United States District Court, E.D. California
HEATHER E. WILLIAMS Federal Defender
T. HOPKINS ERIN M. SNIDER Assistant Federal Defenders Counsel
for Conrado Virgen Mendoza
BARBARA HOPE O'NEILL Counsel for Erik Quiroz Razo
WILLARD P. BAKEMAN Counsel for Maria Luisa Moreno
RIOS Counsel for Erasmo Villegas Suarez
DEFENDANTS' JOINT MOTION FOR ADDITIONAL
PEREMPTORY CHALLENGES AND JUROR QUESTIONNAIRE; ORDER
Erik Quiroz Razo, Conrado Virgen Mendoza, Erasmo Villegas
Suarez, and Maria Luisa Moreno hereby move this Court for an
order: (1) awarding the defendants four extra peremptory
challenges, as authorized under Federal Rule of Criminal
Procedure 24(b)(2); and (2) approving a juror questionnaire
to aid the parties in identifying potential jurors who harbor
biases against undocumented immigrants or who have seen,
heard, or read any of the media coverage surrounding this
case. The government does not object to the defendants'
request for additional peremptory challenges or to the juror
questionnaire attached as Exhibit A to this motion.
Court Should Exercise Its Discretion to Grant the Defendants
Additional Peremptory Challenges.
Sixth Amendment requirement that a defendant be afforded a
fair trial by an impartial jury is “fundamental to the
American justice system.” Taylor v. Louisiana,
419 U.S. 522, 530 (1975). The primary purpose of peremptory
challenges is to help “secure the constitutional
guarantee of trial by an impartial jury.” United
States v. Martinez-Salazar, 528 U.S. 304, 315 (2000).
Rule of Criminal Procedure 24(b)(2) provides for six
peremptory challenges for the government and ten peremptory
challenges for the defense as a base line number. Fed. R.
Crim. P. 24(b)(2). Rule 24, however, provides that the
“court may allow additional peremptory challenges to
multiple defendants, and may allow the defendants to exercise
those challenges separately or jointly.” Fed. R. Crim.
P. 24(b). The decision of whether to award additional
peremptory challenges “rests in the trial court's
discretion.” United States v. McClendon, 782
F.2d 785, 787 (9th Cir. 1986), overruled on other grounds
by United States v. Garrett, 179 F.3d 1143 (9th Cir.
case, the defendants jointly request that this Court grant
four additional peremptory challenges, for a total of
fourteen, with six such challenges to be exercised jointly
and the remaining eight to be exercised individually (two per
defendant). Additional peremptory challenges are necessary to
ensure the defendants receive an impartial jury in this case.
The defendants each have their own respective defense
theories and, consequently, will have different concerns
during the voir dire process. The defendants also believe
that additional peremptory challenges will help to address
concerns over pretrial media coverage. See United States
v. Salad, Case No. 2:11cr34, 2013 WL 12203461, at *
(E.D. Va. Mar. 29, 2013) (“Prejudicial pretrial media
coverage may be a reason to grant additional peremptory
challenges to the defendants, while holding the government to
a smaller allotment.” (citing United States v.
Haldeman, 559 F.2d 31, 79 (D.C. Cir. 1976))). An
additional four peremptory challenges in a four-defendant
case is in line with what other district courts have granted.
See United States v. Rodriguez-Landa, Case No.
2:13-cv-00484-CAS, 2019 WL 653853, at *19 (C.D. Cal. Feb. 13,
2019) (“The Court hereby grants defendants five
additional challenges, one per defendant in this trial.
Combined with the ten peremptory challenges provided by Rule
24(b)(2), defendants may now exercise a total of fifteen
challenges. Defendants may divide these challenges as they
wish.”); United States v. Marr, Case No.
14-cr-00580-PJH, 2017 WL 1540815, at *7 (N.D. Cal. Apr. 28,
2017) (granting an additional two peremptory challenges to
the defendants in a four-defendant case); United States
v. Smith, Case No. CR 14-1362-TUC-JAS (LAB), 2016 WL
2587989, at *1 (D. Ariz. May 5, 2016) (granting an unopposed
motion for additional peremptory challenges, which requested
an additional two peremptory challenges per defendant, for a
total of eighteen peremptory challenges, and an additional
four peremptory challenges for the government); United
States v. Dimora, Case No. 1:10CR387, 2011 WL 5361129,
at *8 (N.D. Ohio Oct. 31, 2011) (granting the defendants
fourteen peremptory challenges and the government eight
peremptory challenges in a two-defendant case);
Haldeman, 559 F.2d at 79 (D.C. Cir. 1976) (upholding
the district court's award of “five extra
challenges to be exercised individually, one to each
for the reasons set forth above, the defendants jointly
request that this Court award them an additional four
peremptory challenges, for a total of fourteen peremptory
challenges, with such six challenges to be exercised jointly
and the remaining eight challenges to be exercised
individually (two per defendant).
Proposed Juror Questionnaire Will Aid the Parties in
Identifying Potential Jurors Who Should Be Stricken For
the August 28, 2019 pretrial conference, the Court expressed
concern over the number of questions in the parties'
proposed juror questionnaire. The parties have worked
together to rewrite the questionnaire and reduce the number
of questions to three in order to address the Court's
concern. Attached as Exhibit A to this motion is the revised
questionnaire, which has been approved by all parties,
including the government. Upon approval of the questionnaire,
counsel for defendant Conrado ...