United States v. Koren Kechedzian , 902 F.3d 1023 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50326
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00147-
PSG-1
KOREN KECHEDZIAN, AKA Khoren
Kechedzian, AKA Robert
Kechedzian, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted July 10, 2018
Pasadena, California
Filed September 4, 2018
Before: D. Michael Fisher, * Paul J. Watford,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Fisher
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 UNITED STATES V. KECHEDZIAN
SUMMARY **
Criminal Law
Reversing a criminal judgment imposed following a jury
conviction for possession of unauthorized access devices
and aggravated identity theft, the panel held that the district
court erred by failing to excuse a juror for cause under an
actual bias theory.
The panel wrote that it can have no confidence that a
juror would lay aside her biases or prejudicial personal
experiences and render a fair and impartial verdict, where,
as here, the juror was unable to state that she would serve
fairly and impartially despite being asked repeatedly for such
assurances.
COUNSEL
Jennifer Leigh Williams (argued), Anya Jennifer Goldstein
(argued), and Reuven L. Cohen, Cohen Williams Williams
LLP, Los Angeles, California, for Defendant-Appellant.
Scott Paetty (argued) and Kerry L. Quinn, Assistant United
States Attorneys; Lawrence S. Middleton, Chief, Criminal
Division; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KECHEDZIAN 3
OPINION
FISHER, Circuit Judge:
Koren Kechedzian appeals from his conviction and
sentence imposed for two counts of possession of 15 or more
unauthorized access devices, in violation of 18 U.S.C.
§ 1029, and two counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A. On appeal, Kechedzian
contends that the district court erred by: (1) refusing to
dismiss a prospective juror for bias where the juror never
unequivocally stated she could be fair and impartial;
(2) allowing certain expert testimony; (3) allowing a
prosecutor to improperly cross-examine him; (4) failing to
adequately rule on his objections to the presentence report;
and (5) imposing restitution. Although issues two through
four are troubling, we will not reach them because we
reverse on the basis of the first issue, concluding that the
challenged juror should have been excused for cause under
an actual bias theory.
I. Factual and procedural background
After receiving a tip that Kechedzian was linked to a
fugitive operating a large credit card fraud ring, federal
agents conducted a trash pull from Kechedzian’s residence.
In his trash, they found two counterfeit credit cards and,
based on this, the agents obtained a search warrant. The
resulting search of Kechedzian’s residence and cars
uncovered two USB drives containing 1,451 stolen credit
card numbers in text files, a Bluetooth-enabled “skimming
device” commonly used to steal credit card information from
gas station pumps, and several cards with stolen data re-
encoded on the magnetic strips. Bank records revealed that
many of the stolen card numbers had been used fraudulently
4 UNITED STATES V. KECHEDZIAN
at gas stations and other retail establishments across the
United States.
A grand jury returned a four-count indictment, charging
Kechedzian with two counts of possession of 15 or more
unauthorized access devices, 1 in violation of 18 U.S.C.
§ 1029, and two counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A. The case proceeded to trial.
At the beginning of jury selection, the district court read
a general statement of the case, laying out the charges
against Kechedzian. It then asked: “[D]oes anyone feel, just
based on the charges in this case, based on what this case is
about, that they could not be fair and impartial to both sides?
Does anyone feel that way at this point in time?”
Juror # 3 (Juror Rose) raised her hand and had the
following colloquy with the court:
JUROR # 3: Yes. . . . [A]bout five
years ago I had . . . my
social security number
[stolen.] . . . I might be
able to put that aside and
just go by what I hear here
in the courtroom.
THE COURT: “Might” is a significant
word. Let’s follow up with
it a little bit. Obviously
1
An “unauthorized access device” in this context means any “card”
or “account number” that is “lost, stolen, expired, revoked, canceled, or
obtained with intent to defraud,” which can be used “to obtain money,
goods, services, or any other thing of value, or that can be used to initiate
a transfer of funds.” 18 U.S.C. § 1029(e)(1), (3).
UNITED STATES V. KECHEDZIAN 5
you couldn’t be a juror on
the person who stole your
identity and social
security card. You’d be a
bit upset—
JUROR # 3: Absolutely not.
THE COURT: You would be quite upset
about that. But I guess the
question becomes not just
maybe. We need to know
whether or not you are
going to decide this case
based on what happened
to you and your social
security number. What do
you think?
JUROR # 3: Well, I would want to put
my personal stuff aside,
but I honestly don’t know
if I could.
