[00:00:00] Speaker 03:
for the Ninth Circuit is now in session.

[00:00:03] Speaker 03:
Please be seated.

[00:00:08] Speaker 03:
Good morning and welcome.

[00:00:09] Speaker 03:
Thank you so much for coming.

[00:00:10] Speaker 03:
And we would also, Judge Bay and I would like to thank our Oregon hosts here at Pioneer for being so welcoming.

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Thank you very much.

[00:00:18] Speaker 03:
So we have a number of matters that have been submitted on the briefs.

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They are United States versus Hamburg, United States versus Larkins, Samuel versus Carlin, and United States versus Ruddfeldt.

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So that leaves two cases for argument today.

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And our first one is United States versus Sanchez.

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So if counsel would please come forward.

[00:00:44] Speaker 01:
Good morning.

[00:00:46] Speaker 01:
May it please the court, I am Thad Blank representing Andres Sanchez.

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I'm going to try to reserve two minutes for rebuttal.

[00:00:54] Speaker 03:
Okay, go ahead please.

[00:00:55] Speaker 01:
Okay.

[00:00:57] Speaker 01:
The government's case here was that Mr. Sanchez, a person of Hispanic descent who speaks Spanish, helped other Hispanic individuals submit tax returns that falsely or fraudulently claimed deductions to which they were not entitled.

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in the midst of jury deliberations over those charges.

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One juror.

[00:01:20] Speaker 03:
May I ask you a question since we only have 10 minutes?

[00:01:24] Speaker 01:
Sure.

[00:01:24] Speaker 03:
I want to hop in.

[00:01:25] Speaker 03:
Sorry to interrupt you.

[00:01:28] Speaker 03:
Would it be different if the district court in excusing juror five had called in the alternate juror to take that juror's place and ask the jury to completely disregard all the deliberations they had done thus far and just start anew?

[00:01:45] Speaker 01:
Absolutely.

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Do you think there would be no problem if that had taken place?

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I think that our position is that that would have remedied the involvement of Juror 5 in the deliberation in this case.

[00:02:01] Speaker 01:
Move?

[00:02:03] Speaker 01:
Sorry?

[00:02:03] Speaker 00:
Did you so move?

[00:02:06] Speaker 01:
Well, the posture was that defense counsel moved for Amistra.

[00:02:09] Speaker 01:
No, they didn't ask for that particular remedy.

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They asked for a mistrial.

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The government's suggestion in that context was slow down.

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Maybe we don't have to go that far.

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There's other alternatives available.

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The government suggested some of those.

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The district court adopted some of those.

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But defense counsel's position throughout was that the presence of that juror required a mistrial.

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So can I ask you another question then?

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understanding that would have been the best course.

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In this case, the court, though, was allowed to go forward with 11 instead of 12.

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The law allows the judge to go forward with 11.

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And if we interpret the statement that the judge made after dismissing juror five, after a day-long in-camera interview of each of the 12 jurors, excuses them, they leave.

[00:03:04] Speaker 03:
pretty dramatic when you excuse a juror.

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And then the judge says, well, now it's up to you to decide, would you have reached the same verdict without Juror 5?

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Would you reach the same verdict with Juror 5?

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How is that different than the first scenario that I just asked you about?

[00:03:22] Speaker 01:
Well, it's dramatically different because in the first scenario, the jury is instructed to disregard all of the work they've done to get to that point that involves

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the participation of Jur 5 for at least five hours of deliberation.

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And in the second scenario, they're asked, do you want to change the verdict that you've already reached?

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Do you want to do more work?

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And just pragmatically speaking, you can see here that it's 13 minutes door to door.

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They leave Judge Windmill's courtroom.

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go to the jury room, they're back with the verdict that they've previously reached.

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But if someone asked, would you reach the same verdict, disregarding the excused jurors' contributions, why isn't that something that an individual could decide in 13 minutes?

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Well, I think they could decide that in 13 minutes, because it doesn't require them to revisit the evidence.

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It just requires them to make a quick assessment.

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Does anybody want to change their vote?

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given the limited information that we have.

[00:04:27] Speaker 01:
We have no new information.

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We haven't been told to do anything except see if we want to change our vote.

