USA v. Wanjiku

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. CR-23-227-R
)
ERICK GACHUHI WANJIKU 	)
)
Defendant. 	)
ORDER
Before the Court is Defendant Erick Gachuhi Wanjiku’s pro se Motion to Unseal
Voir Dire Transcripts [Doc. No. 152].
The Court previously addressed a similar request [Doc. No. 148] ruling that the voir
dire transcript was sealed in accordance with Judicial Conference policy pertaining to
protecting 	identifying 	information 	of 	potential 	jurors. 	Doc. 	No. 	148 	at 	pp. 	1-2.1
Accordingly, the Court interpreted Defendant’s pro se Motion as a request for a free
transcript. Id. at p. 2. However, because Defendant intended to use the transcript for
collateral 	post-conviction 	relief 	rather 	than 	for 	direct 	appeal, 	he 	was 	required 	to
demonstrate a non-frivolous claim before a free copy of the transcript was appropriate. Id.
Because his first Motion failed to provide adequate grounds for his post-conviction relief,
it was denied. Id. His present Motion fails for the same reason.
1 This is Defendant’s third attempt to unseal the voir dire transcript in this Court [Doc. Nos.
147, 150, 152]. The Tenth Circuit has received a similar request for the voir dire transcripts
[App. Case. 24-6010, Doc. No. 75], which it similarly denied [App. Case. 24-6010, Doc.
Nos. 89-90].
Case 5:23-cr-00227-R Document 155 Filed 12/09/24 Page 1 of 6

2
Defendant contends that the voir dire transcript from his trial will be used for post-
conviction relief in two ways. First, prior to conducting voir dire, the Court held an
evidentiary hearing regarding a video recording in which Defendant challenged whether
the Government provided the full video of the incident at issue in the case. Defendant
argues that the Government misled the Court regarding whether the video had been altered,
leading the Court to overrule his challenge. Doc. No. 151 at p.1. Second, Defendant argues
that the Court’s voir dire was inadequate in curing prejudice held by the potential jurors
against immigrants. Id. at pp. 1-2. As alleged, neither of these arguments support a non-
frivolous claim.
“‘Under 28 U.S.C. [§] 753(f), an indigent defendant is entitled to have the
government pay the fees for a copy of his transcript in a [§] 2255 proceeding only if he
demonstrates that his suit is not frivolous and that the transcript is needed to decide the
issue presented by the suit.’” United States v. Harris, 59 F.3d 179 (10 th Cir. 1995) (table)
(quoting Sistrunk v. United States, 992 F.2d 258, 259 (10 th Cir. 1993)). To meet this
standard, the Defendant must demonstrate a “particularized need” for the transcript.
Sistrunk, 992 F.2d at 259. “Conclusory” or “naked” allegations or claims that are “not
colored…with factual allegations” are insufficient. See id.; see also Ruark v. Gunter, 958
F.2d 318, 319 (10 th Cir. 1992)). A claim is not frivolous if it “presents a substantial
question.” 28 U.S.C. § 753(f); see also United Sattes v. Bagby, No. 10-CR-0134-CVE,
2011 WL 810709, at *1 (N.D. Okla. Mar. 1, 2011)).
While the first claim is not labeled, Defendant has presented a similar claim
pertaining to the alleged alteration and misleading of this Court by the Government
Case 5:23-cr-00227-R Document 155 Filed 12/09/24 Page 2 of 6

3
regarding the video of the incident in the form of a Brady violation on two prior occasions.
First in his Motion for a New Trial [Doc. No. 56], and second to the Tenth Circuit on direct
appeal. See App. Case 24-6010, Doc. No. 74 at pp. 8-9. Defendant’s argument failed both
times.
This Court applied the following standard when it analyzed a similar argument by
Defendant in his Motion for a New Trial: “…the defendant must prove the prosecution
suppressed evidence, the evidence was favorable to the defense, and the evidence was
material.” United States v. Erickson, 561 F.3d 1150, 1163 (10 th Cir. 2009). The Court found
that the claim failed the first element—that is, the Court held that the video was not
favorable to Defendant [Doc. No. 63 at pp. 3-4]. Instead, it was noted that if anything, the
video was favorable to the Government. Id.
On appeal, the claim was included in Defendant’s response to his counsel’s Anders
brief, in which she sought to withdraw as counsel due to Defendant having no non-frivolous
claims for relief. App. Case 24-6010, Doc. Nos. 64, 74. In its Order and Judgment granting
Defendant’s counsel’s Motion to Withdraw, the Tenth Circuit—with the present argument
before it—determined that Defendant presented no non-frivolous claims for appeal. App.
Case 24-6010, Doc. No. 90-1 at p. 5.
Here, Defendant does not present this Court with any new arguments or grounds
that have not been alleged before, and instead provides the Court with significantly less
factual support than in prior iterations of the claim. For example, while Defendant alleges
that the video was suppressed by alteration, he provides no factual allegations that support
an argument that an unaltered version of the video would be either favorable to him or
Case 5:23-cr-00227-R Document 155 Filed 12/09/24 Page 3 of 6

