United States v. Ricardo Mitchell

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2420

_____________

UNITED STATES OF AMERICA

v.

RICARDO MITCHELL,

Appellant

_____________

On Appeal from the United States District Court

for the District of the Virgin Islands

(No. 3-10-cr-00059-001)

District Judge: Honorable Curtis V. Gomez

Argued May 7, 2012

Before: CHAGARES, JORDAN, and COWEN, Circuit

Judges.

(Filed: August 7, 2012)

Yohana M. Manning, Esq. (Argued)

P.O. Box 1576

Christiansted, St. Croix, VI 00821

Darren John-Baptiste, Esq.

The Practice

Professional Building #1

Fortets Gade Suites 11 & 12

St. Thomas, VI 00802

Counsel for Appellant

Ishmael A. Meyers, Jr., Assistant United States Attorney

(Argued)

Office of the United States Attorney

550 Veterans Building, Suite 260

United States Courthouse

Charlotte Amalie, St. Thomas, VI 00802

Counsel for Appellee

____________

OPINION

____________

CHAGARES, Circuit Judge.

Ricardo Mitchell appeals his conviction on charges

related to his possession of a firearm with an obliterated serial

number. We consider whether the “close cousin” of the

prosecutor and an employee of the police department who

worked with Government witnesses should have been

disqualified as jurors in Mitchell’s trial pursuant to the

doctrine of implied bias. The law, we conclude, presumes

2

bias in jurors who are close relatives of the parties in a case.

Because the District Court did not elicit sufficient information

on the nature of the relationship between the prosecutor and

Juror 28, his cousin, we will remand for additional

factfinding. However, we will affirm the District Court’s

denial of Mitchell’s motion to strike Juror 97, the police

department employee, because the law does not categorically

impute bias to coworkers of key witnesses in a trial.

I.

Mitchell was arrested on September 27, 2010 after an

encounter with police officers. While on patrol that evening,

Officers Joseph Brown and Bruce Taylor detected the smell

of marijuana near where Mitchell was leaning into a car

window. Planning to conduct a field interview, Officer

Brown exited his squad car and approached Mitchell, who

started to backpedal and fumble for something in his

waistband. Worried that it was a gun, Officer Brown ran and

tackled him. An object clattered to the ground as the men fell

to the street. After Officer Brown handcuffed Mitchell, he

discovered a loaded magazine underneath Mitchell’s body

and a loaded semiautomatic handgun nearby. The serial

number on the gun had been filed down and was

undecipherable. In response to questioning by Officer

Taylor, Mitchell later admitted that he did not have a license

to possess a weapon.

The grand jury returned a three-count indictment

charging Mitchell with possession of a firearm with an

obliterated serial number, in violation of 18 U.S.C. § 922(k)

(Count 1) and V.I. Code Ann. tit. 23, § 481(a) and (b) (Count

3), and possession of an unlicensed firearm, in violation of

3

V.I. Code Ann. tit. 14, § 2253(a) (Count 2). The District

Court held a two-day trial. During voir dire, the District

Judge asked the jury venire if anyone was related by blood,

business, or marriage to the prosecutor. Juror 28 raised her

hand, leading to the following colloquy:

Juror 28: He’s my blood relative.

The Court: How is he related to you?

Juror 28: By father side.

The Court: What is his relation to you?

Juror 28: Cousin.

The Court: All right. Is there anything in that

relationship that would — are you a

close cousin or a distant cousin?

Juror 28: Close. But I don’t think that have

anything to do with it.

The Court: All right. Is there anything in that

relationship that would prevent you from

following my instructions on the law?

Juror 28: No, Your Honor.

The Court: Is there anything in that relationship that

would prevent you from listening to the

evidence in this case fairly and

impartially?

4

Juror 28: No, Your Honor.

The Court: All right. Thank you.

Appendix (“App.”) 20-21. Neither party sought to ask Juror

28 additional questions, and neither party challenged her for

cause or used a peremptory strike on her.

Subsequently, the District Judge read the parties’

witness lists and asked if any venireperson had a relationship

by blood, marriage, or business to those individuals. Juror 97

responded affirmatively:

Juror 97: I work for the V.I. Police Department, so

I’m familiar with Officer Lans and

Officer Taylor. I’m their coworker.

The Court: All right. Do you work with them daily?

Juror 97: I work in the fiscal and property, so I

issue supplies and stuff, uniform.

The Court: All right. You not in the field or

anything with these —

Juror 97: No.

The Court: All right. Is there anything in your

relationship with these two individuals

that would prevent you from following

my instructions on the law?

Juror 97: No.

5

The Court: Is there anything in your relationship

with those individuals that would prevent

you from listening to the evidence in this

case fairly and impartially?

Juror 97: No.

App. 24-25. Again, neither party posed additional questions

to Juror 97, challenged her for cause, or used a peremptory

strike on her.

Jurors 28 and 97 were seated as members of the jury.

Later that evening, Mitchell filed a motion to strike Juror 97

for cause. He argued that she could not remain impartial

because she was a coworker of key witnesses in the case and

would feel pressured to vote in the interests of her employer,

the police department. The District Court denied the motion.

The jury found Mitchell guilty on all counts, and the District

Court sentenced him to a 15-year term of imprisonment on

Count 3 and one-year terms of imprisonment on both Counts

1 and 2, to be served concurrently with Count 3. Mitchell

filed this timely appeal to challenge the presence of Jurors 28

and 97 on his jury. 1

II.

A.

1

The District Court exercised subject matter jurisdiction

pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28

U.S.C. § 1291.

6

The Sixth Amendment guarantees every criminal

defendant “the right to a . . . trial[] by an impartial jury.” U.S.

Const. amend. VI. Complementing this right are the

protections afforded by the Due Process Clause, which have

“long demanded that, if a jury is to be provided the defendant,

regardless of whether the Sixth Amendment requires it, the

jury must stand impartial and indifferent to the extent

commanded by the Sixth Amendment.” Morgan v. Illinois,

504 U.S. 719, 727 (1992). Voir dire examination serves to

protect the right to an impartial jury by providing the parties a

means of uncovering juror bias. J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 143-44 (1994); Morgan, 504 U.S. at 729-

30; Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). Bias that

emerges in response to voir dire questioning can lead to

excusal of a juror for cause or may facilitate the parties’

intelligent exercise of peremptory strikes. McDonough

Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984).

Traditionally, courts have distinguished between two

types of challenges for cause: those based on actual bias, and

those based on implied bias. E.g., Dennis v. United States,

339 U.S. 162, 167-68 (1950); United States v. Wood, 299

U.S. 123, 133 (1936); United States v. Mitchell, 568 F.3d

1147, 1151 (9th Cir. 2009); United States v. Torres, 128 F.3d

38, 43 (2d Cir. 1997). Actual bias, also known as bias in fact,

is “the existence of a state of mind that leads to an inference

that the person will not act with entire impartiality.” Torres,

128 F.3d at 43. All members of the venire are subject to

examination for actual bias, which may become apparent

when a venireperson admits partiality or may be inferred from

responses to voir dire questioning. Wood, 299 U.S. at 133-

34; Torres, 128 F.3d at 43. District courts possess broad

discretion in excusing prospective jurors for cause on the

7

basis of actual bias. Dennis, 339 U.S. at 168. We defer to

rulings of the district court on actual bias because it possesses

a superior capacity to observe the demeanor of prospective

jurors and to assess their credibility. Wainwright v. Witt, 469

U.S. 412, 428 (1985); Torres, 128 F.3d at 44.

