[00:00:07] Speaker 02:
Council and may it please the court.

[00:00:09] Speaker 02:
My name is Michael Gomez from the Office of the Federal Public Defender on behalf of my client, Mr. Albert Pinedo, and I'd like to request four minutes for rebuttal.

[00:00:18] Speaker 02:
Your Honor, as we laid forth in our brief, Mr. Pinedo was denied a fair trial in four ways, and I'd like to start today with the first issue by the seating of two jurors who expressed many areas of potential or actual bias

[00:00:42] Speaker 02:
defense and after those biases were revealed, did not make an unequivocal commitment to remain fair and impartial in evaluating the evidence in this case.

[00:00:53] Speaker 03:
Let me ask you this.

[00:00:54] Speaker 03:
I think that's probably, obviously we'll give you time to talk about the others, but I think it's probably the strongest issue because if you're correct on that, we have to reverse, right?

[00:01:07] Speaker 03:
Yes, Your Honor.

[00:01:19] Speaker ?:
You were requesting them to be excused for cause.

[00:01:24] Speaker ?:
Yes, Your Honor.

[00:01:24] Speaker ?:
Okay.

[00:01:25] Speaker ?:
And so you objected at the time.

[00:01:34] Speaker 03:
the end court questioning, correct?

[00:01:36] Speaker ?:
Correct, yeah.

[00:01:37] Speaker 03:
All right.

[00:01:37] Speaker 03:
So and just going, I don't think I'm going out on a limb.

[00:01:42] Speaker 03:
The subject matter of this case is not the, you know, jurors don't jump up and down and say, hey, I really want to be on a case that involves sex with minors and all of that.

[00:01:54] Speaker 03:
So you've got, and contained in the questionnaire, having been a trial judge and actually having prosecuted these cases, it's certainly not

[00:02:06] Speaker 03:
for jurors when they hear what this case is about to say, oh, that's gross.

[00:02:11] Speaker 03:
I don't want to be on that kind of case.

[00:02:14] Speaker 03:
And I'm against adults having sex with minors.

[00:02:18] Speaker 03:
Certainly, Your Honor.

[00:02:19] Speaker 03:
So that's we're dealing with.

[00:02:22] Speaker 03:
Subject matter a lot of people would much rather be on a murder case because some people maybe deserve killing But you know, but on that but most people exclaim rather adamantly that they this is a case they don't want to be on so we have to so don't through with me just because someone says hey, this is a gross case or

[00:02:43] Speaker ?:
And I wasn't, it was interesting in this, I wasn't, I think the defense was, I haven't seen this defense before, wherein it's role playing that, because your client was a previously convicted sex offender that did counseling, and as part of his counseling, they say, well, if you can't be rehabilitated, here are some of the tools that you can use

[00:03:11] Speaker ?:
from reoffending.

[00:03:12] Speaker ?:
So his whole defense is, I wasn't really going to do this.

[00:03:17] Speaker 03:
I'm acting out a fantasy.

[00:03:21] Speaker 03:
Is that right?

[00:03:21] Speaker 03:
Yes, Your Honor.

[00:03:23] Speaker 03:
OK.

[00:03:23] Speaker 03:
It's not a coping strategy.

[00:03:24] Speaker 03:
Coping strategies so that you don't reoffend.

[00:03:28] Speaker ?:
Correct.

[00:03:28] Speaker 03:
And then, obviously, these kind of cases are a little bit, from a prosecution standpoint, they're not, he wasn't really going to have sex with a minor because it was a police

[00:03:42] Speaker 03:
and he was actually having all these rather kind of explicit texts with was a police officer, right?

[00:03:50] Speaker 03:
It wasn't a kid.

[00:03:52] Speaker 03:
Correct.

[00:03:53] Speaker 03:
So they're kind of different, they're kind of odd cases and they're the type of cases that we would expect jurors to have an initial visceral response to.

[00:04:01] Speaker 03:
So tell me why, at the end of this,

[00:04:05] Speaker 03:
these jurors.

[00:04:06] Speaker 03:
And you also have to, we also have to give deference to the judge that's actually looking at these people and deciding what I believe and making a call on this.

