United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005)

Additionally, although I certainly agree with the propriety of using our supervisory powers to remind the district court that it must comply with the dictates of United States v. Valenti, 987 F.2d 708 (11th Cir.1993), I also think that the constitutionality of its docketing procedures was properly before us as an issue on appeal. The majority notes that " [b]ecause the district court's orders unsealing dockets here brought them in compliance with Valenti, the secret-docketing issue is not properly before us.” Majority Op. at 1030. However, this is precisely the procedural posture in Valenti, in which the district court had used unconstitutional secret docketing procedures, but entered an order prior to the appeal requiring the clerk "to annotate any further closed proceedings in this case on the Middle District’s public docket ....” Valenti, 987 F.2d at 711. The Valenti Court recognized that this order "moot[ed] that portion of this case relating to the district court's procedures for closure and its maintenance of a dual-docketing system,” but nonetheless heard the claim on its merits because it "presented] a controversy capable of repetition yet evading review.” Id. at 712.

. Ochoa’s adamant argument against a cautionary instruction did not occur at trial, but rather in the context of his opposition to the government's motion to empanel an anonymous jury, when he contended that any precautionary measures the court might take would be ineffective. (D.E.982.) Nonetheless, he did not request a cautionary instruction at any point during trial proceedings.

In this case, by contrast, the entire voir dire was completed in less than one day.

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

Moreover, Jordan made it clear that the voir dire requirements set out in Davis and Jordan were derived from constitutional requirements, and not based on our supervisory powers. See Jordan, 763 F.2d at 1278 & n. 15.

There is no support for the majority’s proposal that the "generally accepted practice” is to "downplay ... the significance of the juror anonymity procedure.” Majority Op. at 1036. While I acknowledge that at some point emphasis on jury anonymity, particularly in the form of a cautionary instruction, may itself create problems of prejudice, the type of safeguards Ross proposes — the cautionary instruction and thorough voir dire — suggest that the court must do more than it would in the course of an ordinary trial to address the particular hazards presented by jury anonymity. Furthermore, the majority notes that the district court "instruct[ed] the jury repeatedly and at length about the presumption of innocence,” majority op. n. 28, but there is nothing in this record that distinguishes these jury instructions, either in length, time, or frequency, from those generally given at the beginning and end of every criminal trial. Thus, I do not believe that such instructions satisfy Ross’s requirement that a court do more than is ordinarily required to protect a defendant’s presumption' of innocence under the circumstances present here.

.Specifically, Ochoa challenged the strikes of jurors 51, 221, 234, 379, and 124. (D.E.1468, 85.)

.I have used "ethnicity'' or "ethnic identity” to describe a juror's Hispanic origin wherever possible, but in some instances the case law refers to a juror’s Hispanic "race.” However, the Supreme Court appears to use "race” and "ethnicity” interchangeably in the Batson context, at least when discrimination against jurors of Hispanic or Latino origin is at issue. See United States v. Martinez-Salazar, 528 U.S. 304, 315, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) ("Under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race.”). Compare Hernandez v. New York, 500 U.S. 352, 355, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (stating that a Batson violation would occur if "the prosecutor in [the petitioner’s] criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity”), with id. at 372, 111 S.Ct. 1859 (O'Connor, L, concurring in the judgment) ("In order to demonstrate [a Batson] violation, Hernandez must prove that the prosecutor intentionally discriminated against Hispanic jurors on the basis of their race.”).

The district court made no findings with respect to these explanations, other than to acknowledge that they had been offered, nor did it indicate whether it believed the government’s argument that it could not tell if the stricken jurors were Hispanic.

Ochoa's counsel.

Counsel for the government'.

Presumably juror 379.

.Counsel for the government.

