# Opposition Brief — Allen v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2696%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1217 ## Text (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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2696%3A2. Public record. Not legal advice.