[00:04:15] Speaker 03:
So tell me, give me your best argument on this.

[00:04:18] Speaker 02:
Well, your honor raises many great points.

[00:04:20] Speaker 02:
The first one I'll start with is the, this is a constitutional requirement.

[00:04:25] Speaker 02:
We're

[00:04:40] Speaker 02:
which a lot of people still have negative biases against, that it involves sexual fantasy, age role play, sexually explicit communications.

[00:05:25] Speaker 02:
You have to also

[00:05:58] Speaker 05:
you could be fair.

[00:06:01] Speaker 05:
I will try my best and you will try to follow the court's instructions.

[00:06:06] Speaker 05:
Yes.

[00:06:07] Speaker 05:
Is that enough to meet the constitutional test that there is a possibility that the juror will be fair and that the juror will

[00:06:23] Speaker 02:
its very own case law in Contenta and Gonzalez, which state that aspirational statements such as, I might be able to put that aside.

[00:07:17] Speaker 02:
want to be insufficient and I'd like to point the court to um the juror 30s final what we're what you're ended on juror 30 finally saying well I will try my best right after she said it's a sheet right yes right after

[00:07:44] Speaker 05:
She also never, unequivocally committed before that.

[00:08:08] Speaker 02:
the juror may have felt pressured in that moment, but that doesn't mean we discount her statements.

[00:08:13] Speaker 02:
That doesn't mean we look to the, if we look at the rest of the record, the, the statements that your honor pointed out, which came before the witness or the juror said she felt pressured, there was no unequivocal commitment to remain fair and impartial before that.

[00:08:26] Speaker 02:
And there wasn't one after.

[00:08:27] Speaker 02:
And that's, that's your question with respect to the juror.

[00:09:05] Speaker 01:
So isn't all of this, the questionnaire, the opportunity for Gwadir, isn't that a matter sort of, you know, very much within the province of the district court judge?

[00:09:25] Speaker 01:
I mean, the Supreme Court has said that the deference with respect to a jury

[00:10:13] Speaker 02:
a lot more than I just have similar experiences with the subject matter of this case, or I'm repulsed by the subject matter, or sexual fantasies, even between consensual adults.

[00:10:24] Speaker 02:
There were many areas of bias that were exposed after the written questionnaire.

[00:10:28] Speaker 02:
The written questionnaire provides a baseline, but the point of oral voir dire, as was the case in Skilling versus United States, where there was a written questionnaire, and it was followed by oral voir dire, because it gives the parties and the court

[00:10:46] Speaker 02:
when filling out the written questionnaire.

[00:10:48] Speaker 02:
I'd like to point out that there were also some other jurors who were excused, who had checked off, yes, next to General Fanner's related questions, but because of effective oral voir dire from the court and the parties, they discovered areas of bias that the jurors hadn't really thought about and said, oh, actually,

[00:11:23] Speaker 05:
Or as juror third, who said, I probably wouldn't be a good juror.

[00:11:27] Speaker 05:
Council, and this may not be germane to this issue, and maybe this is in the record, but were we, I mean, not we, were the, was the trial judge and the trial lawyers, were they out of jurors?

[00:11:40] Speaker 05:
Was this the end of the, or dire array?

[00:11:43] Speaker 02:
No, Your Honor, we were certainly not out of jurors in this veneer, and we were certainly not out of jurors in the Central District of California.

[00:12:09] Speaker 02:
So everyone is trying to figure out how to move forward.

[00:12:14] Speaker 02:
And you know.

[00:12:16] Speaker 03:
Well, so how many, do we have on the record how many people were court excused because they said they couldn't be there?

[00:12:23] Speaker 02:
I can look that up for your honor, but I'm not, I can't exactly remember off the top of my head.

[00:12:27] Speaker 02:
But there were a number of people who were excused, because as your honor pointed out, this is a very sensitive subject matter.

[00:12:34] Speaker 02:
And a lot of people couldn't get over the fact the subject matter

[00:12:40] Speaker 02:
that they would get and receive evidence of Mr. Pinedo's prior conviction.

[00:12:45] Speaker 02:
And that was a deal breaker for them.

