Opposition Brief — Allen v. United States

(4

No. 10-594

Jn the Supreme Court of the Gnited States

WILLIAM ALLEN, PETITIONER

,

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORAR!

lO THE UNITED STATES COURT OF APPEFAI

FOR THE SEVENTH CIRCUII

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAI

Acting Solicitor Gene

Counsel Oo] Record

LANNY A, BREUER

t?

iss7stant A Lorie / Crt

OSEPH F.. PALME!

Attorne ij

Department of Justice

Washington DC et) sf

Supre mel thrief DUSA

107) SIs

~ ’

QUESTION PRESENTED

{ nited States V. Lowe ; 145 hs 3d 45 ls {

cert. denied, 525 U.S. 918 (1998)

United States v. Moore, 149 F.3d 773 (Sth Cir

ert. denied, 525 U.S. 1030 (1998) . .

Unated States v. Nururdin, 8 F.3d 1187 (7th Cir

1993), cert. denied, 510 U.S. 1206 (1994) .....

l/nited States v. Tipton, 90 F.3d 861 (4th Cir. 1996

cert. denied, 520 U.S. 1253 (1997) ..... ee

l/nited States v. Wood, 299 U.S. 123 (1936) LO

l/ttecht v. Bre wn, 551 U.S. 1 (2007) ... (

Wainwright v. Witt, 469 U.S. 412 (1985)

Wi hip / ié 3Q7 | és tte: 19 {)

statute

IS U.S.C. 2251(d)(1 )(A)

18 U.S.C. 2252A(a)(1) . 2.3

IS U.S.C. 2252A(a)(5)(B) 2.3

28 U.S.C. 1866(¢e)(2) 6

In the Supreme Court of the GAnited States

No. 10-594

WILLIAM ALLEN, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR!

) THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUTII

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-13)

is reported at 605 F.3d 461.

JURISDICTION

The judgment of the court of appeals was entered on

May 25, 2010. Pet. App. 1. A petition for rehearing was

denied on August 4, 2010 (Pet App. 28). The petition for

a writ of certiorari was filed on November 2, 2010. The

jurisdiction of this Court is invoked under 2& U.S.C

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Illinois, petitioner

was convicted of offering to receive or exchange child

pornography, in violation of 18 U.S.C. 2251(d)(1)(A);

-

transporting or shipping child pornography, in violation

of 18 U.S.C. 2252A(a)(1); and possessing child pornogra-

phy, in violation of 18 U.S.C. 2252A(a)(5)(B). Pet. App.

1, 14-15. He was sentenced to 360 months of imprison-

ment, to be followed by a lifetime of supervised release.

Id. at 4, 16-17. The court of appeals affirmed. /d. at 1

13.

lL. On April 12, 2006, a Federal Bureau of Investiga

tion (FBI) agent investigating child exploitation logged

into a chat room and saw advertisements posted by peti

tioner offering to exchange child pornography. Pet.

App. 2; Gov't C.A. Br. 2. Petitioner, using the handle

“kidbot,” offered aceess to a file server containing “New

Pics/Vids Mostly Girls Few Boys 10-15,” and “New Vids

Girls only 10-15 NO NON-NUDE.” /d. at 2-3. Peti-

tioner’s advertisements ran more than 300 times during

the agent’s April 12, 2006 session, and other users con-

nected or attempted to connect to the file server nearly

200 times that day. /d. at 3. The agent, following the

instructions in petitioner’s advertisement, connected to

the server, uploaded a file containing a corrupted image

to obtain credit to download, and downloaded images

showing pre-pubescent girls engaging in sexual activity

with adult males. Pet. App. 2; Gov’t C.A. Br. 3.

The FBI determined that “kidbot” was using an In-

ternet Protocol address registered to petitioner’s moth-

er. Pet. App. 2. The I BI obtained and executed a war-

rant to search her house. /bid. The agents found peti-

tioner, who was 21 years old and living at his mother’s

house, in his bedroom with a desktop computer and

other storage devices containing more than a thousand

images of child pornography. /bid. Petitioner’s com-

puter also contained a log file identifying it as the file

server from which the agent had downloaded chiid por-

nography. /bid. The agents found chat logs on peti

tioner’s computer, in which petitioner identified himself

as “William” and as a “21-year old male from Illinois.”

[bid. In the chats, petitioner described how he used

chat rooms to obtain and trade child pornography, and

he also stated that he had molested children. /d. at 2-3;

Gov't C.A. Br. 6.