The majority correctly notes that "we give great deference to a district court’s finding of whether a prima facie case of impermissible discrimination has been established,” and cites our decision in Allen-Brown, 243 F.3d at 1296-97, for the proposition that "[a] district court's finding as to why a juror is excused is an issue of fact, and as such, it will not be disturbed on appeal unless it is clearly erroneous or appear to have been guided by improper principles of law.” This case, however, is one in which the district court was guided by "improper principles of law.” By refusing to permit the defendant to put the pertinent facts relating to the juror's ethnicity on the record, the court misapplied the law of Batson. Furthermore, the majority also notes that "[w]hile Ochoa's attorney did correctly determine at trial that the five struck jurors were Hispanic, he himself at trial misidentified five other Hispanic jurors when he indicated that the jury contained only one Hispanic juror. In fact, six Hispanics were empaneled as jurors or alternates. We must therefore defer to the district court’s finding of fact that one could not identify Hispanic jurors in this particular case simply by their appearance and accent.” This deference is not warranted, however, because it mischaracterizes what the court did as a fact-finding determination, when in fact the district court specifically avoided making such a determination. The record is devoid of any finding by the district court that one could not identify Hispanic jurors. Instead, the majority cobbles together comments which it construes as such a finding. See majority op. n. 36.

In fact, the juror records indicate that of the 82-member venire, 44 (or approximately 52%) identified themselves as Hispanic. (The Hispanic ethnicity of two black jurors is listed as "UNK,” which I understand to represent "unknown.” I do not count these two jurors as Hispanic, but if one did include them, Hispanics would have composed about 56% of the venire.) Thus, the challenge rate was slightly more than 154% of the minority percentage of the venire, a disparity significant enough to "strongly support” a prima facie Batson claim under Central Alabama Fair Housing Center, especially because the challenge rate in this case could not have exceeded 185% of the minority percentage of the venire. Moreover, Ochoa was "entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Batson, 476 U.S. at 96, 106 S.Ct. 1712 (internal quotation marks omitted).

The majority says that "[e]ven if we adopted the dissent's unsupported view that the government could determine the ethnicity of potential jurors, we would still reach the same result here because, as a matter of law, Ochoa failed to establish a prima facie case under Batson. In that regard, we note that the district court denied his challenge without determining whether there was a sufficient ‘pattern’ of strikes by the government to create an inference of discrimination. But the record on appeal contains the necessary statistical information for a thorough prima-facie-case analysis, which we will now undertake.” Majority Op. at 1043-44. As the majority recognizes, it is the district court's job in the first instance to make the prima facie case determination. And the Supreme Court in Johnson clarified that "inferences that discrimination may have occurred [are] sufficient to establish a prima facie case under Batson." Johnson, 125 S.Ct. at 2419. Here, Ochoa’s statistical analysis clearly creates an inference of discrimination. Indeed, the majority errs in how it conducts the Batson statistical analysis: it does not conduct the analysis at the time the objection was raised, but only after juiy selection was completed. At the time Ochoa first raised his Batson objection, the government had used four of its peremptory strikes, all of them against Hispanics. This 100% strike rate against Hispanics would seem to present a "substantial disparity between the percentage of jurors of one race struck and the percentage of their representation on the jury,” which was 52% in this case. Central Ala. Fair Housing Ctr. 236 F.3d at 637. And while our precedents point out that the making of a prima facie case cannot "ordinarily” rest on numbers alone, id. ("A party advancing a Batson argument ordinarily should 'come forward with facts, not just numbers alone.’ "(citation omitted)), the district court's refusal to allow Ochoa to access information that would have allowed him to make a Batson challenge is far from “ordinary.”

Indeed, I see no reason to keep racial information about anonymous jurors sealed at all. Ochoa's Batson challenge could have been easily resolved but for the anonymity measures. Moreover, if the litigants know the self-reported race or ethnicity of the jurors before voir dire, the district and appellate courts will not be faced with the thorny question of whether the litigants could discern the race of the jurors by observation alone. This is not an easy task in many cases, such as when a party strikes so-called "light-skinned blacks” or "mulattos” from the venire. And if the court errs in its racial assessment, it risks adding insult to the discriminatory injury the stricken jurors may already have suffered.