THE COURT: So will you tell us if you
can’t, if all of a sudden
you go through this case
and you say you know
what? My social security
number is popping up in
my head, and I’m going to
decide this case based on
what happened to me?
Would you tell us that?
6 UNITED STATES V. KECHEDZIAN
JUROR # 3: No, I would try to be fair
. . . and put my personal
experience aside.
THE COURT: But if it turns out you’re
going through this process
and you feel you can’t—
it’s not working, would
you tell us?
JUROR # 3: Yes, I would.
THE COURT: Okay. All right.
Shortly after this interaction with Juror # 3, the court asked
all jurors the following question:
The first principle, as Mr. Kechedzian sits
there at counsel table, he is presumed to be
innocent. Second, the defense doesn’t have to
prove anything in this case, does not have to
present any evidence. Next, the government
has the burden of proof in this case, and that
is to prove its case beyond a reasonable
doubt. Does everybody understand those
principles and could follow those principles?
Raise your hand if you at this point are of the
mindset that you could not follow those
principles.
Juror # 3 did not respond.
Later, at sidebar, defense counsel sought to have Juror #
3 excused for cause, stating: “I’m concerned that No. 3 did
not answer your question . . . about whether she could . . .
UNITED STATES V. KECHEDZIAN 7
put . . . this social security theft five years ago out of her
mind. She said she might be able to. I don’t think that’s
sufficient. So I would challenge [her].” The district court
denied the motion, stating “I think at the end of the day she
confirmed or committed to the principles of the presumption
of innocence and burden of proof. I would deny [the motion]
as to 3.” Juror # 3 sat on Kechedzian’s jury.
The jury ultimately returned a guilty verdict, and
Kechedzian was sentenced to 65 months in prison followed
by three years of supervised release. The district court also
ordered $114,134.76 in restitution. Kechedzian timely
appealed, arguing that he is entitled to a new trial or, in the
alternative, that he is entitled to a new sentencing hearing.
II. Jurisdiction and Standard of Review
The district court had jurisdiction under 18 U.S.C.
§ 3231. This Court has jurisdiction under 28 U.S.C. § 1291.
Kechedzian contends that Juror # 3 should have been
disqualified because of both actual bias and implied bias.
Rulings on actual bias are reviewed for manifest error or
abuse of discretion, because the determination of
impartiality may be based on the district court’s evaluation
of a prospective juror’s demeanor. United States v.
Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000). A district
court abuses its discretion when its bases a decision “on an
erroneous legal standard or a clearly erroneous finding of
fact.” Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir.
2012). In contrast, we review rulings on implied bias de
novo, because they present mixed questions of law and fact.
Gonzalez, 214 F.3d at 1112.
8 UNITED STATES V. KECHEDZIAN
III. Analysis
“The Sixth Amendment guarantees criminal defendants
a verdict by an impartial jury,” and “[t]he bias or prejudice
of even a single juror is enough to violate that guarantee.”
Id. at 1111. “Accordingly, ‘[t]he presence of a biased juror
cannot be harmless; the error requires a new trial without a
showing of actual prejudice.’” Id. (quoting Dyer v.
Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998) (en banc)).
And any “[d]oubts regarding bias must be resolved against
the juror.” Id. at 1114 (quoting Burton v. Johnson, 948 F.2d
1150, 1158 (10th Cir. 1991)). “One important mechanism
for ensuring impartiality is voir dire, which enables the
parties to probe potential jurors for prejudice.” Dyer,
151 F.3d at 973. After voir dire, counsel may challenge a
prospective juror for cause, and a partial or biased juror
should be removed if there is a showing of either implied or
actual bias. Gonzalez, 214 F.3d at 1111. Here, Kechedzian
alleges bias under both theories.
Actual bias is the “more common ground for excusing
jurors for cause.” Id. at 1112. Also referred to as “bias in
fact,” actual bias is “the existence of a state of mind that
leads to an inference that the person will not act with entire
impartiality.” Id. (quoting United States v. Torres, 128 F.3d
38, 43 (2nd Cir. 1997)); see Image Tech. Servs., Inc. v.
Eastman Kodak Co., 125 F.3d 1195, 1220 (9th Cir. 1997)
(“Actual bias involves an inability to act impartially or a
refusal to weigh the evidence properly.”). Actual bias can be
revealed through a juror’s express answers during voir dire,
but it can also be revealed by circumstantial evidence during
questioning. Gonzalez, 214 F.3d at 1111–12. It is within a
trial judge’s discretion to disregard a prospective juror’s
initial responses suggesting bias if that juror later “commits
to lay aside those feelings and reach a verdict based on the
UNITED STATES V. KECHEDZIAN 9
evidence presented and the court’s instructions.” Image
Tech., 125 F.3d at 1220.
