Fifth Circuit Affirms Seating of Juror Opposed to Gambling in Criminal Trial Involving Gambling

In United States v. Dejean, No. 19-30865 (5th Cir. Feb. 23, 2021), the Fifth Circuit upholds a mail fraud and false-statement conviction over a challenge to Juror 31, who admitted that the defendant’s gambling might possibly “affect the way [he] judge[s] somebody who … is an avid gambler?”

“A jury convicted Patrick Hale Dejean of mail fraud and making false statements to a bank. As a justice of the peace, Dejean exploited his position to pilfer thousands of dollars in public funds, which he used for casino gambling ….  For these misdeeds, Dejean was federally indicted in February 2017 and went to trial in February 2019.”

During voir dire, “Dejean’s lawyers then sought to weed out jurors whose views on gambling might prejudice them against Dejean. On this basis, the court granted for-cause challenges to two jurors: Juror 22, who admitted her disdain for gambling would deny Dejean ‘an even playing field,’ and Juror 27, who condemned gambling as ‘evil.’”

During the questioning of Juror 31, he admitted that he found gambling “silly” and had family members who had “issues with gambling.” While Juror 31 did not consider gambling “immoral or unethical,” he allowed that knowing that the defendant was a gambler could make a difference at trial:

“[DEFENSE COUNSEL]: Would it affect the way you judge somebody who you will learn is an avid gambler?

“[JUROR 31]: Possibly.

“[DEFENSE COUNSEL]: Okay, I appreciate your honesty. I mean if you say ‘possibly,’ you’re leaving the possibility that it could affect you in an unfair way. Is that right?

“[JUROR 31]: Correct.

“[DEFENSE COUNSEL]: If you tell us that, I take it what you’re, in effect, saying to us—and I appreciate it—you shouldn’t sit on this case.

“[JUROR 31]: No.”

Twice before trial the defense lawyer tried to strike Juror 31 for cause, but the court rejected both requests. After defendant’s conviction, the district court denied a motion for the new trial. Regarding Juror 31, the court held that there was no demonstration of bias: “[W]hile defense counsel ultimately was able to extract a concession from Juror 31 that she shouldn’t sit on the case, it was the court’s impression that Juror 31’s ultimate acquiescence was made in response to leading questions, and out of a desire to simply end the questioning.”

The Fifth Circuit affirms. “Dejean argues that the district court, instead of merely relying on Juror 31’s ‘demeanor,’ was instead required to question the juror further to ascertain the extent of her apparent prejudice against gamblers. We disagree …. The district court properly assessed Juror 31’s testimony holistically, including her statement at the beginning of voir dire that she could put aside her personal views and decide the case on the evidence, her colloquy with defense counsel, and her overall demeanor.”

The panel allows, though, that the district court could have done more to rehabilitate the juror with additional questioning. “[I]t would have been prudent for the court to inquire further. After all, Juror 31 agreed—without qualification—that she ‘shouldn’t sit on this case’ after a brief line of questioning by the defense counsel …. At the very least this response raises questions about the juror’s impartiality—questions that would be troubling had the district court not later found the response was motivated by the juror’s desire to end counsel’s questioning. We agree, as the government contends, that potential jurors are not presumed to know the legal standard for impartiality, but a follow-up question may have been warranted given Juror 31’s unqualified response and the relatively short voir dire.”