MARTHA CRAIG DAUGHTREY, Circuit Judge.
After a jury found defendant Trent Shepard guilty of three counts of receipt of visual depictions of minors engaged in sexually explicit conduct and an additional count of attempted receipt, the district court sentenced Shepard to 168 months in prison and five years on supervised release. The district court also imposed a $400 special assessment on the defendant, ordered Shepard to pay $3,000 in restitution to child victim "Vicky," and imposed as special conditions of supervision prohibitions on any access by Shepard to computers, cameras, or video equipment without prior written approval from the probation officer or the court. On appeal, the defendant now challenges: (1) the seating of a juror who asserted he would not view the pornographic images; (2) the sufficiency of the evidence introduced to convict Shepard; and (3) the reasonableness of the sentence imposed upon him. For the reasons discussed below, we conclude that the district court abused its discretion in failing to remove from the jury a member of the panel who was unable to swear that he would give the defendant a fair trial. As a result, the case must be remanded for retrial.
Trent Shepard was employed as an outside salesman by Blue Tarp Financial, a
Eventually, all three computers were sent to the FBI office in Cleveland, Ohio. Once there, the laptops were examined by a forensic examiner with the FBI's Computer Analysis Response Team. He discovered that the three laptops contained child pornography in the computers' temporary internet files, caches, free spaces, and shared folders. The evidence led to a multi-count indictment against Shepard, charging him with receipt and attempted receipt of visual depictions of minors engaged in sexually explicit conduct. He pleaded not guilty, intending to claim as a defense that he did not know how the pornographic material in question got into his computer, and went to trial.
Prior to commencement of voir dire, the district court distributed two questionnaires to prospective jurors. One of those questionnaires asked, "Does the fact that the defendant is charged with crimes involving sexually explicit materials cause you to be predisposed either for or against the defendant or the government?" Because Juror 29 answered that inquiry in the affirmative, the district judge asked him whether he cared to elaborate on that reply. In response, the following colloquy occurred:
Neither the government nor the defendant exercised a peremptory challenge to remove Juror 29 from the panel. Consequently, he became a member of the jury that was empaneled and sworn but was released for the evening before any testimony was heard. The following morning, however, prior to the return of the jury to the courtroom, the district judge informed counsel for the government and for the defendant that his courtroom deputy, Debbie Mattei, had received the following recorded message from Juror 29 the previous afternoon after the jury had been discharged for the day:
When the district judge inquired of the attorneys how they would resolve the dilemma, the prosecutor suggested that "rather than ignore it, just to voir dire him briefly just to maybe indicate to him that any decent person that views these images is sick to their [sic] stomach." However, David Betras, one of Shepard's defense attorneys, argued that the juror should be excused because "he doesn't think he can fulfill his obligations as a juror." In the end, the district court called Juror 29 back into the courtroom and advised him that he was still under oath. At that time, the district judge, Betras, and Michael Sullivan, the prosecutor, engaged in the following conversation:
At that time, the district judge began questioning Juror 29 regarding any conversations he might have had with other jurors concerning his hesitancy to view the images and videos. He admitted that one of his fellow jurors commented to him that morning, "It's going to be a hard day." Juror 29 responded, "Yes, I called in because I thought it would be a rough day. I don't know if I'll be able to view those pictures." Although defense counsel then moved for a mistrial because Juror 29 "talked to one of the jurors about the pictures, and it's going to be rough," the prosecutor argued that "there is really nothing that could have prejudiced the other jurors other than the same predisposition that they came into Court with yesterday before they were voir dired."
The district court denied the motion for a mistrial and also refused to excuse Juror 29 or any other juror. In a post-trial memorandum explaining his decision, the district judge noted:
Following presentation of the evidence by both the government and the defense, the jury found the defendant guilty as charged. He now appeals his conviction
The principle of law is well established that the Sixth Amendment's right to a trial by jury "guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). A juror's verdict, therefore, must "be based upon the evidence developed at the trial ... regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies." Id. (citations omitted).
The question of whether a trial court has seated a fair and impartial jury "is essentially one of credibility," and "the trial court's resolution of such questions is entitled, even on direct appeal, to `special deference.'" Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (citation omitted). As this court has held, even a juror's expressed doubts about his or her impartiality "does not necessarily entail a finding of actual bias." Hughes v. United States, 258 F.3d 453, 458 (6th Cir.2001). As examples, the court in Hughes cited Patton, 467 U.S. at 1032, 104 S.Ct. 2885, Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), United States v. Rigsby, 45 F.3d 120 (6th Cir.1995), and United States v. Pennell, 737 F.2d 521 (6th Cir.1984), all cases in which at least one juror initially expressed preconceived notions regarding a defendant's guilt or in which other information known by the jurors might have cast doubt on their ability to render an objective, impartial verdict. In this case, the district court exercised its discretion to hold that the circumstances did not require a mistrial, once the court had seated the juror in question and the jury had been sworn.