Judicial speculation into the prosecution's reasons for striking a juror is prohibited at any stage in the Batson analysis. See Johnson, 125 S.Ct. at 2418-19; Miller-El v. Dretke, 125 S.Ct. at 2331-32 ("[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”) (internal citations omitted).

The majority suggests that this position involves fact-finding. Majority Op. at 1042 ("Neither is the dissent in a position to fact-find to the contrary here ....”). But observing that the district court refused to make a finding when the defendant pointed out that the struck jurors looked Hispanic and spoke with a Hispanic accent is not fact-finding. It is pointing out that the district court avoided finding facts on this issue. The majority contests this interpretation, but by construing a series of questions by the district court to both Ochoa’s counsel and the United States as a "basis” for denying Ochoa’s Batson challenge, it is the majority that is engaging in unwarranted inferences.

Cf. Stephens v. State, 884 So.2d *1071 (Fla.Dist.Ct.App.2004) (holding that when a criminal defendant had made out a prima facie case of discrimination regarding the prosecution’s strike of an ostensibly African-American juror under Melbourne v. State, 679* So.2d 759 (Fla.1996), the fact that the prosecutor "did not know the prospective juror’s race” did not constitute, by itself, a race-neutral explanation for the strike under Florida law).

The district court addressed the potential jurors as follows: "I indicated to you the case, the name of the defendant, and the allegations against the defendant. I emphasize again they are allegations, not evidence of any kind. Does anybody know anything about this case before coming into court? Anything that you might have seen on TV, read in the paper, heard on the radio, or from any other source? If you have heard or seen anything about this case, please raise your hand.”

Specifically, the district court addressed the venire as follows:

As discussed earlier, during voir dire the government and defense counsel did not have the names of the jurors or any self-reported ethnic or race information.

Under 28 U.S.C. § 1863(b)(7), a district court may empanel an anonymous jury in any case in which “the interests of justice so require.” Its decision to empanel an anonymous jury is reviewed for abuse of discretion. United States v. Ross, 33 F.3d 1507, 1519 (11th Cir.1994).

For arguments for and against the use of anonymous juries, see State v. Hill, 92 Ohio St.3d 191, 749 N.E.2d 274 (2001) (upholding a local rule that makes juror anonymity a standard practice); N J. King, Nameless Justice: The Case for the Routine Use of Anonymous Juries in Criminal Trials, 49 Vand.L.Rev. 123 (1996); A. Abramovsky and J.I. Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John’s J. Legal Comment. 457 (1999).

A DEA agent's affidavit also detailed the efforts of the Medellin cartel to subvert the Colombian judiciary in the 1980s, and described Ochoa's history of affiliation with that organization, noting that the Medellin Cartel funded a 1985 assault on the Colombian Palace of Justice to kill members of the Colombian judiciary and destroy government files. We do not rely on this information, however, because it is not current and it is unclear whether Ochoa still has ties to this particular *1035organization, assuming it still exists. Nonetheless, there is sufficient evidence of current connections to entities that could reasonably be deemed to pose a threat to the jury.

The government's affidavit alleged that this group, "Muerte A Sapos Americanos” ("Murder to American Snitches”) or M.A.S.A., had already killed at least five people suspected of cooperating with U.S. law enforcement.

While the district court did not instruct the venire explicitly on the anonymity procedure, it did instruct the jurors repeatedly and at *1036length about the presumption of innocence. During voir dire the district court reiterated that jurors have a duty tó perform impartially; that they should consider only the evidence in the case in coming to conclusions; that the government bore the burden of proving Ochoa’s guilt; and that Ochoa was not required to submit proof of his innocence. Additionally, after closing arguments the district court again instructed the jury: Other circuits have relied in part upon the district court’s jury instructions regarding the presumption of innocence when affirming convictions in anonymous-jury cases. See, e.g., Vario, 943 F.2d at 241; Mansoori, 304 F.3d at 652; United States v. Edmond, 52 F.3d 1080, 1093 (D.C.Cir.1995); United States v. Crockett, 979 F.2d 1204, 1216 (7th Cir.1992); United States v. Tutino, 883 F.2d 1125, 1133 (2d Cir.1989).

