USA v. Juan Rangel-Rubio

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11386
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RANGEL-RUBIO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:18-cr-00274-LGW-BWC-2
____________________
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2 Opinion of the Court 23-11386
Before ROSENBAUM, JILL PRYOR , and BRANCH , Circuit Judges.
PER CURIAM:
Appellant Juan Rangel-Rubio (“Rangel-Rubio”) was charged
and convicted of conspiring to conceal, harbor, and shield undocu-
mented persons, in violation of 18 U.S.C. § 1324(a)(1)(A)(v)(I); con-
spiring to commit money laundering, in violation of 18 U.S.C. §
1956(h); conspiring to kill a witness, in violation of 18 U.S.C. §
1512(k); and conspiring to retaliate against a witness for providing
testimony or documents in an official proceeding conducted by the
Equal Employment Opportunity Commission (“EEOC”), in viola-
tion of 18 U.S.C. § 1513(f). Rangel-Rubio appeals those convictions
and seeks a new trial, arguing that the district court improperly
overruled his Batson1 challenge regarding a particular juror. After
careful consideration, we affirm.
I.
A summary of the facts as alleged in the indictment is help-
ful. Rangel-Rubio and his brother Pablo Rangel-Rubio (“Pablo”)
worked for the Davey Tree Expert Company. Pablo helped undoc-
umented individuals gain employment there by providing them
with assumed identities. Pablo paid the undocumented persons in
cash, but with the help of Rangel-Rubio, he diverted the paychecks
to Rangel-Rubio’s bank account for their own financial gain.
Eventually, Eliud Montoya, who worked for a subsidiary of the
1 Batson v. Kentucky, 476 U.S. 79 (1986).
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23-11386 Opinion of the Court 3
Davey Tree Expert Company, reported the scheme to the EEOC.
Later, Rangel-Rubio and Pablo conspired to kill Montoya for re-
porting them, and Pablo paid someone to help Rangel-Rubio mur-
der Montoya. On August 19, 2017, Montoya was shot near his
home in Georgia. Rangel-Rubio was charged with the four counts
set forth above, and the case proceeded to trial.
During voir dire, each of the potential jurors answered pre-
pared questions. The juror at issue here, Juror 31,2 is a Black fe-
male, who said she was single, had a young daughter, was self-em-
ployed as a hair stylist, had never served in the military, had never
served on a jury before, and had obtained an associate’s degree. At
the conclusion of voir dire, the parties exercised their peremptory
strikes, with the government using only five of its six strikes, in-
cluding one to strike Juror 31.
When the district court asked if there was any reason to be-
lieve that the jury was not fairly and impartially impaneled, the
government responded in the negative, but Rangel-Rubio raised a
Batson challenge. During a sidebar on the Batson challenge, Rangel-
Rubio argued that the government used all but one of its peremp-
tory strikes to strike potential jurors who were either Black or His-
panic. And counsel argued that the seated jury had only two Black
individuals, even though the jury pool was more diverse. When
the district court asked Rangel-Rubio to establish a prima facie case
under Batson, counsel pointed out that the government struck one
2 At trial Rangel-Rubio raised concerns over the fact that various potential ju-
rors were struck. But in this appeal, only Juror 31 is at issue.
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4 Opinion of the Court 23-11386
Black man, one Hispanic man, three Black women, and one white
woman. Juror 31 was one of the Black women the government
struck. But counsel agreed that each side gave up a strike volun-
tarily.
The district court concluded that Rangel-Rubio produced
sufficient evidence to draw the conclusion that an inference of dis-
crimination occurred. So it asked the government to provide non-
discriminatory reasons for the strikes. The government went
through the jurors and provided a reason for each particular strike.
As for Juror 31, the government said that she did not have stable
employment and did not have strong ties to the community, and
other jurors had longer and stronger ties to the community. The
government also noted that during the second phase of the selec-
tion process, it observed Juror 31 (who was sitting “right behind”
counsel), and it appeared she was not paying attention. In the gov-
ernment’s view, that raised concerns about her ability to remain
engaged and focused during the proceedings. Finally, the govern-
ment voiced concern over what it thought was an inconsistency in
Juror 31’s responses: in the written summary she answered before
voir dire, Juror 31 claimed to be unemployed, but when questioned
during void dire, she said she was self-employed as a hair stylist.