Implied bias, by contrast, is “bias conclusively

presumed as [a] matter of law,” or, put another way, “bias

attributable in law to the prospective juror regardless of actual

partiality.” Wood, 299 U.S. at 133, 134. This doctrine is

rooted in the recognition that certain narrowly-drawn classes

of jurors are highly unlikely, on average, to be able to render

impartial jury service despite their assurances to the contrary.

E.g., Dennis, 339 U.S. at 175 (Frankfurter, J., dissenting);

Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988). 2 For

2

Discussing implied bias under the pre-Erie authority of

general common law, the Supreme Court offered an apt

summary of the rationale for the doctrine:

Bias or prejudice is such an elusive condition of

the mind that it is most difficult, if not

impossible, to always recognize its existence,

and it might exist in the mind of one (on

account of his relations with one of the parties)

who was quite positive that he had no bias, and

said that he was perfectly able to decide the

question wholly uninfluenced by anything but

the evidence. The law therefore most wisely

says that, with regard to some of the relations

which may exist between the juror and one of

the parties, bias is implied, and evidence of its

actual existence need not be given.

8

example, the victim of a crime might insist that she can serve

as an impartial juror in her assailant’s trial. But,

understanding that the average person in her situation likely

would harbor prejudice, consciously or unconsciously, the

law imputes bias to her categorically and mandates her

excusal for cause. Smith v. Phillips, 455 U.S. 209, 222

(1982) (O’Connor, J., concurring); United States v. Greer,

285 F.3d 158, 172 (2d Cir. 2002).

Because implied bias deals in categories prescribed by

law, the question whether a juror’s bias may be implied is a

legal question, not a matter of discretion for the trial court.

Smith, 455 U.S. at 222 n.* (O’Connor, J., concurring); Burton

v. Johnson, 948 F.2d 1150, 1158-59 (10th Cir. 1991). The

test focuses on “whether an average person in the position of

the juror in controversy would be prejudiced.” Torres, 128

F.3d at 45; accord Mitchell, 568 F.3d at 1151; United States

v. Cerrato-Reyes, 176 F.3d 1253, 1260-61 (10th Cir. 1999),

abrogated on other grounds by United States v. Duncan, 242

F.3d 940 (10th Cir. 2001). Courts look to the facts

underlying the alleged bias to determine if they would create

in a juror an inherent risk of substantial emotional

involvement. United States v. Russell, 595 F.3d 633, 641-

42 (6th Cir. 2010); Solis v. Cockrell, 342 F.3d 392, 399 (5th

Cir. 2003). A prospective juror’s assessment of her own

ability to remain impartial is irrelevant for the purposes of the

test. Torres, 128 F.3d at 45. Because the right to an impartial

jury is constitutive of the right to a fair trial, “[d]oubts

regarding bias must be resolved against the juror.” United

States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000)

Crawford v. United States, 212 U.S. 183, 196 (1909).

9

(quoting Burton, 948 F.2d at 1158); see also United States v.

Polichemi, 219 F.3d 698, 704 (7th Cir. 2000) (explaining that

a juror who belongs to a class presumed biased “may well be

objective in fact, but the relationship is so close that the law

errs on the side of caution”).

B.

The most oft-discussed precedent of recent vintage

addressing implied bias is the Supreme Court’s decision in

Smith v. Phillips, 455 U.S. 209 (1982). The case involved a

juror in a criminal trial who submitted a job application to the

District Attorney’s office while trial was ongoing. Id. at 212.

The prosecutors chose not to mention the development to

defense counsel or to the judge until weeks after the jury

returned a guilty verdict. Id. at 212-13. The trial court held a

hearing on the matter and concluded that the indiscretion did

not prejudice the outcome of the case. Id. at 213-14.

Reviewing a subsequent habeas petition, the United States

District Court found insufficient evidence that the juror was

actually biased, but nevertheless ordered the defendant’s

release or retrial on the basis of implied bias. Id. at 214.

Because the average person in the juror’s position would

expect his vote for guilt or acquittal to affect his job

application, the District Court reasoned, the law must impute

bias to the juror. Id.

The Court of Appeals for the Second Circuit affirmed,

but the Supreme Court reversed, finding there was an

insufficient basis for a due process violation. Id. at 214, 217-

18. The Court explained that “the remedy for allegations of

juror partiality is a hearing in which the defendant has the

opportunity to prove actual bias.” Id. at 215. And it

10

concluded that the post-verdict hearing held by the trial court

was sufficient for this purpose because “due process does not

require a new trial every time a juror has been placed in a

potentially compromising situation.” Id. at 217.

Justice O’Connor joined the majority, but concurred

separately to express her conviction that the opinion did not

disturb the implied bias doctrine. 455 U.S. at 221 (O’Connor,

J., concurring). In most cases of juror bias, she explained, a

post-conviction hearing will ferret out actual bias. Id. at 222.

But “in certain instances a hearing may be inadequate for

uncovering a juror’s biases[.]” Id. Those “extreme

situations” able to “justify a finding of implied bias” include

a revelation that the juror is an actual employee

of the prosecuting agency, that the juror is a

close relative of one of the participants in the

trial or the criminal transaction, or that the juror

was a witness or somehow involved in the

criminal transaction.

Id. 3 In these rare circumstances, Justice O’Connor reasoned,

“the Sixth Amendment right to an impartial jury should not

allow a verdict to stand[.]” Id.

3

Justice O’Connor also cited with approval Leonard v.

United States, 378 U.S. 544, 545 (1964) (per curiam), which

accepted the Government’s position that individuals who

heard the defendant’s guilty verdict announced in a previous

case should have been “automatically disqualified from

serving [as jurors] at [his] second trial, if the objection [wa]s

raised at the outset.”

11

In the wake of Smith, some Courts of Appeals

questioned whether the majority opinion quietly discarded the

doctrine of implied bias. E.g., Johnson v. Luoma, 425 F.3d

318, 326 (6th Cir. 2005) (“[T]he implied-bias doctrine may

not even be viable after Smith.”); Conner v. Polk, 407 F.3d

198, 206 n.4 (4th Cir. 2005) (“There may be some question as

to whether implied bias remains a viable doctrine following

the Supreme Court’s majority opinion in Smith[.]”); Williams

v. Griswald, 743 F.2d 1533, 1538 n.7 (11th Cir. 1984)

(observing that the majority in Smith “declined to use the

urged ‘implied bias’ test”). Our Court thrice declined to

decide whether implied bias survived Smith. See United

States v. Skelton, 893 F.2d 40, 46 (3d Cir. 1990); United

States v. Salamone, 800 F.2d 1216, 1225 n.11 (3d Cir. 1986);

United States v. Ferri, 778 F.2d 985, 993 (3d Cir. 1985).

Today, however, most Courts of Appeals endorse the

view that the implied bias doctrine retains its vitality after

Smith. See Treesh v. Bagley, 612 F.3d 424, 437 (6th Cir.

