In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 21-2874, 21-3056 & 21-3382
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DERRICK GRANGER, CLIFFORD R. KING JR., and ERIC WALKER,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:20-cr-00097-JRS-DLP — James R. Sweeney II, Judge.
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ARGUED FEBRUARY 15, 2023 — DECIDED JUNE 9, 2023
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Before EASTERBROOK, WOOD, and LEE, Circuit Judges.
EASTERBROOK, Circuit Judge. A jury convicted Derrick
Granger, Clifford King, and Eric Walker of conspiring to dis-
tribute heroin and methamphetamine in and around Indian-
apolis, Indiana. The jury also convicted them of some firearms
offenses. The judge sentenced Granger and King to 360
months’ imprisonment and Walker to 330 months. They pre-
sent seven issues on appeal. Five of these do not require
2 Nos. 21-2874, 21-3056 & 21-3382
discussion, beyond saying that we agree with how the district
judge handled them. We address the other two in this opin-
ion.
Defendants’ principal argument is that the court should
have struck Juror 70 for cause. He was subject to voir dire ex-
amination after all three defendants had exhausted their per-
emptory challenges. The judge asked a group of potential ju-
rors whether any of them thought that a law enforcement of-
ficer’s testimony should receive extra weight. Juror 70 raised
his hand. The judge asked what “greater weight” meant to
him, and he replied:
Well, being a retired police officer with 30 years of service, the vast
majority of police officers in my experience take their oath very,
very seriously; and I can’t think of too many times or any times
actually in my entire career where I have seen or heard of evi-
dence being presented by a police officer that wasn’t the straight-
up truth.
So yes, police officers lie. We’ve all seen coverage of those kind of
things; but in the day-to-day actions, the vast majority of them
take their, as I said, oath very, very seriously; and I’m inclined to
give them the benefit of the doubt if they say something.
Juror 70 added that he evaluated honesty on the “totality of
the circumstances and the evidence”, and if that evidence con-
tradicted a person’s statements then “that person is not being
honest.” He allowed that factual mistakes “happen[] to eve-
rybody, including police officers, especially in quick-time-
frame type of situations”. Indeed, Juror 70 said that he had
“done it myself.” This followed:
THE COURT: … [S]o the question is, can you listen to the testi-
mony here, judge each witness by their testimony, how they pre-
sent themselves, how it aligns with the other evidence, so on and
so forth?
Nos. 21-2874, 21-3056 & 21-3382 3
JUROR 70: Yes, because I think the truth is the most important
thing here.
THE COURT: So you can do that with an open mind?
JUROR 70: Yes, sir.
Defendants asked the judge to strike Juror 70 for cause. Before
ruling, the judge asked some additional questions:
THE COURT: I think you said to me that you can afford these de-
fendants their presumption of innocence; is that right?
JUROR 70: Yes, sir.
THE COURT: And you can judge each witness by their testimony?
JUROR 70: I have had a lot of experience with witnesses and in-
formants and their credibility ranges. So you just have to just take
it as face value and make the best decision you can as to their cred-
ibility.
THE COURT: What does that mean?
JUROR 70: You have the full spectrum of people being straight up
honest, and you have some that couldn’t tell the truth if you were
dangling them over the edge of a cliff. So you have to just judge
what they’re saying and whether it meets the logic test and if it
backs up what other people are saying and what evidence says.
Basically, what I’m saying is there’s no presumption with any of
them. You’ve got to approach each one with a completely open
mind because you’ll get a full range there.
Defense counsel asked Juror 70 whether he would give
greater weight to testimony by police officers. This ensued:
JUROR 70: I would like to believe I’m fair and take everything at
face value; but I mean, it’s what I’ve done for over 30 years, and
I’m still involved in an ancillary role as a rider. So I would say that
police officers—I look at them as coming in veaed already. The
guys and gals that aren’t doing a good job generally get taken care
of preay quickly.
4 Nos. 21-2874, 21-3056 & 21-3382
And again, I go back to it’s an oath and it’s a calling. So I have to
look at it from that regard, whereas other people testifying, they’re
a witness or a victim or whatever. So they have maybe a liale dif-
ferent motivation.
So again, the overarching thing here is I want to be fair and honest;
but being completely and uaerly honest, it’s hard to disassociate
myself from what I did for a long, long time.
Defense counsel asked one more question:
[QUESTION]: So I mean, you know, you can’t put your experi-
ence and training aside. We all get that. So is it fair to say you
would probably be more inclined to believe a police officer than
you would be a civilian witness who you know nothing about?
JUROR 70: Well, if you want an honest answer, yes, sir.