In contrast, implied bias is presumed only in
“extraordinary cases.” Dyer, 151 F.3d at 981. In analyzing
implied bias, we look to “whether an average person in the
position of the juror in controversy would be prejudiced.”
Gonzalez, 214 F.3d at 1112 (quoting United States v.
Cerrato-Reyes, 176 F.3d 1253, 1260–61 (10th Cir. 1999)).
This Court has found “implied bias in those extreme
situations ‘where the relationship between a prospective
juror and some aspect of the litigation is such that it is highly
unlikely that the average person could remain impartial in
his deliberations under the circumstances,’” Fields v. Brown,
503 F.3d 755, 770 (9th Cir. 2007) (en banc) (quoting
Gonzalez, 214 F.3d at 1112), “or where repeated lies in voir
dire imply that the juror concealed material facts in order to
secure a spot on the particular jury,” id. (quoting Dyer,
151 F.3d at 982). The implied bias inquiry is an objective
one; thus, even if a juror states or believes that she can be
impartial, the court may find implied bias based on the
circumstances. Id.Despite the differences between actual bias and implied
bias, courts sometimes analyze these theories together when
both are implicated. See, e.g., Gonzalez, 214 F.3d at 1113–
14 (reversing for actual or implied bias after analyzing both
theories together). Here, however, we find it instructive to
analyze the theories separately.
At the outset, we note that although Juror # 3 was
previously a victim of identity theft, this is not the type of
“extreme” situation where we find implied bias. See, e.g.,
Dyer, 151 F.3d at 981–82 (reversing murder conviction for
implied bias where prospective juror concealed the murder
of her brother during voir dire); see also United States v.
10 UNITED STATES V. KECHEDZIAN
Eubanks, 591 F.2d 513, 517 (9th Cir. 1979) (finding implied
bias where juror sat on a heroin distribution case yet failed
to disclose that his sons were serving prison terms for heroin-
related crimes); United States v. Allsup, 566 F.2d 68, 71–72
(9th Cir. 1977) (reversing for implied bias where two
prospective jurors worked for the bank the defendant
allegedly robbed, even though they stated that they could
decide the case fairly). In other words, the mere fact that
Juror # 3 was previously an identity theft victim—without
more—does not make it “highly unlikely that [she] . . . could
remain impartial in [her] deliberations.’” Fields, 503 F.3d at
773 (quoting Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.
1990)). Nor is there any evidence of Juror # 3 lying during
voir dire. Quite the opposite: she fully disclosed that she had
previously been a victim of identity theft and expressed
concern about her ability to remain impartial. Thus, we focus
our analysis on the actual bias inquiry.
For his actual bias argument, Kechedzian primarily relies
on Gonzalez, whereas the Government primarily relies on
United States v. Alexander, 48 F.3d 1477 (9th Cir. 1995).
Although this case is more like Gonzalez, neither case is
directly on point.
In Gonzalez, this Court held that the district court’s
failure to excuse a challenged juror for cause required
reversal. Gonzalez was accused of, inter alia, cocaine
distribution. Gonzalez, 214 F.3d at 1110. During jury
selection, one prospective juror, Juror Camacho, notified the
court that her ex-husband, with whom she had a daughter,
had “both used and dealt cocaine during their marriage.” Id.Moreover, Juror Camacho testified that her husband’s
involvement in drug trafficking had been a “painful”
experience that was “one of the reasons” for their eventual
divorce. Id. at 1110–11.
UNITED STATES V. KECHEDZIAN 11
The district judge, seemingly concerned by these
answers, asked Juror Camacho “three times whether she
could be fair, and each time she responded equivocally. Not
once did she affirmatively state that she could or would serve
fairly or impartially.” Id. at 1114. She also “displayed some
discomfort during the questioning.” Id. Gonzalez’s counsel
sought to strike Camacho for cause, citing Camacho’s three
equivocal responses, the fact that her husband had been
involved in cocaine use and distribution, and Camacho’s
negative body language. Id. at 1111. The district court
denied the motion, finding that Juror Camacho’s responses
were “not enough to excuse her.” Id. Camacho sat on
Gonzalez’s jury, and Gonzalez was ultimately found guilty.