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Nobody wants to change their vote.

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But they're not directed to revisit the evidence, the law, the process of deliberation that led to that verdict.

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And that's significant.

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And that's why that's required when an alternate juror comes in under the rule is because it's supposed to be a new process where all of the evidence is reconsidered.

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And that whole process is the ideas.

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And in this case.

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So the error here is that the district court's instruction after dismissing juror five was inadequate.

[00:05:02] Speaker 01:
Well, the error is that the misconduct is that there was a juror who had

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really odious racial views that participated significantly in the deliberation that led to the verdict.

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And one of the ways I guess we'll concede that one of the ways this could have been addressed was through more fulsome corrective measures by the district court.

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And that one would have corrected it, we'll concede.

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A mistrial would have also corrected it.

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Okay, but what if the, would you agree then that not

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substituting in the alternate juror for juror five, but saying start anew, you know, set aside your previous set of deliberations with juror five, start anew, even if you only have 11 jurors, that that would have remedied the harm.

[00:05:52] Speaker 01:
Yes, we would agree that that would be sufficient to remedy juror five's involvement in this process of deliberation because the presumption is that the jury is going to follow those instructions, they're going to revisit the evidence and

[00:06:04] Speaker 01:
the influence of Jur 5, which they may well not have perceived, should be worked out when they're talking through the evidence without that juror's perspective in his probably both overt and implicit racist perspective.

[00:06:28] Speaker 01:
I guess I'll make a couple more points.

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I've argued in the briefs for a heightened standard of review, of harmlessness review.

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And I want to make two points.

[00:06:40] Speaker 01:
We've argued, you know, the thing about this case is had the trial judge accepted the verdict and then done this, Faudier, it's clear that a new trial would be required because this court says that the presence of one biased juror is structural error if they participate in the verdict.

[00:07:00] Speaker 01:
The fact that this biased juror participated up to the point that the jury was ready to return a verdict makes this case fall under the ambit of this rule.

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And even if the court doesn't buy that, that concern underscores the prejudice that exists here.

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Because the idea, the reason that this court has said that the presence of a biased juror is structural error is because it tilts the whole framework for deliberation.

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And it's very difficult to unwind

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the way in which that influences all of the decisions that are made, just like a biased judge.

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So that underscores the significance and the prejudice of a biased juror participating in deliberations to this extent.

[00:07:39] Speaker 00:
The biased juror was brought to the judge's attention by another juror, right?

[00:07:44] Speaker 01:
He was.

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Yes, he was.

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The other point that I'd make on that is we've argued that this is akin, that in the minimum,

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The reasons for the Rimmer standard about a particular species of jurors misconduct should also pertain in this situation because there's unique historical, institutional, and constitutional concerns that pertain to racism, at least to the same degree.

[00:08:11] Speaker 03:
Can I ask you another question?

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I'm sorry to interrupt you again.

[00:08:14] Speaker 03:
Why should the fact that no verdict taken be effectively meaningless here?

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Isn't there some consideration that has to be given to the fact that the district court didn't accept the verdict and did give, albeit perhaps an inadequate instruction, but did give an instruction saying, I've dismissed this juror.

[00:08:38] Speaker 03:
It's up to you to decide, would you have reached the same verdict?

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Did you reach the same verdict with this juror now gone?

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formulaically or sort of formally different, and then the district judge just didn't take the verdict.

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But our position is that it's sort of a distinction without much of a difference.

[00:09:01] Speaker 01:
When that juror has participated for five hours, to the point where the jury's going to return a verdict, there's not, I think you can say that there's not meaningful deliberation after that point, given the short term.

[00:09:13] Speaker 01:
They're not sent back with a new verdict form.

[00:09:15] Speaker 01:
They're just sent back, do you want to do anything different?

[00:09:18] Speaker 01:
with the verdict that you have already reached with the participation of this juror who's racially biased?

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And their answer is no.

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And that is not enough.

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That de minimis instruction and deliberation is not enough to separate this case from those cases in which this court has said it's structural error.

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That juror participated in deliberation up to the point that it leads to a verdict.

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And that's enough under the ambit of this court's rule and rationale would be our argument.

[00:09:46] Speaker 01:
I'll leave it at that for now.

