Arreola, Gilbert v. Choudry, Mohammed

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2696
GILBERT R. ARREOLA,
Plaintiff-Appellant,
v.
MOHAMMED CHOUDRY, M.D.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 2854—Matthew F. Kennelly, Judge.
____________
ARGUED JANUARY 25, 2008—DECIDED JULY 14, 2008
____________
Before BAUER, WOOD and EVANS, Circuit Judges.
BAUER, Circuit Judge. Gilbert Arreola brought this
action under 42 U.S.C. § 1983, alleging that prison doctor
Mohammed Choudry’s treatment of his injured ankle
constituted a deliberate indifference to a medical need
in violation of the Eighth Amendment. Following a two-
day trial, a jury found in favor of Dr. Choudry. Arreola
moved for a new trial, arguing that conversations bet-
ween his lawyer and various jury members after the
verdict revealed that the foreperson was biased. The
district court denied the motion. Arreola challenges the
refusal to grant a new trial, arguing that his due process
2 No. 07-2696
rights were violated and the court misapplied the stand-
ard for evaluating juror bias set forth in McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104
S. Ct. 845, 78 L. Ed. 2d 663 (1984).1 For the following rea-
sons, we affirm.
I. BACKGROUND
In 2003, Arreola, a prisoner at Hill Correctional Center,
injured his ankle during a soccer match and was taken to
the prison infirmary for treatment. Dr. Choudry ex-
amined him and found no bone tenderness. Based on
Arreola’s symptoms, Dr. Choudry diagnosed him with a
sprained ankle, ordered him back to his cell, and sched-
uled a follow-up visit in seven to ten days. Days later,
Arreola was transferred to Cook County Jail, where
another doctor took an x-ray of his ankle and determined
that Arreola had a broken ankle. Arreola brought this
suit, alleging that Dr. Choudry failed to conduct a proper
examination of his ankle to determine the nature of the
injury. The central issue at trial was whether Dr. Choudry’s
treatment of Arreola’s ankle constituted deliberate indif-
ference to Arreola’s serious medical needs.
The jury voir dire process began with each prospective
juror’s completion of a written questionnaire. Question 19
asked: “Have you or any family member ever had a broken
or severely sprained ankle, foot, or leg?” Juror Laterza,
who was later elected foreperson, answered “no.” Fourteen
1
Arreola has filed a separate, unrelated interlocutory appeal
challenging the Crutch Policy of Cook County Department of
Corrections, No. 07-1700, which is currently pending before
this court.
No. 07-2696 3
prospective jurors answered this question affirmatively,
and Judge Kennelly conducted a series of follow-up
questions to clarify the extent of the injuries and whether
there had been any problems with the medical treatment.
Arreola challenged two jurors for cause, based on their
personal experiences with ankle sprains suffered by family
members. Judge Kennelly questioned them further by
asking whether they would be able to put aside those
experiences; both replied they could and Arreola with-
drew his challenge to these jurors. Judge Kennelly seated
twelve jurors, six of whom had answered affirmatively to
the question involving ankle injuries.
The jury returned a verdict in favor of Dr. Choudry; later
Judge Kennelly permitted both parties to speak to the
jurors. Arreola’s counsel filed a Motion for New Trial,
supported by her own affidavit recounting her conver-
sations with the jurors. The affidavit stated that Juror
Laterza, who answered “no” to Question 19, told Arreola’s
counsel that she had once suffered a bad ankle sprain, and
that based on this experience, she had no problem believ-
ing that Dr. Choudry could press on Arreola’s ankle
without finding tenderness. Counsel also stated that
information she obtained from another juror during the
post-trial interview indicated that the jury had given
weight to Laterza’s experience during deliberations.
Judge Kennelly made further inquiry and arranged for
Laterza to be available by telephone. He requested that
both parties submit questions to ask Laterza. Arreola’s
questions included: Did you see a doctor regarding your
ankle sprain? Did you compare the actions taken by
your doctor regarding your ankle sprain with the actions
taken by Dr. Choudry regarding Arreola’s ankle injury?
Did you discuss this comparison with the other jurors? Did
4 No. 07-2696
you disclose your sprained ankle on your Juror Question-
naire form, and if not, why? Judge Kennelly rejected these
questions, particularly those involving juror delibera-
tions, commenting that the conversation would “be done
in a way that does not do anything that in the least bit
will deter any person from wanting to serve on a jury.”
Judge Kennelly placed the call to Laterza with both
parties’ counsel and a court reporter present. He began the
conversation by asking Laterza whether she had told
Arreola’s counsel after trial that she had suffered a
sprained ankle, and Laterza responded, “You know
what? I did.” The following discussion then took place:
Judge: Was it a sprain that you regard as a severe
sprain?
Laterza: It hurt to walk. Oh, my gosh, yes, I did.
Judge: So when you answered “no”on that particu-
lar question—In other words, the question
didn’t say whether you had a sprained ankle.
