Hernandez-Garcia’s motion.

The district court held that the 2016 NDAA was an

authorization act, not an appropriations act, and thus was still

effective when the government detained Hernandez-Garcia.

And because § 1059 authorized the Marine surveillance, no

Posse Comitatus Act violation occurred.

The case

proceeded to trial.

III.

Hernandez-Garcia unsuccessfully raises a Batson

challenge after the prosecution strikes Asian

jurors.

At the outset of voir dire, each juror read aloud answers

to a questionnaire about their city of residence, family

information, vocation, prior jury service, and involvement

Hernandez-Garcia also argued that he was arrested without

probable cause. The district court held that the Border Patrol agents had

probable cause, and Hernandez-Garcia does not challenge this ruling on

appeal.

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UNITED STATES V. HERNANDEZ-GARCIA

with law enforcement or the military. Hernandez-Garcia

raised a Batson challenge, claiming that the government

improperly excluded two Asian jurors, Jocelyn Del Rosario

and Brian Sanqui. Batson v. Kentucky, 476 U.S. 79 (1986).

Ms. Del Rosario provided the following answer:

My name is Jocelyn Del Rosario, and I reside

in San Diego, I am a research scientist for

Bristol Myers Squibb. And I am not married

and I have no children. I did preside in a civil

and a criminal case about 20 years ago. The

criminal case ended in a hung jury, and the

civil case reached a verdict. My family

members are not in the law enforcement.

And I have not served in the military.

Mr. Sanqui then provided his answer:

My name is Brian Sanqui. I reside in Poway.

I am a software developer. I do not have a

spouse or children. I have never served on a

jury previously. I do not work in law

enforcement, and I do not have any family

members who work in law enforcement. And

I have never served in the military.

After the jurors read their answers aloud, each side

conducted voir dire. The prosecution noted that there were

“a lot of . . . engineers here” and that “[e]ngineering is a

profession where you are often used to dealing with hard

numbers, objective facts.” Because its case relied on

circumstantial evidence, the prosecution asked whether any

of the jurors would struggle to convict if it proved its case

solely based on such evidence. One juror at first expressed

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UNITED STATES V. HERNANDEZ-GARCIA

doubt, but after more questioning, stated that he could “make

[his] mind up based on evidence provided like that.”

Following voir dire, the government exercised two of its

seven peremptory challenges against Ms. Del Rosario and

Mr. Sanqui. When the court asked whether the defense had

any Batson issues, Hernandez-Garcia’s counsel noted that

the prosecution had used three of its strikes on “jurors who

appear to be Asian or have last names that would so

indicate,” 2 and that there were “four or five Asian jurors in

the venire.” So striking three out of four or five Asian jurors

supported an inference of purposeful discrimination,

according to Hernandez-Garcia.

The prosecution then stated its reasons for striking

Ms. Del Rosario and Mr. Sanqui. The prosecution struck

Ms. Del Rosario because she “was on a jury with a hung

verdict” and she was a “research scientist.” The prosecutor

struck Mr. Sanqui because:

[H]e appeared to be a loner. The only thing

he said during the inquiry was, “I am a

software developer, no spouse, no kids.” He

came dressed in a hoodie, which we

perceived to be underdressed, and that gave

us some concern that, based on his profession

and lack of comments – that was the basis for

striking him.

The prosecution struck a third Asian juror, Ms. Ahmad, because

(1) Border Patrol had once searched her, and (2) she had served as a

witness in an immigration case that left her with a “negative impression”

of Border Patrol agents. The district court held that these reasons were

legitimate, and Hernandez-Garcia does not raise a Batson challenge for

the striking of Ms. Ahmad.

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UNITED STATES V. HERNANDEZ-GARCIA

The district court denied the Batson challenge, stating

that it was “not prepared to find that there’s a prima facie

case that’s been established.”

It then restated the

prosecution’s proffered reasons but did so somewhat

inaccurately. For Ms. Del Rosario, the court said, “single,

no children, served on a jury where there was a hung jury on

a criminal case—the Court is satisfied that that’s a valid

explanation for the strike.” But Ms. Del Rosario’s marriage

status and lack of children were not cited by the prosecution.

