United States v. Matthew Klopfenstine ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-2521
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Matthew Lee Klopfenstine
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: February 15, 2013
Filed: March 4, 2013
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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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RILEY, Chief Judge.
A jury convicted Matthew Klopfenstine of producing child pornography, in
violation of 18 U.S.C. § 2251(a) and (e). Klopfenstine challenges the district court’s1
1
The Honorable Nanette Laughrey, United States District Judge for the Western
District of Missouri.
failure sua sponte to dismiss a juror for cause after the juror arguably expressed an
inability to consider the evidence against Klopfenstine impartially. Because
Klopfenstine admittedly failed to raise this objection during the jury selection process,
he has waived the issue, intentionally relinquishing or abandoning a known right. See
United States v. Johnson, 688 F.3d 494, 501 (8th Cir. 2012) (deciding “failing to
object to the seating of [a j]uror . . . during voir dire [equates to] ‘intentional[]
relinquish[ment] or abandon[ment of] . . . a known right,’” waiving any challenge to
the seating of a juror on appeal (quoting United States v. Olano, 507 U.S. 725, 733
(1993))).2
The subject juror’s answers, which are now challenged on appeal, were heard
and addressed by the district court and defense counsel during voir dire without
defense counsel either asking the trial court to strike the juror for cause or exercising
a peremptory strike to remove the juror. Jury selection is driven by the strategy of
legal counsel, and while that strategy often is not much more accurate than reading tea
leaves, we will not review that strategy on direct appeal without the juror qualification
issue being raised in a timely manner.
We affirm.
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2
Klopfenstine argues Johnson is not controlling because Johnson conflicts with
United States v. Mann, 685 F.3d 714, 719-20 (8th Cir. 2012), and was decided two
weeks after Mann. Johnson analyzed and rejected Mann as being inconsistent with
earlier precedent. See Johnson, 688 F.3d at 501 & n.5 (citing United States v.
Pennington, 168 F.3d 1060, 1067 (8th Cir. 1999); Mader v. United States, 654 F.3d
794, 800 (8th Cir. 2011) (en banc)). Mann, without comment, adopted plain error
review and did not discuss the waiver issue. Mann, 685 F.3d at 719. We reject
Klopfenstine’s argument.
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