United States of America v. Demetrius Brooks

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

from Brooks.

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

police:

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.

II

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.

A

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

order.

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

560.

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

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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.

B

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,

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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.

at 718–21.

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.

C

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

evidence. Id.

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.”

Id.

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

We affirm