Gonzales v. Thomas

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 11/5/96
TENTH CIRCUIT

_____________________

LARRY GONZALES,

Petitioner-Appellant,

v. No. 95-2279

JOHN THOMAS, Warden; ATTORNEY
GENERAL OF THE STATE OF NEW
MEXICO,

Respondents-Appellees.
_____________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-91-339-JP)
_____________________

Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Petitioner-Appellant.

Max Shepherd, Assistant Attorney General (Tom Udall, Attorney General of New
Mexico, with him on the brief), Santa Fe, New Mexico, for Respondents-
Appellees.
_____________________

Before TACHA, BALDOCK and BRORBY, Circuit Judges.
_____________________

BRORBY, Circuit Judge.
_____________________
 Larry Gonzales, a prisoner of the State of New Mexico, filed a petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Gonzales claimed his

state conviction violated, among others, 1 his right under the Sixth Amendment to

an impartial jury. The respondent conceded Mr. Gonzales had exhausted his state

remedies. After an evidentiary hearing, a federal magistrate judge issued

proposed findings and recommended Mr. Gonzales's petition be dismissed with

prejudice. Over Mr. Gonzales's objections, the district court adopted the

magistrate judge's proposed findings and dismissed the habeas petition with

prejudice. After Mr. Gonzales filed his notice of appeal, the district court issued

an order denying him a certificate of probable cause. Finding that Mr. Gonzales

has made the requisite "substantial showing of the denial of" his constitutionally

protected right to an impartial jury, 28 U.S.C. § 2253, we grant Mr. Gonzales a

certificate of appealability. See Antiterrorism and Effective Death Penalty Act of

1996 § 102, Pub. L. No. 104-132, 110 Stat. 1214 (amending 28 U.S.C. § 2253);

Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996). As explained below, we affirm

the judgment of the district court.

1
Though Mr. Gonzales also originally raised other issues, he later
withdrew all contentions except his impartial jury claim.

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 I. Factual & Procedural Background

In October 1988, Mr. Gonzales was charged by information in the Seventh

Judicial District of the State of New Mexico with three counts. Count One

accused Mr. Gonzales of criminal sexual penetration in violation of N.M.S.A.

§ 30-9-11(A). Count Two alleged Mr. Gonzales used a firearm to commit Assault

with Intent to Commit a Violent Felony in violation of N.M.S.A. §§ 30-3-3 and

31-18-16. Count Three accused Mr. Gonzales of Bribery of a Witness with the

use of a firearm in violation of N.M.S.A. §§ 30-24-3(C) and 31-18-16 or

N.M.S.A. §§ 30-16-9(A) and 31-18-16. Mr. Gonzales pleaded not guilty to the

charges against him, and the case was tried to a jury.

The charges against Mr. Gonzales arose from a visit to his wife's cousin,

the victim. 2 On the evening of the incident, the victim and her young daughter

were at the victim's sister's apartment. The victim was babysitting her niece. Mr.

Gonzales arrived at the apartment carrying two bottles of an alcoholic beverage

composed of orange juice and whiskey. Mr. Gonzales and the victim played a

2
The accounts we give in this opinion of the incident leading to Mr.
Gonzales's conviction are based on Mr. Gonzales's candid admissions in his brief
with respect to the evidence revealed at his trial. Given that the New Mexico
state trial transcript was forwarded to this court in the form of thirty-six audio
tapes, we appreciate the candor of Mr. Gonzales and his attorney. The respondent
has not disputed Mr. Gonzales's characterization of the evidence.

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drinking game that caused the victim to become intoxicated. The victim testified

that after the game ended Mr. Gonzales made sexual advances that she resisted.

According to the victim, Mr. Gonzales knocked her unconscious and when she

regained consciousness, she discovered he was raping her. The victim also

testified that Mr. Gonzales threatened to harm her daughter and niece with a gun

unless she submitted to him. Though the victim claimed Mr. Gonzales molested

the two girls, the record does not indicate he was ever charged for such a crime.

At some point during the evening, the victim's sister called home and the victim

answered the phone. According to the victim, Mr. Gonzales threatened her with a

gun and said, "Don't tell her I'm here."

The New Mexico jury found Mr. Gonzales guilty of Counts One and Three,

but found he had not used a firearm in the commission of Count Three. The jury

found Mr. Gonzales not guilty of Count Two. After accepting the jury's verdicts,

the state court sentenced Mr. Gonzales to eighteen years of imprisonment for

Count One, three years for Count Three -- the two sentences to run concurrently

-- plus two years of parole following incarceration.

Sometime after his conviction, Mr. Gonzales discovered one of the jurors

for his trial had been a rape victim prior to serving on the jury and had discussed

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her rape experience during the jury's deliberation of his case. In his federal

habeas petition, Mr. Gonzales claimed this juror improperly concealed her rape

experience during voir dire and that had she divulged this information, she would

have been subject to a valid challenge for cause. Mr. Gonzales requested the

district court to conduct an evidentiary hearing on the issue of whether his right to

an impartial jury had been violated. In the course of Mr. Gonzales's direct

appeals and state habeas proceedings in New Mexico state courts, he had not

received such a hearing. Pursuant to Mr. Gonzales's request, a federal magistrate

judge conducted an evidentiary hearing on the issue of jury impartiality.