The parties' arguments regarding Shepard's motion for a mistrial focus on whether Juror 29's comments to a fellow juror could have prejudiced that second juror. However, we review a district court's denial of a motion for a mistrial only for an abuse of discretion. United States v. Howard, 621 F.3d 433, 458 (6th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1623, 179 L.Ed.2d 514 (2011). Absolutely nothing in the appellate record indicates that Juror 29's innocuous comments to the other juror that "it would be a rough day" or that he was not sure he would "be able to view those pictures" resulted in prejudice so obvious that we should find an abuse of discretion by the district court in holding otherwise. In fact, the questioning during voir dire and the statements made by defense counsel during opening argument indicated that the images and videos to be presented to the jury were "horrendous," "disgusting," could make one sick to one's stomach, and make the case "so difficult." Against such a backdrop, Juror 29's comments to the other juror did not inject any information or context into the trial or into the jury room that was not already conceded by the defendant himself. We conclude that the denial of the motion for a mistrial was not improper.
On the other hand, it is equally clear that Juror 29 should not have been permitted to sit on Shepard's jury. There was, for example, no effective rehabilitation of Juror 29 in this case. He had responded honestly to a jury questionnaire by admitting that "the fact that the defendant
On the morning after being sworn in as a member of the jury, Juror 29 stated unequivocally that he would not be able to look at any images or videos of child pornography that were introduced into evidence. In fact, he went so far as to advise the district judge that he would close his eyes when such evidence was shown.
In his memorandum opinion explaining why he did not excuse Juror 29 from the panel, the district judge rationalized that it was not necessary for the juror to observe the pornographic images because neither party disputed that the images and videos should be classified as child pornography. Therefore, the district court concluded, the jury's primary function in this prosecution was to determine only whether Shepard knowingly accessed those images and videos, an exercise that the court apparently thought would not require viewing the visual evidence. On one level, that decision is understandable. The district judge had conducted a lengthy voir dire and had effectively exhausted the available jury pool. By dismissing Juror 29, the court risked providing an opportunity for other jurors to have themselves excused from service because of the nature of the evidence to be presented.
Nevertheless, the role of the district judge is not to gloss over serious issues for the sake of preventing additional work for the court. Rather, in a criminal trial, the judge is entrusted with the responsibility of ensuring that the constitutional rights of the accused are safeguarded from the whims of public opinion, prejudice, and expediency. Here, despite his earlier pronouncement that he could be fair and impartial in serving on Shepard's jury, Juror 29 later informed the court that he had serious doubts about his ability to do so. Although the district court sought to frame those doubts merely in terms of an ability to view certain evidence, Juror 29's's comments on the morning that evidence was actually presented were much more troubling. In fact, when asked by the prosecutor whether he could carry out his obligation "so that the government and the defendant can both have a fair and impartial jury," Juror 29 responded that he wished he could but did not think he would be able to do so. Instead, he expressed without qualification his belief that child pornography was evidence of "the lowest part of humanity" and is "just disturbing." He concluded his explanation by reiterating that he had stated on the jury questionnaire that he would be prejudiced against the defendant because of Shepard's alleged contact with child pornography and that it would be difficult for him to overcome that prejudice.
Fundamentally, the situation that the district court faced reflected some indication by Juror 29 that he could not decide the case fairly and impartially, as well as a
Whether Juror 29 could have been rehabilitated is a question that must remain unanswered. Following his expression of an inability to rise above his disgust toward and prejudice against a defendant found with child pornography on his computer, the district judge did not take the opportunity to explore Juror 29's opinions in greater detail or "establish record support for the claim that [Juror 29] was able to cast aside [his] opinion and render a verdict based on the evidence presented in court." Hughes, 258 F.3d at 459. Instead, the district court turned its attention to the question of whether Juror 29 had communicated those views to other members of the jury. Thus, as in Hughes, "because [the juror's] declaration was not followed by any attempt at clarification or rehabilitation, there is no ambiguity in the record as to [his] bias." Id.
In light of this evidence of bias and inability to follow the dictates of the oath, we conclude that the district court abused its discretion in denying Shepard's request to have Juror 29 removed from the jury. In order to preserve the sanctity of the defendant's Sixth Amendment right to be tried by a fair and impartial jury, it thus becomes necessary to reverse the defendant's conviction, vacate his sentence, and remand this matter to the district court for a new trial. See id. at 463 ("Failure to remove biased jurors taints the entire trial, and therefore ... [the resulting] conviction must be overturned." (citation omitted)).
For the reasons set out above, we VACATE the judgment of the district court and REMAND this case for a new trial.
