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Cincinnati, Ohio - Criminal defense lawyer represented defendant with being a felon in possession of a firearm charge.
Because the district court denied Brooks’s motion to suppress and the jury convicted him,
we recount the facts in the light most favorable to the prosecution. See United States v. Maya,
966 F.3d 493, 496 (6th Cir. 2020); United States v. Canipe, 569 F.3d 597, 600 (6th Cir. 2009).
Late at night on August 4, 2018, three Detroit police officers (Lenin Amarante, Joseph
Anthony, and Jaime Rodriguez) stopped at a red light next to a Jeep Compass. Alexsand Pina
was driving the Jeep; Angel Torres was in its front passenger’s seat; Brooks sat behind Torres in
the backseat. While waiting for the light to turn green, Officers Amarante and Anthony both
observed that Torres was not wearing his seatbelt. The officers decided to pull the Jeep over for
this civil infraction. They stopped it at a vacant gas station.
As Officer Anthony approached the Jeep’s passenger side, he smelled marijuana
emanating from the vehicle. Anthony also saw Brooks in the backseat leaning forward with his
shoulders parallel to his knees “making a stuffing motion under the seat.” Believing that Brooks
was trying to conceal contraband (and potentially a firearm), Anthony asked Brooks what he had
stuck under the seat. Anthony also alerted his fellow officers to Brooks’s conduct because, as he
explained, the conduct raised “an officer safety issue.” After Brooks denied hiding anything,
Anthony opened the car door and ordered him out of the vehicle.
In the meantime, Officer Amarante had approached the driver, Pina. Pina told Amarante
that he had a permit to carry a firearm and that it was located in the driver-side door. Amarante
also noticed the smell of marijuana as he spoke with Pina, but Pina denied allowing anyone to
No. 19-2283 United States v. Brooks Page 3
smoke in the car. Amarante realized at that point that Brooks had been in the backseat and saw
what appeared to be a “marijuana cigar” in Brooks’s left ear. Amarante also heard Officer
Anthony convey to Brooks something like: “My man, let me see your hands.” Amarante secured
Pina’s gun and ordered him out of the Jeep so that they could look for marijuana.
Officer Rodriguez searched the Jeep while the other two officers conversed with the three
occupants outside the vehicle. When searching the Jeep’s rear passenger side where Brooks had
made his stuffing motion, Rodriguez saw the handle of a firearm protruding out between the seat
and floorboard. The handgun had been loaded and its serial number scratched off. Rodriguez
immediately turned around from the rear passenger-side door and showed the other officers the
gun. The officers also recovered suspected marijuana, a suspected marijuana cigarette, and $723
The government charged Brooks with being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). He moved to suppress the gun on the ground that the officers had
violated the Fourth Amendment. The district court disagreed. It credited the officers’ testimony
that Torres had not been wearing his seatbelt, which gave them probable cause to stop the Jeep.
It next credited the officers’ testimony that they smelled marijuana and noticed Brooks make a
“stuffing motion,” which gave them probable cause to search the Jeep.
The jury found Brooks guilty of the felon-in-possession count. Hours after the verdict,
the jury’s sole African-American juror sent the district court an email. The juror indicated that
she felt pressured to return a verdict against Brooks and that the other jurors had sided with the
I feel morally responsible to myself, the court, and to the defendant to let you all
know that during deliberations I was pressured by other members of the jury to
select a guilty verdict when that is not what I believe to be true. I believe that
the[re] was reasonable doubt and more evidence was need[ed] to actually find the
defendant guilty. I was told by the members that I was not using common sense
and was berated every time I brought up the lack of evidence. During selection
we were asked if we would be able to apply the same scrutiny to the testimony of
the witnesses because they were officers and everyone answered yes. However,
immediately in deliberations the other jurors sided with the police even though
they all agreed that the[re] was enough lack of evidence to cause a reasonable
doubt. . . . But they said they are leaning more towards guilty because the cops
No. 19-2283 United States v. Brooks Page 4
say he is guilty. I am fine with whatever consequence happens to me because I
allowed myself to be peer press[ur]ed into a guilty verdict.
