United States v. John Sinagra

MEMORANDUM

Defendant John Sinagra appeals his jury conviction of Obtaining Information By Computer from a Protected Computer, in violation of 18 U.S.C. § 1030 (a)(2), and Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A(a)(l). We affirm.

During trial, the court dismissed a juror after the juror commented to another juror before the completion of the government’s case that “some of us may already have made up our minds.” Sinagra argues that the court erred in failing to declare a mistrial because there could have been more than one juror who prejudged the case. He also argues that trial counsel was ineffective for failing to move for a mistrial.

This court reviews a district court’s response to alleged juror misconduct for an abuse of discretion. United States v. Banks, 514 F.3d 959, 973 (9th Cir.2008). Where, as here, counsel made no motion for a mistrial based on alleged juror misconduct, the court’s failure to declare one sua sponte is reviewed for plain error. United States v. Olano, 507 U.S. 725, 730 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993).

The district court made appropriate inquiries into the alleged juror misconduct. See Dyer v. Calderon, 151 F.3d 970, 974…