On appeal, this Court concluded that Juror Camacho
should have been excused, explaining that:
When a juror is unable to state that she will
serve fairly and impartially despite being
asked repeatedly for such assurances, we can
have no confidence that the juror will “lay
aside” her biases or her prejudicial personal
experiences and render a fair and impartial
verdict. Given Camacho’s responses to the
court’s questions and the similarity between
her traumatic familial experience and the
defendant’s alleged conduct, we conclude
that the failure to excuse her for cause under
either an express or implied bias theory
requires reversal.
Id. at 1114.
Contrastingly, in United States v. Alexander, this Court
held that the district court properly declined to excuse two
jurors. There, the defendant was on trial for, inter alia, armed
12 UNITED STATES V. KECHEDZIAN
bank robbery and use of a firearm during the commission of
a crime of violence. Alexander, 48 F.3d at 1481. At issue
were the responses of two prospective jurors—Juror Austin
and Juror Kenny. Id. at 1482–83 nn.1–2.
Juror Austin, who had previously been held up at
gunpoint, initially noted that he “believe[d]” he could remain
fair and impartial, but he later affirmatively stated that he
could. Id. at 1482 n.1. This Court determined that the district
court “was not required to excuse” Juror Austin based on his
initial response, because he “ultimately stated definitively
that he could separate his experience from the facts of the
case and act fairly.” Id. at 1484.
Juror Kenny posed a “closer question.” Id. Her husband
had been held up at gunpoint four years earlier. Id. at 1483
n.2. When the district judge asked Juror Kenny if her
previous experience would affect her “ability to be fair and
impartial,” she answered: “I don’t believe so, no.” Id. Asked
later if she could “set aside those feelings, and act impartially
and fairly to both sides of the case,” she answered, “I believe
so, yes.” Id. This Court ultimately deferred to the district
court’s determination, in light of Juror Kenny’s demeanor
and credibility, that “when Kenny said she ‘believed’ she
could act impartially, this was equivalent to saying she
would do so.” Id. at 1484.
As an initial matter, we reject the Government’s
contention that Juror # 3’s answers are comparable to Juror
Austin’s answers in Alexander. Unlike Juror Austin, Juror #
3 never affirmatively stated that she could be impartial. In
fact, Juror # 3 was asked three times—the same number of
times as Juror Camacho in Gonzalez—if she could be
impartial. And each time, she replied equivocally: (1) “I
might be able to put that aside”; (2) “I would want to put my
personal stuff aside, but I honestly don’t know if I could”;
UNITED STATES V. KECHEDZIAN 13
and (3) “I would try to be fair.” Likewise, we reject any
argument that Juror # 3’s final response—“I would try to be
fair”—is an unequivocal statement of impartiality. As we
noted in Gonzalez, a response of “I’ll try” is not an
unequivocal statement. Gonzalez, 214 F.3d at 1113 n.5
(“Despite the government’s best efforts to characterize the
response ‘I’ll try’ as unequivocal, we cannot agree . . . . If a
parent asks a teenager whether he will be back before
curfew, that parent is highly unlikely to find ‘I’ll try’ an
adequate, satisfactory, or unequivocal response.”).
The Government next suggests that Juror # 3 is more
akin to Juror Kenny in Alexander than Juror Camacho in
Gonzalez, because the colloquy here resembles the
“curative” questioning of Juror Kenny. Not so. Juror Kenny
was ultimately asked if she could “set aside [her] feelings,
and act impartially and fairly to both sides of the case.”
Alexander, 49 F.3d at 1483 n.2. She responded: “I believe
so, yes.” Id. That statement—“I believe so, yes”—appears
somewhat equivocal, but we deferred to the district court’s
determination that, based on Juror Kenny’s demeanor and its
assessment of her credibility, “when Kenny said she
‘believed’ she could act impartially, this was equivalent to
saying she would do so.” Id. at 1484. 2 We cannot do the
same here because none of Juror #3’s equivocal statements
could be understood as affirmative statements of
impartiality. In fact, not only were all of Juror # 3’s
responses equivocal, but she explicitly noted that she was
unsure if she could put her personal biases aside.
2
Indeed, Juror Kenny’s “I believe” response is a more modest, but
no less unequivocal way of expressing an idea. Jurors are human, so we
do not demand that they pledge impartiality with complete certainty.
14 UNITED STATES V. KECHEDZIAN
As previously noted, we find this case to be more like
Gonzalez than Alexander. For example, like Juror Camacho
in Gonzalez, Juror # 3 was asked three times if she could
remain impartial. And like Juror Camacho, Juror # 3
responded equivocally each time. The Government
nonetheless attempts to distinguish Gonzalez by highlighting
two differences. For the following reasons, we conclude that
these differences do not compel a different result than the
one we reached in Gonzalez.