Brooks suggested that the other jurors may have been racially biased and requested an
evidentiary hearing and a new trial under Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017).
The court denied the motion because there was no evidence that the jurors had made race-based
comments against Brooks or this juror. It sentenced Brooks to 66 months’ imprisonment.
Brooks challenges the district court’s rulings on: (1) his motion to suppress evidence;
(2) his motion for judgment of acquittal on sufficiency-of-the-evidence grounds; and (3) his
motion for an evidentiary hearing and new trial based on the juror’s post-verdict email.
Seeking to suppress the firearm, Brooks argues that the officers violated the Fourth
Amendment when they discovered it in the Jeep. The Fourth Amendment provides in relevant
part: “The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. Brooks
characterizes the officers’ initial stop of the Jeep as an “unreasonable” “seizure” and their later
inspection of the Jeep as an “unreasonable search.” We consider the officers’ actions in that
Initial Stop. The stop of a vehicle qualifies as the “seizure” of a “person” that must be
“reasonable” under the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 809–10
(1996). Yet reasonableness in this context does not require a warrant. “[P]ractically since the
beginning of the Government,” officers have been allowed to stop a vehicle on public roads
without a warrant when they have probable cause to believe that the occupants have committed a
crime. Carroll v. United States, 267 U.S. 132, 153–56 (1925). Our cases also permit vehicle
stops based on a mere “reasonable suspicion” that a felony has occurred or that a misdemeanor is
occurring, analogizing these temporary stops to the well-known “Terry stop” from Terry v. Ohio,
392 U.S. 1 (1968). See United States v. Collazo, 818 F.3d 247, 253–54 (6th Cir. 2016); see also
Arizona v. Johnson, 555 U.S. 323, 330–31 (2009). But our cases leave unclear whether we
No. 19-2283 United States v. Brooks Page 5
continue to require probable cause for a stop if officers believe that an occupant has committed
only a civil traffic offense. See United States v. Shelton, 817 F. App’x 217, 219 & n.2 (6th Cir.
2020); United States v. Taylor, 471 F. App’x 499, 510–11 (6th Cir. 2012). This lingering
uncertainty does not matter in this case because we have also held that an officer has probable
cause if the officer sees an individual in the vehicle not wearing a seatbelt in violation of state
law. See United States v. Tillman, 543 F. App’x 557, 560 (6th Cir. 2013); United States v. Street,
614 F.3d 228, 232 (6th Cir. 2010); United States v. Canipe, 569 F.3d 597, 601 (6th Cir. 2009);
United States v. Draper, 22 F. App’x 413, 414–15 (6th Cir. 2001) (per curiam).
These rules doom Brooks’s challenge to the initial stop of the Jeep. Michigan law
requires most individuals in the front seat of a vehicle to wear a seatbelt, and it makes the failure
to do so a civil infraction. Mich. Comp. Laws § 257.710e(3), (9). Officers Amarante and
Anthony both personally observed the Jeep’s front passenger (Torres) not wearing a seatbelt
when their cruiser pulled up next to it. The district court credited their testimony. And the
officers’ observation that Torres was likely committing a civil seatbelt infraction gave them
probable cause to stop the vehicle under the Fourth Amendment. See Street, 614 F.3d at 232.
Brooks counters with a factual point and a legal one. Factually, Brooks cites evidence
cutting against the officers’ claim. The driver, Pina, testified that Torres likely had been wearing
his seatbelt the whole time because the Jeep had not been making the “annoying” sound that
rings when seatbelts are unfastened. The officers’ body cams also showed that Torres had
managed to fasten his seatbelt by the time they pulled over the Jeep. But this factual debate was
for the district court to resolve. And the officers’ unequivocal testimony supported its factual
finding that they saw Torres without a seatbelt on. This finding thus cannot be described as
clearly erroneous. See Canipe, 569 F.3d at 603–04.