2010); United States v. Brazelton, 557 F.3d 750, 753-54 (7th

Cir. 2009); Conaway v. Polk, 453 F.3d 567, 586-87 & nn. 21,

22 (4th Cir. 2006); Brooks v. Dretke, 444 F.3d 328, 330 (5th

Cir. 2006); Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir.

1998) (en banc); Torres, 128 F.3d at 45-46; Amirault v. Fair,

968 F.2d 1404, 1406 (1st Cir. 1992); Burton, 948 F.2d at

1158-59; Cannon v. Lockhart, 850 F.2d 437, 440 (8th Cir.

1988). Merely two years after the decision, they point out,

five justices joined opinions in McDonough Power

Equipment, Inc. v. Greenwood, 464 U.S. at 556-57, 558, that

reinforced the viability of the doctrine. See Conaway, 453

F.3d at 587; Solis, 342 F.3d at 395 n.6; Dyer, 151 F.3d at 985.

Nor, they reason, would the Supreme Court abandon a

centuries-old doctrine sub silentio. E.g., Conaway, 453 F.3d

12

at 586-87; Brooks, 444 F.3d at 329-30 & n.5; Dyer, 151 F.3d

at 984-85; see also Shalala v. Ill. Council on Long Term Care,

Inc., 529 U.S. 1, 18 (2000) (“Th[e] Court does not normally

overturn, or so dramatically limit, earlier authority sub

silentio.”). 4 Our Court signaled agreement, observing in

United States v. Calabrese that Smith did not foreclose the

applicability of implied bias. 942 F.2d 218, 224 n.2 (3d Cir.

1991).

For the reasons well developed by our sister Courts of

Appeals, today we confirm what Calabrese suggested in dicta:

implied bias remains available, in appropriate circumstances,

to disqualify jurors whose connection with the litigation

makes it highly unlikely that they can remain impartial

adjudicators. Moreover, we do not find lurking in Smith a

renunciation of implied bias. The District Court in Smith

anchored its holding in implied bias, but the Supreme Court

majority never considered the question of whether a juror

who applies to work with the prosecutor mid-trial falls within

an implied bias category. By finding the post-verdict hearing

adequate to protect the defendant’s rights, the majority

implicitly answered in the negative. Justice O’Connor agreed

and saw no tension between her concurrence and the

4

Blackstone’s Commentaries discuss a challenge for

“principal cause,” the common law analogue of an implied

bias challenge that “carries with it prima facie evident marks

of suspicion, either of malice or favor” and “which, if true,

cannot be overruled.” William Blackstone, 3 Commentaries

*363; see also Wood, 299 U.S. at 138 (citing Blackstone with

approval); Crawford, 212 U.S. at 196 (same).

13

majority. 5 The case was not one where implied bias was

apparent on appeal, and in light of comprehensive record

developed in the post-verdict hearing, the Justices had no

basis for expecting that additional fact-finding would assist in

determining whether the law imputed bias to the juror.

III.

Having concluded that the implied bias doctrine

survived Smith, we turn to consider Mitchell’s challenges to

Jurors 28 and 97.

A.

Mitchell contends that the District Court should have

excused for cause Juror 28, the close cousin of the prosecutor,

because she falls within a category of individuals to whom

the law categorically imputes bias. Because Mitchell did not

object to Juror 28’s empanelment, his challenge is subject to

plain error review. Salamone, 800 F.2d at 1222. To show

plain error, Mitchell must demonstrate (1) that an error

occurred; (2) the error was clear or obvious under current

law; and (3) the error affected his substantial rights by

influencing the outcome of the District Court proceedings.

Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

732-34 (1993); United States v. Tann, 577 F.3d 533, 537-38

5

This accords with the common law, which never hinted that

a juror applying to work for the prosecuting agency — as

opposed to a juror actually employed by the prosecuting

agency — is presumptively biased. See, e.g., Blackstone, 3

Commentaries *363 (listing categories of jurors presumed

biased as a matter of law).

14

(3d Cir. 2009). Even if all three elements of the test are met,

the error may be corrected only when it “‘seriously affect[s]

the fairness, integrity or public reputation’” of the

proceedings. Olano, 507 U.S. at 732 (quoting United States

v. Young, 470 U.S. 1, 15 (1985)).

It is well settled that the Sixth Amendment, like the

common law, under some circumstances presumes bias when

the relative of a party in a case serves on his or her jury in a

criminal trial. E.g., Wood, 299 U.S. at 138, 146-47;

Brazelton, 557 F.3d at 753; Dyer, 151 F.3d at 982; Torres,

128 F.3d at 45. 6 Indeed, consanguinity is the classic example

of implied bias. Conaway, 453 F.3d at 586. Presiding over

Aaron Burr’s trial for treason while riding circuit, Chief

Justice Marshall explained that “the most distant relative of a

party cannot serve upon his jury [because] . . . the law

suspects the relative of partiality; suspects his mind to be

under a bias, which will prevent his fairly hearing and fairly

deciding on the testimony which may be offered to him.”

United States v. Burr, 25 F. Cas. 49, 50 (C.C. Va. 1807) (No.

14,692g). To secure an impartial jury, he continued, “the law

cautiously incapacitates [the juror] from serving on the jury . .

6

We refer throughout to the relationship between a juror and

a “party” in a case. Of course, in a criminal case such as this,

the United States is the party in interest, and the United States

Attorney’s Office represents the United States. But it is also

true that the prosecutor is the “representative not of an

ordinary party to a controversy, but of a sovereignty.” Berger

v. United States, 295 U.S. 78, 88 (1935). For the purposes of

this case, we will continue to employ the term “party” to refer

to both the party in interest and its embodiment in the person

of the prosecutor.

15

. because in general persons in a similar situation would feel

prejudice.” Id. This is true even if “[t]he relationship [is]

remote; the person . . . ha[s] [never] seen the party; [and] he .

. . declare[s] that he feels no prejudice in the case[.]” Id.

Chief Justice Marshall’s “kinship category” of implied

bias endures. Nearly two centuries later, Justice O’Connor’s

concurrence included “close relative[s]” as one of the

“extreme” situations where courts impute bias to a juror

irrespective of actual partiality. Smith, 455 U.S. at 222

(O’Connor, J., concurring). And the Court of Appeals for the

Ninth Circuit, sitting en banc, reiterated the rule:

Of course, a juror could be a witness or even a

victim of the crime, perhaps a relative of one of

the lawyers or the judge, and still be perfectly

fair and objective. Yet we would be quite

troubled if one of the jurors turned out to be the

prosecutor’s brother because it is highly

unlikely that an individual will remain impartial

and objective when a blood relative has a stake

in the outcome. Even if the putative juror

swears up and down that it will not affect his

judgment, we presume conclusively that he will

not leave his kinship at the jury room door.

Dyer, 151 F.3d at 982; see also United States v. Quinones,

511 F.3d 289, 302 (2d Cir. 2007) (commenting that

“[i]rrevocable bias would be so evident” from a juror’s

admission “that he was the defendant’s brother or the

prosecutor’s uncle” that any further inquiry into the “the

juror’s ability to follow legal instructions and to serve

impartially” would be “superfluous”).

