United States of America v. Nemorio Guzman

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0191p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
NEMORIO GUZMAN ,
Defendant-Appellant.
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No. 04-2497
Appeal from the United States District Court
for the Eastern District of Michigan at Flint
No. 03-50052—Paul V. Gadola, District Judge.
Argued: March 14, 2006
Decided and Filed: June 7, 2006
Before: NORRIS, SUHRHEINRICH, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Darryl A. Goldberg, Chicago, Illinois, for Appellant. James C. Mitchell, ASSISTANT
UNITED STATES ATTORNEY, Flint, Michigan, for Appellee. ON BRIEF: Darryl A. Goldberg,
Ralph E. Meczyk, Chicago, Illinois, for Appellant. James C. Mitchell, ASSISTANT UNITED
STATES ATTORNEY, Flint, Michigan, for Appellee.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. A jury found Defendant Nemorio Guzman guilty of
conspiracy to possess with intent to distribute 500 grams or more of cocaine, in violation of 21
U.S.C. § 841(a)(1), and for aiding and abetting the possession with intent to distribute 500 grams
or more of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Guzman appeals both
his conviction and sentence on the ground that the district court’s voir dire “indoctrinated” the entire
panel with a belief that criminal defendants are usually guilty. For the reasons that follow, we
AFFIRM.
I.
On September 10, 2003, in Flint, Michigan, a joint team of officers from the Fraser Police
Department and the Genesee County Drug Unit executed a search warrant at the residential address
of Ernesto Aguilar. The officers recovered a total of four kilograms of cocaine.
1

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No. 04-2497 United States v. Guzman Page 2
1Only those questions to which Guzman objected are reviewed under this standard. Guzman’s complaints about
the remaining responses are reviewed for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
731-32 (1993). We need not engage in plain error analysis, however, because, as explained infra, the district court
committed no error.
Ramon Diaz, a resident of Chicago, was arrested shortly before the search warrant was
executed as he and Jose Bustos were leaving the Aguilar residence in Guzman’s vehicle. Guzman
was arrested in the backyard of the Aguilar residence. On September 17, 2003, Diaz and Guzman
were charged in a multiple count indictment with the illegal possession and distribution of cocaine.
Jury selection in the Guzman case began on July 26, 2004. During voir dire, while the jurors
were seated together in the courtroom, the district court asked the potential jurors whether they had
any prior personal experience with the criminal justice system. These experiences fell into three
general categories: prior jury service, friends or family members who had been arrested, and victims
of crime. The potential jurors acknowledged approximately twenty-one specific experiences.
When it received such a response, the district court followed up by asking each individual
about the ultimate outcome of those experiences (i.e., conviction or no conviction). Guzman
objected approximately seven times, arguing that a response made in front of the entire panel that
the defendant in the prior, unrelated case had been convicted could contaminate all potential jurors
into believing that most criminal defendants are guilty. The court sustained about half of the
objections. For those it overruled or for which there was no objection, the potential jurors responded
in front of the venire. In the end, the entire jury pool heard fifteen separate instances of unrelated
criminal prosecutions, all but one of which resulted in a conviction.
Following a trial on the merits, the jury found Guzman guilty on both counts.
II.
On appeal, Guzman contends that the nature of the district court’s questioning during voir
dire violated his constitutional right to an impartial jury. Specifically, Guzman argues that the
potential jurors’ responses to the questions about the guilt of other defendants contaminated the
entire venire with a belief that most criminal defendants are guilty.
The Sixth Amendment guarantees an accused the right to be tried “by an impartial jury.”
U.S. Const. amend VI. The task of empaneling an impartial jury is left to the sound discretion of
the district court, and we review a district court’s voir dire of the jury venire for abuse of that
discretion.1 United States v. Phibbs, 999 F.2d 1053, 1071 (6th Cir. 1993). Only in the case of
manifest error will we overturn a finding of juror impartiality. Mu’Min v. Virginia, 500 U.S. 415,
428 (1991).
We begin with the well-established presumption of juror impartiality, see Irvin v. Dowd, 366
U.S. 717, 723 (1961), as well as the equally important presumption that jurors followed the trial
court’s instructions, United States v. Tines, 70 F.3d 891, 898 (6th Cir. 1995). Here, when asked
whether anything said during voir dire may have impaired his or her ability to remain impartial, not
one potential juror answered in the affirmative. Also, the district court instructed the jurors to decide
the case solely on the evidence presented at trial. Thus, both presumptions apply in this case.
Guzman has presented no evidence of actual juror bias to overcome these presumptions. See
generally Irvin, 366 U.S. at 723; United States v. Jobe, 101 F.3d 1046, 1058 (5th Cir. 1996).
Instead, his contention is in essence an argument that potential jurors’ statements indicating guilt
of other criminal defendants necessarily “indoctrinates” the entire venire with the belief that most
criminal defendants are guilty, thereby overcoming the presumptions as a matter of law. We are
unpersuaded.

