United States v. Brodnicki, Jack ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2424
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACK BRODNICKI, ALSO KNOWN AS JACEK LIS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 459—John W. Darrah, Judge.
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ARGUED JANUARY 18, 2008—DECIDED FEBRUARY 15, 2008
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Before BAUER, WILLIAMS, and SYKES, Circuit Judges.
BAUER, Circuit Judge. Defendant-Appellant Jack
Brodnicki was in the business of creating false social
security cards and other identification documents. In
July of 2006, Brodnicki was indicted on charges of trans-
ferring a false identification document and attempting
to possess with intent to unlawfully transfer five or
more false identification documents, in violation of 18
U.S.C. §§ 1028(a)(2), (a)(3), and (f). A jury found Brodnicki
guilty on both counts. On appeal, Brodnicki claims that
the district court judge, John W. Darrah, abused his
discretion during voir dire. Specifically, Brodnicki con-
tends that Judge Darrah erred by failing to excuse poten-
tial jurors Varno and Stompanato after they expressed
2 No. 07-2424
concern regarding their abilities to be impartial jurors.
Brodnicki also argues that Judge Darrah abused his
discretion in excusing potential juror Lane for cause
when he expressed an inability to be impartial. Brodnicki
claims that these errors skewed the jury selection so
substantially that his due process rights were violated.
For the following reasons, we affirm.
I. Background
A. Potential Juror Varno
During voir dire, Varno disclosed that her brother-in-law
lost his son as the result of a car accident in which “a cop
hit him on his driver’s side.” The accident resulted in a
lawsuit, which remained unresolved at the time of her
call to jury duty on Brodnicki’s case. Judge Darrah asked
Varno, “Is there anything about that experience particu-
larly as you—as it would have been related to you by
your brother-in-law that has left you with any ill feelings
regarding the justice system or the court system?” Varno
responded that there was, to which Judge Darrah in-
quired whether any of those feelings would affect her
ability to be fair and impartial in Brodnicki’s case. Varno
said, “I hope not.” The following dialogue ensued:
The Court: Well we use words like “I hope not” and
“I believe so” in polite company, but it would be
your sworn obligation to decide this case based
simply on what’s presented here in this room,
and both parties are entitled to that. Could you do
that?
Prospective Juror Varno: Honestly, I don’t think
so.
The Court: You think you might favor one side
over the other here?
Prospective Juror Varno: I’m not sure. I’m sorry.
No. 07-2424 3
The Court: Well, no, you’re doing exactly what
you’re supposed to be doing, and that is discussing
with us things in your life that may affect your
ability to be open-minded here. But, Miss Yarno
[sic], if you were called to serve as a juror you
would hear the testimony of the witnesses and
look at the exhibits, and then you and the other
jurors would have to determine the truth, the
facts of this case. In doing that, you’d have to set
aside anything that would interfere with your
ability to be fair and open-minded. Could you do
that?
Prospective Juror Varno: I think so.
The Court: Okay. And when you say “I think so,” it
would be your sworn obligation to do that. Could
you do that?
Prospective Juror Varno: Yes.
(Tr. Vol. 1 at 18-21).
At the end of the first jury panel’s questioning, Judge
Darrah called a side-bar to discuss challenges. Brodnicki’s
attorney moved to strike Varno for cause on the basis of
her initial responses to Judge Darrah’s questions, but
Judge Darrah denied the motion, stating: “That’s denied.
She assured me that she would be fair and impartial.”
Brodnicki’s attorney used one of his ten peremptory
strikes to exclude potential juror Varno, and Varno was
excused.
B. Potential Juror Stompanato
Potential juror Stompanato informed Judge Darrah
during voir dire that her uncle worked at the Pentagon
for many years. Judge Darrah explained to Stompanato
that the federal government was a party to the lawsuit
4 No. 07-2424
at hand and asked Stompanato whether her uncle’s
employment with the federal government could cause her
to side with one party or the other. Stompanato responded,
“I would definitely say I’m more partial to the federal than
I would be not partial to the federal government.” Judge
Darrah inquired further:
The Court: Would be not be partial to the federal?
Prospective Juror Stompanato: No. I definitely
am more prejudiced to the federal.
The Court: Well, if you were sworn to serve as a
juror, Miss Stompanato, you would be obligated
not to be partial to either side here. You’d be
obligated to decide this case based simply on
what’s presented to you here in this room. Could
you do that?
Prospective Juror Stompanato: I would think so,
yes.
The Court: Well, Miss Yarno [sic], you want to
warn her about using—and in polite company
we use phrases like that, but here that would be
your sworn duty to do that. Could you do that?
Prospective Juror Stompanato: I wouldn’t have
a choice, would I?
