Donald Jackson appeals his convictions for assault with intent to steal money and property of the United States, and for using and carrying a firearm during a crime of violence, claiming that, because new counsel was appointed for him between his first and second trials, that counsel was entitled, under Sec. 3161(c)(2) of the Speedy Trial Act, 18 U.S.C. Sec. 3161(c)(2) (generally, trial not to "commence less than thirty days from the date on which the defendant first appears through counsel"), to have 30 days to prepare for the second trial, which instead commenced 12 days after counsel was appointed, with only seven days notice of the setting, and despite Jackson seeking a continuance to obtain an expert witness on eyewitness identification. He contends also that a peremptory strike was on the basis of economic status, and, therefore, violated the equal protection component of the Fifth Amendment's due process clause. We AFFIRM.

On October 15, 1993, at approximately 5:30 p.m., the Mailroom Express, a contract station of the United States Postal Service in Dallas, Texas, was robbed at gunpoint. Daryl Sprout, the manager, testified that the robber leapt over the counter, ordered him to fill a white plastic bag with money from the cash registers, and then ordered him to lie on the floor. Sprout told the robber he should run. Sue Hayes, a customer who walked in during the robbery, testified that the robber ordered her to the floor and threatened to kill her.

The robber then jumped back over the counter, and ran out of the station. Sprout got up, went over the counter, looked out the door, and saw a man, whom he identified later as Jackson, in the passenger seat of a car that had just pulled out of a parking space in front of the station. Sprout noted the license plate number; and police traced the vehicle to Glenn Brager, Jackson's half-brother.

Brager testified that, on the day of the robbery, he loaned his car to Jackson between 4:00 and 4:30 p.m., so that Jackson could pick up money that was being wired to him at the station; that Jackson returned with the car shortly thereafter; that, about an hour later, Jackson asked to borrow the car again; and that, instead of letting Jackson use his car, he drove Jackson to the station around 5:00 or 5:30 p.m. Brager testified that, when they arrived at the Mailroom Express, Jackson got out of the car and returned a few minutes later. Brager did not see Jackson carrying a gun, money, or a white plastic bag, and testified that Jackson did not seem anxious or nervous. (But see note 9, infra, concerning Jackson then telling Brager about Jackson's "confrontation" in the station.)

A postal inspector testified that, on October 25 (ten days after the robbery), Jackson gave a sworn statement in which he denied committing the robbery and stated that, although he and Brager went to the Mailroom Express two or three times on October 15 (the day of the robbery), they were at a barber shop from 4:30 until 7:30 p.m.

On October 22 and 28, Sprout and Hayes, respectively, were shown photographs of six individuals, including Jackson; each identified Jackson as the robber. And, both identified Jackson in court. Moreover, each testified that they were positive that Jackson was the robber: Sprout testified that he had a clear view of the robber's face on three separate occasions--(1) when the robber pointed the gun at him, (2) when he told the robber that he should run, after putting the money from the cash registers into the bag, and (3) when the robber was in the getaway car; and Hayes testified that she got a good look at the robber from a distance of two and one-half to three feet, and that she would never forget his face.

Jackson's first trial ended in a mistrial when the jury was unable to reach a verdict. The district court granted Jackson's retained counsel's motion to withdraw; appointed new counsel; set trial, on seven days notice, to commence 22 days after the first ended; and denied a continuance.

At his second trial, Jackson was convicted for assault with a handgun with the intent to steal money and property of the United States, in violation of 18 U.S.C. Sec. 2114, and for using and carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. Sec. 924(c).1 Jackson was sentenced, inter alia, to 322 months imprisonment--262 months for assault, 60 for the firearm count.

Jackson contends that the district court erred by denying his request for a continuance to allow appointed counsel at least 30 days to prepare for the second trial, pursuant to the Speedy Trial Act; and by permitting the Government to use a peremptory challenge to exclude a potential juror on the basis of economic status, in violation of the equal protection component of the Fifth Amendment's due process clause.

Jackson was indicted on November 18, 1993, and made his first appearance with retained counsel on November 30. Retained counsel represented him at his first trial, which commenced on February 7, 1994, and ended in a mistrial on February 9. After Jackson's retained counsel moved to withdraw on February 17, because Jackson was unable to pay for representation at a second trial, Jackson moved to proceed in forma pauperis and for appointment of counsel.

On February 18, the magistrate judge appointed the Federal Public Defender to represent Jackson. And, five days later, on February 23, the district judge (who presided also at the first trial) set trial for March 2. On February 25, Jackson moved for a continuance, based on the need to acquire a parole revocation hearing transcript, which allegedly contained statements by Sprout that were favorable to the defense on identification, and to procure the testimony of an expert witness, Dr. Malpass from El Paso, Texas, on the reliability of eyewitness identification.2 Jackson did not cite or refer to the Speedy Trial Act.