16

Likely because it is so uncommon for a relative of a

party to be seated as a juror, little case law explores the outer

boundary of the kinship category. Chief Justice Marshall’s

formulation suggests that even distant relatives are

categorically presumed biased. Burr, 25 F. Cas. at 50. The

Seventh Circuit Court of Appeals likewise finds implied bias

whenever a juror shares “any degree of kinship with a

principal in a case.” Brazelton, 557 F.3d at 754. The Second

Circuit Court of Appeals uses an intermediate standard,

explaining that “automatically presumed bias deals mainly

with jurors who are related to the parties.” Torres, 128 F.3d

at 45 (emphasis added). Justice O’Connor’s formulation in

Smith is narrower still; it presumes bias only in the case of a

“close relative.” Smith, 455 U.S. at 222 (O’Connor, J.,

concurring).

Our Court has not considered the parameters of the

kinship category. The touchstone of the inquiry, as

previously discussed, is whether the average person in the

position of the juror would be prejudiced and feel substantial

emotional involvement in the case. In view of that inquiry,

we reject the most expansive formulations that categorically

presume bias whenever a juror shares any degree of kinship

with a party in a case. A distant relative, on average, is

unlikely to harbor the sort of prejudice that interferes with the

impartial discharge of juror service. On the other hand, the

bond between close relatives is intimate enough, on average,

to generate a stronger likelihood of prejudice, whether

unconscious or intentionally concealed. Compare Conaway,

453 F.3d at 586-88 (presuming bias when it was discovered

that a juror was the double first cousin of a key prosecution

witness), and Brazelton, 557 F.3d at 754 (suggesting, without

explicitly holding, that it “might seem prudent” to disqualify

17

a victim’s second cousin from juror service), with Allen v.

Brown Clinic, P.L.L.P., 531 F.3d 568, 572-73 (8th Cir. 2008)

(rejecting an implied bias challenge to a juror whose first

cousin was married to the brother-in-law of the defendant).

These considerations lead us to agree with Justice O’Connor

that the kinship category of implied bias excludes jurors who

are “close relative[s]” of a principal in a case. Smith, 455

U.S. at 222 (O’Connor, J., concurring). This formulation, we

believe, is most faithful to the notion that implied bias is a

limited doctrine, one reserved for exceptional circumstances.

See id.; United States v. Tucker, 243 F.3d 499, 509 (8th Cir.

2001); Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir.

1996).

In adopting the “close relative” standard, we are

concerned both with the right of the defendant to an impartial

jury and with preservation of the appearance of justice in the

courts. See Dyer, 151 F.3d at 983. If the seating of a party’s

relative as a juror would lodge serious doubts in the public’s

mind about the neutrality of the proceedings, that

consideration favors legal attribution of bias. Public

confidence in the fairness of the proceedings would suffer if a

trial court permitted a juror to deliberate and pass judgment in

a case in which her close relative labored as prosecutor to

procure a conviction or faced years in prison and the moral

and societal condemnation that accompanies a criminal

conviction. We cannot say the same for distant relatives,

whose relationship is sufficiently attenuated so as not to

undermine the appearance of fairness in judicial proceedings. 7

7

We note that this approach recognizes the difficulty inherent

in seating a jury in a small community where distant family

members may share ties with trial participants. A per se rule

18

In this case we have only a bare-bones description of

Juror 28’s relationship to the prosecutor. Juror 28 stated that

she was the prosecutor’s close cousin. Neither the District

Court nor the attorneys clarified the degree of kinship the two

shared. Perhaps Juror 28 was the prosecutor’s first cousin,

but it is also possible that she was a more distant cousin who

happened to share a close personal relationship with the

prosecutor. The abbreviated voir dire questioning leaves a

notable gap in the record and hinders our review of Mitchell’s

implied bias claim.

Rather than attempt to divine from the record whether

Juror 28 and the prosecutor are close relatives, the more

prudent path is to remand this matter to the District Court for

a brief evidentiary hearing. As we have said, Smith held that

a post-verdict hearing to probe a compromised juror for actual

bias satisfies due process when there is no basis for finding

implied bias. See 455 U.S. at 217. The majority was

convinced that a post-verdict hearing is preferable to retrial.

It follows that, when confronting a colorable claim of implied

juror bias on appeal, a reviewing court can remand for an

evidentiary hearing to develop key facts necessary to decide

the claim.

We leave for the District Court to consider, in the first

instance, the specific contours of the kinship category within

the context of this case. If on remand the District Court

determines that Juror 28 was a close relative of the

prosecutor, then the failure to excuse her offended Mitchell’s

eliminating any relative, no matter how distant, could unduly

hamper the jury selection process in such areas.

19

right to trial by an impartial jury. 8 That error, clear and

obvious under existing case law, must be remedied by retrial.

This is so because the denial of the defendant’s right to an

impartial adjudicator, “‘be it judge or jury,’” is a structural

defect in the trial. Gomez v. United States, 490 U.S. 858, 876

(1989) (quoting Gray v. Mississippi, 481 U.S. 648, 668

(1987)); see also Szuchon v. Lehman, 273 F.3d 299, 331 (3d

Cir. 2001) (holding that the presence of a biased juror in the

sentencing phase of a capital case is a structural defect

requiring resentencing despite the defendant’s failure to

object); Hughes v. United States, 258 F.3d 453, 458, 463 (6th

Cir. 2001); Dyer, 151 F.3d at 973 n.2; Johnson v.

Armontrout, 961 F.2d 748, 755-56 (8th Cir. 1992). And, we

have held, errors classified as structural defects are

“coextensive” with errors presumed prejudicial on plain error

review. United States v. Syme, 276 F.3d 131, 153 (3d Cir.

2002) (citing United States v. Adams, 252 F.3d 276, 285 &

n.6 (3d Cir. 2001)). 9

8

It bears repeating that if Juror 28 was the prosecutor’s close

relative, her guarantee that she could remain impartial is

immaterial, for implied bias is “bias attributable in law to the

prospective juror regardless of actual partiality.” Wood, 299

U.S. at 133, 134. In arguing that Juror 28’s assurances of

impartiality shield her from disqualification, the Government

conflates implied bias and actual bias.

9

One might be concerned that by presuming prejudice even

when a juror reveals information at voir dire that puts the

defendant on notice of an implied bias challenge, the law

creates a perverse incentive for the defendant to avoid

objecting in order to bolster a potential implied bias claim on

appeal. This type of tactical maneuvering is obviously

20

*****

Because Mitchell has raised a colorable claim of

implied bias, we will remand for additional factfinding on

Juror 28’s degree of kinship with the prosecutor. If Juror 28

falls within the “close relative” category of implied bias, the

District Court must order retrial to satisfy Mitchell’s right to

trial by an impartial jury.

B.

Mitchell’s second claim is that the District Court erred

in denying his motion to strike Juror 97 because she, too,

should have been presumed biased. 10 We review for abuse of

discretion the denial of a motion to strike a juror for cause.

United States v. Mitchell, 502 F.3d 931, 955 (9th Cir. 2007);

United States v. Nelson, 277 F.3d 164, 201 (2d Cir. 2002).

