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Juror Dismissal Not Required Despite Statements of Bias—Ninth Circuit
Majority Says Equivocating During Questioning, Expressing Bias Did Not Gut Earlier Promise to Be Fair
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has held that a decision not to dismiss a juror for cause who admitted under intense questioning that “[p]robably I would not be a good juror” and that it would be difficult to consider the charges—attempted sexual enticement of a minor—without being biased was not an abuse of discretion where the juror made an unequivocal commitment to be impartial in an earlier written questionnaire.
A panel, in a memorandum opinion filed Tuesday, affirmed the judgment of conviction ordered to be entered by Senior District Court Judge George H. Wu of the Central District of California. The opinion was by Circuit Judge Consuelo M. Callahan and Judge Gary S. Katzmann for the United States Court of International Trade, sitting by designation.
Circuit Judge Mark J. Bennett dissented.
Appealing his conviction was Albert Pinedo, who was arrested in February 2020 in a sting operation after publishing a post on Craigslist saying, ““I’m a retired senior looking for casual contact with young men.” Department of Homeland Security Special Agent Paul Radlinski responded to the post, pretending to be a 14-year-old boy, and the two made plans to meet up for a sexual encounter.
Pinedo arrived at the agreed-upon location and was arrested in February 2020. He was indicted on one count of attempted enticement of a minor under 18 U.S.C. §2422(b) and was convicted by jury.
Wu sentenced Pinedo to 10 years in prison. The defendant was then 78.
Equivocal Statements
The majority remarked:
“The Sixth Amendment right to an impartial jury is inviolable. The presence of even one biased juror cannot be harmless.”
In evaluating the decision to empanel the challenged juror, Juror 30, under an abuse of discretion standard, the panel noted that courts do not demand that jurors pledge impartiality with complete certainty, but said that “[e]quivocal statements, by themselves, do not satisfy the Sixth Amendment.”
The judges wrote:
“To be sure, Juror 30 made equivocal statements during voir dire. She said that ‘[i]t would be’ difficult to look at charges involving minors without being biased and that she ‘[p]robably . . . wouldn’t be a good juror.’ And she repeatedly answered that she would ‘try [her] best’ to be impartial.”
However, the judges reasoned that those statements must be taken in context.
Unusual Jury Selection
The panel noted that Pinedo’s trial in July 2021 was “among the first in the Central District of California since the suspension of trials in March 2020 due to the Covid-19 pandemic” and “[j]ury selection proceeded differently than usual.” Callahan and Katzmann explained that prospective jurors each read a summary of the case then filled out a form posing 69 questions that were specific to the case, four of which elicited assurances of impartiality. They recited that veniremen who were not dismissed based on their responses were summoned to the courtroom where each, in turn, stood at a lecturn and underwent questioning by defense counsel, the prosecutor and the judge.
The panel noted that Juror 30 “exhibited nervousness when answering questions.”
Finding this context illuminating, the judges said:
“Juror 30 on voir dire faced tough questions from the prosecution, defense, and district court, as if being cross-examined. Among her answers were ‘I don’t know what to say,’ and ‘Why are you guys pressuring me[,] I don’t know what to say.’ The intensity of her questioning provides context for her relative equivocation during voir dire, like the statement that she ‘[p]robably...wouldn’t be a good juror.’ ”
In light of that, the judges were persuaded by her earlier promise of impartiality and remarked that she “did make an unequivocal commitment to be impartial—three times…—in her juror questionnaire.”
Being mindful of the principle that jury selection is particularly within the province of the trial court, the majority concluded that “the district court was best situated to assess the totality of Juror 30’s questionnaire responses and voir dire statements, having observed her tone, body language, and demeanor in the courtroom.”
Bennett disagreed and said:
“The inclusion of Juror 30 as a member of the jury panel despite her unambiguous bias resulted in a clear violation of Pinedo’s Sixth Amendment rights. Because of that, Pinedo is entitled to a new trial. Thus, I respectfully dissent.”
He went on to say:
“[T]he prosecutor stated that Juror 30 never moved from her position expressed in the written questionnaire that she could be fair and impartial; never stepped off that position in ‘any meaningful way,’ and the district court then explicitly agreed with that statement and denied the challenge for that reason. But the record makes clear the prosecutor’s statement is simply wrong. The district court itself said to Juror 30 that ‘you don’t think you could be fair’ because of Juror 30’s direct statement that the nature of the case was ‘just too strong for [her] to...put aside [her] feelings.’ When asked if it would be difficult for her ‘to look at charges like that without being biased,’ she replied: ‘It would be yes. I would think so….’ ”
Bennett maintained:
“Regardless of the crime charged and the evidence against him, a defendant is entitled to a fair trial by an impartial jury. Because the district court empaneled a jury containing a biased juror it should have excused for cause, the defendant was denied his ‘most priceless’ safeguard.”
The case is United States v. Pineda, 21-5042.
Pineda was a Los Angeles Unified School District middle school teacher and administrator when he was charged with distribution of child pornography. He was sentenced in 2003 to five years and three months in prison.
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