Following this explanation, the district court determined
that the government provided legitimate, non-discriminatory rea-
sons to support the peremptory strikes. It concluded, based on
counsel’s demeanor and its observation of the potential jurors’ de-
meanor, the proffered reasons were sufficiently race- and gender-
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23-11386 Opinion of the Court 5
neutral for all five peremptory strikes, including the one used on
Juror 31. With respect to Juror 31 specifically, the district court
voiced its own observation that she “was not paying attention for
a good bit of the jury selection.” In sum, the jurors’ demeanor
along with counsel’s demeanor led the district court to conclude
that the Batson challenge should be overruled.
The trial proceeded, and the jury found Rangel-Rubio guilty
of all counts. Rangel-Rubio moved for a new trial based on the
alleged Batson violation. In that filing, he argued, among other
things, that the race-neutral reasons that the government provided
were not sufficient because the government failed to strike poten-
tial white jurors with the same attributes. The district court denied
the motion for new trial, rejecting Rangel-Rubio’s argument that
the government did not strike similarly situated white potential ju-
rors. The court also noted that the government had a strike re-
maining and opined that the government could have used that
strike to remove one of the two seated Black jurors if removing
minorities had been its goal. Based on its own observations and
the government’s proffered reasons, the district court concluded
Rangel-Rubio failed to show purposeful discrimination in the jury-
selection process.
Rangel-Rubio now appeals the district court’s ruling on his
Batson challenge, claiming he is entitled to a new trial.
II.
When a defendant alleges a Batson violation, we review jury
selection de novo but review the district court’s underlying factual
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6 Opinion of the Court 23-11386
findings for clear error. United States v. Campa, 529 F.3d 980, 992
(11th Cir. 2008). A district court’s ruling on the issue of discrimina-
tory intent involves credibility determinations, so we must sustain
it unless it is clearly erroneous. United States v. Gamory, 635 F.3d
480, 495-96 (11th Cir. 2011).
III.
Under the Equal Protection Clause, a criminal defendant is
entitled to “be tried by a jury whose members are selected pursuant
to nondiscriminatory criteria.” Batson, 476 U.S. at 85-86. Accord-
ingly, the purposeful and deliberate denial of a member of a minor-
ity group to participate as a juror in the administration of justice,
on account of race, violates the Equal Protection Clause. Id. at 84.
A defendant may challenge the government’s exercise of peremp-
tory challenges when it believes they reveal a pattern of purposeful
racial discrimination in the selection of the jury. Id. at 94-97.
Batson and its progeny established a three-step framework
for evaluating race-discrimination claims in jury selection. The Su-
preme Court summarized this test in Miller-El v. Cockrell, 537 U.S.
322 (2003), as follows:
First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on
the basis of race. Second, if that showing has been
made, the prosecution must offer a race-neutral basis
for striking the juror in question. Third, in light of the
parties' submissions, the trial court must determine
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23-11386 Opinion of the Court 7
whether the defendant has shown purposeful dis-
crimination.
Id. at 328-29 (internal citations omitted).
Here, the district court found that the defendant satisfied
step one—Rangel-Rubio made a prima facie showing that the gov-
ernment struck Juror 31 on the basis of race. Neither party chal-
lenges this finding. Because Rangel-Rubio made a prima facie
showing, the burden shifted to the government to articulate a race-
neutral reason for the strike.
At step two, we ask whether the reasons the government
tendered for striking a juror are nondiscriminatory on their face.
United States v. Folk, 754 F.3d 905, 914 (11th Cir. 2014). Batson’s sec-
ond step does not demand an explanation that is persuasive. Id.
Unless a discriminatory intent is inherent in the prosecutor’s expla-
nation, the reason offered will be deemed race-neutral. Id. (citing
Purkett v. Elem, 514 U.S. 765, 767-68 (1995)). In the district court,
among other things, the government pointed to Juror 31’s inatten-
tiveness as one of the reasons for its use of a peremptory strike. We
have held that inattentiveness is a valid race-neutral reason for us-
ing a peremptory strike. United States v. Cordoba-Mosquera, 212 F.3d
1194, 1197 (11th Cir. 2000) (per curiam). So here, the government
satisfied step two.
