Metropolitan News-Enterprise


Thursday, March 1, 2007


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Ninth Circuit: Trial Judge Properly Dismissed Juror Who ‘Expressed Solicitude’ to Defendant’s Family


By TINA BAY, Staff Writer


A juror who was not forthcoming about her contact with people associated with the defendant in a criminal trial was properly dismissed for misconduct, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court unanimously affirmed a ruling by U.S. District Judge Oliver W. Wanger, sitting in the Eastern District of California, who let a juror go during a March 2003 criminal trial after concluding she had been untruthful about her contacts with individuals associated with the defendant.

In appealing his jury convictions for aiding and abetting the filing of a false tax return and making false statements on a car loan application, Hagop Vartanian contended that Wanger had abused his discretion in dismissing “Juror 7,” as she was identified in the court’s opinion.

Wanger’s scrutiny of Juror 7 was triggered by a note he received from the jury foreperson on the second day of deliberations in Vartanian’s trial.  The note stated that several members of the jury had seen Juror 7 speaking to Vartanian’s family members on several occasions, including that morning outside the courtroom. 

When queried about her contacts with those associated with the case, Juror 7 maintained that she had only exchanged “pleasantries” with them, such as “hi” or “[t]hings will be okay,” and did not intend to express her feelings about the case. She described the woman to whom she said “[t]hings will be okay” only as dark-haired and present in the courtroom.

After the interview, the judge concluded he did not have reason to disbelieve Juror 7. He changed his mind, however, upon learning she told another court official after her interview that the dark-haired woman she described was actually the defendant’s sister.

Subsequently, Wanger questioned  the remaining 11 jurors along with one of the people associated with Vartanian whom Juror 7 had approached.  His interviews revealed that Juror 7 had much more extensive contact than what she had represented to the court. 

For example, she made a point of taking the elevator alone with people associated with Vartanian’s case, deliberately approached his family and others associated with his case and talked with them “for maybe a minute,” and initiated dialogue with the defendant, his counsel and others with him in a Starbucks. She had also been seen walking out of the courthouse talking with a blonde woman present during trial proceedings, whom the judge verified was Vartanian’s brother’s fiancée.

In each of the interviews, Wanger took care to clarify that the issue was Juror 7’s contact with individuals associated with the case, not her ability to remain fair and impartial.  One juror, however, volunteered that Juror 7 said Vartanian “was not guilty and nobody can change—”, and told Wanger the jury would be “hung up” as a result of that statement.  Another juror related that Juror 7 remarked on Vartanian’s eyes and “how kind he looked.”

Following the interviews, the judge found Juror 7 had been untruthful with him about her contacts by either minimizing them or failing to disclose them altogether.  She “expressed solicitude” and “gave assurance” to family members and others associated with Vartanian, he found, noting she ignored the admonition given at the case’s outset that jurors not mingle or talk with anyone associated with the case.

Wanger added that Juror 7 exhibited “bizarre” behavior that included bombarding the parties and the court with notes asking questions at inopportune times, and bringing chocolates to the court reporter and insisting that she take them.

Concluding Juror 7 was “untrustworthy,” the judge dismissed her from service based on doubts about her fairness and impartiality. 

Two days later, the jury returned guilty verdicts against Vartanian on all counts, and Wanger sentenced him to 15 months in prison plus a $10,000 in fine.

On appeal, Vartanian argued there was at least some reasonable possibility that the impetus for Juror 7’s dismissal stemmed from her views on the merits of the case and therefore, instead of dismissing Juror 7, Wanger was obligated to let deliberations continue or declare a mistrial.

Judge Jay S. Bybee, writing for Ninth Circuit panel, rejected the contention:

“The judge had no occasion to—and did not—inquire into the jurors’ motivations for reporting the misconduct or the course of the jury’s deliberations.  Juror 7’s conduct under investigation was behavior outside of the jury deliberation room.”

As for the statement Juror 7 allegedly made about Vartanian’s guilt, Bybee said the statement was unsolicited and also properly ignored by Wanger in his decision to  dismiss her for misconduct.

Senior Judge J. Clifford Wallace and Judge Andrew J. Kleinfeld concurred in the opinion.

The case is United States v. Vartanian, 05-10581.


Copyright 2007, Metropolitan News Company