On March 1 (the day before trial), Jackson filed an amended motion, seeking a continuance pursuant to the Speedy Trial Act. Attached to the motion was a letter from Dr. Malpass, in which he stated that he was willing to testify for Jackson, but could not do so on such short notice; and that he could offer information to the jury that would assist it in overcoming widely held misconceptions in areas of eyewitness identification, such as cross-racial face recognition and identification, the effects of the presence of a weapon, the effects of previous viewing of a face, and the relationship between a witness' confidence in an identification and its accuracy. In the alternative, Jackson requested that Dr. Malpass be subpoenaed. That same day, the court, without ruling on the continuance, granted the subpoena request.

Jackson's second trial began on March 2. Before jury selection, his counsel advised the court that he had spoken with Dr. Malpass and had told him that service of a subpoena would be attempted; and that Dr. Malpass indicated that he would be unable and unwilling to give expert testimony because he had not had sufficient time to prepare. The district court denied Jackson's continuance motion, stating that mistaken identification was "a somewhat charitable description of the defense", and that it had issued the Malpass subpoena "out of an abundance of caution".

Jackson contends that the district court's denial of a continuance and decision to retry the case on seven days' notice violated Sec. 3161(c)(2) of the Speedy Trial Act, which provides:

Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.

18 U.S.C. Sec. 3161(c)(2). "The facts underlying a ruling involving the Speedy Trial Act are reviewed for clear error, and the legal conclusions of the court are reviewed de novo." United States v. Storm, 36 F.3d 1289, 1292 (5th Cir.1994). Although his retained counsel had more than 30 days to prepare before the first trial, Jackson, relying on our court's recent decision in Storm, contends that Sec. 3161(c)(2) entitled him to a new 30-day period after new counsel was appointed for the second trial.

Jackson's reliance on Storm is misplaced. Storm and a co-defendant, both represented by the same counsel, first appeared before the district court on February 12, 1993, at which time trial was set for March 15, and a hearing for February 19, to determine whether counsel could represent both defendants. Storm, 36 F.3d at 1292. At the February 19 hearing, the court determined that counsel could not represent both defendants, and appointed the Federal Public Defender to represent Storm; Storm appeared that same day with his new counsel. Id. Our court held that Storm was tried in violation of Sec. 3161(c)(2), because his first appearance with counsel was on February 19, less than 30 days before trial commenced on March 15. Id. at 1293. But, as discussed in part II.A.2. infra, it held also that Storm was not prejudiced by the violation. Id. at 1294.

Storm's holding that Sec. 3161(c)(2) was violated is based on the particular facts and circumstances of that case, which are not remotely similar to those here.3 As quoted in note 3, supra, our court noted in Storm that, even assuming Storm's first appearance with counsel was sufficient to start the Sec. 3161(c)(2) 30-day period, it would be unconscionable to start the period on the basis of that representation, because the attorney had continued to represent Storm after having given the government an affidavit in which Storm admitted his own involvement in the transactions at issue and attempted to exculpate his co-defendant, whom counsel also represented. See id. at 1293-94. As stated, such circumstances are not present here. Moreover, Jackson, unlike Storm, was represented by retained counsel at a trial for which he had more than the 30 days required by Sec. 3161(c)(2) in which to prepare Jackson's defense. In short, Storm does not stand for the proposition that Sec. 3161(c)(2) requires a new 30-day trial preparation period each time a defendant changes counsel.4

As stated, the Act provides for a 30-day period for trial preparation, measured "from the date on which the defendant first appears through counsel". 18 U.S.C. Sec. 3161(c)(2). But, it does not provide for a new 30-day period each time the defendant obtains different counsel. In United States v. Rojas-Contreras, 474 U.S. 231, 106 S. Ct. 555, 88 L. Ed. 2d 537 (1985), the Supreme Court addressed whether Sec. 3161(c)(2) requires a new 30-day period after the filing of a superseding indictment. It stated that the language of Sec. 3161(c)(2) was "unambiguous" and "clearly fixe[d] the beginning point for the trial preparation period as the first appearance through counsel". Accordingly, it held that the 30-day period did not begin anew with a superseding indictment. Id. at 234, 106 S.Ct. at 557. The Court noted that the Speedy Trial Act gives the district courts broad discretion to grant continuances when necessary to allow further trial preparation, pursuant to Sec. 3161(h)(8), which authorizes a continuance if "the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial". Id. at 236, 106 S.Ct. at 558 (quoting 18 U.S.C. Sec. 3161(h)(8)).