[00:09:47] Speaker 01:
Thank you.

[00:09:47] Speaker 03:
Thank you.

[00:09:48] Speaker 03:
You have a minute left.

[00:09:58] Speaker 04:
Good morning.

[00:09:58] Speaker 04:
May it please the court, Darcy Crane for the United States.

[00:10:02] Speaker 04:
The United States is asking this court to affirm the district court's denial of the motion for mistrial and new trial, as well as deny the defendant's request to remand for an evidentiary hearing.

[00:10:13] Speaker 04:
In this case, the procedural safeguards that were recognized in Peña Rodriguez worked.

[00:10:19] Speaker 04:
In this case, a juror approached the court prior to the verdict being rendered and informed court staff that there was a concern about racism or racist comments that had been made in the jury room.

[00:10:32] Speaker 04:
At that time, the district court undertook a procedure to obtain additional information, a procedure that ultimately led to an in-camera hearing that required the questioning of every juror.

[00:10:47] Speaker 03:
These jurors, it was Friday afternoon, they wanted to go home.

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They reached the same verdict with Juror 5 as they gave after the in-camera review and the excusal of Juror 5.

[00:11:02] Speaker 03:
I guess I don't understand why there wouldn't be this presumption here that the racist comments of Juror 5 infected their deliberations.

[00:11:16] Speaker 04:
Your Honor, the government disagrees with the characterization that the jury reached the same verdict that was initially prepared to return prior to Juror 16 raising the issue and the court undertaking the procedure.

[00:11:29] Speaker 04:
The district court in this case took pains to make sure that the parties did not know where the jury stood at the time at which they would have returned that proposed verdict.

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And so there is no way to know if the verdict that the jury was prepared to return the morning of Friday.

[00:11:43] Speaker 03:
But what do we know about what they said during the juror in camera interviews?

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They know that they had a verdict on some, but they also hung on one.

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And that is ultimately what they did, correct?

[00:11:56] Speaker 04:
I don't, yes, that's the verdict that was ultimately returned, Your Honor.

[00:12:00] Speaker 04:
I don't know if there were specifics about how many there were hung on to that extent.

[00:12:05] Speaker 04:
But the district court did inquire of every juror whether they had heard any comment that would have implicated some bias to them with an emphasis on racial or ethnic bias.

[00:12:15] Speaker 02:
And that's part of the problem.

[00:12:16] Speaker 02:
I've read the transcript, and in Peña Rodríguez, the court talked about how difficult it is

[00:12:23] Speaker 02:
to determine racial bias for a variety of pragmatic reasons.

[00:12:29] Speaker 02:
And that, you know, general questions about bias aren't going to get it.

[00:12:34] Speaker 02:
A lot of times the court asks, did you hear anything that you consider to be bias?

[00:12:38] Speaker 02:
Well, that's tough because someone who's biased might not consider a comment to be biased.

[00:12:44] Speaker 02:
There's times where it's unclear whether they didn't hear it or whether they didn't consider it to be biased.

[00:12:49] Speaker 02:
A lot of the questions were very high level and vague.

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And that's part of the problem here is that I feel like we don't know.

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We don't know because the district court felt very restricted.

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And we don't know to what extent there are five influenced deliberations, how.

[00:13:08] Speaker 02:
Considering the historical, constitutional, and pragmatic considerations identified in Peña Rodriguez, I don't know how we know that there wasn't prejudice here.

[00:13:22] Speaker 04:
We know, Your Honor, because the safeguards identified in Peña Rodriguez to not get to that point worked in this case.

[00:13:27] Speaker 04:
A juror approached the court and identified the comments that he had heard.

[00:13:32] Speaker 04:
And then the court undertook to ask that juror 16, was there any other jurors that that juror thought had overheard the same comment?

[00:13:40] Speaker 04:
The court began with two of those jurors.

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One of them did identify hearing a comment.

[00:13:45] Speaker 04:
There was a second

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juror and potentially probably we'll say three jurors to be expansive that told the court that they heard some sort of comment that could relate to racial or ethnic bias.

[00:13:58] Speaker 04:
Those were the three jurors plus juror 16.