The Court: Well, if you took an oath to do
that, you wouldn’t, and you followed the oath, you
wouldn’t have—
Prospective Juror Stompanato: Yes, if I took an
oath I would do that, yes.
The Court: Could you do that?
Prospective Juror Stompanato: I would do that.
The Court: It would be your—
No. 07-2424 5
Prospective Juror Stompanato: Yes, yes.
The Court: Well, and as I told you earlier when
we first met, there’s no wrong answers here, but
both sides are entitled to a fair trial.
Prospective Juror Stompanato: Right.
The Court: And a fair trial only comes from twelve
impartial people basing their judgment on what’s
been presented to them here in this room. That’s
kind of the foundation of our system. Could you
do that?
Prospective Juror Stompanato: Yes.
(Tr. Vol. 1 at 53-55).
At side-bar, Brodnicki’s attorney moved to strike
Stompanato for cause, citing her bias towards the federal
government that she “came right out and said.” Judge
Darrah responded: “Yeah, and I asked her if she would
be fair and impartial and decide this case. She said yes.”
Brodnicki’s attorney reminded Judge Darrah that
Stompanato answered “I would think so,” and Judge
Darrah replied: “No, but I asked her not to equivocate, and
she answered in a clear unequivocal fashion. That’s de-
nied.” Brodnicki’s attorney then used one of his peremp-
tory challenges to strike potential juror Stompanato, and
Stompanato was excused.
C. Potential Juror Lane
Potential juror Lane was in the second panel of potential
jurors. During the questioning of Lane, Lane stated that
his son had been badly beaten by police, and that he
preferred not to talk about it. Judge Darrah requested
that he discuss it at a side-bar, at which Lane explained
that his son had been stopped by police on suspicion of
6 No. 07-2424
drug possession, and that the police beat him so badly
that he was unconscious and in the hospital for a week.
His son was not charged with any crime arising from that
event. The following dialogue then took place:
The Court: I see. Is there anything about that that
you think would cause you to be unfair to either of
these two sides here?
Prospective Juror Lane: I believe so, Judge.
The Court: You believe you might—
Prospective Juror Lane: Because it’s pending in
the back of my mind, you know, there’s some
wrong people and there’s some good people.
The Court: Well, both sides here are entitled to a
fair trial, and that would require you to sit and
listen to the testimony of the witnesses that are
presented in this case and the exhibits that
you’re asked to look at and make a decision based
simply on that and put aside this terrible experi-
ence you had. Could you do that?
Prospective Juror Lane: Well, I have had experi-
ence too with the police. I was locked up for a
rental car because they didn’t have the papers
in it.
The Court: I see.
Prospective Juror Lane: And they handled me
with force, you know, that I think they shouldn’t
have did [sic].
The Court: Do you think that that—do you think
that you could be fair and open-minded in this
case?
Prospective Juror Lane: I’m not really sure, Judge.
No. 07-2424 7
The Court: Okay. Well, I appreciate your honesty
and we’ll excuse you. You can go back to the jury
room.
(Tr. Vol. 1 at 105-07).
After the parties had finished questioning the rest of
the potential juror panel, Judge Darrah again held a side-
bar to discuss challenges. Brodnicki’s attorney raised
an objection to Lane’s dismissal for cause, to which Judge
Darrah stated that Lane’s “demeanor clearly, clearly
indicated that he didn’t think he could be fair.” Judge
Darrah asked Brodnicki’s attorney why he had not objected
sooner since Lane was now gone. Brodnicki’s attorney
responded: “[I]t’s not so much a problem that we—that you
struck Lane for cause. The problem we have is that we feel
you should have struck the other [two] jurors for cause
too.” Judge Darrah explained that “if a juror can assure us
under oath that the juror can be fair and impartial regard-
less of the impediment that’s being discussed, that if a
juror says that, that they qualify to serve as a juror.”
Judge Darrah also said: “I think Mr. Lane told us he
couldn’t be fair and impartial. I think it’s as easy as that.”
Brodnicki then exercised his remaining peremptory
challenges and the government exercised five of its six
peremptory challenges. The jury was sworn in, and the
case proceeded to trial. The jury found Brodnicki guilty
on both counts.
II. Discussion
Brodnicki argues that the district court’s refusal to
dismiss potential jurors Varno and Stompanato for cause
was an abuse of discretion that resulted in a violation of
his due process rights. Brodnicki contends that both
Varno and Stompanato exhibited clear pro-government
biases and should have been dismissed for cause.