However, a “district court by definition abuses its discretion

when it makes an error of law,” Koon v. United States, 518

U.S. 81, 100 (1996), and implied bias is a question of law.

Smith, 455 U.S. at 222 n.* (O’Connor, J., concurring); United

discouraged. We expect, however, that in the vast majority of

cases, a prospective juror’s admission that she is a close

relative of a party will immediately alert the District Court

that the juror should be excused for cause. See Hughes, 258

F.3d at 464 (“[T]he presiding trial judge has the authority and

responsibility, either sua sponte or upon counsel’s motion, to

dismiss prospective jurors for cause.” (citing Torres, 128 F.3d

at 43)).

10

Mitchell concedes that the record does not support a

challenge to Juror 97 on the basis of actual bias.

21

States v. Powell, 226 F.3d 1181, 1189 (10th Cir. 2000). We

review questions of law de novo. United States v. Bansal,

663 F.3d 634, 657 (3d Cir. 2011).

Juror 97 testified at voir dire that she worked with two

of the Government’s witnesses, both police officers, at the

Virgin Islands Police Department. 11 Her duties, she reported,

included issuing equipment and uniforms to police officers,

but did not involve work as a field agent. The record is

devoid of information about the nature and regularity of her

interaction with the officers.

Mitchell argues that Juror 97 is an employee of the

prosecuting agency and therefore falls within a category of

implied bias listed in the Smith concurrence. See 455 U.S. at

222 (O’Connor, J., concurring). Factually, he is incorrect.

Juror 97 is not an employee of the prosecuting agency, but

rather works for the Virgin Islands Police Department, the

investigating agency. Mitchell concedes that employment at

a police department, standing alone, does not justify an

implication of bias. See Dennis, 339 U.S. at 171-72

(declining, in the trial of a Communist Party official, to

impute bias to jurors who were employees of the federal

government and had taken an oath of loyalty to the United

States as a condition of employment); Polichemi, 219 F.3d at

704 (“[G]overnment employment alone is not, and should not

be, enough to trigger the rule under which an employee is

disqualified from serving as a juror in a case involving her

employer.”).

11

One officer was present at Mitchell’s arrest. The other

arrived later to conduct the forensic investigation.

22

At oral argument, Mitchell pressed the more nuanced

view that Juror 97’s employment at the police department and

her employment interactions with the officers together supply

a sufficient basis for legal attribution of bias. He identifies no

controlling precedent that presumes bias in a juror who

works, possibly on a daily basis, for the Government with key

witnesses in a case. To the contrary, we have observed that

“at common law certain relations between jurors and others

resulted in a legal conclusion of partiality, [but] the

relationship of a juror to a witness was not among them.”

Gov’t of V.I. v. Gereau, 502 F.2d 914, 934 (3d Cir. 1974),

abrogated on other grounds, Corley v. United States, 556 U.S.

303 (2009).

To the extent that Mitchell urges us to fashion a new

category of implied bias for coworkers of police officers who

testify as witnesses in a criminal trial, we decline to do so.

“Prudence dictates that courts” considering an implied bias

claim “should hesitate before formulating categories of

relationships [that] bar jurors from serving in certain types of

trials.” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990).

And our precedent disfavors extending implied bias to cover

relationships between jurors and Government witnesses. In

United States v. Ferri, we held that the occupational

acquaintance between the husband of a juror and a

Government witness did not justify a presumption of bias.

778 F.2d at 993. Likewise, in Government of Virgin Islands

v. Gereau, we concluded that a juror who was the ex-wife of a

non-critical police officer witness, and who interacted with

him occasionally, was not presumptively excludable. 502

F.2d at 934. See also Sanders v. Norris, 529 F.3d 787, 793-

94 (8th Cir. 2008) (holding that the county coroner who

retrieved and autopsied the victims in the defendant’s murder

23

trial did not fall within a category of jurors presumed biased

as a matter of law); United States v. Bradshaw, 787 F.2d

1385, 1390 (10th Cir. 1986) (finding no implied bias even

though a juror had prior business dealings with key

Government witnesses); United States v. Brown, 644 F.2d

101, 104-05 (2d Cir. 1981) (declining to impose “a set of

unreasonably constricting presumptions that jurors be

excused for cause due to certain occupational or other special

relationships which might bear directly or indirectly on the

circumstances of a given case, where . . . there is no showing

of actual bias or prejudice”).

We do not agree with our learned dissenting colleague

that employees of the investigating agency, like employees of

the prosecuting agency, should be presumptively excluded

under the implied bias doctrine. Elimination of any

distinction between these classes of prospective jurors would

invite irregularity and confusion in the district courts. The

dissent’s proposed category — law enforcement employees

who share a close working relationship with a law

enforcement witness — is unrecognized at common law and

in decisions from this Court, the Supreme Court, or other

Courts of Appeals. 12 District courts applying this new

category of implied bias would have no guidance in policing

the nebulous boundary between an employee who works

closely with a testifying officer and one who does not. By

contrast, the body of case law on the kinship category of

implied bias, stemming both from the common law and from

centuries of American constitutional interpretation, sharpens

12

Indeed, the dissent does not cite a single case that presumes

bias in all prospective jurors who work closely with the

arresting officer called to testify on behalf of the Government.

24

the contours of that category. It supplies the district court a

basis for discriminating between jurors who are

presumptively biased and those who are not.

The dissenting judge is rightly concerned that certain

relationships between law enforcement witnesses and

prospective jurors who work with those witnesses are tinged

by partiality. We share those concerns. But we also

recognize that the implied bias doctrine erects an

impenetrable barrier. Were we to enlarge the categories of

implied bias beyond those accepted at common law and

hallowed by years of constitutional interpretation, we might

unwittingly ensnare a larger swath of prospective jurors than

is necessary to ensure the integrity of the jury trial. That

consequence could encumber the selection of jurors in less

populated areas like the Virgin Islands.

We believe the better approach in this case is to resist

the temptation to wall off another class of jurors from service

and to trust in the procedural safeguards built into jury

selection within the adversarial structure of the trial. A

prospective juror who works closely with a testifying police

officer may, for example, be challenged for cause on the basis

of actual bias. The prospective juror is subject to peremptory

strikes. The juror may be questioned in a hearing during or

after trial if doubts regarding his or her impartiality emerge

during the proceedings. All of these checks in the system

exist to protect the defendant’s right to be judged by an

impartial jury, consistent with the Sixth Amendment.

Under the circumstances, Mitchell’s right to trial by an

impartial jury was protected adequately by inquiry for actual

bias, and that inquiry yielded no evidence of actual bias. The

25

law, we hold, does not categorically impute bias to coworkers

of key Government witnesses. The District Court therefore

properly denied Mitchell’s motion to strike Juror 97 on an

implied bias theory.

IV.

For the foregoing reasons, we will affirm the District

Court’s denial of Mitchell’s motion to strike Juror 97, and

will remand for further proceedings consistent with this

opinion on Juror 28’s relationship with the prosecutor.