2. A grand jury in the Northern District of Illinois

returned an indictment charging petitioner with one

count of offering to receive or exchange ch ld pornogra

phy, in violation of 18 U.S.C. 2251(d)(1)(A); one count

of transporting or shipping child pornography, in viola

tion of 18 U.S.C. 2252A(a)(1); and one count of possess

ing of child pornography, in violation of 18 U.S.C.

2252A(a)(5)(B).

During jury selection, Juror 31, in response to an

item on the questionnaire asking whether anything

would make it difficult for her to serve as a fair juror,

disclosed that her then six-year-old daughter, who was

now grown, had been a victim of an attempted kidnap

ping. Pet. App. 3, 40. The judge asked the juror

whether that experience would somehow prejudice her

against the defendant. /d. at 3, 32. She initially re

sponded “Yes,” but then stated “I can’t be positive one

way or the other. I don’t know how I would react to it,

being a touchy situation to begin with.” /d. at 32.

The judge explained that “both sides are entitled to

fairness and, actually, a clean slate in your mind, so that

whatever exists in your past does not carry over and

influence the decision in this case.” Pet. App. 8,32. The

judge asked Juror 31 whether she could be open

»«>

minded, and she said that she could. /d. at 3, 32-33. The

judge then asked whether she could perhaps set her

experience aside, and the juror said, “Yes.” /d. at 3, 33.

The judge explained that petitioner was “entitled to the

presumption of innocence” and asked the juror whether

she could give petitioner that presumption. /bid. She

replied, “I think I could.” /drd.

The judge then allowed petitioner’s counsel to ask

additional questions. Pet. App. 3. Counsel referred to

the juror’s answer on the questionnaire and again asked

her whether the “nature of the charges” and her

“past experience” would make it difficult for her to be

fair. Jd. at 3, 33-34. Juror 31 responded that she didn’t

know, but that, in light of her past experience, the “cir-

cumstances” of the trial “bother|[ed her] personally, with

having ehildren and a little girl.” /d. at 34. Counsel

again asked, “So the charges—the child pornography-

just the nature of the charges alone would make it diffi-

cult for you to be fair to both parties?” Ibid. Juror 31

initially replied that it would, and then she indicated she

was unsure. /d. at 3-4, 34-35. The judge then explained,

“There is not anything wrong with having an impact, but

it is whether, just the nature of the charges, you find so

offensive that you will not give the guy the benefit of the

doubt?” Jd. at 4,35. Juror 31] responded, “I would give

him the benefit of the doubt until everything is pre

sented, yes.” /bid. The judge said, “You strike me as a

fair-minded person.” /d. at 38.

Over petitioner’s objection, the district court refused

to strike Juror 31 for cause and allowed her to be seated

as the twelfth juror. Pet. App. 4. The judge explained

that although he initially thought that Juror 31 should

be excused, the colloquy as a whole led him to conclude

that she could be fair. /d. at 35-36. The court indicated

that the juror’s equivocal statements were caused by

defense counsel “push|ing| her in another direction.” /d

at 36. Petitioner’s counsel renewed his objection the

following day, and the judge stated that, following the

colloquy, he “beeame firmly convinced * * that she

could be a fair and impartial juror.” Gov't C.A. Br. 11

12. The jury convicted petitioner on all counts. Pet.

App. 4.

3. The court of appeals affirmed. Pet. App. 1-13. As

relevant here, the court concluded that the district court

did not abuse its discretion in refusing to strike Juror 3]

for cause. The court noted that a prospective age may

be seated, despite a party’s for-cause ch: lenge, | the

juror has given “final, unequivocal assurances’ that, In

deciding the case, the on can “set aside any opinion

S i“ sie 4 ht hold.” /d. at 6 (quoting Patton v. Yount, 467

U. 25, 1036 ( 1984)) In considering that question,

oe, ‘ourt accorde d “great deference to the judgment of

{

t1

hee - rienced trial judge” who had the “unique oppor

nity to assess the credibility of the jurors.” Id at 5

(quoting United States v. Nururdin, 8 F.3d 1187, 1190

(7th Cir. 1993)).