[00:14:01] Speaker 04:
The court however asked every juror if they had heard a comment

[00:14:06] Speaker 04:
what that comment was and whether or not it would affect their deliberations or verdict.

[00:14:10] Speaker 04:
And every juror unequivocally answered no.

[00:14:13] Speaker 04:
And reviewing the courts.

[00:14:15] Speaker 00:
And to know that they had not heard the comment or know that it would not affect their verdict?

[00:14:20] Speaker 04:
No.

[00:14:21] Speaker 04:
No, that would not affect their verdict.

[00:14:23] Speaker 00:
Because three had heard the comment.

[00:14:26] Speaker 04:
Yes, Your Honor.

[00:14:27] Speaker 04:
Three had heard a comment.

[00:14:28] Speaker 04:
It's not necessarily the same, the exact same recitation.

[00:14:34] Speaker 04:
Another point of interest in this case is that when questioning the jurors, it became clear that a number of jurors had heard an accusation by Juror 16 that another juror was racist.

[00:14:47] Speaker 04:
And a number of jurors on the jury told the court about this.

[00:14:51] Speaker 04:
And they had interpreted that as being made towards Juror 1.

[00:14:57] Speaker 04:
In fact, Juror 1 self-reported to the court during the in-camera hearing that that juror had been accused of racism.

[00:15:04] Speaker 04:
When asked, Juror 1 told the court that the juror was reading the jury instructions from the court at the time that that comment was made.

[00:15:13] Speaker 04:
It appears from listening to all of the in-camera hearings, the court determined that the comment that Juror 16 made was wrongfully, a number of jurors wrongfully thought it was made toward Juror 1 when it was intended to be made.

[00:15:28] Speaker 03:
Let me ask you another question.

[00:15:29] Speaker 03:
I'm looking at the instruction that the district court gave.

[00:15:32] Speaker 03:
It's really vague.

[00:15:34] Speaker 03:
It doesn't say disregard any statements of Juror 5.

[00:15:39] Speaker 03:
It just says, and in reality, the thing you should consider is whether excusing juror number five and functioning as a jury of 11, whether you have reached a different verdict or would reach a different verdict, that's up to you to decide.

[00:15:54] Speaker 03:
That doesn't clearly say you have to disregard any statements that juror five made during your previous five hours of deliberations.

[00:16:02] Speaker 03:
You would agree with that, right?

[00:16:03] Speaker 04:
Yes, Your Honor.

[00:16:04] Speaker 03:
So how is this instruction sufficient?

[00:16:07] Speaker 04:
This instruction, when paired with the questions and comments made by the district court during the in-camera hearings, is sufficient to ensure that the jury of 11 that returned a verdict did not include any members who were racially or ethnically biased.

[00:16:24] Speaker 03:
And what were those comments during the in-camera jury interviews?

[00:16:29] Speaker 03:
Are you referring just to the question of, will you be impartial?

[00:16:32] Speaker 03:
Or was there a specific instruction?

[00:16:34] Speaker 04:
The question and the interaction that the court undertook, Your Honor.

[00:16:37] Speaker 03:
Which was what?

[00:16:38] Speaker 03:
Boil it down to what's dispositive here.

[00:16:42] Speaker 04:
That the court first inquired, that the court first established whether or not the juror had heard a comment that they would consider to be biased.

[00:16:50] Speaker 04:
if that juror had heard the comment, what they heard and when it was made.

[00:16:54] Speaker 04:
And then ultimately the court had dialogue with each of the jurors about whether or not if they had heard a comment, that comment would impact in any way their deliberation or their verdict to which each juror answered, no, it would not.

[00:17:13] Speaker 03:
You know, I wanted to talk to you about Sarkeesian because you rely on that so much in your brief.

[00:17:17] Speaker 03:
In that case,

[00:17:19] Speaker 03:
It's distinguishable because all of that happened before even closing arguments and before deliberations.

[00:17:26] Speaker 03:
Whereas here we have a racist juror who participated for five hours and the jury said, we've reached a verdict with this racist juror.

[00:17:35] Speaker 03:
So how can you rely on Sarkeesian here?

[00:17:39] Speaker 04:
The government looks to Sarkeesian, Your Honor, because it is one of the few cases in which the juror bias issue was discovered prior to the verdict being accepted by the district court.