4
material to the case. Without more, the Court cannot determine whether the claim would
be non-frivolous so as to justify delivery of the transcripts.
Defendant next asserts that the “jury questions asked in the jury selection process
failed to cure any bias towards immigrants and immigration.” Doc. No. 152 at p. 2.
However, Defendant does not present any factual allegation giving rise to a finding of
potential juror bias. Instead, in the next sentence, Defendant states that he “presumes that
prejudice towards immigrants and immigration existed in the venire from which he picked
his jury.” Id. This proposed presumption is contrary to Supreme Court and Tenth Circuit
precedent. See Rosales-Lopez v. United States, 451 U.S. 182 (1981); United States v.
Murry, 31 F.4 th 1274 (10 th Cir. 2022).
In Murry, the appellants argued that the trial court erred when it declined to ask the
jury pool about racial bias in a case involving illegal immigrants entering marriages to
evade immigration laws. Murry, 31 F.4th at 1286. Appellants cited to statements made by
then-President Donald Trump regarding certain countries and people that migrate from
those countries, and implicit racial bias as grounds to question for racial bias. Id. at 1285.
The trial court declined, instead emphasizing to the juror pool that the case dealt with
immigration and asking the juror pool whether immigration-related issues would affect
their impartiality. Id. at 1285.
The Tenth Circuit held that under Rosales-Lopez, the trial court did not abuse its
discretion when it refused to ask specific questions requested by the defendants related to
prejudice based on race or immigration. Id. at 1288-89. The Court noted that while “the
Constitution may require questioning prospective jurors about racial or ethnic bias…to be
Case 5:23-cr-00227-R Document 155 Filed 12/09/24 Page 4 of 6

5
sure, no constitutional presumption of juror bias exists for or against members of any
particular racial or ethnic group.” Id. at 1286 (citing Rosales-Lopez, 451 U.S. at 189-90).
Instead, “‘[o]nly when there are more substantial indications of the likelihood of racial or
ethnic prejudice affecting the jurors in a particular case does the trial court’s denial of a
defendant’s request to examine the jurors’ ability to deal impartially with this subject
amount to an unconstitutional abuse of discretion.’” Id. (quoting Rosales-Lopez, 451 U.S.
at 190). The Court observed that when the defendant requests an inquiry into racial or
ethnic prejudice, “[f]ailure to honor the defendant’s request…is reversible error only when
the case’s circumstances show a reasonable probability that racial or ethnic prejudice might
have influenced the jury.” Id. (citing Rosales-Lopez, 451 U.S. at 191).
Here, Defendant does not assert that the Court failed to ask questions related to
racial or ethnic bias or related to immigration and immigration status. Instead, Defendant
baldly asserts that the questions failed to cure prejudice in the venire. The issue with
Defendant’s claim is that he relies upon a constitutionally invalid presumption of prejudice
instead of asserting factual allegations supporting “substantial indications” that race or
ethnicity would influence the case, or that “‘racial issues [were] inextricably bound up with
the conduct of the trial.’” Id. (quoting Rosales-Lopez, 451 U.S. at 189). As noted in Murry,
“[t]hat immigration sometimes implicates race or ethnicity does not make all immigration
cases inextricably bound up with race.” Id. (citing Rosales-Lopez, 451 U.S. at 192).
Nowhere in his Motion does Defendant provide factual support for his claim that the venire
was biased because of his immigrant status. Accordingly, because Defendant’s claim of
juror prejudice and subsequent improper voir dire is supported only by naked and
Case 5:23-cr-00227-R Document 155 Filed 12/09/24 Page 5 of 6

6
conclusory allegations, he has failed to show the Court that his post-conviction challenge
would be non-frivolous.2
Therefore, because Defendant has failed to show that his claims are not frivolous,
his Motion is DENIED.
IT IS SO ORDERED this 9 th day of December, 2024.
UNITED STATES DISTRICT JUDGE
2 Conclusory allegations or requests for transcripts that are not supported by sufficient
factual contentions are common grounds to deny motions for transcripts for post-conviction
relief. See United States v. Schneider, 559 F. App’x 770 (10 th Cir. 2014); United States v.
Lewis, 37 F.3d 1510 (10 th Cir. 1994) (table); United States v. Harris, 59 F.3d 179 (10 th Cir.
1995) (table); United States v. Austin, 48 F.3d 1233 (10 th Cir. 1995) (table); United States
v. Norwood, No. CR-06-180-F, 2008 WL 11389447 (W.D. Okla. Dec. 9, 2008).
Case 5:23-cr-00227-R Document 155 Filed 12/09/24 Page 6 of 6