U.S. v. Mitchell

• Decision Date: 23 June 2009
• Docket Number: No. 08-10027.,08-10027.
• Citation: 568 F.3d 1147
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jermaine Alonzo MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

568 F.3d 1147

UNITED STATES of America, Plaintiff-Appellee, v. Jermaine Alonzo MITCHELL, Defendant-Appellant.

No. 08-10027.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2008.

Filed June 23, 2009.

Dennis A. Cameron, Reno, NV, for the defendant-appellant.

William R. Reed, Assistant United States Attorney, Reno, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding. D.C. No. CR-04-00010-ECR.

Before: J. CLIFFORD WALLACE, SIDNEY R. THOMAS and SUSAN P. GRABER, Circuit Judges.

Opinion by Judge WALLACE; Dissent by Judge THOMAS.

WALLACE, Senior Circuit Judge:

Mitchell appeals from his conviction and sentence for possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count One), and possession of marijuana in violation of 21 U.S.C. § 844 (Count Two). On Count One, he was sentenced to a mandatory term of life imprisonment without release and ten years of supervised release. On Count Two, he was sentenced to a term of 90 days of imprisonment and three years of supervised release. The sentences of imprisonment are to run concurrently, as are the terms of supervised release. Although Mitchell raises a number of issues on appeal, in this opinion we deal with only his claim that he was denied his constitutional right to an impartial jury. We address his other arguments in a companion unpublished disposition. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

I.

During voir dire of prospective jurors at Mitchell's trial, the court engaged in the following sidebar colloquy with government attorney Fahami, defense counsel Edwards, and a prospective juror, whom we refer to here as Jane Doe:

THE COURT: [Jane Doe], please, after we recess, you indicated to the courtroom deputy that you had some sort of—there was somebody in your family or some friend had had some sort of contact with illegal drugs, is that right?

PROSPECTIVE JUROR [JANE DOE]: Yes. My—it happened about nine, ten years ago in Mexico. One of my uncles was actually killed by a drug dealer.

THE COURT: Okay. How old were you then?

PROSPECTIVE JUROR [JANE DOE]: I'm 26.

THE COURT: Do you remember any of the circumstances involving—

PROSPECTIVE JUROR [JANE DOE]: I was actually here in the United States, and it happened down in Mexico. But, it was my mom's youngest brother.

THE COURT: All right. Do you think that what happened there would affect you, in any way, in being a fair juror in this case?

PROSPECTIVE JUROR [JANE DOE]: Um, I don't think so.

THE COURT: Well, you're going—is that the best you can do, or can you put that out of your mind?

PROSPECTIVE JUROR [JANE DOE]: Um, I think it would be on my mind, to tell you the truth—no, I'll be fine. No. Actually, I'm fine.

THE COURT: I need pretty direct assurance on this, if you think that would cause you a problem.

PROSPECTIVE JUROR [JANE DOE]: I think it will, now that I think about it. I didn't think about it before. But now that it's in my mind, it's a little different, I think.

THE COURT: You think it would cause you a problem?

THE COURT: You have to whisper now.

PROSPECTIVE JUROR [JANE DOE]: Sorry. It didn't affect me—

THE COURT: You have to whisper.

PROSPECTIVE JUROR [JANE DOE]: It did affect my family, so I think, yes, it will affect me.

THE COURT: Okay. You may return to your seat.

(Side bar with the Court and counsel:)

THE COURT: Do counsel wish me to ask any additional questions of the juror? Ms. Fahami.

MS. FAHAMI: No, Your Honor.

THE COURT: Mr. Edwards.

MR. EDWARDS: No, Your Honor.

THE COURT: Do you wish—do counsel wish to challenge the juror?

MR. EDWARDS: No, Your Honor.

THE COURT: And on your side, Ms. Fahami?

MS. FAHAMI: No, Your Honor.

THE COURT: Neither counsel wishes to challenge for cause? Well, then we'll be able to proceed then. Otherwise, I was going to have to take a step back.

With [sic] those questions and the answers affect your challenge or waiver of your first peremptory, Ms. Fahami?

MS. FAHAMI: No, Your Honor.

THE COURT: All right. Thank you.

Jane Doe was seated as a juror. Three days later, the jury convicted Mitchell of both counts on which he had been indicted. On appeal, Mitchell argues that he was denied his constitutional right to an impartial jury because Jane Doe harbored impermissible bias.

II.