[00:17:50] Speaker 04:
Many of the other cases, Dyer versus Calderon, Peña Rodriguez, all occurred that the error was discovered after the jury had returned their verdict.

[00:18:01] Speaker 04:
And so the government relies on Sarkeesian because it is a case in which the court

[00:18:05] Speaker 04:
found that the error or the potential bias.

[00:18:09] Speaker 03:
I agree the fact that the in Sarkeesian, they haven't even finished accepting all of the evidence that's going to be admitted during the trial.

[00:18:17] Speaker 03:
They haven't had closing arguments.

[00:18:18] Speaker 03:
They haven't had closing jury instructions.

[00:18:21] Speaker 03:
They haven't started deliberating.

[00:18:22] Speaker 03:
That's a significant difference, isn't it?

[00:18:27] Speaker 04:
It is, Your Honor, but the district court undertook the procedure that was somewhat loosely outlined and dire in this case, which was when an issue of colorable bias on the jury was raised, it undertook an inquiry, in this case an in-camera hearing, to determine what had been said when, by whom, and the impact that the jurors reported that that did or did not have on them.

[00:18:52] Speaker 04:
And after observing all of the

[00:18:55] Speaker 04:
of the jurors, the district court felt confident that none of the remaining 11 jurors who proceeded to verdict would be impacted by the comments that the juror five had made.

[00:19:16] Speaker 04:
In this case, Your Honor, government relies on Sarkeesian because that is one of the few pre-verdict bias cases that has on there.

[00:19:24] Speaker 02:
Well, Sarkeesian also expressly reserved the question of whether Rummer applies and decided in the alternative that it was met.

[00:19:32] Speaker 02:
And then Sarkeesian also, the standard that you rely on, was actually adopted from a plain error review standard, which also doesn't apply here.

[00:19:41] Speaker 02:
Is that correct?

[00:19:43] Speaker 02:
Yes, Your Honor.

[00:19:44] Speaker 02:
Okay.

[00:19:45] Speaker 02:
And Sarcissian also involved expressed bias that had nothing to do with the defendant or material witness in the case.

[00:19:51] Speaker 02:
Is that correct?

[00:19:52] Speaker 04:
Yes, Your Honor.

[00:19:53] Speaker 02:
So why should we say Sarcissian is controlling, considering all those factors?

[00:19:59] Speaker 04:
Is it okay if I answer, Your Honor?

[00:20:03] Speaker 04:
to look at the procedures that were undertaken by the court in Sarkeesian.

[00:20:07] Speaker 04:
That is why the government is asking this court to look at that case as analogous, because while some of the facts are distinguishable, similarly, the district court in that case also tried to have the same type of procedures to take action against jury bias.

[00:20:28] Speaker 02:
And what do we do with the fact that Peña Rodriguez said racial bias is different from other types of juror bias?

[00:20:36] Speaker 04:
What the government is asking to do the court here doesn't run afoul of Peña Rodriguez's sentiments.

[00:20:42] Speaker 02:
Okay, why not?

[00:20:44] Speaker 04:
Because in this case, the

[00:20:48] Speaker 04:
The district court did take seriously this allegation of racial bias and inquired with all the jurors whether or not that had affected their verdict.

[00:20:59] Speaker 04:
And Peña Rodriguez left open the question of how a district court might go about resolving the issue of racial juror bias in its findings.

[00:21:09] Speaker 04:
In addition, Peña Rodriguez did note that although racial bias is insidious and special,

[00:21:18] Speaker 04:
consideration should be given to, you know, considering post-verdict, how that's investigated under Rule 606.

[00:21:25] Speaker 04:
It also did note that there were procedural safeguards in place.

[00:21:28] Speaker 04:
And in this case, those procedural safeguards worked.

[00:21:31] Speaker 04:
And so it wasn't necessary to reach the same level that Peña Rodriguez did because that was a post-verdict case.

[00:21:38] Speaker ?:
Okay.

[00:21:38] Speaker 02:
I understand your argument.

[00:21:39] Speaker 03:
Thank you.

[00:21:39] Speaker 03:
All right.