The evidentiary hearing and the state trial court record reveal the following

relevant facts. At the opening of voir dire in Mr. Gonzales's state prosecution, the

judge addressed the prospective jurors and described the case as follows:

The defendant stands charged with three separate offenses....
The information specifically charges that the defendant committed
the following crimes. Count 1: Criminal sexual penetration in the
first degree, in that the defendant did, on or about the nineteenth day
of September, 1988, unlawfully and intentionally cause [the victim],
who was not the defendant's spouse, to engage in sexual intercourse,
anal intercourse, or the causing of penetration, to any extent and with
any object, of the genital or anal openings of another by the use of
force or coercion resulting in great mental anguish, contrary to our
New Mexico statutes.

Count 2: Assault with intent to commit a violent felony, in
that the defendant did on or about the said date assault the victim
with the intent to commit criminal sexual penetration in the first

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 degree and did so with a firearm, contrary to our New Mexico
statutes.

Count 3: Extortion, in that the defendant did, on or about the
said date, by communication or transmission threaten another, to wit
the victim, by any means whatsoever with intent thereby to
wrongfully compel the said person threatened to do or refrain from
doing any act against her will, and said threat was to unlawfully
injure the person threatened or another, and did so with a firearm,
contrary to our New Mexico statutes.

In addition to what they learned about the alleged crimes from the trial

judge's description, the prospective jurors were told during the course of voir dire

that the victim's young daughter and niece also may have been victims. The

jurors also learned that both the alleged victim and Mr. Gonzales had been

drinking alcohol and that Mr. Gonzales contended his accuser consented to sexual

intercourse.

During voir dire, a prospective juror indicated that two of her relatives had

gone to trial on similar charges a few years before. In response to this revelation,

the judge called the attorneys to the bench and explained: "It's relatively unusual

to have a prospective juror who has an experience with her own family of similar

types of cases. I'm inclined to excuse her for cause." Neither party objected, and

the judge excused the juror.

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 After the judge excused three more prospective jurors, the clerk called

Sandra Kieft as a prospective juror. During the voir dire of Ms. Kieft, the judge

asked, "Ha[ve] you or has any member of your immediate family ever been

involved in a similar type of, uh, incident?" Ms. Kieft responded, "No." The

judge then asked Ms. Kieft, "Do you know of any reason Ms. Kieft why you could

not serve as a fair and impartial juror in this case?" Though no answer is audible

on the trial tape, the trial judge's response indicates Ms. Kieft answered no to this

question. Neither Mr. Gonzales nor the state objected to Ms. Kieft serving on the

jury, and she was empaneled.

During the evidentiary hearing before the federal magistrate judge, the

magistrate judge heard the sworn testimony of Ms. Kieft and two other jurors who

served on the jury that convicted Mr. Gonzales. This hearing revealed Ms. Kieft

had been "date raped" in 1965. At the time, she was nineteen years old and in

school.

Ms. Kieft testified she did not recall being asked, prior to serving on Mr.

Gonzales's jury, whether she or any member of her family had been the victim of

a crime similar to those charged against Mr. Gonzales. She testified that had she

been asked that question she would have answered she was not such a victim.

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Asked to elaborate on this answer, Ms. Kieft explained:

I think the circumstances of the events of my past that I was
referring to [were] very different from the circumstances that were
represented in the case that we were hearing. The similarity was that
alcohol was involved.

The dissimilarities were that there was no weapon, I had
willingly gone out with this person on a date. I had not had this
person intrude into my home. I had no children who were present or
who were involved at the time.

The events were something that I would avoid in the future,
but it was not something that traumatized my life.

Ms. Kieft testified her rape did not have a significant impact on her life

other than to make her realize it "was a really bad situation" she would not want

to be in again. Upon being asked whether her rape experience led her to identify

with the victim in Mr. Gonzales's case, she answered: "I don't quite know how to

answer that. I believe that I identified more with [the victim] than I did with Mr.

Gonzales at the time, but I did not particularly personally identify with her." Ms.

Kieft asserted her past experiences were not on her mind when she was trying to

determine Mr. Gonzales's guilt or innocence.

When asked whether a discussion of her rape came up during jury

deliberations in Mr. Gonzales's case, Ms. Kieft admitted she had mentioned her

rape experience. Ms. Kieft explained:

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 As I recall -- this is many years ago -- there was a discussion
within the jury that related to a woman's participation in a sexual
interaction because of coercion. Where she had -- there's a
possibility that she could have been put under such pressure that she
simply would have allowed something to happen that she did not
particularly want to have happened, but some of the jurors had made
a statement that a woman could not be raped if she did not want to be
raped. That she couldn't be sexually penetrated if she didn't want it
to happen. And if a woman had been raped it was because she
wanted it.

I made this statement, I believe, that I did not agree with that
opinion. That I had, myself, been in a circumstance, been in a
circumstance where there had been sexual penetration and had
certainly seemed to be the best option at the time. It was a forced
sexual contact.

Ms. Kieft further explained:

In mentioning that this experience had happened, I did mention
it because I was -- because I felt very strongly that other people's
statement that, you know, a woman couldn't be forced into a situation
she didn't want to happen. I felt that I had an experience that refuted
that, and I had had an experience in my life that refuted that. That
was one that came to mind. It was not something that I had been
dwelling on or giving any thought to until that morning.

