549 F.2d 1225 (9th Cir. 1977), 76-1090, United States v. Hendrix

Docket Nº:76-1090.
Citation:549 F.2d 1225
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John F. HENDRIX, Sr., Defendant-Appellant.
Case Date:January 17, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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549 F.2d 1225 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


John F. HENDRIX, Sr., Defendant-Appellant.

No. 76-1090.

United States Court of Appeals, Ninth Circuit

January 17, 1977

        Rehearing and Rehearing En Banc Denied March 28, 1977.

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        Herman A. Hauslein (argued), San Diego, Cal., for defendant-appellant.

        Terry J. Knoepp, U.S. Atty., Peter K. Nunez, Asst. U.S. Atty., argued, San Diego, Cal. for plaintiff-appellee; Howard A. Allen, Asst. U.S. Atty., San Diego, Cal. on the brief.

        Before DUNIWAY, CARTER and WALLACE, Circuit Judges.

        WALLACE, Circuit Judge:

        Hendrix appeals his conviction, after a jury trial, of one count of conspiracy to induce, smuggle and transport illegal aliens in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324 and six counts of transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(2). Hendrix raises 11 alleged errors, the most substantial of which is that he was denied his Sixth Amendment right to trial by an impartial jury because one of the jurors was biased. We affirm.

        Hendrix' two-day trial occurred on November 18 and 19, 1975. Prospective jurors were examined and those chosen for the panel were sworn during the morning of November 18. When court recessed that afternoon, the wife and mother-in-law of Hendrix informed his counsel that during the morning, prior to the selection of the

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jury. Mrs. Thompson, who was subsequently chosen as a juror, allegedly made statements revealing a bias against and a predisposition to convict criminal defendants. Before the trial recommenced on the 19th Hendrix' counsel informed the court of Mrs. Thompson's alleged bias and requested an investigation to determine if she should be removed from the jury panel. The district judge denied the request and directed counsel to file affidavits.

        Within a week after the conclusion of the trial, affidavits of Mrs. Hendrix and her mother were filed. Both stated that Mrs. Thompson, on the morning of November 18, made the following comment:

Well, I really shouldn't be serving today because my husband is on vacation, and he asked me to get excused so I could join him, because I have served on jury duty several times. But we just had a case where a policewoman was tried for selling narcotics and the damn Judge let her go. And she was absolutely guilty. And I am here to see that they put some of these people away. These Judges are absolutely too lenient and they are letting too many people run around.

        Approximately two weeks after the affidavits were filed, the district court heard arguments on Hendrix' motion for a new trial based on the allegations. The court determined that Mrs. Thompson's comments were made before she was questioned under oath as a prospective juror, during which time she stated "that she wasn't prejudiced." The court then reviewed the affidavits, found them to contain inadequate grounds for a new trial and denied Hendrix' motion.

        These facts present two conceptually distinct issues. First, did the district judge commit reversible error in the procedure he followed in responding to the allegations of juror bias? Second, as a matter of law, did the court incorrectly conclude that any bias, if present was nonprejudicial?


        It cannot be gainsaid that a fair system for the administration of justice must include the guarantee of "an impartial jury" for the criminally accused. U.S. Const. amend. VI. See generally, Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Stone v. United States, 113 F.2d 70, 77 (6th Cir. 1940). If only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel. E.g., Tillman v. United States, 406 F.2d 930, 937 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969); Stone v. United States, supra, 113 F.2d at 77. The trial judge has both a great responsibility and a wide discretion to give meaning to this guarantee. E.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 547-50, 96 S.Ct. 2791, 2797-98, 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, supra, 384 U.S. at 358-63, 86 S.Ct. 1507; United States v. Doe, 513 F.2d 709 (1st Cir. 1975); Tillman v. United States, supra, 406 F.2d at 937; United States v. Miller, 381 F.2d 529, 539 (2d Cir. 1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2273, 20 L.Ed.2d 1387 (1968); United States v. Flynn, 216 F.2d 354, 372 (2d Cir. 1954), cert. denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713 (1955).

        An important part of the district judge's broad discretion centers on his response to allegations of juror bias or misconduct. For example, it is within the trial court's discretion to determine whether and when to hold an evidentiary hearing on such allegations. If the judge orders an investigative hearing, it is within his discretion to determine its extent and nature. See United States v. Doe, supra, 513 F.2d at 712; Tillman v. United States, supra, 406 F.2d at 938. 1 As a matter of common sense, a trial judge in making these decisions will necessarily be directed by the content of the

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allegations, including the seriousness of the alleged misconduct or bias, and the credibility of the source. See United States v. McKinney, 429 F.2d 1019, 1031 (5th Cir. 1970) (Godbold, J., dissenting), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). 2

        If an evidentiary hearing is held, it has two purposes. The first is to determine

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the truthfulness of the allegations of juror misconduct or prejudice. If the allegations are found to be true, the inquiry does not end there, however, because not every incident of juror misconduct or bias requires a new trial. United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); Cavness v. United States, 187 F.2d 719, 723 (9th Cir.), cert. denied, 341 U.S. 951, 71 S.Ct. 1019, 95 L.Ed. 1374 (1951); see United States v. Shahane,517 F.2d 1173 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975); United States v. Goliday, 468 F.2d 170, 171-72 (9th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597 (1973). The court must determine if the bias or prejudice amounted to a deprivation of Fifth Amendment (due process) or Sixth Amendment (impartial jury) guarantees. "The test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." United States v. Klee, supra, 494 F.2d at 396. See also Cavness v. United States, supra,187 F.2d at 723.

        In applying these principles of law, we must constantly bear in mind that reversal of the district court's procedural decisions should occur only if we find an abuse of discretion. See, e. g., Tillman v. United States, supra, 406 F.2d at 938; United States v. Miller, supra, 381 F.2d at 539; United States v. Flynn, supra, 216 F.2d at 372. As Judge (later Mr. Justice) Harlan said in United States v. Flynn, supra, 216 F.2d at 372: "All of these matters (of juror bias and evidentiary hearings) were for the trial Court's discretion which, unless we find it clearly abused, we should not disturb." Thus, our task is not to determine if the trial court could have held a more extensive hearing or whether we, had we been the trial judge, would have taken a different approach to the problem. Rather, our review is limited to determining whether the district judge, in view of all the circumstances, so abused his discretion that the defendant must be deemed to have been deprived of his Fifth or Sixth Amendment rights.

        Applying this test, we conclude that the rulings of the district judge pertaining to the procedure followed should be sustained. Given the content of the allegations, including the seriousness of the alleged bias, and their source, we do not believe that the...

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