[00:21:40] Speaker 03:
Any further questions from my colleagues?

[00:21:43] Speaker 03:
No?

[00:21:43] Speaker 03:
All right.

[00:21:44] Speaker 03:
Thank you.

[00:21:44] Speaker 04:
Thank you.

[00:21:48] Speaker 01:
Thank you.

[00:21:48] Speaker 01:
Two points.

[00:21:52] Speaker 01:
I think this is Judge Chung's point is that we don't know what exactly happened in those first five hours of deliberation in the role of Jur 5 and Jur 16.

[00:22:01] Speaker 01:
And we don't know exactly what happened in those approximately 10 minutes of deliberation.

[00:22:05] Speaker 01:
And that's part of the problem is that Rule 606 prevented the district court from fully disentangling that process.

[00:22:12] Speaker 01:
But practically speaking, what we can say is that that subsequent deliberation with 11 jurors

[00:22:17] Speaker 01:
relied on the work that was done in those first five hours.

[00:22:21] Speaker 01:
Five hours versus 10 minutes, it's just common sense that that significant period of deliberation that involved the racist juror, they stood on the shoulders of that deliberation to reach the verdict that was returned in this case.

[00:22:32] Speaker 03:
Can I ask you though, would that require us to assume the jurors did not follow the jury instructions?

[00:22:38] Speaker 03:
Because the preliminary jury instructions, the final jury instructions specifically said you have to set aside likes, dislikes, prejudices, sympathies, the standard Ninth Circuit model jury instructions.

[00:22:52] Speaker 03:
So we'd have to assume that that set of jurors disregarded that.

[00:22:57] Speaker 03:
And we're not allowed to do that, right?

[00:22:58] Speaker 03:
Aren't we required to presume that jurors follow the instructions?

[00:23:03] Speaker 01:
Well, two points.

[00:23:04] Speaker 01:
One, we know that one of the jurors didn't follow those instructions.

[00:23:07] Speaker 01:
That's Juror 5, and he participated in deliberations.

[00:23:10] Speaker 01:
I think we can accept that many of these jurors thought that they were complying with those instructions, that they subjectively thought they were being impartial, but there's numerous instances where this court assesses the significance of the prejudicial information or outside influence and says, jurors are not very good at self-assessment.

[00:23:29] Speaker 01:
They might have blind spots or reasons why they're going to say when they're asked, yes, I'm being impartial, I'm considering the right thing.

[00:23:36] Speaker 01:
outside influence is so odious that that oftentimes is what this court focuses on rather than those jurors' own self-assessment.

[00:23:45] Speaker 01:
And that's the case here, is that that influence is so significant for the length that it's there, for the odiousness of the comments, that these jurors' own assessment of that is just not the end of the...

[00:23:59] Speaker 03:
You relying on for that dire or what what?

[00:24:03] Speaker 03:
We can't trust jurors assessments of their own impartiality.

[00:24:07] Speaker 03:
What are you relying on for that?

[00:24:09] Speaker 01:
I would point to a few cases that we cite caldieri says that ultimately the question of and maybe I'm mispronouncing Does that ultimately the question of whether or

[00:24:22] Speaker 01:
Jury misconduct is prejudicial, is a review de novo.

[00:24:27] Speaker 01:
Even though there's a factual component of it, it's a mixed question of law and fact.

[00:24:31] Speaker 01:
The fact is the juror's subjective self-assessment.

[00:24:33] Speaker 01:
But the legal question is whether the influence is so prejudicial.

[00:24:37] Speaker 01:
But examples of cases where this court has said, don't trust the jury's self-assessment, that's not the entire answer.

[00:24:43] Speaker 01:
Caliendo, Jeffries, and Dyer are at least, and Hindley as well, are four that are cited in Mr. Sanchez's briefs.

[00:24:53] Speaker 01:
Unless the court has any other questions, I'll submit.

[00:24:55] Speaker 03:
Let me just check.

[00:24:56] Speaker 03:
Thank you very much.

[00:24:58] Speaker 03:
Thank you very much.

[00:24:59] Speaker 03:
Thank you to both counsel.

[00:25:00] Speaker 03:
These were extremely helpful arguments.

[00:25:02] Speaker 03:
Thank you.