David Love, another juror at Mr. Gonzales's trial, also testified at the

evidentiary hearing. Mr. Love remembered Ms. Kieft saying "a long time ago"

she was the victim of what is now commonly known as a "date rape." Though

Mr. Love did not remember very well the context in which Ms. Kieft's admission

arose, he did remember it "was a very brief statement on her part" and occurred

"fairly early in the deliberations." Asserting Ms. Kieft did not utilize her

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experience "to interpret [Mr. Gonzales's] case," Mr. Love explained she may have

brought up her rape "in terms of something that one of the male jurors had said."

He said Ms. Kieft did not offer her experience as a justification for any argument

she had made. Finally, Mr. Love testified that although he "was surprised that

people who had been victims of similar or possibly similar circumstances would

have been allowed on a jury," he "didn't think that it necessarily prejudiced the

person one way or the other toward the outcome of this particular case." Mr.

Love explained that had he felt a danger of prejudice, he "certainly would have"

notified the trial judge.

Mary Lou Chavez was the third and final juror to testify at the evidentiary

hearing before the magistrate judge. Though she remembered one of the other

women on the jury saying she had been sexually assaulted, Ms. Chavez could not

remember who this juror was. With respect to the context in which the discussion

arose, Ms. Chavez explained: "At the time we were deliberating, she kind of said

that she knew what [the victim] was going through because she had been

assaulted." 3 Ms. Chavez did not recall the juror making any other statement about

3
Ms. Chavez's testimony could be read as conflicting with that of Ms.
Kieft and Mr. Love in that it suggests Ms. Kieft discussed her rape in the context
of assessing what Mr. Gonzales's victim "was going through." Given the
magistrate judge's findings as to Ms. Kieft's credibility, see infra, we reject such a
reading.

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what had happened to her.

After the evidentiary hearing, the federal magistrate judge issued proposed

findings. Noting the distinctions between Ms. Kieft's date rape experience and

the circumstances that gave rise to Mr. Gonzales's prosecution, the magistrate

judge found Ms. Kieft had not been dishonest in her response to voir dire

questioning. Rather, the magistrate judge suggested Ms. Kieft mistakenly, but

honestly, failed "to respond to a question." The magistrate judge also found Mr.

Gonzales had not demonstrated Ms. Kieft was actually or presumably biased

against him. Based on these findings, the magistrate judge recommended Mr.

Gonzales's habeas petition be dismissed with prejudice. The district court

adopted the magistrate judge's findings and dismissed Mr. Gonzales's petition

with prejudice. This appeal followed.

II. Analysis

By mandate of the Sixth Amendment to the United States Constitution,

"[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury." U.S. Const., Amend. VI (emphasis added).

The right to an impartial jury is applicable to the various states by virtue of the

Fourteenth Amendment. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) (declaring

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the failure to provide an impartial jury "violates even the minimal standards of

due process"); Hunley v. Godinez, 975 F.2d 316, 318 (7th Cir. 1992). Though a

litigant has no right to a perfect trial, "for there are no perfect trials," Brown v.

United States, 411 U.S. 223, 231-32 (1973), due process requires "a jury capable

and willing to decide the case solely on the evidence before it." Smith v. Phillips,

455 U.S. 209, 217 (1982). Voir dire provides courts and defendants a mechanism

for securing such a jury. In the words of the Supreme Court, voir dire "serves to

protect [the right to an impartial jury] by exposing possible biases, both known

and unknown, on the part of potential jurors.... The necessity of truthful answers

by prospective jurors if this process is to serve its purpose is obvious."

McDonough Power Equip., Inc., v. Greenwood, 464 U.S. 548, 554 (1984).

A. The McDonough Test

In the case where a party challenges the results of a trial on the basis of a

juror's alleged untruthfulness in voir dire, the Supreme Court has articulated a

two-part test. "[T]o obtain a new trial in such a situation, a party must first

demonstrate that a juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided a valid basis

for a challenge for cause." McDonough, 464 U.S. at 556; see also Burton v.

Johnson, 948 F.2d 1150, 1155 (10th Cir. 1991) (recognizing McDonough test). A

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party cannot satisfy the first part of this test merely by demonstrating a juror

provided a "mistaken, though honest, response to a question." McDonough, 464

U.S. at 555 (such a rule would "insist on something closer to perfection than our

judicial system can be expected to give"). Instead, as McDonough decrees, the

party challenging the verdict must demonstrate the juror in question "failed to

answer honestly a material question." Id. at 556 (emphasis added). It is clear to

us the McDonough test is directed at intentionally incorrect responses. See id. at

554 (emphasizing "necessity of truthful answers by prospective jurors" (emphasis

added)); United States v. Edmond, 43 F.3d 472, 474 (9th Cir. 1994) (holding

juror's forgetfulness did not fall "within the scope of dishonesty as defined by

McDonough"); Edmond, 43 F.3d at 474 (Van Sickle, J., concurring) (asserting

McDonough requires "deliberate juror misconduct"); United States v. Casamayor,

837 F.2d 1509, 1515 (11th Cir. 1988) (defendant did not satisfy McDonough

because failed to show juror "deliberately" withheld information), cert. denied,

488 U.S. 1017 (1989); United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir.

1984) (proper inquiry under McDonough is whether juror made "intentional

misrepresentations" during voir dire). Thus, if a juror intentionally withheld a

truthful response to a material question and an honest answer would have created

"a valid basis for a challenge for cause," then the party challenging the verdict is

entitled to a new trial. McDonough, 464 U.S. at 556.