[00:12:48] Speaker 03:
Well, does that count against you in the sense that deference is allowed to the district judge, that the district judge did excuse some people for court because the district judge, in watching their demeanor, looking at their questionnaire, all of that, said, hey, this is too steep a mountain to climb here.

[00:13:05] Speaker 03:
I'm going to court excuse you.

[00:13:07] Speaker 03:
And like what Judge Bennett's saying,

[00:13:21] Speaker 03:
about the subject matter.

[00:13:23] Speaker 03:
Is that part of the calculus that we look at?

[00:13:26] Speaker 03:
I mean, that the judge was looking at people, listening to what they said, and making judgments about whether they thought they could be fair or they couldn't be fair.

[00:13:36] Speaker 02:
Well, Your Honor, I think, well, first we have to look at the jurors who were seated and whether their responses were sufficient under this court's case law.

[00:13:46] Speaker 02:
But I'd like to point out that this court can look at the

[00:13:55] Speaker 02:
thinking that, let's say, Juror 17's response is that, like, why is there a trial, honestly, and then saying, I will try to be as fair as I can be, which is not saying I will be fair.

[00:14:09] Speaker 02:
A juror's oath, when they take the oath before the trial starts, it's not saying, will you try to be fair?

[00:14:14] Speaker 02:
It says, you will be fair and impartial.

[00:14:17] Speaker 02:
So the district court may have misremembered the law.

[00:14:27] Speaker 02:
the law and that could be a legal error.

[00:14:35] Speaker 02:
Another piece of discretion is a factual misrememberance.

[00:14:38] Speaker 02:
The court may have misremembered the

[00:15:20] Speaker 02:
of the questionnaire in any meaningful way.

[00:16:11] Speaker 02:
out of time and you're over time.

[00:16:14] Speaker 03:
Let me just make sure that my judges don't have any questions.

[00:16:22] Speaker 03:
So I'm going to give you some rebuttal time.

[00:16:44] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:16:47] Speaker 04:
Amy Pomerantz, on behalf of the United States.

[00:16:49] Speaker 04:
I should also note that I was one of the two AUSAs who tried this case, so I can answer questions and not be heard.

[00:16:55] Speaker 04:
I'd like to begin with the juror bias issue, since that's what we've been discussing.

[00:17:00] Speaker 04:
There are few aspects of a jury trial that are more committed to the district court's discretion, the decision whether to excuse a prospective juror for actual bias.

[00:17:10] Speaker 04:
And the reason for this

[00:17:13] Speaker 04:
At its pinnacle, in the Supreme Court's words, in evaluating actual bias claims, is that it's the district court who is best able to observe the juror's demeanor.

[00:17:23] Speaker 04:
Not just their words, but their tone, their volume, their cadence, the body language, the demeanor of the other people in the courtroom who may be asking the questions.

[00:17:32] Speaker 04:
And based on the totality of the voir dire,

[00:17:48] Speaker 04:
My recollection is that this was a unique voir dire process born out of that specific moment where the course had just opened and there was the COVID surge, the Delta surge, and so the question was how can we have a safe trial and how can we have voir dire in this case

[00:18:05] Speaker 04:
Given the nature of the case where jurors feel comfortable discussing the personal experiences in a way.

[00:18:12] Speaker 04:
And so that's why we had that written questionnaire followed by this individual for our dear procedure, which I have to emphasize.

[00:18:18] Speaker 04:
I've never seen.

[00:18:21] Speaker 04:
and is essentially cross-examined by skilled counsel with no preparation or training.

[00:18:29] Speaker 04:
Now, my recollection is that there were some jurors who were struck for cause.

[00:18:33] Speaker 04:
So it wasn't the typical voir dire?

[00:18:35] Speaker 04:
No.

[00:18:36] Speaker ?:
Where you have all of the people and then you tell people, perhaps,

[00:18:54] Speaker 03:
I forget.

[00:18:55] Speaker 03:
I think Judge Bennett discussed with your friend on the other side.

[00:19:01] Speaker 03:
What authority can you cite for the proposition that a juror's answer to a written question may be sufficient to overcome the juror's admission of bias during the voir dire?

