Wednesday, July 22, 2026
Page 4
Ninth Circuit:
Juror’s Umbrage to Defense Racism Claim Upends Conviction
Opinion Says Alternate’s Frustration About Strategy Raised Colorable Claim of Actual Bias, Reversal Required Where Judge Conducted Inadequate Inquiry, Waited Until Party Was Seated on Main Panel to Investigate
By Kimber Cooley, associate editor
The Ninth U.S. Court of Appeals yesterday reversed a defendant’s conviction relating to an alleged scheme to defraud a pandemic-related program, saying that the judge’s decision to wait until after an alternate was placed on the main panel to fully inquire into statements that he was harboring a “festering” frustration over defense claims of discrimination, through a colloquy the panel found to be inadequate, undermined the accused’s constitutional rights.
Circuit Judge Anthony D. Johnstone authored yesterday’s opinion, saying:
“The Sixth Amendment guarantees criminal defendants the right to trial by an impartial jury….To safeguard this right, a district court must address any signs of bias during jury selection and throughout trial….Once a colorable issue of juror bias arises, the court must investigate before the juror continues to serve, and the inquiry must match the seriousness of the claim. The court cannot defer that obligation simply because the juror is an alternate.”
He added:
“The district court abused its discretion by deferring any meaningful investigation into the juror’s bias until he was needed on the regular panel. And its belated inquiry did not confirm that the juror could set aside the bias he previously expressed or that continued exposure to the defense theory would not revive it. The juror’s resulting participation in the verdict was structural error. We reverse and remand for a new trial.”
Circuit Judge Holly A. Thomas and District Court Judge Hernan Diego Vera of the Central District of California, sitting by designation, joined in the decision.
Scheme to Defraud
The question arose after a jury convicted Attila Colar in June 2023 of 44 counts, including wire fraud, conspiracy, and witness tampering, arising from an alleged scheme to defraud the federal government’s Paycheck Protection Program (“PPP”). Colar co-founded All Hands on Deck in 2017, a non-profit purportedly dedicated to helping parolees and other struggling parties to get back on their feet.
According to prosecutors, Colar submitted multiple applications on behalf of All Hands on Deck to PPP participating lenders, seeking approximately $35 million in total, while claiming that the entity had approximately 73 to 81 employees on payroll when the nonprofit appeared to have no other salaried employees. He was also accused of attempting to destroy evidence, trying to conceal a witness, and of possessing a firearm as a convicted felon.
Colar, who is a Black man and a Muslim, conducted voir dire on his own behalf, during which he made remarks that framed his defense in terms of government corruption and racial targeting.
Shortly after taking the oath to serve, Juror 48, who was selected as an alternate, asked to speak with the judge and said that “all that came out” during the defendant’s voir dire questions were allegations of “discrimination, conspiracy theories, and police corruption.” He remarked:
“That just upsets me to no end, because being gay, trans, and non-binary, having bottles thrown at my head when exiting gay bars, being denied housing for being gay, when that’s the only thing [Colar] talked to us about, I’m sorry, that’s just festering in my head right now.”
He added that there was “no way” he would be able to “get that out of” his head.
Impartiality Required
District Court Judge Haywood S. Gilliam Jr. reminded the alternate that he was tasked with remaining impartial but did not ask him whether his views and experiences would affect his ability to be fair. He declined to acquiesce to Colar’s request to excuse the juror.
After the alternate was placed on the main panel after another panelist was excused a few days later, Gilliam declared that “now I need to bring in [Juror 48] and voir dire him.” The judge proceeded to ask about his “festering” frustration.
The panelist responded that “I’m perfectly over it now” and did not have any concerns about his ability to be fair and impartial. Gilliam found him to be fit to serve over Colar’s continued objection.
Colar was sentenced to 17 years in prison after the jury found him guilty on all counts.
Johnstone acknowledged that “[t]he court has broad discretion over how to investigate a juror’s impartiality” but said:
“That discretion, however, governs the form of the inquiry, not whether to conduct one.”
Casting Doubt
He added that “[w]hen information casting doubt on a sitting juror’s impartiality comes to the court’s attention during trial, its continuing obligation to ensure an impartial jury can be described in two steps” and remarked:
“If the information does not rise to a colorable claim, the inquiry ends. But a court presented with a colorable claim of juror bias must take a second step and inquire further. It ‘must undertake an investigation of the relevant facts and circumstances’ and ‘erect[], and employ[], a suitable framework for investigating the allegation of bias and gauging its effects.’ ”
While recognizing that “jurors need not arrive as blank slates,” Johnstone said that the panelist’s “statements during the first exchange with the district court raised a colorable claim of juror bias.” He explained:
“Juror 48’s statements did not express merely abstract concerns. They were rooted in his personal experience and emotion, and he told the court in plain terms that he would not be able to set them aside. Colar’s defense had upset him ‘to no end’ and was ‘going to stick in [his] head the entire time.’ When the court reminded him of his duty to decide whether the government met its burden of proof based only on the evidence presented,….he reiterated that his experience and emotional reaction would affect his ability to evaluate the evidence.”
Investigation Into Impartiality
Turning to the judge’s investigation into whether Juror 48 could serve impartially, he wrote:
“[The court] could have asked Juror 48 whether he could set aside his feelings and focus solely on the evidence presented at trial; whether hearing testimony would harden his views; or what effect his inability to disregard Colar’s statements might have on assessing the government’s case. It could have told the parties it would inquire further on Monday morning. Or it could have excused him. It ‘did none of these things, leaving the matter in doubt.’ ”
He commented that a “juror’s initial expression of bias can be overcome if, upon further inquiry, he unequivocally commits to setting it aside and deciding the case based on the evidence presented” but concluded that the court’s further inquiry after the panelist was placed on the main panel was insufficient. He wrote:
“Juror 48’s bias was tied to a defense theory that would recur….[R]acial and religious targeting was ‘a theme of Colar’s defense’ throughout his trial. That theme triggered Juror 48’s prejudicial reaction….Yet the court never asked Juror 48 that critical question: whether hearing the defense theory throughout the remaining weeks of trial would retrigger his emotions and impair his ability to serve impartially.”
Johnstone declared:
“The district court abused its discretion by failing to promptly investigate Juror 48, deferring inquiry until a seat opened, and conducting an inadequate colloquy after the juror had heard evidence. The record as a whole was unclear as to whether Juror 48 unequivocally committed to setting aside his bias, and this doubt should have been resolved against him. The court’s failure to excuse him was an abuse of discretion. These errors ultimately deprived Colar of his Sixth Amendment right to an impartial jury. We VACATE Colar’s convictions and REVERSE and REMAND for a new trial.”
The case is U.S. v. Colar, 23-2939.
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