The court concluded that the district court was

“within its discretion” to find that Juror 31 gave “final,

unequivoeal, and credible assurances that she could set

aside any bias” arising from her daughter’s attempted

kidnapping. Pet. App. 6. The court reasoned that any

relevant bias Juror 31 may have held was “relativel)

minimal,” 2d. at 9, because the attempted kidnapping of

the juror’s daughter “related only tangentially” to peti

tioner’s child pornography crimes and the specific issues

in the ease. /d. at 8. The court further ctated that Juror

31 explicitly recognized as much when she agreed that

“this crime has nothing to do with that crime.” /d. at 7.

he court also concluded that the juror’s statement that

she would give petitioner the benefit of the doubt was

sufficiently final and unequivocal. /d. at 8. The court of

appeals credited the district court’s conclusion that the

juror’s earlier, equivocal statements were caused by

defense counsel's “pushing.” /bid. Finally, the court of

appeals noted that Juror 31 demonstrated an ability to

follow the court’s instructions by twice stating, in re

sponse to the district court’s instructions, that she would

give petitioner the ,. csumptioa of innocence. /d. at 9.

Judge Wood dissented. In her view, Juror 31’s ad

mission that “it would be difficult for her to be fair,”

combined with her failure to offer “an unequivocal asser

tion of impartiality,” required the juror’s dismissal. Pet.

App. 12-138. Judge Wood noted that the juror’s assur

ance that she would give petitioner the “benefit of the

doubt” was insufficient because it suggested a more le

nient standard than proof beyond a reasonable doubt,

and because the statement was made in response to the

district court’s “misleading[]” statement that there was

“not anything wrong” with the juror’s prior experience

“having an impact” on her perception of the case. /d. at

1

DISCUSSION

Petitioner contends (Pet. 9-15) that the distriet court

abused its discretion in refusing to excuse Juror 31 for

cause. ‘The court ef appeals correctly rejected that con

tention, and the court’s faect-bound ruling does not con

flict ‘vith any decision of this Court or of another court

of appeals. Further review is unwarranted.

A district court must excuse for cause any prospec

tive juror who would be unable to render an impartial

verdict. See 28 U.S.C. 1866(¢c)(2). The court need not

excuse a juror for cause, however, if the juror indicates

an ability to fay aside his or her opinion and render a

verdict based on the evidenee. See Patton v. Yount, 467

U.S. 1025, 1087 n.12 (1984); /rvin v. Dowd, 366 U.S. 717,

7 23 (1961). Because the inquiry into a prospective

juror’s bias turns largely on assessments of “demeanor

and credibility that are peculiarly within a trial judge’s

province,” Uttecht v. Brown, 551 U.S. 1, 7 (2007), appel

late review of those determinations is highly deferential.

“Reviewing courts are properly resistant to second

guessing the trial judge’s estimation of a juror’s impar

tiality, for that judge’s appraisal is ordinarily influenced

by a host of factors impossible to capture fully in the

record—among them, the prospective juror’s inflection,

sincerity, demeanor, candor, body language, and appre

hension of duty.” Skilling v. United States, 1308. Ct.

2896, 2918 (2010); see Wainwright v. Witt, 469 U.S. 412,

428 (1985); 27d. at 429 (noting that the trial judge’s “pre

dominant function in determining juror bias involves

credibility findings whose basis cannot be easily dis

cerned from an appellate reeord”); United States \

Jimenez, 513 F.3d 62, 72 (3d Cir. 2008) (trial court’s re:

olution of whether a prospective juror can render a fair

verdict entitled to “special deference”); U/nited States \

Tipton, 90 F.3d 861, 880 (4th Cir. 1996) (appellate re

view of district court rulings on for cause challenges ‘

appropriately most deferential”), cert. denied, 520 U.S

1253 (1997). As the court observed in l/nited States v.

Lowe, 145 F.8d 45 (1st Cir. 1998), “[t]here are few as

pects of a jury trial where we would be less inelined to

disturb a trial judge’s exercise of discretion, absent

clear abuse, than in ruling on challenges for cause in the

empaneling of a jury.” /d. at 49 (quoting United State:

v. Gonzalez-Soberal, 109 F.3d 64, 69 (1st Cir. 1997))

The extraordinary deference accorded a district

court’s rulings on for-cause challenges also reflects a

recognition that juror testimony on voir dire may be

“ambiguous and at times contradictory.” Patton, 467

U.S. at 1039. As this Court noted in Patton, “the jay

persons on the panel may never have been subjected to

the type of leading questions and cross-examination tac

tics that frequently are employed,” and thus they “ean

not be expected invariably to express themselves care

fully or even consistently.” /b67d. For that reason, “it is

[the trial] judge who is best situated to determine com

petency to serve impartially,” and he “properly . 1a)

choose to believe those statements that were the most

fully articulated or that appeared to have been least in

fluenced by leading.” Jbid.; see Skilling, 1308. Ct. at

2918 (“In contrast to the cold transcript received by the

appellate court, the in-the-moment voir dire affords the

trial court a more intimate and immediate basis for as

sessing a venire member’s fitness for jury service.”);

Reynolds v. United States, 98 U.S. 145, 156-157 (1879)

(“{T]he manner of the juror while testifying is often

times more indicative of the real character of his opinion

than his words. * * * Care should, therefore, be taken

in the reviewing court not to reverse the ruling below

upon such a question of fact, except in a clear case.”);

United States v. Moore, 149 F.3d 773, 780 (8th Cir.)