[00:19:11] Speaker 04:
I think the question, Your Honor, is when you look at the totality of the record, the totality of both the written statements and the oral colloquies, whether the district court could reasonably conclude

[00:19:24] Speaker 04:
that these jurors could be fair and impartial on the question on appeal.

[00:19:52] Speaker 04:
given the transcript we have in front of us.

[00:20:18] Speaker 05:
best answer for you.

[00:20:19] Speaker 04:
Okay, Your Honor.

[00:20:20] Speaker 04:
Well, I do think that we have to start with the premise that in the written questionnaire, free of question.

[00:20:27] Speaker 04:
I read the written question.

[00:20:28] Speaker 04:
Okay.

[00:20:29] Speaker 04:
But I want you to tell me from what came after that.

[00:20:31] Speaker 04:
Okay.

[00:20:32] Speaker 04:
When she came in, the district court initially directs her to question 36 of the questionnaire.

[00:20:37] Speaker 04:
So that question asked her about her views on ER 518.

[00:20:42] Speaker ?:
Okay.

[00:20:47] Speaker 04:
the things about role playing, that adults should not be engaged in coping strategies.

[00:20:51] Speaker 04:
The district court then goes on to explain that fantasies with minors are distasteful, they're not a legal violation.

[00:20:59] Speaker 04:
She says she understands.

[00:21:00] Speaker 04:
She understands.

[00:21:01] Speaker 04:
She understands that.

[00:21:02] Speaker 05:
That there's a difference.

[00:21:04] Speaker 04:
There's a difference, so she understands that.

[00:21:06] Speaker 04:
Then, if you look at the bottom of page 519, the district court asks her, do you think there would be anything about your background, about your personal experience,

[00:21:26] Speaker 04:
from that.

[00:21:26] Speaker 04:
And then the district court circles back, says, is there anything about your background, your personal experiences that would prevent you from being fair and impartial to both sides in this case?

[00:21:35] Speaker 04:
She says, I don't think so.

[00:21:37] Speaker 04:
Now, on a cold record, you can look at, I don't think so and see.

[00:21:43] Speaker 04:
That's the start, right?

[00:21:43] Speaker 04:
That's the start.

[00:21:44] Speaker 04:
That's the start.

[00:21:45] Speaker 04:
And then she says, OK.

[00:21:47] Speaker 04:
Now, when she's her language, I don't think so, she's really mirroring the court's language there, where the court says, do you think?

[00:21:53] Speaker 04:
And both this court and the

[00:22:40] Speaker 04:
to the bottom of 520, where defense counsel in her cross-examination says, I want to follow up on the question 36.

[00:22:48] Speaker 04:
So she's following up on question 36, which again directs her to her statement that she doesn't believe adults should fantasize about teenagers.

[00:22:58] Speaker 04:
They're talking about the fantasies.

[00:23:00] Speaker 04:
And that's when she says, well, a child is so innocent.

[00:23:04] Speaker 04:
Why would you want to think about innocent kids like that?

[00:23:06] Speaker 04:
I have nieces and nephews.

[00:23:08] Speaker 04:
They are teenagers.

[00:23:09] Speaker 04:
I do not want people to see them and fantasize about that.

[00:23:12] Speaker 04:
So again, at this point, I think we're in the world that Judge Callahan discussed where that's a reasonable sentiment that she doesn't want people fantasizing about her teenage relatives.

[00:23:23] Speaker 04:
And then the defense lawyer goes on, well, what was your reaction when you read

[00:23:30] Speaker 04:
And she says, I think that is awful.

[00:23:33] Speaker 04:
And again, we're back in the world where you can think that what the case is about, i.e.

[00:23:38] Speaker 04:
the enticement of minors, you can think that is awful as a general subject matter.

[00:23:44] Speaker 04:
But that does not mean that you're actually biased in that you cannot fairly evaluate the evidence.

[00:24:27] Speaker 04:
court determined was that this whole exchange, where again, if you're looking at the top of 522, she says, do you think you would have an open mind about that?

[00:24:35] Speaker 04:
Now the word that there is referring back to what they were just talking about, i.e.

[00:24:39] Speaker 04:
the nature of the case, i.e.