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 Mr. Gonzales contends Ms. Kieft responded dishonestly when she answered

"no" to whether she or any member of her family had ever been involved in an

incident similar to the one giving rise to Mr. Gonzales's trial. The district court,

in adopting the magistrate judge's proposed findings, found Ms. Kieft did not

respond dishonestly to this question. The magistrate judge based his proposed

finding on the differences Ms. Kieft perceived between her experience and the

incident described to her during voir dire. In the magistrate judge's words:

[A]ccording to Ms. Kieft, ... the circumstances of what had happened
to her were ... different from those in the matter on trial. Ms. Kieft
explained that some twenty-four years before her service as a juror,
at about nineteen years of age, she had gone on a date with a school
acquaintance. The acquaintance consumed a quantity of alcohol, as
did Ms. Kieft, after which the acquaintance coerced Ms. Kieft into
engaging in sexual intercourse. That encounter was described as a
"date rape" by Ms. Kieft, although at the time such a term was not
commonly used. There was no physical violence imposed on Ms.
Kieft, no firearm was used by the acquaintance, there was no anal
intercourse, and there were no additional victims in the form of
children. Moreover, Ms. Kieft did not report the incident to the
police, nor did she suffer any mental trauma from the incident.
While it was not explicitly stated, it is clear that there was nothing in
the Kieft experience that rose to the "shocking and repulsive
evidence" discussed during voir dire and revealed at trial.

The magistrate judge concluded, "I find the testimony of Ms. Kieft on the issue

before the court to be credible, based on her demeanor, the content of her

testimony as it related to the other testimony given, and the record in the case."

In other words, the magistrate judge found Ms. Kieft honestly believed her

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experience was not similar to the incident described to her as the focus of Mr.

Gonzales's trial. Thus, according to the magistrate judge and the district court,

Ms. Kieft did not fail to answer honestly when she claimed not to have been

involved in a similar incident.

The question of Ms. Kieft's honesty during voir dire and in her testimony

before the magistrate judge is a factual determination we review only for clear

error. See Patton v. Yount, 467 U.S. 1025, 1036-38 & 1037 n.12 (1984) (trial

court's determination of juror bias during voir dire is question of fact); Anderson

v. City of Bessemer City, 470 U.S. 564, 575 (1985) (findings based on the

credibility of witnesses are reviewed with great deference because "only the trial

judge can be aware of the variations in demeanor and tone of voice that bear so

heavily on the listener's understanding of and belief in what is said"). As the

Supreme Court has explained,

"[t]he manner of the juror while testifying is oftentimes more
indicative of the real character of his opinion than his words. That is
seen below, but cannot always be spread upon the record. 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."

Patton, 467 U.S. at 1037 n.12 (quoting Reynolds v. United States, 98 U.S. 145,

156-57 (1878)) (emphasis added).

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 Our review of the record leads us to conclude the district court did not

clearly err when it found Ms. Kieft did not fail to answer honestly when she

denied involvement in an incident similar to the one that gave rise to Mr.

Gonzales's prosecution. The apparent sincerity of Ms. Kieft's testimony at the

hearing, the differences between her rape experience and the experience of Mr.

Gonzales's victim, and the corroboration of Ms. Kieft's testimony by the testimony

of Mr. Love and Ms. Chavez provide ample support for the district court's

finding. Though in a perfect world Ms. Kieft might have answered the trial

court's question affirmatively, the most that can be said of her response is that if

it was a mistake at all, it was an honest mistake. Given the potential for

subjectivity inherent in the word "similar," we are reluctant even to characterize

Ms. Kieft's response as a mistake.

Since Mr. Gonzales has not demonstrated Ms. Kieft failed to answer

honestly a material question in voir dire, he cannot satisfy the McDonough test. 4

4
Just because a juror responds honestly, but incorrectly, to a voir dire
question does not foreclose the possibility of bias. "One easily can imagine cases
in which a prospective juror provides what he subjectively believes to be an
honest answer, yet that same answer is objectively incorrect and therefore
suggests that the individual would be a biased juror in the particular case."
McDonough, 464 U.S. at 559 (Brennan, J., concurring). Though a defendant
cannot prevail under McDonough in such a situation -- because the juror has not
been dishonest -- we believe the doctrines of actual and implied bias, see infra,
provide defendants adequate Sixth Amendment protection in such cases.

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Thus, we cannot grant his habeas petition on that ground. As we explain below,

however, our inquiry does not end here.

B. Actual or Implied Bias

Though the test articulated by the Supreme Court in McDonough serves as

the primary means for assessing cases where a juror allegedly responds

untruthfully during voir dire, it does not provide the exclusive analysis for such

cases. Cases such as this one -- based on allegations of dishonest voir dire

answers -- fall within a larger category that comprises all cases of alleged juror

partiality, whatever the source of partiality. Though a petitioner in the position of

Mr. Gonzales has available the McDonough analysis, he is not "foreclose[d]

[from] the normal avenue of relief available to a party who is asserting that he did

not have the benefit of an impartial jury." McDonough, 464 U.S. at 556

(Blackmun, J., concurring); Zerka v. Green, 49 F.3d 1181, 1186 n.7 (6th Cir.

1995); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir.), cert. denied, 506 U.S.

1000 (1992). This "normal avenue of relief," rather than focusing on the honesty

of a juror's voir dire answers, asks more directly whether the juror was biased

against the defendant. As Justice Blackmun explained,

regardless of whether a juror's answer is honest or dishonest, it

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 remains within a trial court's option, in determining whether a jury
was biased, to order a post-trial hearing at which the movant has the
opportunity to demonstrate actual bias or, in exceptional
circumstances, that the facts are such that bias is to be inferred.

McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring); see also Smith v.

Phillips, 455 U.S. 209, 215 (1982) ("the remedy for allegations of juror partiality

is a hearing in which the defendant has the opportunity to prove actual bias");

Smith, 455 U.S. at 221 (O'Connor, J., concurring) (expressing her "view that the

[majority] opinion does not foreclose the use of 'implied bias' in appropriate

circumstances"); United States v. Wood, 299 U.S. 123, 133 (1936); Zerka, 49 F.3d

at 1186 n.7; Amirault, 968 F.2d at 1405-06.

In Mr. Gonzales's case, the magistrate judge and the district court

determined Ms. Kieft was neither actually nor impliedly biased against Mr.

Gonzales. In this appeal, Mr. Gonzales challenges both these determinations.

Whether a juror was actually biased is a factual question we review only for clear

error. See Patton, 467 U.S. at 1036 (in federal habeas corpus review of state

conviction, state court determination as to partiality of individual juror is entitled

to presumption of correctness due factual findings) 5; Hunley, 975 F.2d at 318

5
Though Patton concerns the situation where a federal court is reviewing
the determination of a state trial court, we see no reason why the question would
not still be a factual one when decided in the first instance at the federal district
court level after an evidentiary hearing. That the determination is made by a

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("the question of whether an individual juror is biased is a factual

determination"). Whether a juror was impliedly biased is a legal question we

review de novo. Smith, 455 U.S. at 222 n.* (O'Connor, J., concurring); Burton,

948 F.2d at 1158.

After reviewing the transcript of Mr. Gonzales's evidentiary hearing before

the federal magistrate judge, we conclude the magistrate judge and the district

court did not clearly err in finding Ms. Kieft harbored no actual bias against Mr.

Gonzales. Ms. Kieft testified her rape experience was not on her mind when she

was trying to determine Mr. Gonzales's guilt or innocence. She also testified she

was able to set aside her feelings about her rape in determining Mr. Gonzales's

guilt. Given the deference we owe the district court and the finding that Ms.

Kieft was a credible witness, we are satisfied the district court's finding was

permissible in light of the evidence. See Anderson, 470 U.S. at 575 (factual

findings based on determinations of witness credibility demand great deference);

Bill's Coal Co. v. Board of Pub. Util., 887 F.2d 242, 244 (10th Cir. 1989) (district

federal district court after an evidentiary hearing does not change the fact it is
"essentially one of credibility, and therefore largely one of demeanor." Patton,
467 U.S. at 1038. Only the judge who personally witnesses the testimony "can be
aware of the variations in demeanor and tone of voice that bear so heavily on the
listener's understanding of and belief in what is said." Anderson, 470 U.S. at 575.

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court's finding need only be permissible in light of the evidence).

In contending Ms. Kieft harbored an actual bias against him, Mr. Gonzales

places great emphasis on the fact that she brought up her rape experience during

deliberation. Why, asks Mr. Gonzales, would Ms. Kieft talk about her rape

experience if she were not using it in her calculation of his guilt or innocence?

Mr. Gonzales's question is a valid one. The answer to his question can be found

in the hearing transcript. The hearing revealed Ms. Kieft's discussion of her rape

experience was "a very brief statement" that came up early in the deliberations.

As Ms. Kieft explains the context, some of the jurors began talking in the abstract

about whether "a woman" -- not Mr. Gonzales's victim in particular--could be

"sexually penetrated if she didn't want it to happen." One of the male jurors

opined "a woman could not be raped if she did not want to be raped" and that if a

woman were sexually penetrated it "was because she wanted it." Ms. Kieft

strongly disagreed with this opinion and drew on her personal rape experience to

bolster her view that a woman could be sexually penetrated against her will.

Placed in this context, we see no reason to disbelieve Ms. Kieft's assertion that

she did not draw on her feelings about her own rape experience when she was

contemplating Mr. Gonzales's guilt or innocence. Ms. Kieft merely used her

experience to challenge another juror's shockingly wrongheaded opinion that

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women cannot be forced to have sexual intercourse if they do not want to. Cf.

State v. Larue, 722 P.2d 1039, 1042 (Haw. 1986) (juror "was vouching for, and

attempting to secure the acceptance by the jury of, the reliability of the statements

of the minor [child molestation victims] as to their sexual molestation by

appellant, based not upon evidence in the record, or their appearance on the stand,

but upon her own similar personal experience and recollection thereof"). If

anything, Ms. Kieft was trying to rid the deliberative process of an actual bias,

not inject one.

We now turn to Mr. Gonzales's contention that Ms. Kieft was impliedly

biased against him. Whether implied bias exists in a juror is a legal

determination, Burton, 948 F.2d at 1158, that turns on an objective evaluation of

the challenged juror's experiences and their relation to the case being tried. As

one court has explained, the concept of implied or presumed bias arises from

"situations in which the circumstances point so sharply to bias in a particular juror

that even his own denials must be discounted." United States v. Nell, 526 F.2d

1223, 1229 n.8 (5th Cir. 1976). Thus, implied bias may be found even though a

juror denies any partiality. A finding of implied bias in the face of a juror's

denials is not, however, tantamount to a finding that the juror has lied. As Justice

O'Connor has observed, "[d]etermining whether a juror is biased or has prejudged

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a case is difficult, partly because the juror may have an interest in concealing his

own bias and partly because the juror may be unaware of it." Smith, 455 U.S. at

221-22 (O'Connor, J., concurring). Though a juror might honestly believe she can

be impartial, she nevertheless may have "such a close connection to the

circumstances at hand that bias must be presumed." United States v. Scott, 854

F.2d 697, 699 (5th Cir. 1988).