26

United States of America v. Mitchell, No. 11-2420

JORDAN, Circuit Judge, concurring in part and dissenting in

part

I agree with the Majority’s result with respect to the

question of whether Juror 28 was impliedly biased, and I

therefore join in holding that we should remand for additional

factfinding on Juror 28’s degree of kinship with the

prosecutor. But because I conclude that, depending on facts

not available on this record, the average person in Juror 97’s

position may also pose an inherent risk of bias, and because

we must resolve doubts regarding bias by not seating the

affected juror, I would remand for additional factfinding

concerning the character and frequency of Juror 97’s

interactions with her police officer co-workers involved in the

case against Mitchell. I therefore respectfully dissent in part.

As the Majority explains, the “implied bias [doctrine]

remains available, in appropriate circumstances, to disqualify

jurors whose connection with the litigation makes it highly

unlikely that they can remain impartial adjudicators.” (Slip

Op. at 13 (citing United States v. Calabrese, 942 F.2d 218 (3d

Cir. 1991)).) In dicta in Calabrese, we cited with approval

Justice O’Connor’s observation in Smith v. Phillips, 455 U.S.

209 (1982), that a “juror [who] is an actual employee of the

prosecuting agency” is one example of an “extreme

situation[] that would justify a finding of implied bias.” 1

1

At common law, a “servant” of a party in a case was

impliedly biased. See 3 William Blackstone, Commentaries

480-81 (W. Hammond ed. 1980) (noting that jurors may face

a “principal challenge … where the cause assigned carries

1

Calabrese, 942 F.2d at 226 (quoting Smith, 455 U.S. at 222

(O’Connor, J., concurring)); accord United States v.

Polichemi, 201 F.3d 858, 861-64 (7th Cir. 2000) (holding,

without citing to Justice O’Connor’s concurrence in Smith,

that a juror who was a 15-year secretarial employee in the

civil division of the prosecuting agency was impliedly

biased).

It is true, as the Majority says, that Juror 97 is not an

employee of the prosecuting agency, the United States

Attorney’s Office for the District of the Virgin Islands.

Rather, Juror 97 is an employee of the investigative agency,

the Virgin Islands Police Department. She knows two of the

officers who testified against Mitchell because she works

with them. The Virgin Islands Police Department was

responsible for conducting the investigation that led to

Mitchell’s prosecution and was cooperating with the

prosecuting agency to convict Mitchell. In my view, a law

enforcement agency employee with a close working

relationship with testifying officers from the same agency has

at least the same risk of inherent prejudice as has an employee

of the prosecuting agency. In fact, because of the closer

proximity to criminal activity and the often dangerous nature

of the work done by agencies like the police department here,

employees of such agencies may more likely be seen as

impliedly biased against criminal defendants than are

employees of a prosecuting agency. Compare Coolidge v.

with it prima facie evident marks of suspicion, either of

malice or favour … that a juror … is the party’s … servant

…; which, if true, cannot be overruled, for jurors must be

omni exceptione majores”).

2

New Hampshire, 403 U.S. 443, 481 (1971), abrogated on

other grounds by Horton v. California, 496 U.S. 128, 130

(1990) (noting that “the warrant requirement … is … an

important working part of our machinery of government,

operating as a matter of course to check the well-intentioned

but mistakenly over-zealous executive officers who are part

of any system of law enforcement” (citation and internal

quotation marks omitted)), with Kang v. Att’y Gen., 611 F.3d

157, 167 (3d Cir. 2010) (observing that an attorney for a

prosecuting agency “carries a double burden” and, although

“he owes an obligation to government … to conduct his case

zealously,” he also “must be ever cognizant that he is the

representative of a government dedicated to fairness and

equal justice to all and … he owes a heavy obligation to [his

adversary]” (alteration in original) (citations and internal

quotation marks omitted)).

I agree with the Majority that we should not only be

“concerned … with the right of the defendant to an impartial

jury” but also “with preservation of the appearance of justice

in the courts.” (Slip Op. at 18.) Indeed, public perception

matters. Like the seating of a close relative, the seating of

someone who goes to work with two of the testifying officers

could, depending upon the nature of their interaction on the

job, “lodge serious doubts in the public’s mind about the

neutrality of the proceedings” which would “favor[] legal

attribution of bias.” (Id.) In my view, the “[p]ublic

confidence in the fairness of the proceedings would suffer if a

trial court permitted a juror to deliberate and pass judgment in

a case in which” certain of her co-workers, with whom she

might have had a close working relationship, were an integral

part of “procur[ing] a conviction.” (Id.)

3

The Majority points out that Mitchell, at oral

argument, “concede[d] that employment at a police

department, standing alone, does not justify an implication of

bias.” (Id. at 19-20.) Citing to Dennis v. United States, 339

U.S. 162, 171-72 (1950), and United States v. Polichemi, 219

F.3d 698, 704 (7th Cir. 2000), the Majority suggests that

Mitchell’s concession is well-founded since the law mandates

that government employment alone is not enough for a

finding of implied bias. 2 Then, saying that “our precedent

disfavors extending implied bias to cover relationships

between jurors and Government witnesses” (Slip Op. at 23), 3

2

The Majority seems to equate employment at an

investigative agency that is involved in the prosecution with

employment by a government agency that is in no way

connected to law enforcement. As discussed supra, there is a

sound argument that, in the implied bias context, working for

a law enforcement agency which is cooperating with the

prosecuting agency presents a much different situation than

employment at an agency that is not involved in the

prosecution.

3

The precedents that the Majority cites to support that

proposition are United States v. Ferri, 778 F.2d 985 (3d Cir.

1985), and Government of Virgin Islands v. Gereau, 502 F.2d

914 (3d Cir. 1974), abrogated on other grounds by Corley v.

United States, 556 U.S. 303 (2009). In both of those cases,

however, the district court during voir dire conducted a

meaningful inquiry with respect to the nature of the

relationship at issue. In Ferri, “the day after the jury had

been empanelled, the defendants discovered that the husband

of one juror was a fireman … [and] an issue arose as to

whether she knew [a] … government witness” who was the

4

the Majority rejects Mitchell’s claim that jurors who are co-

workers of testifying police officers at a criminal trial can be

impliedly biased. The Majority concludes that “[t]he law …

does not categorically impute bias to coworkers of key

Government witnesses.” (Id. at 25-26.)

That holding frames Mitchell’s claim too narrowly, by

ignoring Juror 97’s employer and the role that her employer

played in securing Mitchell’s conviction. The Majority fails

to acknowledge that even the government accepts the premise

fire department captain and “apparently knew the juror’s

husband.” 778 F.2d at 991. “[T]he district court conducted

an additional voir dire examination of the juror,” where the

juror indicated that she had never heard of the fire department

captain’s name prior to the trial. Id. at 992 & n.5. In Gereau,

the district court, after learning that a juror was the divorced

wife of a police officer who was to testify at trial, questioned

that juror to elicit information regarding the nature of their

current relationship – that they had been divorced for seven

years, had a child together that lived with the juror, saw each

other infrequently and only when it related to the care of that

child, and that he contributed to child support. 502 F.3d at

934.

The level of detail elicited from the respective jurors in

those two cases stands in stark contrast to the lack of inquiry

by the District Court here, as discussed infra. The failure of

the District Court to conduct additional voir dire with respect

to Juror 97 left open material questions regarding the contours

of the working relationship between Juror 97 and the two

testifying officers that she knew in her employment capacity.