In sum, we hold that, when a defendant is represented by counsel who has had at least 30 days in which to prepare for trial, as Jackson was, Sec. 3161(c)(2) is satisfied; the retention or appointment of new counsel does not trigger a new 30-day period.5 Obviously, this does not mean that the defendant must be compelled invariably to go to trial less than 30 days after the retention or appointment of new counsel. As the Supreme Court pointed out in Rojas-Contreras, the district court has discretion, under Sec. 3161(h)(8), to grant a continuance for trial preparation if it determines that the ends of justice so require. See Rojas-Contreras, 474 U.S. at 236, 106 S. Ct. at 558.

In the alternative, and as noted, even if we were to assume a violation of Sec. 3161(c)(2), our inquiry would not end. "[B]ecause Congress failed to provide a sanction for the violation of Sec. 3161(c)(2), a defendant must show that he was prejudiced by such violation". Storm, 36 F.3d at 1294.6 Jackson contends that he was prejudiced because the denial of a continuance deprived him of expert eyewitness identification testimony necessary to establish a misidentification defense.7

"If a continuance is sought because of the unavailability of a witness, the movant must show the court that 'due diligence has been exercised to obtain the attendance of the witness, that substantial favorable evidence would be tendered by the witness, that the witness is available and willing to testify, and that the denial of the continuance would materially prejudice the defendant.' " United States v. Scott, 48 F.3d 1389, 1394 (5th Cir.1995) (internal quotation marks and citations omitted). Moreover, whether to admit expert testimony on eyewitness reliability "is squarely within the discretion of the trial judge". United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986).8

Assuming both that the court would have exercised its discretion to allow Dr. Malpass' testimony, and that the various requisite factors for a continuance, other than the prejudice factor, were satisfied, that factor would still be wanting. As stated, two witnesses (the store manager and a customer, each of whom testified that they had a good opportunity to view the robber) identified Jackson positively and independently from photographic line-ups containing six photographs each. In light of the corroboration of the eyewitness identifications by Jackson's own half-brother, whose testimony placed Jackson at the scene of the robbery when it occurred,9 and Jackson's sworn statement to investigators, in which he contradicted his brother's version of the events on the day of the robbery, it is most improbable, to say the least, that Dr. Malpass' generalized testimony about the supposed unreliability of eyewitness identifications would have established a reasonable doubt as to the identity of the robber. See United States v. Laury, 49 F.3d 145, 150-51 (5th Cir.1995). Accordingly, in the alternative, Jackson has failed to establish that he was prejudiced materially by the denial of a continuance.

During jury selection, when four of the six blacks on the venire were struck peremptorily by the prosecutor, Jackson objected; and the district court ordered the prosecutor to state the reasons for the strikes. Jackson makes an extension of Batson challenge as to one of them.10

For the strike in issue, the prosecutor stated both that the venireman had given him a hostile look when, during voir dire, he called the court's attention to the fact that the jurors were seated out of order and asked that the juror change places with the juror seated next to him, and that the juror was a retired custodian, and his low income indicated a possible tendency to sympathize with the defendant, who was unemployed. Jackson responded that the reference to a hostile look was "nebulous", and asserted that the Government had discriminated against the venireman because he was poor. The district court found that the strike was not racially-motivated, stating that "[w]hether [the prosecutor's] judgment[ ] about a hostile look on the part of [the juror] ... is correct is the sort of intuitive judgment that I think the courts have to rely on counsel to exercise".

Jackson asks us to extend the reasoning of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and hold that a peremptory strike on the basis of economic status violates the equal protection component of the Fifth Amendment's due process clause. He acknowledges that United States v. Pofahl, 990 F.2d 1456, 1466 (5th Cir.), cert. denied, --- U.S. ----, ----, 114 S. Ct. 266, 560, 126 L. Ed. 2d 218, 460 (1993), accepted economic status as a non-racial motivation, but maintains that Pofahl is not controlling, because he is not contending that the strike was racially-motivated; instead, he claims that a peremptory challenge based on economic status, without regard to race, violates equal protection.

We need not reach whether to extend Batson in this fashion.11 As noted, the strike was motivated not only by the venireman's economic status, but also because of the prosecutor's perception that he had given him a hostile look. We agree with the district court that this is the sort of intuitive judgment that courts generally must rely on counsel to exercise in good faith. Jackson does not suggest, and the record does not reflect, that the prosecutor's explanation lacked credibility. See Pofahl, 990 F.2d at 1466.

AFFIRMED.