See, e.g., Ross, 33 F.3d at 1520-21 & n. 27 (affirming district court's explanation that anonymity procedure was used because of the high degree of publicity and to protect jury from unwanted contact by media, not “because of any apprehension on the part of this Court that you would have been endangered or subject to improper pressures if your names had been disclosed”); United States v. Darden, 70 F.3d 1507, 1533 (8th Cir.1995) (concluding that prejudice was minimized by trial court’s explanation that jurors were anonymous to protect them from media exposure); United States v. Childress, 58 F.3d 693, 702 (D.C.Cir.1995) (minimizing prejudice by downplaying significance of anonymity procedure); United States v. Thai, 29 F.3d 785, 801 (2d Cir.1994) (downplaying anonymity by suggesting that it is a common practice in federal courts); Paccione, 949 F.2d at 1193 (publicity); Thomas, 757 F.2d at 1364 (publicity); Tutino, 883 F.2d at 1133 (common practice); United States v. Ferguson, 758 F.2d 843, 854 (2d Cir.1985) (explaining that anonymity was used to protect privacy and save jurors from embarrassment); United States v. Boyd, 792 F.Supp. 1083, 1095 (N.D.Ill.1992) ("reasonable precautions were taken to downplay the significance of using the juror's numbers instead of their names”). But see Scarfo, 850 F.2d at 1026-28 (suggesting that it is better to be frank with the jury than to provide them with a non-prejudicial reason for their anonymity).

The dissent suggests that Ross, at a minimum, requires that jurors be questioned concerning the anonymity procedures. Infra at 1041. However, the district court in Ross did not tell jurors that their anonymity served to protect them from the defendant, let alone question them concerning whether the anonymity procedure would affect their ability to presume the defendant innocent. Ross, 33 F.3d at 1520-21 & nn. 27, 28. Hence, Ross does not require that jurors be questioned regarding their response to the anonymity procedure. Nor does the dissent cite any case requiring this.

See R. Hastie, Is Attorney-Conducted. Voir Dire an Effective Procedure for the Selection of Impartial Juries?, 40 Am. U.L. Rev. 703, 721 (1991) (rejecting the conclusion that attorneys effectively identify favorable or unfavorable jurors).

In fact, the questionnaires showing self-reported ethnicity, produced after the trial, show that juror 494 is not Hispanic.

Again, as shown by the questionnaires produced after the trial, the juror referenced (juror 124) actually is Hispanic.

Actually, the questionnaires ultimately produced show that the jury contained six Hispanics, four jurors and two alternates. Thus, the defense counsel’s ethnicity guesses, during the Batson objection, were inaccurate as well.

In fact, six Hispanics were impaneled as alternates or jurors. And one of the two jurors the prosecutors had identified as Hispanic (juror 494) was not actually Hispanic.

The dissent suggests that the district court made no discernible findings on the Batson issues. See infra at 1054 n. 14. However, each of the district court's comments reflect its opinion that in this case one could not determine whether the particular stricken jurors were Hispanic (e.g., "How do you know they were Hispanic?”/'! have no way of knowing if that’s what they were "/"How can you say he is [Hispanic] ?”/"we will make [the juror forms] part of the record and [the prosecutors] can argue that they didn’t know because they didn’t have those forms anyway”/'! don’t know how you arrive at the determination of what the ethnic makeup of the jury is”/"I don't know that you can look at people and tell where they are from'V'you have made what is an unsupported allegation”/"What is it that — what power do you have? I would like to have that, look at people and know”/"Well, I’m not sure that by looking at them that would pass the [Daubert] test”). We think it reasonable to construe that as the district judge's basis for denying Ochoa’s "pattern” challenge under Batson.