The implied bias doctrine should not be invoked lightly. It must be

reserved for those "extreme" and "exceptional" circumstances that "leav[e]

serious question whether the trial court ... subjected the defendant to manifestly

unjust procedures resulting in a miscarriage of justice." Smith, 455 U.S. at 222 &

n.* (O'Connor, J., concurring); see Hunley, 975 F.2d at 320 ("the 'implied bias'

test should rarely apply"). According to Justice O'Connor, situations that would

support a finding of implied bias "might include a revelation that the juror is an

actual employee of the prosecuting agency, that the juror is a close relative of one

of the participants in the trial or the criminal transaction, or that the juror was a

witness or somehow involved in the criminal transaction." Smith, 455 U.S. at 222

(O'Connor, J., concurring).

Though Justice O'Connor seems to have in mind situations in which the

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juror has a personal connection to the parties or circumstances of the trial, it is

well established that implied bias also may be found on the basis of similarities

between the juror's experiences and the facts giving rise to the trial. Hunley, 975

F.2d at 319 ("courts have presumed bias in cases where the prospective juror has

been the victim of a crime or has experienced a situation similar to the one at

issue in the trial") (citing several examples); see, e.g., Burton, 948 F.2d at 1158-

59 (implying bias based on similarities between juror's and defendant's

experiences as victims of spousal abuse). Contending this is such a case, Mr.

Gonzales urges us to conclude Ms. Kieft was impliedly biased because of the

similarities between her rape experience and the incident giving rise to his

prosecution. Mr. Gonzales argues:

Kieft's rape and [the victim]'s alleged rape were similar in the
critical respects that would affect Kieft's evaluation of Gonzales's
consent defense. According to [the victim]'s and Kieft's accounts,
each incident involved forced criminal sexual penetration; the rapist
in each case was someone the victim knew; in each instance, prior to
the rape, the assailant and the victim engaged in consensual social
activity; in each situation, both participants voluntarily drank alcohol
to excess; in each situation, the victim initially failed to report the
rape.

[Mr. Gonzales's] defense hinged on attacking [he victim]'s
credibility. In particular, the defense contended it was unlikely that
[the victim]'s sexual intercourse with Gonzales was nonconsensual
when she voluntarily allowed Gonzales into her apartment,
voluntarily played a drinking game with him, voluntarily became
extremely intoxicated with him, and denied she was raped when first
questioned by the police. Kieft's assessment of that issue was
necessarily affected by her own experience .... Kieft had a very

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 personal experience which inevitably colored her perception of
Gonzales's defense, as well as created an emotional link with [the
victim].

In support of his argument, Mr. Gonzales points us to several decisions in

which courts have found implied bias based on similarities between a juror's

experiences and the circumstances giving rise to the trial. These include Hunley,

975 F.2d 316; Burton, 948 F.2d 1150; United States v. Eubanks, 591 F.2d 513

(9th Cir. 1979); Jackson v. United States, 395 F.2d 615 (D.C. Cir. 1968); and

United States ex rel. De Vita v. McCorkle, 248 F.2d 1 (3d Cir.), cert. denied, 355

U.S. 873 (1957). 6 Mr. Gonzales rests his argument primarily on our decision in

Burton, and for good reason given that it is the only of the above decisions we are

compelled to view as more than non-binding persuasive authority.

Burton arose from Ms. Burton's fatal shooting of her husband. In her trial

for first degree murder in New Mexico, Ms. Burton admitted shooting her

6
Mr. Gonzales also cites United States v. Allsup, 566 F.2d 68 (9th Cir.
1977), in which the court presumed bias in two jurors who worked for one of the
banks the defendant was accused of robbing. In our view, Allsup should be
viewed as a case in which bias was presumed because of a personal connection
between the jurors and the case. Thus, rather than a case in which the juror had
experiences analogous to those giving rise to the trial, Allsup is more akin to the
situations contemplated by Justice O'Connor in her concurrence to Smith. Though
this distinction does not bear on Allsup's persuasive integrity, it does, in our view,
remove Allsup from the factual category comprised of the above cited cases.

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husband but claimed her actions were justified "because she believed from his

past actions that she and her children were in immediate danger of great bodily

harm, sexual abuse and death." Burton, 948 F.2d at 1151. During voir dire, Ms.

Burton's counsel "discussed child abuse, rape, wife beating, the reporting of

violent acts against women and the subject of self-defense." Id. at 1152. Her

attorney also "specifically asked which [prospective] jurors had personally seen

the effects of child abuse." Id. After one juror, a Ms. Green, admitted having

substantial experience with abused children and the effects of child abuse, Ms.

Burton's attorney asked "whether anyone else had ... had contact with child abuse

or sexual abuse." Id. There was no response. At Ms. Burton's request, the trial

judge dismissed Ms. Green for cause. Id. at 1153.