[00:24:41] Speaker 04:
the enticement of minors.

[00:24:43] Speaker 04:
So she's asking, do you think you would have an open mind about the enticement of children?

[00:24:47] Speaker 04:
And she says, I don't know.

[00:24:49] Speaker 05:
But right after that, you wouldn't be able to put those feelings aside.

[00:24:52] Speaker 05:
I will try to, but I don't.

[00:24:54] Speaker 05:
I will try to, but I don't know.

[00:24:56] Speaker 04:
And then she goes on, and here, I think the district court reasonably determined that these answers, that this juror at this point is feeling very pressured, that she is feeling badgered.

[00:25:07] Speaker 04:
If you look, the questions are incredibly leading.

[00:25:11] Speaker 04:
The defense lawyer is putting words in her mouth.

[00:25:13] Speaker 04:
You wouldn't be able to put those feelings aside, would you?

[00:25:15] Speaker 04:
It sounds like, given your feelings about your niece and nephew, which at this point, all she has said about her niece and nephew is that she doesn't want pedophiles fantasizing about them.

[00:25:24] Speaker 04:
And then the defense lawyer says, it would be difficult for you to look at those charges without being biased.

[00:25:29] Speaker 04:
Isn't that right?

[00:25:30] Speaker 04:
And of course, at that point, she's feeling the pressure.

[00:25:33] Speaker 04:
She says, it would be yes, I think so.

[00:26:01] Speaker 04:
her attention to the United States to be fuller is an unpublished case.

[00:26:04] Speaker 04:
But the court said, essentially, that it was not an abuse of discretion where a juror used that kind of language.

[00:26:11] Speaker 04:
I think it was, I will try my best.

[00:26:12] Speaker 04:
And the court said, in the context, the district court reasonably determined that that was a statement that she would be able to be fair and impartial.

[00:26:19] Speaker 04:
And in this case, because the voir dire record is so extensive with all of the written questionnaires, answers, and the tenor of the questioning during the courtroom

[00:26:51] Speaker 04:
You knew what the defense was, you knew what the subject matter was, and you repeatedly said, unequivocally, that you could be fairly impartial.

[00:26:58] Speaker 04:
You just did that this morning, earlier, do you still feel that way?

[00:27:01] Speaker 04:
And she was like, oh, you guys are pressuring me, I don't know.

[00:27:04] Speaker 04:
And so the district court could look at this entirety of this exchange, combine with her written answers, and reasonably conclude

[00:27:16] Speaker 04:
You know, the question in this case is not whether pedophilia is good or bad.

[00:27:20] Speaker 04:
The question was actually very narrow in which the defendant's intent.

[00:27:25] Speaker 04:
There was no question defendant was attracted to children.

[00:27:28] Speaker 04:
The only question, and there was no question the defendant was the one who engaged in extensive communications with a person who claimed to be a 14-year-old boy.

[00:27:36] Speaker 04:
The question for the jury was how would the defendant think he was talking to?

[00:27:40] Speaker 04:
The government's view?

[00:27:53] Speaker 05:
what I could see had overwhelming evidence and really pressed hard on jurors 17 and 30.

[00:28:00] Speaker 05:
And if there's a problem with that, it lies, in my view, at the feet of the government, not at the feet of the defendant, who I agree was convicted on overwhelming evidence.

[00:28:11] Speaker 05:
But there's no overwhelming evidence, harmless error, exception to the Sixth Amendment actual bias rule.

[00:28:25] Speaker 04:
I actually think with respect to Juror 17, if the court's focused on kind of the final answer, Juror 17 said,

[00:28:38] Speaker 04:
as impartial as I can be.

[00:28:39] Speaker 04:
Now, understanding that jurors have not been briefed or prepped, I think this is a very robust affirmation of his prior unequivocal affirmations of impartiality that were in the written questionnaire.

[00:28:51] Speaker 04:
Now, juror 17 had said, yes, it is a disturbing subject matter.

[00:28:55] Speaker 04:
He said, yes, he had a visceral reaction to the response to the case.

[00:28:58] Speaker 04:
But throughout, he affirmed that he could separate his personal views from the evidence.

[00:29:03] Speaker 04:
That's at ER 458.