We do not disagree with the dissent "that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate,” that a party could make "subjective” judgments or even stereotyped guesses about the race or ethnicity of a particular juror without having access to the juror's self-reported race or ethnicity, and that a party who decided to make such subjective judgments or guesses about race and ethnicity and then strike a juror due to that juror's perceived race or ethnicity would violate Batson. Dissent, infra at 1055 n. 15 (internal quotes and cite omitted). Thus, we also agree with the dissent that "[ljitigants do not need to know the self-reported race or ethnicity of a juror to violate Batson." Id. at 82, 106 S.Ct. 1712 (emphasis added). But that is not the dispute in this case. Rather, the dispute here is over whether the district court's finding as to Ochoa's Batson claim was clearly erroneous. A fair reading of the transcript and the district court’s comments reveals the district judge finding that, without the names and self-reported identity, one could not reliably determine a juror’s race or ethnicity merely by looking at this venire. And the numerous mis-identifications by the parties seems to confirm that finding. Finally, although the better practice would have been to give both parties the self-reported race or ethnicity upon request in order to avoid any speculative stereotyping by those with a mind to discriminate, we recognize that some may say that the district court’s not doing so actually has the potential to reduce impermissible discrimination because the parties will not know objectively, will not be able to tell even subjectively without any reliability, and thus will not be able to use ethnicity as a factor in jury selection.

We acknowledge that district courts usually make the prima-facie-case determination under Batson's first prong. Yet, that is not necessary if, as a matter of law, the defendant's evidence on the Batson issue is insufficient to show a prima facie case. United States v. Allison, 908 F.2d 1531, 1537 (11th Cir.1990); United States v. Dennis, 804 F.2d 1208, 1210-11 n. 22 (11th Cir.1986); King, 196 F.3d at 1334. For example, in Allison we concluded that a remand was unnecessary where the government used three of its six peremptoiy strikes against black venire members and three black jurors (including one alternate) ultimately served. 908 F.2d at 1537. We concluded that the district court could not, as a matter of law, find that a prima facie case had been established because: (1) three black jurors served; (2) 15% of the venire was black and 21% of the jurors were black; and (3) the prosecutor struck three black jurors but also struck two white jurors. Id. at 1538; see also Dennis, 804 F.2d at 1210-11 (declining to remand in absence of prima-facie-case determination where the government only used 3 of its 6 peremptory challenges (2 of those 3 against black jurors) in selecting the first 12 jurors and only 1 of 2 alternate-juror challenges against a black juror, and accepted 2 black jurors who served on the jury). As in King, Allison, and Dennis, we conclude that no remand is necessary in this case because Ochoa's statistical evidence fails to establish a 'pattern” and thus a prima facie case of discrimination as a matter of law. As noted above, after the trial the district court made the juror questionnaires part of the record, thereby providing the self-reported race and ethnicity of each venire member. Further, the parties do not dispute who was on the venire, who was struck, and who served. Thus, the statistics are undisputed in this case.

The factors discussed here do not constitute an exhaustive list of potentially relevant factors in determining whether an inference of discrimination arises. Rather, the heart of Ochoa's argument seems to be that the statistical evidence creates a "pattern” of discrimination, and thus we focus on the factors relevant to establishing such a pattern. However, in other cases, other factors may be relevant. For example, the court may consider "the voir dire answers of those who were struck compared to the answers of those who were not struck.” Lowder, 236 F.3d at 637. In some Batson claims, the subject matter of the case may be relevant if it is racially or ethnically sensitive. For example, in Stewart, the defense used its peremptory challenges to strike 3 of the 4 potential black jurors, causing the jury to have only one black member. 65 F.3d at 925. The district court found a prima facie case of race discrimination and this Court affirmed. Id. This Court noted that "no particular number of strikes against blacks automatically indicates the existence of a prima facie case,” but it concluded that a prima facie case existed in part because the defendants were being prosecuted for a racially motivated hate crime against blacks. Id. In contrast, there is no contention that the subject matter in Ochoa's case is relevant.

Here, the district court did ask the government for explanations of two of the five struck jurors. Our precedent requires, however, *1046that we answer the prima facie question first and affirm the district court’s ruling if no prima facie case was established. See Lowder, 236 F.3d at 636. If Ochoa's evidence establishes a prima facie case, then we would need to remand to the district court for further Batson proceedings, including a statement of the reasons by the government for all five of its peremptory strikes.