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2Our review reflects the discretion accorded to district courts. As the Supreme Court has stated:
Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial
judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must
reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor
evidence and of responses to questions. In neither instance can an appellate court easily second-guess
the conclusions of the decisionmaker who heard and observed the witnesses.
Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion) (citation omitted).
Except in the most limited circumstances, none of which are relevant here, “[t]he United
States Supreme Court has not established any per se rule which it requires trial judges to follow in
the voir dire of a jury venire.” United States v. Blanton, 719 F.2d 815, 822 (6th Cir. 1983) (en banc).
In fact, the Supreme Court and this Court have implicitly rejected the per se rule Guzman advocates.
See Irvin, 366 U.S. at 723 (“To hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to rebut the presumption of . . .
impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside
his impression or opinion and render a verdict based on the evidence presented in court.”); United
States v. Maxwell, 160 F.3d 1071, 1077 (6th Cir. 1998) (“Absent proof or documentation of
prejudice, we do not assume that prejudice occurred.”). We now do so expressly.
Rather than a per se rule, district courts are guided by the general standard that voir dire be
tailored toward ensuring “a fair trial by a panel of impartial, ‘indifferent’ jurors.”2 Irvin, 366 U.S.
at 722; see also Morgan v. Illinois, 504 U.S. 719, 729 (1992) (stating that “[t]he Constitution . . .
does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury”).
Under this deferential standard, courts have not favored arguments like Guzman’s. General
statements about crime, the criminal justice system, and even the crimes charged are of no
constitutional concern. For example, in United States v. Hernandez, 84 F.3d 931 (7th Cir. 1996),
the defendant challenged the district court’s denial of a motion to quash the entire venire where five
venire members commented that the judicial system was ineffective in apprehending and punishing
criminals, and where fifteen others expressed dissatisfaction with the outcomes of their own personal
experiences with the criminal justice system. Id. at 936. When later asked whether any comments
heard during voir dire would impair their ability to be impartial, the eventual jurors all responded
in the negative. Id. Because the defendant offered nothing other than naked speculation to prove
the statements biased the jury, the Seventh Circuit refused to disturb the district court’s finding of
impartiality. Id. In United States v. Tegzes, 715 F.2d 505 (11th Cir. 1983), the defendant was on
trial on drug charges. During jury selection, a potential juror stated in front of the entire venire that
her youngest son had overdosed on drugs before his eighteenth birthday. Id. at 506. The district
court denied the defendant’s motion for a mistrial. Id. The Eleventh Circuit affirmed, stating that
such comments
d[o] not constitute an opinion concerning the guilt or innocence of the defendants,
nor d[o they] relate to knowledge about facts, parties, or witnesses involved . . . .
Appellant’s suggestion that mere awareness of the adverse consequences of crime
induces bias toward the defendant is highly speculative and falls short of the
potential actual prejudice which would mandate additional voir dire.
Id. at 508; see also United States v. Vargas-Rios, 607 F.2d 831, 837 (9th Cir. 1979) (rejecting the
argument that a prospective juror’s statement that convicted drug dealers should be imprisoned
biased the entire venire, and stating that such an argument “borders on the frivolous”); United States
v. Gibson, Nos. 75-1700, 75-1701, 1976 U.S. App. LEXIS 13527, at *1-2 (4th Cir. Jan. 2, 1976) (per
curiam) (rejecting defendant’s argument that statements that potential jurors or their family members
had been victims of violent crimes tainted the entire venire).
Nor is there a problem when potential jurors announce their potential biases. See United
States v. Olaseinda, No. 96-4576, 1997 U.S. App. LEXIS 11365, at *2-3 (4th Cir. May 15, 1997)