Legally, Brooks says that the officers’ seatbelt “excuse” did not permit the stop because it
was “pretextual” and the officers were really engaged in a fishing expedition to uncover crime in
a high-crime area. He misunderstands black-letter law. Under the Fourth Amendment, officers
may stop a car as long as they objectively have probable cause that an occupant of the car has
committed a traffic offense, even if they subjectively do so for a different reason. Whren,
517 U.S. at 811–16. “Whren puts an end to inquiries” like Brooks’s “about an officer’s state of
No. 19-2283 United States v. Brooks Page 6
mind in conducting a traffic stop.” Street, 614 F.3d at 232. And while the Equal Protection
Clause does bar officers from pretextually stopping a car based on such unlawful motivations as
the occupants’ race, Brooks asserts no equal-protection claim here. See Tillman, 543 F. App’x at
Vehicle Search. The rummaging through of a vehicle stopped on a road qualifies as the
“search” of a person’s “effects” that also must be “reasonable” under the Fourth Amendment.
See Byrd v. United States, 138 S. Ct. 1518, 1526 (2018). Here again, however, reasonableness
does not require a warrant. Given the transitory nature of vehicles, the Supreme Court has long
held that the police may conduct a warrantless search as long as they have probable cause to
believe that the vehicle contains evidence of a crime. See California v. Acevedo, 500 U.S. 565,
569 (1991); Carroll, 267 U.S. at 153–56. And our court has long held that officers have the
required probable cause when they detect the odor of illegal marijuana coming from the vehicle.
See United States v. Sheron, 787 F. App’x 332, 332 (6th Cir. 2019); United States v. McKinley,
735 F. App’x 871, 873 (6th Cir. 2018); United States v. Johnson, 707 F.3d 655, 658 (6th Cir.
2013); United States v. Crumb, 287 F. App’x 511, 514 (6th Cir. 2008); United States v. Puckett,
422 F.3d 340, 343 (6th Cir. 2005); United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004);
United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002); United States v. Garza, 10 F.3d 1241,
1246 (6th Cir. 1993).
These rules doom Brooks’s alternative challenge to the officers’ search of the Jeep.
Officer Amarante testified that he ordered the search of the Jeep because he smelled marijuana
emanating from it and saw what appeared to be a “marijuana cigar” behind Brooks’s ear. Officer
Anthony likewise testified that the marijuana smell was so strong that he could detect it as he
first approached the Jeep. And the officers did not need to rely on the smell of narcotics alone:
Anthony also observed Brooks stuffing something under a seat—what was, in his experience, a
sure sign of an attempt to hide contraband. The district court again credited the officers’
testimony. Given our caselaw holding that the smell of marijuana by itself can create probable
cause of illegal activity, Johnson, 707 F.3d at 658, the officers in this case had probable cause
because they did not even need to rely on that odor alone.
No. 19-2283 United States v. Brooks Page 7
Brooks responds with a broad challenge to the entire encounter. He argues that the
officers’ strong show of force qualified as excessive “over policing.” According to Brooks, a
total of three officers rushed the Jeep, slammed opened the doors, and immediately forced
everyone out—all for a mere seatbelt infraction. His argument raises questions on which little
caselaw exists: When can the “show of force” used to execute an otherwise reasonable traffic
stop make it unreasonable under the Fourth Amendment? Cf. United States v. Johnson, 874 F.3d
571, 574–75 (7th Cir. 2017) (en banc). And should the exclusionary rule even apply to this type
of claim, given that the police presumably would have uncovered the same evidence if they had
acted in a more measured manner? Cf. Hudson v. Michigan, 547 U.S. 586, 592 (2006).