For Mr. Sanqui, the court said, “single, no children, no jury

experience—it appears that there’s no illegitimate basis that

was used.” The prosecution, however, did not strike

Mr. Sanqui for lack of jury experience.

Defense counsel requested that the court conduct a

“comparative juror analysis” for Ms. Del Rosario and

Mr. Sanqui because “there are multiple jurors who said they

had been on juries that did not reach verdicts” and the

rationale of “single with no kids” was concerning because

there were “multiple jurors who said that” including white

jurors. But the court responded that the “challenge is

denied.” Hernandez-Garcia’s counsel then asked, “[I]s the

Court making a finding there is no purposeful

discrimination?” The district court replied, “I have made a

finding there’s not a prima facie case. There’s not

discrimination.”

IV.

The jury convicts Hernandez-Garcia and he

appeals.

The jury convicted Hernandez-Garcia of illegal reentry

after removal. He then filed this appeal, raising two issues.

First, he renews his argument that the Marine Corps

surveillance violated the Posse Comitatus Act. Second, he

claims that the district court erred in conducting the Batson

inquiry. He asks that we review de novo the record and hold

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UNITED STATES V. HERNANDEZ-GARCIA

that the prosecution racially discriminated against Asian

jurors, or, at the very least, remand for the district court to

conduct more analysis at Batson’s third step.

STANDARD OF REVIEW

We review de novo whether the Marine surveillance

violated the Posse Comitatus Act. United States v. Dreyer,

804 F.3d 1266, 1271 (9th Cir. 2015) (en banc). “Ordinarily,

we review the district court’s ruling on a Batson challenge

for clear error.” United States v. Mikhel, 889 F.3d 1003,

1028 (9th Cir. 2018). “However, we review de novo whether

the district court properly applied Batson,” United States v.

Alvarez-Ulloa, 784 F.3d 558, 565 (9th Cir. 2015), and we

“have applied de novo review [to the court’s Batson ruling]

. . . where the court improperly applied the three-step

framework,” Mikhel, 889 F.3d at 1028.

DISCUSSION

I. The district court properly denied HernandezGarcia’s suppression motion because the 2016 NDAA

authorizes the Marine Corps surveillance.

After Reconstruction, Congress enacted the Posse

Comitatus Act to “eliminate the direct active use of Federal

troops by civil law authorities.” United States v. Banks,

539 F.2d 14, 16 (9th Cir. 1976). Under the current version

of the law, military personnel cannot assist in civilian law

enforcement unless expressly authorized by Congress:

Whoever, except in cases and under

circumstances expressly authorized by the

Constitution or Act of Congress, willfully

uses any part of the Army, the Navy, the

Marine Corps, the Air Force, or the Space

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UNITED STATES V. HERNANDEZ-GARCIA

Force as a posse comitatus or otherwise to

execute the laws shall be fined under this title

or imprisoned not more than two years, or

both.

18 U.S.C. § 1385.

Here, the Posse Comitatus Act posed no obstacle to the

U.S. Marines assistance because Section 1059 of the 2016

NDAA expressly authorizes surveillance by the military at

the southern border. Section 1059(a) directs the Secretary of

Defense to “provide assistance to [Border Patrol] for

purposes of increasing ongoing efforts to secure the southern

land border of the United States.” 2016 NDAA § 1059(a).

The military may deploy “ground-based surveillance

systems to support continuous surveillance of the southern

land border of the United States.” Id. § 1059(c)(2). And that

is exactly happened here.