(concluding that district court’s credibility determina

tion concerning juror partiality “cannot be manifest er

ror; indeed it is virtually unassailable on appeal’), cert

denied, 525 U.S. 1030 (1998). Thus, “in reviewing claims

of this type, the deference due to district courts is at il

pinnacle.” Skilling, 13808. Ct. at 2923.

The district court acted within its discretion in deny

ing petitioner’s for-cause challenge to Juror 31. It i

true that Juror 31 initially stated that the incident in

volving her daughter would make it difficult for her to

be fair. and that she was unsure whether that incident

would influence her ability to begin the case presuming

the defendant’s innocence. But she also stated that she

would try to be open-minded and that she thought she

would be able to do so. She affirmed her belief that she

could set her experience aside, she recognized that her

daughter’s experience had nothing to do with peti

tioner’s case, and she twice said she would give peti

tioner the presumption of innocence. That she gave an

equivocal answer to defense counsel’s inquiry whether

her experience would make it difficult to be fair did not

automatically disqualify her from service, especial]

considering her subsequent assurances to the judge

See lU/nited State S V. Johnson. 4Y5 38d G51, 464 (Sth

Cir. 2007) (upholding denial of a motion to strike a juror

for cause, because “l[allthough the juror gave some

equivocal answers and acknowledged the possibility that

his judgment could be affected by some aspects of the

ease, the district court concluded that juror 600 could be

fair and impartial and that his statements reflected the

reasonable self doubts of a conscientious and reflectiv:

person”) (internal quotation marks omitted), cert. de

nied, 129 8S. Ct. 32 (2008); United States v. Alexander,

18 F.3d 1477, 1484 (9th Cir.) (district court did not abuse

its discretion in concluding that when juror said she “bi

lieved” she could act impartially, this was equivalent to

saying she would do so), cert. denied, 516 U.S. 878

(1995): United States v. Barraza, 576 F.3d 798, 801-804

(Sth Cir. 2009) (no abuse of discretion in refusing to

strike for cause a juror who stated his strong feeling

about a parent’s responsibility could affect his ability to

hear the case but stated he would try to be fair), cert

denied, 1318S. Ct. 67 (2010); United States v. Grandisor

780 F.2d 425, 482 (4th Cir. 1985) (no abuse of discretior

in refusing to strike for cause a juror who expr

LO

doubts as to whether she could remain uninfluenced b

the indictment but stated she would try to follow the

court’s instructions), vacated on other grounds, 479 |

LO76 (1987).

Petitioner contends (Pet. 9-15) that the decision bi

low conflicts with this Court's statement in Reynold

that “a juror who has formed an opinion cannot be im

partial.” 98 U.S. at 155. But Juror 41 did not state tha

she had formed an opinion as to petitioner’s guilt, bu

instead assured the court that she would presume hi

innocence until the evidence was presented. Nor is thi

case analogous to the situation in /rvin v. Dowd, it

which the Court ruled that jurors’ declarations of impatr

tiality were insufficient where a “barrage” of publicit,

In a small rural community, including defendant’s r¢

ported confession to a brutal murder and robbery spree

resulted in a jury composed two-thirds of people who

thought petitioner was guilty before the trial bega Hf

hould establish a “clear line” requiring disrnissal of ar

juror who indicates a bias unless the juror makes “an

unambiguous statement of impartiality.” Such a “bright

line rule” would be inconsistent with the special defer

ence this Court has accorded to trial judges in this co

text, as well as with this Court’s recognition that juro)

“cannot be expected invariably to express themselves

carefully or even consistently.” Patton, 467 U.S. at

1039; see United States v. Wood, 299 U.S. 128, 145-14!

(1936) (“Impartiality is not a technical conception, It!

a state of mind. For the ascertainment of this ment

attitude of appropriate indifference, the Constitutio

lays down no particular tests and procedure is !

chained to any ancient and artificial formula