[00:29:07] Speaker 04:
we have reproduced at page thirty-one of the government brief.

[00:29:10] Speaker 04:
I think overall juror seventeen's answers reflect a juror who was trying to be conscientious and candid and thorough.

[00:29:17] Speaker 04:
He said he, you know,

[00:29:19] Speaker 04:
had some people in his life that maybe had had some experiences, but he doesn't really know enough about their situation.

[00:29:26] Speaker 04:
And he acknowledged explicitly that he knows this trial is not about his friend's experience.

[00:29:31] Speaker 04:
He understood the difference between his own personal views and what he's being asked to do as a juror, and invoked his duty as a citizen of the country to be impartial.

[00:29:42] Speaker 04:
I think that is robust affirmation, and it's not a Sixth Amendment violation.

[00:30:06] Speaker 01:
The judge at the end of the day, if you could respond to this argument, who was there, who asked questions, and he said, is it a possibility that you could be fair?

[00:30:24] Speaker 01:
That's kind of a leading question.

[00:30:27] Speaker 01:
And the answer was, I will try my best.

[00:31:01] Speaker 01:
answer the proposition that even though the answer by the juror, I will try my best, isn't the same as perhaps the saying, I know I can be impartial, that the determination of a judge to

[00:31:30] Speaker 01:
Yes, Your Honor.

[00:31:32] Speaker 04:
Well, first of all, I think all the published cases stand for the proposition that you have to look at the record in totality and defer to the discretion of the district court.

[00:31:42] Speaker 04:
And so it's not just that one, I will try my best language that we're looking at in a vacuum.

[00:31:46] Speaker 04:
We're looking at the totality of all of her statements.

[00:31:50] Speaker 04:
The best case of the government is Alexander, Your Honor.

[00:31:53] Speaker 04:
I think that the case is cited by the defense

[00:32:14] Speaker 04:
different from the situation where they initially made several unequivocal commitments to impartiality in the written questionnaire.

[00:32:22] Speaker 04:
The second key difference is that in Gonzales and Katchezian, and also actually in Alexander as well, there was a concern

[00:32:40] Speaker 04:
disclosed that her husband, in fact, dealt cocaine, that his drug dealing was a reason for the divorce and was very painful.

[00:32:47] Speaker 04:
And so the court reasoned, well, you know, in this situation, because of her personal connection, the personal experience, that gives us greater concern about the equivocal language that she used.

[00:32:58] Speaker 04:
And so Gonzalez, of course, said it was an abuse of discretion.

[00:33:04] Speaker 04:
reads a general statement about what that case was about, which in that case was an unauthorized access device, identity theft case.

[00:33:11] Speaker 04:
And juror number three, I believe it was, initially raises her hand, discloses that she has been a victim of identity theft.

[00:33:20] Speaker 04:
And so based on that, she comes in initially, immediately with equivocal language.

[00:33:25] Speaker 04:
I might be able to be fair, but honestly, I'm not sure.

[00:33:27] Speaker 04:
Now, this case is obviously very different.

[00:33:33] Speaker 04:
published case for the government.

[00:33:35] Speaker 04:
The two jurors in that case had also both been robbery victims in a case involving armed robbery.

[00:33:40] Speaker 04:
And so... Let me ask you this.

[00:33:42] Speaker 03:
Had either 17 or 30, is it in the record whether they'd had past jury service?

[00:33:48] Speaker 03:
Let me check, Your Honor.

[00:33:49] Speaker 03:
The reason I'm asking is, having done a lot of voir dire in my lifetime, although be it some time ago, because I've been an appellate judge for a pretty long time, you know, we're asking people,

[00:34:03] Speaker 03:
to say how they think they would be many times in experiences that they've never had.

[00:34:12] Speaker 03:
Perhaps if you would ask me whether I could be fair, I've had a few more opportunities to be challenged.

[00:34:18] Speaker 03:
I've decided court trials, I've seen a

[00:34:31] Speaker 03:
Could you be fair?

[00:34:32] Speaker 03:
And they say, if they say, I think I could, if they said, well, I absolutely can't be, could I say, well, hey, you don't really know.

