Edmond

Opinion by Judge LEAVY; Concurrence by Judge VAN SICKLE.

The government appeals the district court’s order granting a new trial based on juror misconduct. We have jurisdiction under 18 U.S.C. § 8731 , and we reverse.

FACTS AND PRIOR PROCEEDINGS

Alondras Saunders, Ramon Edmond, Calvin Springer, and Joseph Dion Hill were charged with several counts stemming from an armed bank robbery. During voir dire, the court asked members of the venire, “Have you or any of your immediate family ever been the victim of a crime?” To this question, prospective juror Dennis Onofrio answered that his ear had been stolen the prior Easter; that it had been recovered; and that the experience would not interfere with his ability to serve as a fair juror.

Onofrio became a member of the jury that convicted all the defendants of conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371 ; armed bank robbery, in violation of 18 U.S.C. § 2113 (a) and (d); and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924 (c). Defendants Edmond, Springer, and Hill were also convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922…

concurring:

I concur in Judge Leavy’s well-reasoned opinion, which accurately reflects the rule of McDonough Power Equip. v. Greenwood, 464 U.S. 548 , 104 S.Ct. 845 , 78 L.Ed.2d 663 (1984). I write separately to make the following observation, based on my experiences as a trial judge.

“Dishonesty” by a juror during voir dire can take subtle forms. While there may be occasions when a trial judge can say that a juror outright lied in response to voir dire questions, more often he will describe an act of dishonesty in gentler terms. Nothing in McDonough prohibits this practice, so long as the judge clearly indicates that the juror did not merely make an “honest mistake.”

McDonough is a policy-driven decision, which balances the defendant’s right to an impartial jury against society’s interest in finality and judicial economy. By requiring a new trial to be based on deliberate juror misconduct, McDonough screens out an area of potential error that is impossible to control: simple forgetfulness or miscommunication during voir dire.

Of course, the prejudice to a defendant from a jury that is deliberately biased is not appreciably different than that from an inadvertently biased…