5

that at least some employees of an investigative agency would

be impliedly biased. At oral argument, the government

conceded that a field agent employed by an investigative

agency could not serve as a juror because that agent would be

biased as a matter of law. 4 (See Oral Arg. at 25:28, United

States v. Mitchell (No. 11-2420), available at

http://www.ca3.uscourts.gov/oralargument/audio/11-

2420USAv.Mitchell.wma (“[Q:] Would it have been close

enough [of a working relationship with the testifying officers

for a finding of implied bias] if [Juror 97] was riding in the

squad car with [the testifying officer]? [A:] Yes, that would

be close enough. [Q:] Would it be close enough if she

weren’t riding in the squad car but she was a fellow officer in

the field and sometimes saw him in the field? [A:] Yes. [Q:]

So would it be close enough if she never saw him in the field

but she was still a field agent? [A:] Yes I believe a field

agent in this particular matter would be close enough.”).) The

government indicated that the test to determine whether a

juror who is an employee of an investigative agency is

impliedly biased is whether that employee had a “close

working relationship” with the testifying officer. In applying

its test, because Juror 97 is not an officer in the field but

rather is an office worker who issues equipment and

uniforms, the government argued that Juror 97 could not have

had a “close working relationship” with the officers and

therefore could not be impliedly biased.

4

The Majority’s view thus goes well beyond what

even the government is willing to claim. By my colleagues’

position, not even a juror who was a testifying officer’s

partner in a squad car could be held biased as a matter of law.

6

The District Court likewise seemed to recognize that a

juror could be impliedly biased based on her relationship to

the agency that collaborated with the prosecuting agency to

convict Mitchell. By asking Juror 97 whether she works with

the testifying officers on a daily basis, the District Court

appeared attuned to the idea that certain employees of an

investigative agency can be impliedly biased, depending upon

the nature of their interactions with co-workers who would be

testifying officers. Juror 97, however, did not indicate how

often or how closely she works with the testifying officers,

and, unfortunately, the District Court made no attempt to

obtain that information. All Juror 97 indicated is that her

duties include issuing equipment and uniforms to the officers

and that she does not work in the field. By allowing her to

remain on the jury, the District Court, like the government,

seemed to take the position that the only employees of an

investigative agency who can be impliedly biased are field

agents. Notwithstanding their ultimate position on whether

Juror 97 may be impliedly biased, both the government and

the District Court recognized that there is an inherent risk of

undermining the appearance of justice if certain employees of

an investigative agency are allowed to sit on a jury. 5

5

That everyone involved in this case except the

Majority accepts this proposition is telling, particularly since

the Majority makes a point of observing that I have not

“cite[d] a single case that presumes bias in all prospective

jurors who work closely with the arresting officer called to

testify on behalf of the Government.” (Slip Op. at 24 n.12.)

The rejoinder to the “you have no precedent” observation is

that there is probably no case on point because no one before

us has ever thought to say that a close work colleague of an

7

Although I agree with the government’s assertion –

and the implication of the District Court’s line of questioning

– that we need to examine the parameters of a juror’s working

relationship with a testifying officer to determine whether that

juror should be seen as impliedly biased, I do not agree that a

bright line can rightly be drawn so that only field agents

employed by the investigative agency satisfy the requisite

working relationship to be deemed biased as a matter of law.

Such an approach “fine-tunes matters too far.” Polichemi,

201 F.3d at 864 (rejecting government’s argument that juror

who was a secretary in the civil division of the prosecuting

agency “should be disqualified [as impliedly biased] only if

she was under the actual supervision of the officer signing the

indictment”). Rather, we should consider the specifics of a

case in deciding whether bias should be imputed to a juror

who is an employee of an investigative agency involved in

the prosecution at hand. Consideration should be given, for

example, to the character and frequency of the co-workers’

interactions. Similar to how degrees of consanguinity are

significant in the “close relative” inquiry, the closer the

degree of the working relationship between co-workers, the

more likely it is that an average person in the co-worker’s

shoes would be prejudiced, despite any claim to the contrary. 6

investigative and testifying agent could fairly sit on a jury. It

is that position which seems to be unprecedented.

6

This type of examination is distinguishable from an

actual bias inquiry. In determining actual bias, a court should

look into a juror’s “state of mind that [would] lead[] to an

inference that the person will not act with entire impartiality.”

United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)). In

contrast, the aforementioned considerations would not be

8

The Majority posits that a refusal to accept as jurors

any “law enforcement employees who share a close working

relationship with a law enforcement witness” constitutes the

creation of “a new category of implied bias” which is

“unrecognized at common law and in decisions from this

Court, the Supreme Court, or other Courts of Appeals.” (Slip

Op. at 24.) Thus, says the Majority, “[d]istrict courts …

would have no guidance in policing the nebulous boundary

between an employee who works closely with a testifying

officer and one who does not.” 7 (Id.) As an initial matter, I

used to determine Juror 97’s personal feelings about the

particular testifying officers. Rather, the considerations

would be used to gather information to make the

determination of whether Juror 97 is impliedly biased due to

the nature of the working relationship. See Skaggs v. Otis

Elevator Co., 164 F.3d 511, 516 n.3 (10th Cir. 1998) (noting

that implied bias is “a question of law proved by facts which

show [the requisite] connection …” (emphasis added)).

7

The Majority “contrast[s]” this “new category” of

implied bias with “the body of case law on the kinship

category of implied bias, stemming both from the common

law and from centuries of American constitutional

interpretation,” which “supplies the district court a basis for

discriminating between jurors who are presumptively biased

and those who are not.” (Slip Op. at 24-25.) Although the

Majority has not said how “close” a “close relative” needs to

be for an implied bias finding with respect to Juror 28 –

instead “leav[ing] it for the District Court to consider, in the

first instance, the specific contours of the kinship category

within the context of this case” (id. at 19) – I do not read its

opinion to adopt the common-law rule of presuming bias to

9

do not believe that I am suggesting anything genuinely new.

As already discussed, for purposes of the implied bias

question, an investigative officer can be seen as part of the

prosecution team. Cf. Messerschmidt v. Millender, 132 S. Ct.

1235, 1249 (2012) (noting that a police officer is not

“automatically entitled to qualified immunity for seeking a

warrant unsupported by probable cause” on the basis of his

supervisor’s review of it “because the officers’ superior …

[was] part of the prosecution team”); Jackson v. Brown, 513

F.3d 1057, 1074 (9th Cir. 2008) (observing that, in the

context of nondisclosure of evidence, “investigative officers

are part of the prosecution” (citations omitted)); United States

v. Antone, 603 F.2d 566, 569 (5th Cir. 1979) (noting that “[i]n

considering use of perjured testimony” the United States

Court of Appeals for the Fifth Circuit “focus[es] upon the

‘prosecution team,’ which includes both investigative and

prosecutorial personnel” (citation omitted)). Moreover, like

jurors who are employees of the prosecuting agency, there is

a significant risk that jurors who are close colleagues of the

“a juror … of kin to either party within the ninth degree,” 3

William Blackstone, Commentaries 480-81. If a district court

were to look to the common law, which would result in a

finding that a third cousin once removed would be biased as a

matter of law, “[t]hat consequence” surely would “encumber

the selection of jurors in less populated areas like the Virgin

Islands,” much more so than presuming bias in a select group

of employees at an agency like the police department here.