We need not resolve these questions, however, because Brooks’s factual allegations do
not stand up against the district court’s findings (or the video evidence). The officers’ body
cams and their cruiser’s dash cam show them only walking toward the Jeep. And the officers did
not open the car doors and order the occupants out until after they smelled marijuana and saw
Brooks hide something under his seat. The officers thus did not remove the occupants for a
“mere” seatbelt infraction; they removed them because they had probable cause to conduct a
search and to believe that Brooks had hidden a dangerous weapon. If anything, this case shows
the potential dangers posed by these types of encounters and proves why the Supreme Court has
adopted a seemingly bright-line rule allowing officers to order individuals out of a lawfully
stopped vehicle. See Johnson, 555 U.S. at 330–31; Street, 614 F.3d at 232.
That leaves only Brooks’s complaint that three officers—not just one—confronted the
Jeep’s occupants after the stop. Admittedly, some caselaw indicates that the number of officers
might assist in showing the dividing line between a consensual encounter and a coercive seizure.
See, e.g., United States v. Peters, 194 F.3d 692, 697 (6th Cir. 1999) (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (Stewart, J., opinion)). But everyone agrees that a seizure
occurred here. Brooks instead claims that the presence of three officers made that seizure
unreasonable even though they had probable cause to effect it. Yet “[t]he number of officers is
not independently a ‘seizure’ of any kind.” McNair v. Coffey, 279 F.3d 463, 466 (7th Cir. 2002).
And Brooks cites no case suggesting that the Fourth Amendment restricts the number of officers
who may implement a valid seizure supported by probable cause. See id. To the contrary, we
No. 19-2283 United States v. Brooks Page 8
have plenty of cases upholding traffic stops undertaken by multiple officers with nary a
suggestion that the number of officers mattered to the seizure’s reasonableness. See, e.g., United
States v. Ware, 465 F. App’x 487, 489, 493–95 (6th Cir. 2012); United States v. Herbin, 343
F.3d 807, 808–10 (6th Cir. 2003); Garza, 10 F.3d at 1244–46. That is not surprising, given the
Supreme Court’s repeated admonition about “the inordinate risk confronting an officer as he
approaches a person seated in an automobile.” Pennsylvania v. Mimms, 434 U.S. 106, 110
(1977); Johnson, 555 U.S. at 330. Nothing that occurred during the encounter in this case
violated the Fourth Amendment.
Brooks next argues that the government presented insufficient evidence that he possessed
a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). Although we review this claim de
novo, Brooks still must satisfy a demanding standard: He must convince us that no “rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Maya, 966 F.3d 493, 498 (6th Cir. 2020) (citation omitted).
The felon-in-possession statute makes it “unlawful for any person” “who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to
“possess in or affecting commerce, any firearm or ammunition[.]” 18 U.S.C. § 922(g). This text
requires proof of three elements: (1) a “status element” (that Brooks “had a prior felony
conviction” and knew of his felon status); (2) a “possession element” (that Brooks “knowingly
possessed a firearm”); and (3) a “jurisdictional element” (that “the firearm traveled in or affected
interstate commerce”). United States v. Conley, 802 F. App’x 919, 922 (6th Cir. 2020); see
Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). Brooks stipulated at trial that the
government proved the status and jurisdictional elements. He disputes only whether he
knowingly “possessed” a firearm. But we must reject his sufficiency-of-the-evidence claim
because a rational jury could conclude that he did.
Possession under § 922(g) can be either “actual” (when, for example, individuals keep
guns on their person) or “constructive” (when, for example, individuals coordinate with others to
keep guns in their home without handling them). See United States v. Garcia, 758 F.3d 714,
No. 19-2283 United States v. Brooks Page 9
718–21 (6th Cir. 2014); United States v. Craven, 478 F.2d 1329, 1333–34 (6th Cir. 1973)
(abrogated on other grounds). This case involves actual possession. A person actually possesses
a gun (in contrast to, say, owning it) when the person has “actual and physical control” over the
gun. Black’s Law Dictionary 1046 (5th ed. 1979); see also Webster’s Third New Int’l Dictionary
1770 (1966); United States v. Morrison, 594 F.3d 543, 545 (6th Cir. 2010). And nothing in the
word “possess” requires a defendant to retain control of the gun for any lengthy period of time.