At trial, Ms. Burton brought forward evidence of her husband's "repeated

physical, sexual and verbal assaults upon her and her two children, together with

evidence that she suffered from 'battered woman's syndrome.'" Id. at 1151. The

prosecution introduced evidence that Ms. Burton planned the murder in advance

and was not defending herself or her children. Id. The jury found Ms. Burton

guilty of first degree murder. Id. After the jury returned its verdict, Ms. Burton's

attorney learned one of the jurors had been the victim of "long-standing" spousal

abuse and was still married to the abuser. Id. at 1154. In an affidavit, this juror

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stated "she had 'been the subject of wife abuse in the past and (is) presently

subject to abuse to a lesser degree.'" Id. The juror said her husband verbally and

physically abused her and her children. She confided one of her children was

receiving counseling for problems related to the abuse. Id. The juror asked "that

her name and testimony be kept secret because she feared her husband might

abuse her and her children if he found out" about her admissions. Id. When this

juror was asked in a hearing why she did not admit to experience with spouse and

child abuse during voir dire, she "'testified that when asked about child abuse she

did not connect her abusive experiences with the voir dire discussion and that she

tried not to think of her own situation by pushing her thoughts of her abusive

experiences to the edge of her consciousness.'" Id. at 1158 (quoting a federal

magistrate judge's proposed findings).

Concluding this juror's presence on the jury violated Ms. Burton's right to

an impartial jury, we affirmed the district court's decision to grant Ms. Burton's

petition for a writ of habeas corpus. We supported our decision in Burton with

two basic rationales. First, we concluded the juror was impliedly biased. Id. at

1158-59. Second, we determined the juror's "failure to respond on voir dire

denied Mrs. Burton a fair trial under the McDonough test." Id. at 1159. We

reached our implied bias conclusion partly because of "the similarities of the

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experiences of Ms. Burton and the juror," noting that "the abuse, both mental and

physical, continued over a long period of time and that the juror, at the time of

trial, was living in an abusive situation, fearing her husband's violent temper even

at the time she was testifying in chambers." Id. We also relied on our agreement

with a federal magistrate judge that the juror was dishonest in responses to voir

dire questions. We explained "[t]his dishonesty, of itself, is evidence of bias."

Id. After concluding the juror was impliedly biased, we next went on to "likewise

find" that Ms. Burton had satisfied the McDonough test. Again, as required by

McDonough, we relied on the juror's dishonesty in voir dire. Id.; see

McDonough, 464 U.S. at 556 ("a party must first demonstrate that a juror failed to

answer honestly a material question on voir dire").

Mr. Gonzales contends that Burton's implied bias analysis applies squarely

to his case and requires that we grant his petition for a writ of habeas corpus.

Aside from highlighting the similarities between the incident giving rise to his

prosecution and the circumstances of Ms. Kieft's rape experience, Mr. Gonzales

urges us to find implied bias because Ms. Kieft responded dishonestly to voir dire

questions. As we have already discussed in our McDonough analysis, supra II.A,

we are not prepared to reverse the district court's finding that Ms. Kieft responded

honestly in voir dire. This decision hardly means Mr. Gonzales's implied bias

-27-
argument under Burton must fail. Though a juror's dishonesty in voir dire may be

considered in an implied bias inquiry, it is not necessary to an implied bias

finding. Such dishonesty is just one factor to be considered. See McDonough,

464 U.S. at 558 (Brennan, J., concurring); Hunley, 975 F.2d at 320. The crux of

the implied bias analysis in a case like this one is found in an examination of the

similarities between the juror's experiences and the incident giving rise to the

trial. We are looking for similarities that would inherently create in a juror a

"substantial emotional involvement, adversely affecting impartiality." Allsup, 566

F.2d at 71; see Burton, 948 F.2d at 1159 (noting "the inherently prejudicial

nature" of the juror's own situation); see also Person v. Miller, 854 F.2d 656, 664

(4th Cir. 1988) (inquiring whether "it is highly unlikely that the average person

could remain impartial in his deliberations under the circumstances"), cert.

denied, 489 U.S. 1011 (1989). Accordingly, we now consider the similarities

between Ms. Kieft's rape experience and Mr. Gonzales's case.

Of course, the most striking similarity between Ms. Kieft's experiences and

Mr. Gonzales's case is that each involved nonconsensual sexual penetration. That

is, both women were raped. Thus, we begin by asking whether juror bias must be

presumed in a rape trial if the juror has been a rape victim. In other words, is a

rape victim as a matter of law incapable of being impartial in the trial of an

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accused rapist? We think not. As the Ninth Circuit wisely admonishes,

"[p]rudence dictates that courts ... should hesitate before formulating categories

of relationships which bar jurors from serving in certain types of trials." Tinsley

v. Borg, 895 F.2d 520, 527 (9th Cir. 1990), cert. denied, 498 U.S. 1091 (1991).

To hold that no rape victim could ever be an impartial juror in a rape trial would,

we think, insult not only all rape victims but also our entire jury system, which is

built upon the assumption that jurors will honestly try "to live up to the sanctity

of [their] oath." Dennis v. United States, 339 U.S. 162, 171 (1950). Rather than

presume bias in any rape victim who is called as a prospective juror in a rape

trial, we prefer an approach that focuses more closely on the particular juror's

experience. As Justice O'Connor explained, "each [implied bias] case must turn

on its own facts." Smith, 455 U.S. at 222 (O'Connor, J., concurring). In

examining the juror's experience, we should look for how the experience affected

the juror and what similarities exist between the juror's experience and the case at

trial.