(Slip Op. at 25.) In any event, I am confident that federal

district judges have the ability to make appropriate

distinctions “between an employee who works closely with a

testifying officer and one who does not.” (Id. at 24)

10

investigative agents involved in the prosecution would feel

pressured to convict the defendant because, as Mitchell’s trial

counsel argued in his motion to remove Juror 97 for cause,

“anything other than a guilty verdict … would mean that

[Juror 97] went/voted against her various co-workers and

their testimony and against the interest of her direct employer

the Virgin Islands Police Department.” (App. at 3.)

However, even if recognizing that law enforcement

employees may be viewed as biased in favor of their work

colleagues were somehow an innovation in the law, that

would not undermine the propriety of the innovation. It is

hardly dispositive that a “new category” was not recognized

at common law. The common law of implied bias, like

common law generally, develops over time. See United

States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968) (“Not only

have the[] common law grounds for causal challenge [based

on implied bias] retained their vitality, but to them have been

added others from which prejudice or bias may be implied.”

(internal citation omitted)); cf. Leegin Creative Leather

Prods, Inc. v. PSKS, Inc., 515 U.S. 877, 899 (2007) (“[T]he

common law adapts to modern understanding and greater

experience … .”).

The United States Court of Appeals for the Ninth

Circuit, sitting en banc in a habeas case, recognized as much

when fashioning a new category of implied bias in Dyer v.

Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc). Dyer

involved a defendant whose trial resulted in a murder

conviction and a death sentence. Id. at 972. During voir dire,

one of the prospective jurors who ended up sitting on the jury

indicated that none of her close relatives or friends had ever

been a victim of any type of crime, even though that juror’s

11

brother had been shot and killed approximately six years

earlier. Id. The Dyer court concluded that it should “presume

bias where a juror lies in order to secure a seat on the jury.” 8

Id. at 983. It deemed a prior Supreme Court opinion –

outside of the implied bias context – “instructive because

Justice Cardozo there equate[d] a juror who lies his way onto

the jury to a juror who is related to a litigant.” Id. (citing

Clark v. United States, 289 U.S. 1, 11 (1933)). In so doing,

the Dyer court understood that it did not matter whether or

not a prospective juror was part of a recognized category of

implied bias that had been established by the common law or

other precedents. Rather, it recognized that the focus of the

inquiry should be on whether “it is highly unlikely that an

individual will remain impartial and objective” even if that

“putative juror swears up and down that [the bias at issue]

will not affect his judgment.” Id. at 982. To that end, the

Dyer court listed a number of representative individuals who

– notwithstanding the fact that some of them fell outside the

traditional categories of persons thought to be impliedly

biased – would have been deemed biased as a matter of law in

Dyer’s trial:

8

The Ninth Circuit constructed this new category of

implied bias less than a decade after its decision in Tinsley v.

Borg, which the Majority cites for the principle that

“‘[p]rudence dictates that courts’ considering an implied bias

claim ‘should hesitate before formulating categories of

relationships [that] bar jurors from serving in certain types of

trials.’” (Slip Op. at 23 (alteration in original) (quoting 895

F.2d 520, 527 (9th Cir. 1990)).)

12

No opinion in the two centuries of the Republic

– except the dissent in [Dyer] – has suggested

that a criminal defendant might lawfully be

convicted by a jury tainted by implied bias.

Under the dissent’s logic, reasonable jurists

could hold that Dyer would have been accorded

due process even if he had been convicted by a

jury comprised of the following twelve

individuals: (1) the mother of … the prosecutor,

(2) [the prosecutor’s] former law partner, (3)

[the city’s] Chief of Police, (4) the Grand

Dragon of the … [a]rea KKK, (5) the sister of

[an individual] who died in the shooting, (6)

[that victim’s] mother, (7) the victim of Dyer’s

prior robbery, (8) Dyer’s ex-wife, (9) the

District Attorney, (10) a[] [city] councilman

running for re-election on a “tough-on-crime”

platform, (11) … Dyer’s cellmate, and (12)

[Dyer’s cellmate’s] wife … – so long as they

had all sworn they would be fair. We, on the

other hand, believe that no reasonable jurist

would take that position. Rather, jurists of

reason would all agree that each of these

individuals, had they made their way onto the

jury, should have been struck without stopping

to inquire into their subjective state of mind.

Id. at 985 (first emphasis added) (internal footnote omitted).

Although the Majority in the present case is correct

that no decision is exactly on all fours with the fact scenario

we are presented with here, see supra note 5, it is also true

that “[n]o opinion in the two centuries of the Republic … has

13

suggested that a criminal defendant might lawfully be

convicted by a jury tainted by implied bias,” Dyer, 151 F.3d

at 985. In sum, “[m]ore is at stake here than the rights of

petitioner; justice must satisfy the appearance of justice. An

irregularity in the selection of those who will sit in judgment

casts a very long shadow.” Id. at 983 (citations and internal

quotation marks omitted). With respect to Juror 97, I have

serious doubts whether judicial outsiders would think it fine

that an arresting officer’s work colleague sat on the jury. 9

And, as the Majority notes, “[d]oubts regarding bias must be

resolved against the juror.” (Slip Op. at 9 (alteration in

original) (citations and internal quotation marks omitted).)

9

The doctrine of implied bias “has a counterpart in the

canons of judicial ethics which require judges to disqualify

themselves … if they believe that their impartiality might

reasonably be questioned.” Dyer, 151 F.3d at 983 n.22. If a

judge fails to do so, a party may move to disqualify a judge

under 28 U.S.C. § 455(a). When determining whether to

grant a motion for disqualification pursuant to § 455(a), we

look to “whether a reasonable person, with knowledge of all

the facts, would conclude that the judge’s impartiality might

reasonably be questioned.” In re Kensington Int’l Ltd., 353

F.3d 211, 220 (3d Cir. 2003). “[T]he hypothetical reasonable

person under § 455(a) must be someone outside the judicial

system because judicial insiders … may regard asserted

conflicts to be more innocuous than an outsider would.” In re

Kensington Int’l Ltd., 368 F.3d 289, 303 (3d Cir. 2004)

(citation and internal quotation marks omitted). In the

implied bias context, we should likewise be sensitive to the

fact that a judicial outsider may not regard certain juror bias

claims as innocuous, even if a judicial insider would.

14

Whether Juror 97 has the kind of working relationship

that warrants a conclusion of implied bias is not something I

would venture to determine on this record, since “[t]he record

is devoid of information about the nature and regularity of her

interaction with the officers.” (Id. at 22.) Juror 97 “may well

be objective in fact,” but because yet-to-be-developed facts

may indicate that “the [working] relationship is so close” that

the law requires us to “err[] on the side of caution” and

impute bias, I would have the District Court gather more

facts. Polichemi, 219 F.3d at 704. In particular, I believe it is

our duty to direct the District Court to dig deeper into the

character and frequency of the interactions that Juror 97 has

had with the two testifying officers. Accordingly, I would

remand the case for factfinding to determine whether Juror 97

should be considered biased as a matter of law.

15