Rather, the knowing control of a gun “at a given time” is enough to violate the statute, United
States v. Bailey, 553 F.3d 940, 944 (6th Cir. 2009) (citation omitted), which contains no
“minimum temporal prerequisite” for the prohibited possession, United States v. Pratt, 704
F. App’x 420, 425 (6th Cir. 2017); see also United States v. Vereen, 920 F.3d 1300, 1308 (11th
Cir. 2019); United States v. Johnson, 459 F.3d 990, 996 (9th Cir. 2006).
The government often must rely on circumstantial evidence to prove this actual
possession. Two of our cases show the type of evidence that suffices. First consider Morrison.
There, an officer discovered a firearm between the driver’s seat and the center console of the car
that the defendant had been driving. 594 F.3d at 544. The firearm had been “‘less than inches’
away from” the defendant and may have been rubbing against his side as he drove. Id. We
analogized the gun’s location to one “in a holster” and held that it was close enough to the
defendant to support an inference that he knowingly kept it under his immediate control. Id. at
545. Or consider Garcia. There, the defendant scaled a fence and tumbled over the other side
while fleeing police on a cold night. 758 F.3d at 717. As the defendant got back up, an officer
saw him drop unknown objects into the snow. Id. The officer found a firearm partially buried in
the snow at this precise spot. Id. The gun was covered with droplets of water, suggesting that it
had not been there for long because the water had not frozen. Id. We held that this evidence
sufficed for a rational jury to conclude that the defendant had knowingly controlled the gun. Id.
This case fits the mold of these others. Officer Anthony observed Brooks make a
“stuffing motion” under his rear passenger-side seat in the Jeep. Anthony’s body-cam footage
supports this testimony: It shows a seated Brooks initially with his hands underneath him and
then raising his hands up in the air. And Officer Anthony immediately tells the other officers
No. 19-2283 United States v. Brooks Page 10
that Brooks “just stuck something.” Officer Rodriguez next explained that he searched the
specific area where Brooks had stuffed something: “the rear passenger seat in between like the
floorboard and the seat.” And Rodriguez observed “the handle of a firearm sticking out”
between the seat and floorboard. The cruiser’s dash-cam footage confirms this testimony: It
shows Rodriguez lean into the Jeep’s rear passenger-side door and emerge holding up a firearm.
From this evidence, a rational jury could determine that Brooks had physical control over the gun
and attempted to stuff it under his seat as the officers approached. See Morrison, 594 F.3d at
545. That factual finding would suffice to prove that Brooks knowingly had “actual possession”
(physical control) within the meaning of § 922(g). See id.; see also United States v. Montague,
438 F. App’x 478, 480–81 (6th Cir. 2011). Although we do not know for how long Brooks
controlled the gun, he did not need to control it for any “minimum” period of time. Pratt, 704
F. App’x at 425. Even if Torres had handed the gun to Brooks, for example, the time it took for
him to grab the gun and conceal it under his seat would suffice. See id.
In response, Brooks emphasizes the rule that “mere proximity” to a gun cannot alone
prove possession. We typically apply this rule in constructive-possession cases, not actualpossession cases like this one. See Morrison, 594 F.3d at 545. Regardless, a rational jury could
have found more than simply that Brooks was “close” to the gun. The jury could have found that
he actually controlled the gun as he was stuffing it under his seat.
This fact distinguishes the case on which Brooks relies—United States v. Birmley,
529 F.2d 103 (6th Cir. 1976). There, the police discovered guns in the trunk of a vehicle in
which the three defendants were traveling. Id. at 105. We found sufficient evidence that the
driver had possessed the guns because he had made calls about them; we also found sufficient
evidence against the front passenger because he possessed the trunk key. Id. at 107. But we held
that insufficient evidence existed for the third defendant because the record showed only his
“[m]ere presence on the scene plus association with illegal possessors[.]” Id. Here, by contrast,
the jury could have concluded that Brooks actually controlled the gun and did not simply ride in
the car in which it was found.