At step three, the burden then shifts to the defendant to
prove purposeful discrimination. United States v. Tokars, 95 F.3d
1520, 1533 (11th Cir. 1996). The district court must evaluate the
persuasiveness of the government’s proffered reason and
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8 Opinion of the Court 23-11386
determine whether, considering all relevant circumstances, the de-
fendant has carried his burden of proving purposeful discrimina-
tion. United States v. Ochoa-Vasquez, 428 F.3d 1015, 1039 (11th Cir.
2005). The defendant may show evidence of purposeful discrimi-
nation through side-by-side comparisons confirming that the rea-
sons for striking a Black panelist also apply to similar non-Black
panelists who were permitted to serve. See United States v. Houston,
456 F.3d 1328, 1338 (11th Cir. 2006). If the government’s reason for
striking Black venire members applies equally to white venire
members who were not struck, that provides evidence supporting
purposeful discrimination at Batson's third step. Id. But the failure
to strike similarly situated jurors is not pretextual when relevant
differences exist between the struck and comparator jurors. United
States v. Novaton, 271 F.3d 968, 1004 (11th Cir. 2001).
The critical question at this final stage is whether the trial
court finds the proffered race-neutral explanations credible. Mil-
ler-E, 537 U.S. at 338-39. “Credibility can be measured by, among
other factors, the prosecutor’s demeanor; by how reasonable, or
how improbable, the explanations are; and by whether the prof-
fered rationale has some basis in accepted trial strategy.” Id. at 339.
The best evidence of discriminatory intent typically will be the de-
meanor of the attorney who exercises the challenge. Snyder v. Lou-
isiana, 552 U.S. 472, 477 (2008).
In cases when race-neutral reasons for peremptory chal-
lenges invoke a juror’s demeanor, though—such as the individual’s
nervousness or inattentiveness—the district court “must evaluate
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23-11386 Opinion of the Court 9
not only whether the prosecutor’s demeanor belies a discrimina-
tory intent, but also whether the juror’s demeanor can credibly be
said to have exhibited the basis for the strike attributed to the juror
by the prosecutor.” Id. These determinations of credibility and
demeanor lie within a district court’s province. Id. In fact, the dis-
trict court’s decision on this “ultimate question of discriminatory
intent” is a finding of fact that we “accord[] great deference on ap-
peal.” Folk, 754 F.3d at 914 (citation and internal quotation marks
omitted). Finally, although the presence of a Black juror on the
jury does not dispose of the allegation of a race-based peremptory
challenge, under our precedent, it is a factor that tends to moderate
against a finding of discriminatory intent. United States v. Puentes,
50 F.3d 1567, 1578 (11th Cir. 1995).
We conclude that the district court did not clearly err when
it accepted the government’s reasons for striking Juror 31 as non-
discriminatory. First, Rangel-Rubio does not challenge the district
court’s finding about the government’s demeanor in exercising its
strikes. That unchallenged finding weighs in favor of affirming the
district court’s decision to overrule the Batson challenge. Second,
contrary to Rangel-Rubio’s assertion, the record was sufficiently
developed to support a finding that Juror 31 was inattentive, and
that is enough on its own to affirm the district court’s ruling.
In United States v. Diaz, we noted that a potential juror’s ina-
bility to pay attention is race-neutral reason for a peremptory
strike. 26 F.3d 1533, 1544 (11th Cir. 1994). Still, we recognized that
when explanations are based on the juror’s demeanor, a greater
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10 Opinion of the Court 23-11386
chance of abuse exists. So we explained that, in such a case, the
district court must develop the record to allow for meaningful ap-
pellate review. Id. at 2543. We said that to do so, the district court
should confirm that the stricken juror’s demeanor was different
than that of other potential jurors. Id. In Diaz, like here, the gov-
ernment’s proffered reason for using a peremptory strike was the
inattentiveness of the juror. Id. This Court concluded that the dis-
trict court did not clearly err in finding that the prosecutor offered
a race-neutral reason for the strike because the record reflected that
the juror directed her attention to the defendants rather than the
prosecution during jury selection. Id. This behavior allowed us to
infer that the juror’s behavior was different than other venireper-
sons. Id.