Ms. Kieft's rape occurred in 1965 when she was nineteen years old and in

school. She went on a date with someone she knew from school, and on this date

the man forced her to have sexual intercourse. Alcohol was involved, though it is

not clear to what degree. The man did not use a weapon, and he did not strike or

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bind Ms. Kieft. Given there is no indication of a criminal investigation or

prosecution, Ms. Kieft apparently did not report the incident to police. She

sought no counseling of any sort after the incident. When asked why she did not

seek counseling, Ms. Kieft explained, "although I had regretted what had

happened that evening, it wasn't such a big deal that it caused me any particular

trauma." Ms. Kieft testified she did not suffer nightmares as a result of the

experience, and did not remember being angry, though she was "unhappy that it

happened." Finally, Ms. Kieft explained her experience did not affect her ability

to enter into friendships or sexual relationships with men.

We now turn to the incident giving rise to Mr. Gonzales's trial. The victim

testified that after she became intoxicated and had resisted Mr. Gonzales's

advances, he knocked her to the floor and rendered her unconscious. She awoke

to find Mr. Gonzales raping her. Her daughter was standing nearby crying. The

victim pushed Mr. Gonzales off her. According to the victim's testimony, Mr.

Gonzales then forced her to submit to anal intercourse by threatening her daughter

and niece. Mr. Gonzales eventually left the apartment. The police were notified

by the victim's boyfriend, who had arrived at the apartment later that evening and

discovered the victim sitting half naked on the bedroom floor next to a pool of

vomit. She was visibly intoxicated. The victim told her boyfriend Mr. Gonzales

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had raped her. Over her protestations, he called the police. Because the victim

was heavily intoxicated and completely uncooperative, the police took her into

protective custody. The victim eventually consented to being taken to a hospital.

The examining doctor observed that the victim's general psychological condition

was very poor. She was disheveled, cowering, and very apprehensive. The

physical exam revealed no signs that excessive force had been applied to the

victim's vagina or rectum. When questioned by police, Mr. Gonzales admitted

having sex with the victim but claimed it was consensual.

Mr. Gonzales contends Ms. Kieft's and the victim's rapes "were similar in

the critical respects that would affect Kieft's evaluation of Gonzales's consent

defense." Mr. Gonzales cites several similarities between the two incidents: (1)

forced sexual penetrations; (2) the victim knew the rapist; (3) prior to the rape the

victim and assailant engaged in consensual social activity; (4) consumption of

alcohol; and (5) the victim did not report the rape.

Though Mr. Gonzales points out several superficial similarities between

Ms. Kieft’s experience and the incident for which he was tried, we are not

convinced Ms. Kieft’s experience rendered her impliedly biased as a matter of

law. First, looking to the effects of her experience, Ms. Kieft’s testimony

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supports a finding that the rape did not have a detrimental life-changing impact on

her life. Ms. Kieft explained that though she regretted being raped, the

experience did not anger her or cause her any “particular trauma.” She did not

report the incident to authorities and did not seek counseling. The rape did not

affect her ability to enter relationships with men. Rape is a traumatic and heinous

violation of personal integrity and autonomy, see Coker, 433 U.S. at 597, but

under the circumstances of this case we cannot say Ms. Kieft’s rape experience

rendered her biased against Mr. Gonzales.

This case is different from Burton, where the juror was enduring fearfully

an abusive relationship during trial. The circumstances of Ms. Kieft’s rape,

however, do not, of themselves, justify a finding of implied bias. We think the

similarities between her experience and the victim’s, as highlighted by Mr.

Gonzales, require something more. Thus, we now turn to the period of time that

passed between when Ms. Kieft was raped and when she sat on Mr. Gonzales’s

jury. Ms. Kieft’s rape happened in 1965, and she did not become a juror in Mr.

Gonzales’s trial until approximately twenty-five years later. Certainly, the

passage of a quarter-century argues against presuming Ms. Kieft was biased. See

Casamayor, 837 F.2d at 1515 (no presumption of bias where juror honestly failed

to disclose he had received police training twenty-three years prior to trial); State

-32-
v. Olson, 508 N.W.2d 616, 618 (Wis. Ct. App. 1993) (no implied bias where juror

was childhood victim of sexual abuse thirty years before trial), review denied, 515

N.W.2d 715 (Wis. 1994); see also Amirault, 968 F.2d at 1406 (no implied bias

where juror had blocked her memory of being raped forty years earlier). When

we take Ms. Kieft’s rape testimony regarding the impact the rape had on her life

and place it alongside the passage of twenty-five years, we are left with little

justification for the conclusion she was presumedly biased in Mr. Gonzales’s trial.

Lastly, we note Ms. Kieft never reported her rape and therefore apparently

never underwent the experience of being the accuser in a case where the alleged

rapist was claiming she consented to sexual intercourse. Mr. Gonzales contends

the similarities between Ms. Kieft’s rape and the incident giving rise to his trial

make it highly unlikely Ms. Kieft could be unbiased on the issue of whether the

victim consented. Mr. Gonzales’s argument would have more strength if Ms.

Kieft had faced the situation where her assailant had tried to shift the blame to her

by claiming she consented. That is not the situation in this case. Given the

particular facts and circumstances of this case, we conclude we cannot presume as

a matter of law Ms. Kieft was a biased juror in Mr. Gonzales’s trial.

Because Mr. Gonzales has not satisfied the McDonough test and has not

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shown either actual or implied bias, we AFFIRM the judgment of the district

court.

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