8 No. 07-2424
The Fifth and Sixth Amendments guarantee due pro-
cess of law and trial by an impartial jury. United States
v. McClinton, 135 F.3d 1178, 1185 (7th Cir. 1998). When a
prospective juror expresses a belief that is material and
contestable (not merely a belief that no rational person
would question), the trial judge must determine whether
the juror is able to suspend that belief for the duration
of the trial. Thompson v. Altheimer & Gray, 248 F.3d 621,
627 (7th Cir. 2001); McClinton, 135 F.3d at 1186. If
the judge determines that the juror cannot render impar-
tial jury service, the judge should dismiss the juror for
cause. See id.; 28 U.S.C. § 1866(c)(2). Our review of the
trial judge’s ruling with respect to a challenge for cause
is deferential because the trial judge had the opportunity
to assess the credibility and demeanor of the potential
jurors during voir dire. See Thompson, 248 F.3d at 624-25;
United States v. Ray, 238 F.3d 828, 837 (7th Cir. 2001);
United States v. Beasley, 48 F.3d 262, 266 (7th Cir. 1995).
Let us begin with potential juror Varno. Varno expressed
dissatisfaction with the justice system as a result of an
unresolved lawsuit involving her brother-in-law. She did
not express a bias in favor or against either party, and
after Judge Darrah asked her if she could limit her fact-
finding in Brodnicki’s case to the evidence presented at
trial and not let anything else affect her ability to be fair
and open-minded, Varno responded, “I think so.” Judge
Darrah reminded Varno that it would be her sworn duty
to do so, and asked if she could unequivocally do so, to
which Varno answered, “Yes.” There is nothing in the
record to support Brodnicki’s assertion that Varno was in
any way a “pro-government” juror or that Judge Darrah
designed his questioning of Varno to retain her; in fact,
her answers might more probably be said to be anti-
government. Judge Darrah received an affirmative re-
sponse that Varno would be capable of being fair and
impartial, and absent any real reason to believe otherwise,
No. 07-2424 9
we find no error in Judge Darrah’s refusal to dismiss
Varno for cause.
Next is potential juror Stompanato. Stompanato in-
formed the court that her uncle worked at the Pentagon
for several years. When asked, Stompanato said that
she was “more prejudiced to the federal [government].”
Judge Darrah then asked Stompanato if she would be
able to set aside any bias in favor of either party and
decide the case based solely on the evidence presented, to
which she responded, “I think so.” Judge Darrah explained
that if she was selected, she would have a sworn duty to
do so, and again asked her if she could put aside all
biases in deciding the case. Stompanato responded, “Yes,
yes.” Stompanato never suggested that she would be
unable to set aside any bias she may hold in deciding
the case, and the mere fact that she had a relative that
worked for the government by no means warranted
dismissal for cause. See, e.g., Beasley, 48 F.3d at 267 (juror
who was related to law enforcement employees but as-
sured the trial judge that she could be fair and impartial
was properly denied dismissal for cause). Judge Darrah
asked Stompanato whether she could be fair and impartial;
she unequivocally answered in the affirmative. The district
court did not error in denying dismissal of Stompanato for
cause.
Finally, we reach potential juror Lane. Lane was dis-
missed for cause after Judge Darrah perceived Lane’s
inability to be fair and impartial based on both his and
his son’s negative experiences with law enforcement.
Brodnicki argues that Judge Darrah erred by dismissing
Lane while not dismissing Varno and Stompanato for
cause. This inconsistency in voir dire, Brodnicki claims,
was so substantial that it violated Brodnicki’s due pro-
cess rights to a fair trial.
Unlike Varno and Stompanato, Lane had a direct and
personal experience that was a source of potential bias.
10 No. 07-2424
Judge Darrah explicitly noted that Lane’s demeanor, as
well as his statements, clearly showed he could not be
impartial. There is no evidence to suggest that Judge
Darrah’s determination was incorrect or that Lane
could have in fact been a fair and impartial juror. There
was no error in dismissing Lane for cause and no incon-
sistency in Judge Darrah’s voir dire determinations.
We note that Brodnicki exercised two of his peremptory
strikes to exclude both Varno and Stompanato from the
jury. This means that none of the jurors whose voir dire
is challenged in this appeal sat on the jury. In sum,
Brodnicki was not deprived of any rule-based or con-
stitutional right. See United States v. Martinez-Salazar,
528 U.S. 304, 313 (2000) (so long as the jury that sits
is impartial, the Sixth Amendment is not violated, even
if defendant has to use a peremptory challenge to
achieve that result); United States v. Polichemi, 219 F.3d
698, 703-05 (where a district court should have excused a
juror for cause, but the juror is excused through a peremp-
tory strike, the district court’s error in failing to excuse
the juror does not call into question the impartiality of
the jury ultimately selected).
III. Conclusion
For the foregoing reasons, we AFFIRM.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-15-08