Mitchell did not move to strike Jane Doe for cause during voir dire. Normally, where a defendant fails to raise a claim of error at trial, we will review that claim for plain error. Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention"); United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (holding that Rule 52(b) "provides a court of appeals a limited power to correct errors that were forfeited because [they were] not timely raised in district court").

Plain error exists where (1) there is an "error," (2) that is "plain," and (3) the error affects "substantial rights." Id. at 732, 113 S.Ct. 1770. An "error" is any "[d]eviation from a legal rule," and it is "plain" if it is "clear" or "obvious." Id. at 732-34, 113 S.Ct. 1770. An error affects "substantial rights" if the defendant is prejudiced in such a manner as to "affect[] the outcome of the district court proceedings." Id. at 734-35, 113 S.Ct. 1770. Even where these conditions exist, a court of appeals on plain error review should reverse a conviction only where the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 736, 113 S.Ct. 1770 (internal quotation marks omitted).

Our law is ambiguous if not in conflict as to whether this standard of review applies to unpreserved claims of juror bias. In United States v. Olano, 62 F.3d 1180, 1192-93 (9th Cir.1995), we applied the plain error standard of review to a claim of juror bias where the defendant "did not move for mistrial" in the district court. Similarly, in United States v. Mitchell, we limited our review of a juror bias claim on appeal to plain error because the defendant "did not ask the[trial] court to excuse [the challenged juror] for cause." 502 F.3d 931, 955 (9th Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2902, 171 L.Ed.2d 843 (2008), citing United States v. Mendoza-Reyes, 331 F.3d 1119, 1121 (9th Cir.2003) (per curiam), and United States v. Ross, 886 F.2d 264, 266 (9th Cir.1989).

However, in United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir. 2002), we held that "[w]e only review for plain error or assess whether an error is harmless when the error is not structural." And in Dyer v. Calderon, 151 F.3d 970, 973 n. 2 (9th Cir.1998), this court en banc held that "the presence of a biased juror introduces a structural defect" into a criminal defendant's trial. Cf. United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004) (holding that a violation of the Sixth Amendment right to counsel at "critical stage[s]" of criminal proceedings is not subject to plain error analysis); but see United States v. Brown, 26 F.3d 1124, 1126 (D.C.Cir.1994) (concluding that "plain error analysis is applicable to a sixth amendment claim not raised at trial").

These latter cases, apparently in conflict with earlier decisions, suggest that plain error review may not be appropriate for unpreserved claims of juror bias. However, these cases may also be read as merely circumscribing the scope of plain error review with respect to such claims so that a defendant need not demonstrate that he was prejudiced by the presence of the challenged juror. Dyer, 151 F.3d at 973 n. 2 ("The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice"). We need not resolve this ambiguity or conflict in our jurisprudence, however, because even if plain error review does not apply, we conclude that there was no error in the district court's failure sua sponte to strike Jane Doe from the jury.

III.

The Sixth Amendment right to a jury trial guarantees the criminally accused a fair trial by a panel of impartial jurors. Id. at 973. Even if only one juror is unduly biased or prejudiced, the defendant is denied this constitutional guarantee. Id.; see also United States v. Plache, 913 F.2d 1375, 1377 (9th Cir.1990) ("It is well-settled that a single partial juror deprives a defendant of his Sixth Amendment right to a trial by an impartial jury").

In this case, Mitchell argues that he was denied his right to an impartial jury because the district court failed to strike Jane Doe as biased. To succeed on such a claim, a defendant usually bears the burden of demonstrating that the challenged juror was biased, and that the district court erred in failing to strike her from the jury. United States v. Martinez-Martinez, 369 F.3d 1076, 1081-82 (9th Cir. 2004), citing United States v. Hursh, 217 F.3d 761, 768 (9th Cir.2000). However, where as here, no motion was made during jury selection to dismiss the juror in question for cause, Mitchell assumes a greater burden: he must show that the evidence of partiality before the district court was so indicative of impermissible juror bias that the court was obliged to strike Jane Doe from the jury, even though neither counsel made the request. See, e.g., Ross, 886 F.2d at 266-67 (evaluating the sufficiency of the evidence before the district court in evaluating an unpreserved claim of juror bias); cf. Sims v. Rowland, 414 F.3d 1148, 1155-56 (9th Cir.2005) (holding that due process does not require a trial court to hold an evidentiary hearing sua sponte when presented with evidence of juror bias).

A.

"We have analyzed juror bias under two theories—actual bias and implied bias." Estrada v. Scribner, 512 F.3d 1227,...