In determining whether a statistical pattern of discrimination exists, our precedent looks to the total number of peremptory strikes available to the striker, including the peremptory strikes against alternates. See, e.g., Allison, 908 F.2d at 1538; Dennis, 804 F.2d at 1210-11. While this trial lasted approximately three weeks, the record is not clear whether any alternates ultimately participated in the final verdict.

Four of the twelve jurors and two of the five alternates were Hispanic. When all juror and alternate slots were filled, twelve unseated venire members remained, including five Hispanics (approximately 42%). They were not reached in the peremptory-striking process.

Juror 399 was later removed for cause.

The dissent focuses largely on the status of the striking at the time of the government’s fourth strike, when Ochoa’s counsel first raised the Batson claim. Even assuming that at that moment the government could tell who was and who was not Hispanic, nevertheless it had already accepted three Hispanic jurors. And of those three, two had already been seated by the time the government exercised its fourth strike, while the defense struck the third. Plus, half of this venire was Hispanic to begin with, so it was not unusual that three Hispanics were already accepted and four were already struck. Thus, the fourth strike, viewed against those factual circumstances, creates no prima facie case under Batson. We agree with the dissent that the striking of even one juror for a racial or ethnic reason may violate Batson. We simply disagree that a prima facie case was established at the time of the government's fourth peremptory strike.

Juror 568 was later moved onto the jury in place of juror 399.

Jurors 399, 232, 146, 511, 420 and 620. The jury numbering system employed by the district court makes it difficult to determine from the juiy-selection transcript if the jurors struck by the defense were first offered and accepted by the government. The transcript suggests that most of the time the defense went first and struck before the government. However, in at least two instances, Hispanic jurors (nos. 146 and 511) were accepted by the government before being struck by the defense.

In Bui v. Haley, 321 F.3d 1304 (11th Cir.2003), this Court dismissed as irrelevant the fact that the defendant (the Batson objector) also had struck black jurors, stating: “the fact that [defendant] himself may have unclean hands can have no bearing on our determination of whether the State's use of its strikes to remove blacks from the jury passes constitutional muster.” Id. at 1318 n. 19. While there is no such “unclean hands” defense to bar Ochoa’s Batson claim, the number of strikes by the objecting party can be used to establish how the racial or ethnic makeup of the final jury was formed. See Novaton, 271 F.3d at 1004 (noting the district court was free to consider all "relevant circumstances,” including "that the [Batson challengers] themselves exercised peremptory challenges to strike Hispanic jurors”). Otherwise, the alleged Batson violator would essentially be held responsible for the strikes made by the objecting party.

Additionally, although I certainly agree with the propriety of using our supervisory powers to remind the district court that it must comply with the dictates of United States v. Valenti, 987 F.2d 708 (11th Cir.1993), I also think that the constitutionality of its docketing procedures was properly before us as an issue on appeal. The majority notes that " [b]ecause the district court's orders unsealing dockets here brought them in compliance with Valenti, the secret-docketing issue is not properly before us.” Majority Op. at 1030. However, this is precisely the procedural posture in Valenti, in which the district court had used unconstitutional secret docketing procedures, but entered an order prior to the appeal requiring the clerk "to annotate any further closed proceedings in this case on the Middle District’s public docket ....” Valenti, 987 F.2d at 711. The Valenti Court recognized that this order "moot[ed] that portion of this case relating to the district court's procedures for closure and its maintenance of a dual-docketing system,” but nonetheless heard the claim on its merits because it "presented] a controversy capable of repetition yet evading review.” Id. at 712.

. Ochoa’s adamant argument against a cautionary instruction did not occur at trial, but rather in the context of his opposition to the government's motion to empanel an anonymous jury, when he contended that any precautionary measures the court might take would be ineffective. (D.E.982.) Nonetheless, he did not request a cautionary instruction at any point during trial proceedings.

In this case, by contrast, the entire voir dire was completed in less than one day.