Likewise, in Cordoba-Mosquera, a district court determined
that a peremptory strike was not intentionally discriminatory when
the potential juror’s demeanor was the reason for the strike. 212
F.3d at 1197-98. The prosecution pointed to the fact that the juror
shrugged his shoulders and did not answer audibly as a race-neutral
reason for the strike. Id. We determined that the proffered reason
was clear and reasonably specific because the government ex-
plained that the juror’s body language and mannerisms indicated
that he did not want to be a juror. Id. We inferred that the juror
was “more inattentive” than other seated jurors. Id. at 1198. And
we deferred to the district court where it made an “on-the-spot in-
terpretation” of the juror’s behavior. Id.
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23-11386 Opinion of the Court 11
Here, the government asserted that Juror 31 was inattentive
during jury selection and that it had personally observed her since
she was sitting “right behind” counsel. The district court also ex-
pressly noted its own observation that Juror 31 “was not paying
attention for a good bit of the jury selection.” Although Rangel-
Rubio asserts otherwise, the statements by the government and the
district court are sufficiently specific to allow for appellate review.
See Diaz, 26 F.3d at 1543 and Cordoba-Mosquera, 212 F.3d at 1198.
And as in Diaz and Cordoba-Mosquera, the statements that both the
government and district court made are sufficient to allow us to
infer that Juror 31 was more inattentive than other seated jurors.
Significantly, when given the opportunity to rebut the reason re-
lated to inattentiveness, Rangel-Rubio failed to do so. He did not
identify any other potential jurors who were inattentive, other
than those who were struck. Accordingly, the district court did not
clearly err in finding that Juror 31 was inattentive, and her inatten-
tiveness alone was a race-neutral reason to support striking her.
But even if we consider Rangel-Rubio’s argument that
seated white jurors were similarly situated to Juror 31, that argu-
ment fails because he did not identify a seated juror who had the
same characteristics as Juror 31.3 The government stated that Juror
31 was struck because she was single, did not have stable employ-
ment, did not have strong ties to the community, was inattentive,
and had inconsistent answers with respect to her employment
3 We assume without deciding that Rangel-Rubio adequately raised this issue
with the district court in his motion for new trial.
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12 Opinion of the Court 23-11386
status. Of the twelve seated jurors, none had all the characteristics
that Juror 31 had and about which the government complained,
and only five had more than one shared characteristic. The only
potential juror who was single and unemployed (or underem-
ployed), who had discrepancies between her questionnaire and an-
swers in court, who had minimal ties to the community, and who
was inattentive was Juror 31. Most importantly, all other potential
jurors identified as inattentive were struck.
Given that none of the seated jurors had all the characteris-
tics of Juror 31 (or even a majority of the characteristics), the seated
jurors were not similarly situated to Juror 31. See Novaton, 271 F.3d
at 1004. Rangel-Rubio therefore failed to show that the district
court clearly erred in accepting the government’s proffered reasons
for striking Juror 31.
Finally, under our precedent, we must consider the fact that
the government did not attempt to exclude as many Black individ-
uals as it could have from the jury. As the record reflects, the gov-
ernment chose not to use one of its peremptory challenges and the
jury as seated included two Black jurors. Although the presence of
Black individuals on the jury is not dispositive, that fact under our
precedent supports the district court’s determination that no Batson
violation occurred. See Campa, 529 F.3d at 998 and Gamory, 635
F.3d at 496 (citing Puentes, 50 F.3d at 1578) (“Although the presence
of African–American jurors does not dispose of an allegation of
race-based peremptory challenges, it is a significant factor tending
to prove the paucity of the claim.”)).
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23-11386 Opinion of the Court 13
IV.
For the foregoing reasons, we conclude that the district
court did not err in overruling Rangel-Rubio’s Batson challenge.
AFFIRMED.
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