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3The so-called “publicity” cases are sui generis, because they involve knowledge of or statements about the
case and defendant on trial. Appellate courts have been slightly more receptive to claims of juror partiality in these
contexts. See, e.g., Rideau v. Louisiana, 373 U.S. 723, 726 (1963); Irvin, 366 U.S. at 722-28; United States v. Stratton,
649 F.2d 1066, 1081-83 (5th Cir. 1981).
(per curiam) (rejecting defendant’s argument that the entire venire was contaminated by a
prospective juror’s statement, based on her experiences as a juror in other cases, that a defendant on
trial is probably guilty); United States v. Buchanan, 787 F.2d 477, 480 (10th Cir. 1986) (affirming
a district court’s refusal to dismiss the entire venire after hearing statements from one potential juror
that he may not be able to remain impartial because his home had recently been vandalized),
overruled in part on other grounds by United States v. Welch, 928 F.2d 915 (10th Cir. 1991); United
States v. Jones, 696 F.2d 479, 491-92 (7th Cir. 1982) (finding no error in a district court’s decision
not to dismiss any other juror after one potential juror stated that a defendant’s decision not to testify
may affect his judgment as to guilt, and another potential juror stated that a newspaper report would
likely affect his judgment).
Even disclosure of the defendant’s prior criminal prosecutions does not require a mistrial.
For example, in United States v. Shropshire, 498 F.2d 137 (6th Cir. 1974), we found no error in a
district court’s denial of Shropshire’s motion to dismiss an entire venire after a potential juror
referenced Shropshire’s prior criminal activity of which the potential juror had personal knowledge.
Id. at 139.
We found only one case where comments by potential jurors not directly related to the
defendant in the case at bar3 rose to the level of presumed prejudicial error, and it bears no
resemblance to the facts in this case. In Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997), the
defendant was on trial for the sexual abuse of a minor. Id. at 631. During voir dire, a prospective
juror stated in front of the entire venire that she had worked for many years as a social worker, had
taken psychology courses, and had worked closely with psychologists and psychiatrists. Id. at 632.
She stated that she would have a difficult time remaining impartial, because every one of her client’s
allegations of sexual assault was later confirmed. Id. The trial court further questioned the potential
juror on the matter, during which the potential juror responded at least three more times that she had
never known a child to lie about having been sexually assaulted. Id. The trial court struck her for
cause, but denied the defendant’s motion for a mistrial. Id. On appeal, the Ninth Circuit granted
a writ of habeas corpus, stating:
At a minimum, the [trial] court should have conducted further voir dire to determine
whether the panel had in fact been infected by [the] expert-like statements. Given
the nature of [the] statements, the certainty with which they were delivered, the years
of experience that led to them, and the number of times they were repeated, we
presume that at least one juror was tainted and entered into jury deliberations with
the conviction that children simply never lie about being sexually assaulted.
Id. at 632-33. Critical to the ruling in Mach was the “expert-like” nature of the statements and the
fact that the potential juror-“expert” vouched for the credibility of the prosecution’s key witness.
The statements were “highly inflammatory and directly connected to [the defendant]’s guilt.” Id.
at 634. None of these factors is present in Guzman’s case.
Instead, Guzman’s challenge relies entirely on speculation as to the effect, if any, the
potential jurors’ statements had on the actual jurors. Like Hernandez, the district court here asked
every juror whether there was any reason that he or she would be unable to be impartial and decide
the case solely on the evidence presented, and, like Hernandez, every juror in this case affirmed an