Brooks counters that there was no “direct” evidence that he controlled the gun, such as
testimony from the officers that they saw him holding it. But the government may (and often
No. 19-2283 United States v. Brooks Page 11
must) rely on circumstantial evidence in these cases. See Garcia, 758 F.3d at 718. There is
nothing unusual about that. Maya, 966 F.3d at 500. As we have held, “circumstantial evidence
alone can defeat a sufficiency challenge.” Id. (citation omitted). This case well illustrates the
point. A first officer saw Brooks stuffing something under his seat. A second officer recovered
a gun (and nothing else) from that precise location. This is powerful evidence that he possessed
the gun. What else was he stuffing under his seat? Brooks offers no explanation. So sufficient
evidence of actual possession existed.
Brooks ends by challenging the district court’s refusal to hold an evidentiary hearing or
grant a new trial based on the African-American juror’s post-verdict note that she felt pressured
by the other jurors to return a guilty verdict. We review the district court’s decision to deny
Brooks’s motion for an abuse of discretion. See United States v. Ewing, 749 F. App’x 317, 321
(6th Cir. 2018); United States v. Robinson, 872 F.3d 760, 770–72 (6th Cir. 2017); see also
United States v. Norwood, 982 F.3d 1032, 1055–57 (7th Cir. 2020); United States v. Birchette,
908 F.3d 50, 55 (4th Cir. 2018). And we see no error.
For centuries, courts have been reluctant to peek behind a jury verdict and inquire into the
jury’s deliberations or a juror’s subjective understandings. See Peña-Rodriguez v. Colorado, 137
S. Ct. 855, 863 (2017) (discussing Vaise v. Delaval, 99 Eng. Rep. 944 (K.B. 1785)). This
traditional “no-impeachment rule” provides “substantial protection to verdict finality and to
assure jurors that, once their verdict has been entered, it will not later be called into question
based on the comments or conclusions they expressed during deliberations.” Id. at 861. The rule
has now been codified in Federal Rule of Evidence 606(b). This evidentiary rule generally bars
a juror from giving evidence “about any statement made or incident that occurred during the
jury’s deliberations,” about “the effect of anything on that juror’s or another juror’s vote,” or
about “any juror’s mental processes concerning the verdict or indictment.” Fed. R. Evid.
606(b)(1). It includes only narrow exceptions for evidence about “extraneous prejudicial
information,” an improper “outside influence,” or a “mistake” in “entering the verdict on the
verdict form.” Fed. R. Evid. 606(b)(2).
No. 19-2283 United States v. Brooks Page 12
Apart from these three rule-based exceptions, the Supreme Court in Peña-Rodriguez
added a fourth constitutionally rooted exception. After the verdict in that case, two jurors
alleged that another juror had made several biased remarks that the defendant was guilty of
sexual misconduct because of his ethnicity. See 137 S. Ct. at 862. To give one example, this
juror allegedly said: “I think he did it because he’s Mexican and Mexican men take whatever
they want.” Id. The state courts found this evidence inadmissible under Colorado’s noimpeachment rule. Id. The Supreme Court reversed, holding that the Sixth Amendment requires
courts to set aside their no-impeachment rules and consider evidence of racial bias when “a juror
makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict
a criminal defendant[.]” Id. at 869. It reasoned that, unlike other types of juror misconduct,
“racial bias implicates unique historical, constitutional, and institutional concerns.” Id. at 868.