[00:34:40] Speaker 03:
You've never been a juror.

[00:34:42] Speaker 03:
You're kind of being overconfident on that.

[00:34:44] Speaker 04:
I think that's a great point, Your Honor, and I think it's especially true in a case involving a difficult subject matter like this.

[00:34:49] Speaker 04:
Now, on page 8 of the government supplemental excerpts of record, Juror 17 indicates that he has never served in a jury before.

[00:35:00] Speaker 04:
I would also actually call the court's attention to question 39 on the questionnaire, which is the last question asked in the nature of the case.

[00:35:10] Speaker 04:
And again, I didn't emphasize this in the brief because I actually didn't catch it until preparing for this oral argument.

[00:35:16] Speaker 04:
But that's another point where the question asked, given the nature of the charge against

[00:35:26] Speaker 04:
a fair juror following the instructions in this case and the court gives him.

[00:35:30] Speaker 04:
Juror 17, no.

[00:35:32] Speaker 04:
Juror 3, again, and I'm on page 24 of the government supplemental experts record, says no.

[00:35:38] Speaker 04:
And this question immediately follows the question 36, as she seemed to struggle with, about whether it was inappropriate for individuals with a sexual interest in minors

[00:35:54] Speaker 04:
Yes, she has served in a trial jury, but it was civil.

[00:35:58] Speaker 04:
So again, this is not a subject matter that she is grappled with.

[00:36:02] Speaker 04:
And I think the transcript or the record here reflects jurors who are trying to be conscientious and honest and thorough in examining kind of their own beliefs about the subject matter.

[00:36:12] Speaker 04:
But ultimately, at the end of the day, even if your honor believes that this is a close call and you might have gone the different way, have you been the trial judge, unless there is a manifest

[00:36:32] Speaker 04:
have to emphasize again is very unusual in this district.

[00:36:36] Speaker 04:
I think the district court was reasonable to conclude that she could be fair and impartial despite her hesitations about her own discomfort about people fantasizing about her teenage relatives.

[00:37:13] Speaker 01:
You want to be, you don't think you could be, is that right?

[00:37:48] Speaker 01:
written responses, satisfying himself that the jury could be fair.

[00:37:57] Speaker 04:
That's exactly right, Your Honor, and that's exactly, again, why the Supreme Court has said that deference to the district court needs to be at its pinnacle in these sorts of juror bias determinations, because what the district court is assessing is not just

[00:38:15] Speaker 04:
I'm looking at the middle of page 523, the Defenseler asked, because you don't think you can be fair?

[00:38:20] Speaker 04:
Thank you, I appreciate that.

[00:38:22] Speaker 04:
No response from Juror 30.

[00:38:24] Speaker 04:
So the district court could reasonably conclude that this equivocation wasn't her ultimate answer about her ability to serve fairly, to judge whether the defendant had the criminal intent, whether the government met its burden of proof with the evidence.

[00:38:46] Speaker 04:
the subject matter, the defense theory, you know, what her family situation was.

[00:38:54] Speaker 04:
She knew all these things when she signed the written questionnaire under penalty of perjury.

[00:38:57] Speaker 04:
And the district court reasonably concluded

[00:39:08] Speaker 04:
Gonzalez Pichazan, where they never once affirmatively say they could be impartial, where they had strong personal connection to a victim of the crimes that were charged.

[00:39:18] Speaker 04:
This case is very, very different, and I think on this mixed record, even though it may be a difficult call two years later on a cold record, in the room we have to defer to

[00:40:17] Speaker 02:
case is that both Cachanzian and Gonzalez, we don't have to decide whether the jurors were actually biased.

[00:40:23] Speaker 02:
We don't even have to decide whether their commitments were actually unequivocal because they both said any doubts remaining at the end of the day about a juror's bias

[00:40:40] Speaker 02:
and we get to come up here and have a debate as to whether these jurors actually said they could be fair or sometimes said they checked yes I can be fair then after their biases are exposed said actually I don't know if I can be fair.

[00:40:53] Speaker 02:
Unequivocal is not sure yeah I would like to think I could.

