United States v. Mitchell

568 F.3d 1147, 2009 U.S. App. LEXIS 13454, 2009 WL 1758746
Court of Appeals for the Ninth Circuit·Decided June 23, 2009·No. 08-10027·Published·Cited by 44 cases

Opinions

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 We address his other arguments in a companion unpublished disposition.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 [1149] or some Mend 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 [1150] 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 “[deviation 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 affeet[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736, 113 S.Ct. 1770 (internal quotation marks omitted).

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United States v. Mitchell, 568 F.3d 1147, 2009 U.S. App. LEXIS 13454, 2009 WL 1758746 (9th Cir. 2009).

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