First, the Government notes the following exchange
between the district judge and Juror # 3:
COURT: But if it turns out you’re
going through this process
and you feel you can’t—it’s
not working, would you tell
us?
JUROR # 3: Yes, I would.
COURT: Okay. All right.
The Government suggests that this answer—“Yes, I
would”—was an “unqualified affirmative” statement of
impartiality. See Gonzalez, 214 F.3d at 1114 (noting that a
juror’s ultimate “answer with an unqualified affirmative or
negative” is “appropriate for purposes of indicating . . .
ability to serve impartially”). We disagree. The question that
Juror # 3 was answering was if she would let the district
judge know (after the trial began) if “it’s not working”; she
was not affirming that she would be impartial. This is
especially important when viewed in context. Here, when
asked if she could be fair and impartial, Juror # 3 not only
UNITED STATES V. KECHEDZIAN 15
repeatedly answered equivocally, but she explicitly
expressed doubt that she could.
Moreover, there was nothing particularly curative about
this arrangement (in which Juror # 3 was to tell the judge
later if she felt biased). Juror # 3 noted she would let the
court know if she was feeling that “it” was “not working.”
What this exactly means—and when and how she would
communicate this to the judge—is largely unclear. And this
arrangement provided no assurance that Juror # 3 would—
or could—actually put aside her prejudices, let alone speak
up once trial began. That the Government does not cite any
authority to support this type of arrangement is unsurprising;
putting the onus on a juror to speak up, after a trial starts,
undermines the very purpose of voir dire and its
indispensable role in preserving for the accused an impartial
jury. Indeed, part of the reason voir dire is conducted before
the presentation of evidence is to isolate a prospective juror’s
biases from what they hear at trial. Especially given the
investment jurors feel in their role and their commitment to
seeing the process through, it seems unrealistic to expect that
a juror could fairly make constant assessments of whether
her feelings towards the accused were the justifiable
consequence of the evidence presented so far or due to her
earlier life experiences. Ultimately, voir dire is one of the
“important mechanism[s] for ensuring impartiality,” Dyer,
151 F.3d at 973; this type of arrangement is an unacceptable
substitute. 3
3
We note that there is nothing inherently wrong with an
arrangement involving a judge’s checking in with a juror. For example,
if a juror initially responds equivocally, but ultimately responds
unequivocally, a district judge may want to employ such an arrangement
to ensure impartiality throughout the trial (though a district judge is, of
16 UNITED STATES V. KECHEDZIAN
A second difference noted by the Government is that,
here, the district judge asked the entire venire if they could
follow the principles of presumption of innocence and
burden of proof. No prospective juror—including Juror #
3—responded by saying they could not. According to the
Government, Juror # 3’s failure to respond to this question
suggests that she was committed to deciding the case
impartially. Again, we disagree. That Juror # 3 failed to
speak up does not indicate that she could be impartial, nor
did this interaction amount to a curative instruction.
Presumption of innocence and the burden of proof are
distinct legal principles from impartiality. A juror can
understand the presumption of innocence and burden of
proof, yet still let personal prejudice infect her ability to be
impartial. In sum, although there are some factual
differences between this case and Gonzalez, none are of
consequence because, at bottom, Juror # 3’s statements do
not provide any assurance that she was, or could have been,
impartial.
IV. Conclusion
“Few aspects of a jury trial are more committed to a
district court’s discretion than the decision whether to excuse
a prospective juror for actual bias.” United States v. Miguel,
111 F.3d 666, 673 (9th Cir. 1997) (quoting United States v.
Claiborne, 765 F.2d 784, 800 (9th Cir. 1985), abrogated on
other grounds by Ross v. Oklahoma, 487 U.S. 81 (1988)).
But as we noted in Gonzalez, “[w]hen a juror is unable to
state that she will serve fairly and impartially despite being
asked repeatedly for such assurances, we can have no
course, not required to do so). Such an arrangement, however, is
insufficient where—as here—a juror repeatedly responds equivocally
during voir dire.
UNITED STATES V. KECHEDZIAN 17
confidence that the juror will ‘lay aside’ her biases or her
prejudicial personal experiences and render a fair and
impartial verdict.” Gonzalez, 214 F.3d at 1114. Because this
is precisely what occurred here, the district court was
obligated to excuse Juror # 3 for cause under an actual bias
theory. Accordingly, we REVERSE and REMAND for a
new trial.