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4Of course, a prophylactic measure is not required. See Tegzes, 715 F.2d at 506-09 (affirming the district
court’s refusal to give a special jury instruction regarding a potential juror’s biased statements out of concern that such
an instruction would cause the jurors to consider an issue that would not otherwise have been on their minds).
ability to remain fair.4 Like Tegzes, the statements at issue here did not regard “the guilt or
innocence of the defendant[], nor did [they] relate to knowledge about facts, parties, or witnesses
involved.” Tegzes, 715 F.2d at 508. Moreover, unlike Tegzes and Hernandez, where the statements
made in front of the venire expressed potential jurors’ actual biases, Guzman is merely challenging
potential jurors’ statements of fact that have no tendency to show bias. And unlike Shropshire,
where a prospective juror commented on the defendant’s criminal history, all of the statements here
concerned the guilt of other criminal defendants. In other words, Guzman’s challenge is even
weaker than many of these other unsuccessful challenges.
Furthermore, a per se rule would effectively require in camera voir dire of every potential
juror in every criminal case. If certain solicited responses have the per se effect of contaminating
the venire, we would also have to conclude that similar volunteered statements would have the same
impact. Experience teaches that potential jurors regularly offer more information than the court or
counsel requests. Therefore, trial courts would need to conduct the entire process in camera to
prevent the risk of complete venire contamination from innocent, extraneous remarks. See Mu’Min,
500 U.S. at 425 (noting that acceptance of a claim that defendants have a constitutional right to
question potential jurors as to the nature and extent of their exposure to pretrial publicity “would
require that each potential juror be interrogated individually”). Such a requirement would cripple
the trial process. Even without in camera voir dire, jury selection in some cases can last anywhere
from several days to several months. Entirely in camera voir dire would only lengthen the
process–without any corresponding benefit.
In the event that statements about the guilt of other criminal defendants are not per se
prejudicial, Guzman argues that inquiries into the outcomes of unrelated criminal matters are
improper as irrelevant. We disagree. One of the primary purposes of voir dire is to aid counsel in
their exercise of peremptory challenges. Mu’Min, 500 U.S. at 431. Potential jurors’ responses about
the outcomes of cases with which they have had personal experience are certainly relevant to the
discovery of potential and actual biases. This is true even if the statements of fact are not themselves
biased. See Hughes v. United States, 258 F.3d 453, 459 (6th Cir. 2001) (noting that because jurors
rarely express their biases, trial courts almost always make partiality determinations based on
circumstantial evidence).
Alternatively, Guzman suggests that this type of questioning be conducted in camera. For
the reasons discussed above, there is no need for such precautionary measures. As this Court has
stated previously, this approach is an effective and efficient means of empaneling an impartial jury.
See Phibbs, 999 F.2d at 1071 (concluding that the district court’s questioning of potential jurors en
masse about their impressions of the criminal justice system, any predispositions they might have
about the type of prosecution at issue, whether they had prior jury experience, and whether they had
ever been the victim of a crime, efficiently “served to establish that the individuals who were
ultimately selected as jurors were unbiased”).
In addition, voir dire in front of the entire jury pool may actually result in more effective
screening. Potential jurors are often emboldened to be more candid after witnessing other potential
jurors’ voir dire. When asked whether they have any personal experiences with the criminal justice
system, for example, many are initially reluctant to respond out of embarrassment or self-
consciousness until they hear their counterparts admit to similar experiences. Relatedly, hearing the
responses of other potential jurors frequently triggers memories of similar experiences that the
potential jurors may not have recalled otherwise. Thus, conducting the process before the entire
panel can actually lead to more open and thorough voir dire.

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In short, Guzman’s proposals are unworkable and contrary to precedent.
III.
The jurors in Guzman’s trial all stated that they were capable of being fair and impartial and
of deciding the case solely on the evidence presented at trial. The district court, in its broad
discretion, found the jurors to be impartial. There is simply nothing in the record or case law that
would allow us to disturb that finding.
The judgment of the district court is AFFIRMED.

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