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

Moreover, Jordan made it clear that the voir dire requirements set out in Davis and Jordan were derived from constitutional requirements, and not based on our supervisory powers. See Jordan, 763 F.2d at 1278 & n. 15.

There is no support for the majority’s proposal that the "generally accepted practice” is to "downplay ... the significance of the juror anonymity procedure.” Majority Op. at 1036. While I acknowledge that at some point emphasis on jury anonymity, particularly in the form of a cautionary instruction, may itself create problems of prejudice, the type of safeguards Ross proposes — the cautionary instruction and thorough voir dire — suggest that the court must do more than it would in the course of an ordinary trial to address the particular hazards presented by jury anonymity. Furthermore, the majority notes that the district court "instruct[ed] the jury repeatedly and at length about the presumption of innocence,” majority op. n. 28, but there is nothing in this record that distinguishes these jury instructions, either in length, time, or frequency, from those generally given at the beginning and end of every criminal trial. Thus, I do not believe that such instructions satisfy Ross’s requirement that a court do more than is ordinarily required to protect a defendant’s presumption' of innocence under the circumstances present here.

.Specifically, Ochoa challenged the strikes of jurors 51, 221, 234, 379, and 124. (D.E.1468, 85.)

.I have used "ethnicity'' or "ethnic identity” to describe a juror's Hispanic origin wherever possible, but in some instances the case law refers to a juror’s Hispanic "race.” However, the Supreme Court appears to use "race” and "ethnicity” interchangeably in the Batson context, at least when discrimination against jurors of Hispanic or Latino origin is at issue. See United States v. Martinez-Salazar, 528 U.S. 304, 315, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) ("Under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race.”). Compare Hernandez v. New York, 500 U.S. 352, 355, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion) (stating that a Batson violation would occur if "the prosecutor in [the petitioner’s] criminal trial exercised peremptory challenges to exclude Latinos from the jury by reason of their ethnicity”), with id. at 372, 111 S.Ct. 1859 (O'Connor, L, concurring in the judgment) ("In order to demonstrate [a Batson] violation, Hernandez must prove that the prosecutor intentionally discriminated against Hispanic jurors on the basis of their race.”).

The district court made no findings with respect to these explanations, other than to acknowledge that they had been offered, nor did it indicate whether it believed the government’s argument that it could not tell if the stricken jurors were Hispanic.

Ochoa's counsel.

Counsel for the government'.

Presumably juror 379.

.Counsel for the government.

The majority correctly notes that "we give great deference to a district court’s finding of whether a prima facie case of impermissible discrimination has been established,” and cites our decision in Allen-Brown, 243 F.3d at 1296-97, for the proposition that "[a] district court's finding as to why a juror is excused is an issue of fact, and as such, it will not be disturbed on appeal unless it is clearly erroneous or appear to have been guided by improper principles of law.” This case, however, is one in which the district court was guided by "improper principles of law.” By refusing to permit the defendant to put the pertinent facts relating to the juror's ethnicity on the record, the court misapplied the law of Batson. Furthermore, the majority also notes that "[w]hile Ochoa's attorney did correctly determine at trial that the five struck jurors were Hispanic, he himself at trial misidentified five other Hispanic jurors when he indicated that the jury contained only one Hispanic juror. In fact, six Hispanics were empaneled as jurors or alternates. We must therefore defer to the district court’s finding of fact that one could not identify Hispanic jurors in this particular case simply by their appearance and accent.” This deference is not warranted, however, because it mischaracterizes what the court did as a fact-finding determination, when in fact the district court specifically avoided making such a determination. The record is devoid of any finding by the district court that one could not identify Hispanic jurors. Instead, the majority cobbles together comments which it construes as such a finding. See majority op. n. 36.

