United States of America v. German Rodarte

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERMAN RODARTE,
Defendant-Appellant.
No. 16-10486
D.C. No.
4:15-cr-02139-RCC-BPV-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Submitted March 16, 2018**
San Francisco, California
Before: McKEOWN, FUENTES,*** and BEA, Circuit Judges.
German Rodarte appeals his jury conviction for conspiracy to transport
aliens and transporting illegal aliens, in violation of 8 U.S.C. § 1324. During voir
FILED
MAY 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.

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dire, the district court overruled defense counsel’s objection to the government
using two peremptory challenges on Jurors 1 and 3 on the basis that they were
race/ethnic based. Rodarte argues that the district court erred by failing to conduct
step three under Batson v. Kentucky, 476 U.S. 79 (1986). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Batson created a three-step test to determine whether a peremptory strike
was used in a racially discriminatory manner:
First, the defendant must make a prima facie showing that the
prosecutor has exercised peremptory challenges on the basis of race.
Second, if the requisite showing has been made, the burden shifts to
the prosecutor to articulate a race-neutral explanation for striking the
jurors in question. Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citing Batson, 476 U.S. at
96-98).
The district court properly conducted steps one and two. However, the court
disposed of the Batson challenges by determining that the government had asserted
“sufficient race-neutral reasons.” The court conducted no further analysis after
determining that facially neutral grounds existed. The court erred in failing to reach
step three. See Green v. LaMarque, 532 F.3d 1028, 1030 (9th Cir. 2008) (“When
conducting the analysis at the third step, the trial court must decide not only
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whether the reasons stated are race-neutral, but whether they are relevant to the
case, and whether those stated reasons were the prosecutor’s genuine reasons for
exercising a peremptory strike, rather than pretexts invented to hide purposeful
discrimination.”).
“Faced with an improper application of the Batson framework, we may
decide de novo whether the government’s strikes were motivated by purposeful
discrimination. Alternatively, we may remand to the district court, either for a
factual hearing or for a new trial.” United States v. Alvarez-Ulloa, 784 F.3d 558,
565-66 (9th Cir. 2015) (citations omitted).
Accordingly, we decide de novo whether the government’s strikes were
motivated by purposeful discrimination. “Comparative juror analysis is a useful
tool at Batson step three, and failure to strike similarly situated venire members can
ground a conclusion that purposeful discrimination occurred.” Id. at 567 (citations
omitted).
Rodarte failed to demonstrate purposeful discrimination due to a failure to
strike similarly situated venire members. During voir dire, the jury panel was
asked whether anyone including themselves, a relative, or close personal friend,
had ever been arrested for something more serious than a traffic ticket. Thirteen
people on the panel raised their hands. Of those thirteen people, six—Jurors 9, 34,
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18, 22, 24, and 27—were selected to serve on the jury. These six jurors all stated
the person arrested was treated fairly or they did not have sufficient connection to
that person to know whether they were treated fairly, and they also affirmed that
they could be fair and impartial in this case. The prosecution used a peremptory
strike on Juror 1, who stated that her brother had been arrested for “home invasion”
five years prior. In contrast to the six empaneled jurors, Juror 1 stated that her
brother had not been treated fairly, and was “suing the State.”
Moreover, one empaneled juror, Juror 9, had a history of possible substance
abuse. Juror 9 was convicted for DUI approximately 16 years earlier. Juror 9
explained that at the time of the arrest, he/she1 “was on medication and had some
drinks.” Accordingly, Juror 9’s issue appeared to be limited in time and scope—it
covered a short period of time when Juror 9 was on pre-surgery medication that
mixed poorly with alcohol. Moreover, the arrest was removed in time—sixteen
years prior. In addition, Juror 9 stated that he/she was treated fairly and the
experience would not affect his/her ability to be fair and impartial. The
prosecution used a peremptory strike on Juror 3, who stated that he had a treatment
plan at CODAC, a facility that offers mental health and drug abuse treatment.
Juror 3’s court-ordered treatment is suggestive of a longer-term issue.
1It is unclear from the record whether Juror 9 is a man or woman.
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Accordingly, Juror 3’s potential mental health and/or substance abuse issues are
distinguishable from Juror 9’s DUI conviction.
AFFIRMED.
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