To protect the general interests served by the no-impeachment rule, however, the Court clarified
the narrow scope of its holding. The holding did not cover “every offhand comment indicating
racial bias or hostility”; rather, it required a showing that a juror made a statement “exhibiting
overt racial bias” and “tend[ing] to show that racial animus was a significant motivating factor in
the juror’s vote to convict.” Id. at 869. The Court also clarified that local court rules could
continue to “shape and guide” the way in which lawyers could acquire and present this
In this case, Brooks makes no attempt to fit the juror’s emailed note into any of the
narrow rule-based exceptions to the no-impeachment rule in Rule 606(b)(1). The juror did not
make claims about “extraneous” or “outside” influences. Fed. R. Evid. 606(b)(2). Nor did the
juror allege a mistake in the verdict. Id. To the contrary, Rule 606(b)(1)’s general prohibition
squarely covers the juror’s statement. She alleged that the other jurors “pressured” and “berated”
her to reach a guilty verdict and that they sided with the police despite what she perceived to be a
lack of evidence. The juror’s email addresses “statement[s] made . . . during the jury’s
deliberations” (the other jurors’ statements pressuring this juror), the “effect” of those statements
on her “vote” (the statements caused her to vote to convict), and all of the jurors’ “mental
processes” (the other jurors allegedly placed too much weight on the words of the police and this
juror voted to convict because of their pressure). Fed. R. Evid. 606(b)(1). So Rule 606(b)(1)
No. 19-2283 United States v. Brooks Page 13
makes clear that the district court could “not receive” the “juror’s statement on these matters.”
Brooks thus attempts to fit the juror’s email within Peña-Rodriguez’s constitutionally
required exception on the ground that the juror who sent it was African American. This attempt
has two problems. For one thing, the juror’s email did not even mention race, let alone suggest
that other jurors made race-based remarks. Yet, as the Seventh Circuit noted when rejecting a
nearly identical claim, Peña-Rodriguez “requires a clear statement of overt racial bias.”
Norwood, 982 F.3d at 1057; see also United States v. Baker, 899 F.3d 123, 134 (2d Cir. 2018).
For another thing, the juror’s email indicates that the other jurors were critical of the juror (and
her purported failure to rely on common sense), not of Brooks. Yet, as we noted in a case in
which a juror made derogatory remarks about other jurors, the challenged statement must suggest
not just that a juror harbored racial bias, but also that this racial bias played a significant role “in
the juror’s vote to convict” the defendant. Robinson, 872 F.3d at 770 (quoting Peña-Rodriguez,
137 S. Ct. at 869); see also Birchette, 908 F.3d at 59. And here, the juror was complaining about
the other jurors’ alleged undue reliance on the police when voting to convict Brooks—not about
their reliance on any racial bias when voting to convict him.
Brooks argues that the other jurors’ race-neutral comments might nevertheless show
evidence of their implicit bias against African Americans. But if the race-neutral statements
alleged in this case were enough to trigger Peña-Rodriguez’s exception and allow evidentiary
hearings compelling jurors to articulate the subjective motivations behind their neutral
statements, this purportedly “rare” exception would eventually swallow the rule. 137 S. Ct. at
871. After all, it has not been uncommon for jurors to assert after the fact that other jurors
pressured them into their verdict. See, e.g., Estrada v. Scribner, 512 F.3d 1227, 1237 (9th Cir.
2008); United States v. Lloyd, 462 F.3d 510, 518–19 (6th Cir. 2006); United States v. Norton,
867 F.2d 1354, 1366 (11th Cir. 1989); United States v. Blackburn, 446 F.2d 1089, 1090–91 (5th
Cir. 1971). As one court noted, that type of allegation “can suggest the normal dynamic of jury
deliberations, with the intense pressure often required to reach a unanimous decision.” United
States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990). Or, as another said, “total placidity is not
the nature of jury deliberation.” United States v. Tallman, 952 F.2d 164, 167 (8th Cir. 1991).
No. 19-2283 United States v. Brooks Page 14
We instead take Peña-Rodriguez at its word: to require express statements of racial animus, not
neutral statements that may suggest unexpressed racial biases.
Brooks lastly relies on an encounter with another juror whose social-media posts
suggested he might harbor racial animus. But this encounter undermines Brooks’s claim that
Peña-Rodriguez imposes broad inroads into the no-impeachment rule. Once the posts were
brought to the district court’s attention before trial, the court questioned the juror and excused
him for cause. This pretrial incident confirms that courts have other tools at their disposal to
“protect against the scourge of racially motivated verdicts without discarding the noimpeachment rule.” Birchette, 908 F.3d at 57