In fact, the juror records indicate that of the 82-member venire, 44 (or approximately 52%) identified themselves as Hispanic. (The Hispanic ethnicity of two black jurors is listed as "UNK,” which I understand to represent "unknown.” I do not count these two jurors as Hispanic, but if one did include them, Hispanics would have composed about 56% of the venire.) Thus, the challenge rate was slightly more than 154% of the minority percentage of the venire, a disparity significant enough to "strongly support” a prima facie Batson claim under Central Alabama Fair Housing Center, especially because the challenge rate in this case could not have exceeded 185% of the minority percentage of the venire. Moreover, Ochoa was "entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Batson, 476 U.S. at 96, 106 S.Ct. 1712 (internal quotation marks omitted).

The majority says that "[e]ven if we adopted the dissent's unsupported view that the government could determine the ethnicity of potential jurors, we would still reach the same result here because, as a matter of law, Ochoa failed to establish a prima facie case under Batson. In that regard, we note that the district court denied his challenge without determining whether there was a sufficient ‘pattern’ of strikes by the government to create an inference of discrimination. But the record on appeal contains the necessary statistical information for a thorough prima-facie-case analysis, which we will now undertake.” Majority Op. at 1043-44. As the majority recognizes, it is the district court's job in the first instance to make the prima facie case determination. And the Supreme Court in Johnson clarified that "inferences that discrimination may have occurred [are] sufficient to establish a prima facie case under Batson." Johnson, 125 S.Ct. at 2419. Here, Ochoa’s statistical analysis clearly creates an inference of discrimination. Indeed, the majority errs in how it conducts the Batson statistical analysis: it does not conduct the analysis at the time the objection was raised, but only after juiy selection was completed. At the time Ochoa first raised his Batson objection, the government had used four of its peremptory strikes, all of them against Hispanics. This 100% strike rate against Hispanics would seem to present a "substantial disparity between the percentage of jurors of one race struck and the percentage of their representation on the jury,” which was 52% in this case. Central Ala. Fair Housing Ctr. 236 F.3d at 637. And while our precedents point out that the making of a prima facie case cannot "ordinarily” rest on numbers alone, id. ("A party advancing a Batson argument ordinarily should 'come forward with facts, not just numbers alone.’ "(citation omitted)), the district court's refusal to allow Ochoa to access information that would have allowed him to make a Batson challenge is far from “ordinary.”

Indeed, I see no reason to keep racial information about anonymous jurors sealed at all. Ochoa's Batson challenge could have been easily resolved but for the anonymity measures. Moreover, if the litigants know the self-reported race or ethnicity of the jurors before voir dire, the district and appellate courts will not be faced with the thorny question of whether the litigants could discern the race of the jurors by observation alone. This is not an easy task in many cases, such as when a party strikes so-called "light-skinned blacks” or "mulattos” from the venire. And if the court errs in its racial assessment, it risks adding insult to the discriminatory injury the stricken jurors may already have suffered.

Judicial speculation into the prosecution's reasons for striking a juror is prohibited at any stage in the Batson analysis. See Johnson, 125 S.Ct. at 2418-19; Miller-El v. Dretke, 125 S.Ct. at 2331-32 ("[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”) (internal citations omitted).

The majority suggests that this position involves fact-finding. Majority Op. at 1042 ("Neither is the dissent in a position to fact-find to the contrary here ....”). But observing that the district court refused to make a finding when the defendant pointed out that the struck jurors looked Hispanic and spoke with a Hispanic accent is not fact-finding. It is pointing out that the district court avoided finding facts on this issue. The majority contests this interpretation, but by construing a series of questions by the district court to both Ochoa’s counsel and the United States as a "basis” for denying Ochoa’s Batson challenge, it is the majority that is engaging in unwarranted inferences.

Cf. Stephens v. State, 884 So.2d *1071 (Fla.Dist.Ct.App.2004) (holding that when a criminal defendant had made out a prima facie case of discrimination regarding the prosecution’s strike of an ostensibly African-American juror under Melbourne v. State, 679* So.2d 759 (Fla.1996), the fact that the prosecutor "did not know the prospective juror’s race” did not constitute, by itself, a race-neutral explanation for the strike under Florida law).

Honorable B. Avant Edenfield, United States District Judge for the Southern District of Georgia, sitting by designation.