The judge then denied the motion to disqualify Juror 70, re-
marking that he had promised to keep an open mind when
evaluating all witnesses’ testimony. The judge observed that
he understood Juror 70’s use of the word “vefed” to mean
that officers are subject to background checks, not that police
officers take tests to ensure that they invariably tell the truth.
The judge summed up: “I think that he has been honest and
has said that he will be fair.”
Appellants ask us to discard the district judge’s conclusion
and make an independent (“de novo”) decision about Juror
70’s suitability. Our decisions say, to the contrary, that defer-
ential review is appropriate. See, e.g., Thompson v. Altheimer &
Gray, 248 F.3d 621, 624–25 (7th Cir. 2001). That approach is
wise. The district judge can hear the prospective juror’s tone
of voice, which can help make a reliable assessment of hon-
esty. A transcript lacks that information. The district judge
can see the prospective juror’s facial expressions and body
language. These, too, are valuable when assessing how a per-
son will behave, but they are missing from the appellate
Nos. 21-2874, 21-3056 & 21-3382 5
record. A court of appeals could not do befer than a district
judge in evaluating whether a prospective juror not only
promises to keep an open mind but also is likely to keep that
promise. Some people may think they will keep such a prom-
ise but are fooling themselves. The cues available during a live
colloquy may help separate those who will keep the promise
from those who can’t or won’t. The perspective available on a
wrifen record is less helpful in making that decision.
Appellants have a separate legal argument: that a prospec-
tive juror’s assurances must be the last thing he says. They
recognize that Juror 70 made an unequivocal promise to eval-
uate all testimony appropriately, but they observe that this
was not his final word. Instead, while answering a question
from defense counsel, Juror 70 conceded that he would be in-
clined to give more weight to a police officer’s testimony than
to that of a witness he knew “nothing about.” That was his
final word (no one asked him any more questions) and, ap-
pellants insist, falls short of the necessary assurance.
Some language in Thompson could be read to imply a last-
in-time requirement for evaluating the statements of a pro-
spective juror. The opinion mentions that the “last thing” a
prospective juror mentioned was that an issue may cloud her
judgment. 248 F.3d at 626. It observed that the judge should
have followed up but didn’t, and that if the prospective juror
had “finally given unequivocal assurances” the judge would
have been entitled to credit them. Ibid. But these passages do
not announce (or even consider) a last-in-time rule; they are
instead descriptions of what happened. Other decisions con-
sider everything the prospective juror said, without any sug-
gestion that only the final statement mafers. See, e.g., Griffin
v. Bell, 694 F.3d 817, 823–24 (7th Cir. 2012). Wesley v. Pfister,
6 Nos. 21-2874, 21-3056 & 21-3382
659 Fed. App’x 360, 363 (7th Cir. 2016), deems the holistic ap-
proach so well established that it resolves a contest in a non-
precedential order, observing that a prospective juror’s “ex-
pression of doubt” in response to defense counsel’s question-
ing did not require her exclusion when “[s]he had previ-
ously answered unequivocally to the court’s questions that
she understood that the case of her relative’s murder had
nothing to do with [defendant].” That’s the same sort of se-
quence that happened in today’s proceeding.
It is not appropriate to read descriptive language in
Thompson as establishing a per se final-answer rule. The norm
in this circuit has been, and remains, that a district judge may
take into account everything a potential juror says when de-
ciding whether that person can be impartial. We do not see
any clearly erroneous factual finding or abuse of discretion in
the district judge’s resolution of these defendants’ objections
to the seating of Juror 70. This was undoubtedly a closely bal-
anced situation; other judges might have granted the request
to remove Juror 70 for cause, given the equivocation in several
of his statements. But Juror 70 also recited the correct stand-
ard, and the district judge was entitled to find that he pos-
sessed enough self-awareness and honesty to carry out his
promises.
The only other argument we need consider concerns the
propriety of Walker’s sentence. The district judge deemed
him accountable, under the relevant-conduct Guideline, for
all drugs that the conspiracy as a whole distributed during
Walker’s time as a participant. Guideline 1B1.3(a)(1)(B) pro-
vides that, for jointly undertaken criminal activity, each par-
ticipant is accountable for “all acts and omissions of others
that were—(i) within the scope of the jointly undertaken
Nos. 21-2874, 21-3056 & 21-3382 7
criminal activity, (ii) in furtherance of that criminal activity,
and (iii) reasonably foreseeable in connection with that crim-
inal activity”. The district judge made findings (i) and (ii) but
not finding (iii). He did not address what conduct was “rea-
sonably foreseeable” to Walker. That omission requires a re-
mand for resentencing.
The judgments of conviction are affirmed, as are the sen-
tences of Granger and King. Walker’s sentence is vacated, and
the case is remanded for further proceedings consistent with
this opinion.