[00:40:58] Speaker 02:
Unequivocal is not my first reaction was well this doesn't why are we here if he was caught and busted in things

[00:41:06] Speaker 02:
Why is there a trial, honestly?

[00:41:09] Speaker 02:
Unequivocal is not, I would do my best to try to be as impartial as I can be.

[00:41:15] Speaker 02:
The Sixth Amendment doesn't ask for you to try to be as impartial as you can be.

[00:41:21] Speaker 02:
The case law in the Sixth Amendment requires you to make an unequivocal commitment to be fair and impartial.

[00:41:27] Speaker 02:
So we're not questioning these jurors' beliefs and views.

[00:41:31] Speaker 02:
We're saying, we acknowledge that you have these views.

[00:41:44] Speaker 02:
out.

[00:42:15] Speaker 03:
and get cross-examined by the, on body or by the prosecutor and the defense counsel.

[00:42:22] Speaker 03:
The only place I've ever seen it has been in death penalty cases, essentially, where you've, you know, death qualified a jury.

[00:42:30] Speaker 02:
Well, Your Honor, I think that speaks to the need and the parties and the court's recognition here to get it right, to make sure that this is the first trial, one of the first trials back from COVID, and this is sensitive subject matter with

[00:42:56] Speaker 02:
Maybe not thinking, but doubts about juror bias are resolved against the juror, and we move on to the next juror.

[00:43:02] Speaker 02:
The judge might have misremembered what the jurors actually said at that.

[00:43:05] Speaker ?:
As your honor pointed out, I will try to be fair is not sufficient under Gonzalez at Gatchezian.

[00:43:12] Speaker 03:
Let's say- Well, I was interested to me when the prosecutor said that I will try was a response to a question, would you try?

[00:43:22] Speaker 03:
If someone asked me would you try to be fair, I would say yes, I would try to be fair.

[00:43:31] Speaker 03:
Should I be penalized for not saying the magic words when I'm answering the question that was asked of me?

[00:43:37] Speaker 02:
Well, I'd like to point out that the response to I will try was in response to will you try to follow

[00:43:58] Speaker 02:
understand the presumption of innocence, we can't transpose those yeses to an unequivocal commitment, unaffair and impartial, because they're two different principles.

[00:44:07] Speaker 01:
Unless my colleagues have questions.

[00:44:13] Speaker 01:
With respect to the case law, which has been cited, I'm wondering if you could just explain to me sort of the relationship between Alexander

[00:44:33] Speaker 01:
Yes, Your Honor.

[00:44:36] Speaker 01:
So... Because Alexander, it seems like it would lead to a different result.

[00:44:43] Speaker 02:
No, Your Honor.

[00:44:44] Speaker 02:
In Alexander, there were two jurors at issue in that case, and both had had prior experiences being victims of armed robbery.

[00:44:51] Speaker 02:
One, for one juror, the question was not closed for this court.

[00:44:56] Speaker 02:
This court said that... Let me first start by saying that the jurors' statements in that

[00:45:04] Speaker 02:
in response.

[00:45:05] Speaker 02:
And the court said that the district court did not abuse its discretion.

[00:45:08] Speaker ?:
Correct.

[00:45:09] Speaker 01:
For one, I think that that jurist's statement was equivalent to saying that she would be impartial.

[00:45:18] Speaker ?:
Saying that, I would believe so.

[00:45:20] Speaker ?:
So one jurist said, I believe so, and later said yes, and this court noted that the yes served as a final affirmative on equivocal commitment.

[00:45:28] Speaker ?:
While the question was a closer call for

[00:45:34] Speaker 02:
I believe so which is more along the affirmative lines of thinking that yes I believe I can do it not I will try not I will try to be as impartial as I can be and I think that's where we

[00:46:01] Speaker ?:
and Gonzales is I will try to, I will try right, I will try.

[00:46:06] Speaker ?:
So one represents a belief and an affirmative step toward that belief and then the others in attempt as opposed to any acknowledgement or any affirmative step in the direction of making an unequivocal commitment and here we just don't have even I believe so.

[00:46:24] Speaker ?:
We have I will try.

[00:46:25] Speaker ?:
We have

[00:46:33] Speaker 02:
to reverse and remain for a new trial.