Despite § 1059’s directive, Hernandez-Garcia maintains

that the Marine Corps surveillance leading to his arrest was

unauthorized. He again claims that the 2016 NDAA was a

lapsed appropriations act no longer in effect at the time of

his arrest. We reject that argument. Section 1059 of the

2016 NDAA remains in force. In last year’s 2021 NDAA,

Congress made minor amendments to § 1059’s

congressional reporting requirements, confirming that the

law remains in effect. See William M. (Mac) Thornberry

National Defense Authorization Act for Fiscal Year 2021,

Pub. L. 116-283, 134 Stat. 3388 (2021). Congress would

have no reason to amend § 1059 if it was a lapsed

appropriations act. The 2021 NDAA thus provides explicit

evidence that § 1059 continues in full effect. See McClure

v. United States, 95 F.2d 744, 750 (9th Cir. 1938) (“Where

an amendment leaves certain portions of the original act

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UNITED STATES V. HERNANDEZ-GARCIA

unchanged, such portions are continued in force with the

same meaning.”); see also United States v. Rios-Montano,

438 F. Supp. 3d 1149, 1153 (S.D. Cal. 2020) (“Congress has

also made substantive changes to the law and enacted new,

longstanding programs through other NDAAs.”).

Further, § 1059—unlike other provisions in the 2016

NDAA—has no termination date, confirming that Congress

intended § 1059 to remain operative beyond fiscal year

2016. See Dep’t of Homeland Sec. v. MacLean, 574 U.S.

383, 391 (2015) (“Congress generally acts intentionally

when it uses particular language in one section of a statute

but omits it in another.”).

Hernandez-Garcia also argues that an earlier statute,

10 U.S.C. § 274, defines the scope of Congressionally

authorized military border surveillance, and that the

surveillance here exceeds that prior limit. Section 274

permits Department of Defense personnel to be “made

available to a civilian law enforcement agency” to “operate

equipment” for the:

Detection, monitoring, and communication

of the movement of surface traffic outside of

the geographic boundary of the United States

and within the United States not to exceed

25 miles of the boundary if the initial

detection occurred outside of the boundary.

10 U.S.C. § 274(b)(2) (emphasis added). According to

Hernandez-Garcia, because the Marines “initially detected”

him 10–15 feet inside the United States, they exceeded their

authority under § 274’s limitation of detection “outside” of

the United States border.

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Put another way, he argues that the previously enacted

§ 274 trumps § 1059 of the NDAA, invoking the “generalspecific” canon. See Hellon & Assocs., Inc. v. Phoenix

Resort Corp., 958 F.2d 295, 297 (9th Cir. 1992). Under this

canon of construction, “the later and more specific statute

usually controls” if two statutes conflict. Id. “[L]egislators

are often . . . unfamiliar with enactments of their

predecessors” and may “unwittingly contradict them.”

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 185 (2012). Thus, if the newer

statute “comes closer to addressing the very problem posed

by the case at hand,” it is as if the “later-enacted statute . . .

effectively repeal[ed]” the conflicting provisions of the

earlier one. Id. at 183–85.

According to Hernandez-Garcia, § 1059 and § 274

conflict because the former permits surveillance of

individuals no matter where the initial detection occurred,

while the latter requires the initial detection to occur outside

the United States. And § 274 is supposedly more specific

because it allows the military to surveil “with respect to . . .

a criminal violation,” while § 1059 is silent about criminal

violations. Compare 10 U.S.C. § 274(b)(1)(A), with 2016

NDAA § 1059.

We agree that the two statutes conflict because of § 274’s

“initial detection” limitation. But the general-specific canon

cuts against Hernandez-Garcia’s position. The 2016

NDAA’s § 1059 is in fact more specific than § 274 as

applied here, so § 1059 takes precedence over § 274. First,

while § 274 contains only general language about

“detection” and “monitoring,” § 1059 specifically authorizes

the Marine Corps to surveil the California-Mexico border

from a scoping truck. Second, while § 274 generally permits

assistance to any “Federal, State, and local civilian law

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UNITED STATES V. HERNANDEZ-GARCIA

enforcement officials,” § 1059 authorizes the military to

assist only a single federal agency, Customs and Border

Patrol. Third, § 274 allows general surveillance of any

United States boundary, while § 1059 approves surveillance

of only the “southern land border.” Finally, § 274 broadly

allows the operation of “equipment,” while § 1059

specifically directs the deployment of “ground-based

surveillance systems” such as scoping trucks. Compare

10 U.S.C. § 274(a)–(b), with 2016 NDAA § 1059(a)

and (c). 3 Thus, we hold that the 2016 NDAA’s § 1059 is

more specific than—and thus trumps—the general