It said: Have you had a severely sprained
ankle? Would you have regarded it as a
severe sprain?
Laterza: Well, I still went on vacation. I mean, it
was—I mean, I still worked and I still went
on—I had plans. I went on a cruise, and I
went on the vacation. I mean, I did the tours
and everything.
Judge: How long after the sprain did you do that?
Laterza: Oh, immediately. It was like—I think I had to
work the next day and then I was leaving
that Saturday.
No. 07-2696 5
Judge: So you didn’t miss any work, in other words?
Laterza: No.
Judge: And then you went right on vacation within
a day or two after?
Laterza: Right.
Judge: I mean, if I were to ask you today, have you
ever had a—the wording is important here—
have you ever had a severely sprained ankle,
how would you answer that; yes or no?
Laterza: Okay, but what degree now are you talking
severe?
Judge: Actually that is a really darned good ques-
tion, and I guess the answer is—
Laterza: It hurt.
Judge: It would be a question of whether you re-
garded it as severe. So did you have—would
you regard the sprained ankle you had as a
severe sprain?
Laterza: No.
Judge: Okay. And when you answered the question
on the questionnaire “no,” were you trying
to conceal or hide anything or anything like
that?
Laterza: No. You know what? I forgot about it.
Judge: All right. But even now, you would not
regard this—because of the way it was, you
would not have regarded it as a severe
sprain; is that a fair characterization?
6 No. 07-2696
Laterza: Well, severe being that, okay, it hurt—
Judge: Yes.
Laterza: —but I still functioned.
Judge: Okay. So, in other words, if I were to ask you
right now, do you regard that as having been
a sprain that you would characterize as a
severe sprain, would you say it was severe or
it wasn’t severe?
Laterza: I would have to say no because I was able to
walk.
Judge Kennelly ended the conversation, and subs-
equently denied the motion for new trial in a written
order, concluding that, under McDonough, Laterza was not
dishonest because (1) she had not recalled the injury at
the time she filled out the questionnaire, and (2) Arreola
failed to even prove that Laterza’s answer was incorrect
because she affirmed that she would not have regarded
it as a severe sprain that would have called for an affirma-
tive answer on the questionnaire.
II. ANALYSIS
We review a decision to deny a motion for a new trial
based on juror bias for an abuse of discretion. Artis v.
Hitachi Zosen Clearing Inc., 967 F.2d 1132, 1141 (7th Cir.
1992). “[T]here are ‘compelling institutional considera-
tions militating’ in favor of appellate deference to the trial
judge’s evaluation of the significance of possible juror
bias.” United States v. Medina, 430 F.3d 869, 875 (7th Cir.
2005) (citation omitted); United States v. Sanders, 962 F.2d
660, 673 (7th Cir. 1992) (“The trial judge will always be
in a better position than the appellate judges to assess
No. 07-2696 7
the probable reactions of jurors in a case over which he
has presided.”) (citation omitted). The Fifth and Sixth
Amendments guarantee due process of law and trial by
an impartial jury. United States v. Brodnicki, 516 F.3d 570,
574 (7th Cir. 2008). Trial courts have wide discretion in
deciding a motion for a new trial. United States v.
McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998).
Arreola first contends that he must be retried because
the “truncated” juror bias hearing in Judge Kennelly’s
chambers violated his procedural due process rights.
Arreola argues that as soon as Judge Kennelly determined
that a hearing was necessary, he was entitled to a meaning-
ful hearing. Specifically, he argues that Laterza was not
sworn in, he did not have an opportunity to cross-examine
Laterza or call witnesses, and thus, the proceeding failed
to provide him with a meaningful opportunity to be heard.
Due process does not require a new trial every time
jurors have been placed in a potentially compromising
situation. Rushen v. Spain, 464 U.S. 114, 118, 104 S. Ct. 453, 78
L. Ed. 2d 267 (1983); McClinton, 135 F.3d at 1186. “[D]ue
process means a jury capable and willing to decide the
case solely on the evidence before it, and a trial judge
ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they
happen.” Oswald v. Bertrand, 374 F.3d 475, 478 (7th Cir.
2004) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct.
940, 71 L. Ed. 2d 78 (1982)). The nature of the hearing, in
which all interested parties are permitted to participate,
to some extent should include a determination by the trial
judge of the circumstances, the impact of those circum-
stances on the jury, and whether or not the result of those
circumstances prejudiced the verdict. Smith, 455 U.S. at
215, 102 S. Ct. 940.
8 No. 07-2696
Arreola’s claims seek to expand present due process
protections in situations involving post-verdict allegations
of pre-existing juror bias. This Circuit has held that
while due process may require some sort of hearing to
determine whether extraneous contacts may have af-
fected a jury’s ability to be fair, the standard applies
only to prejudicial extraneous contacts, and not to pre-
existing juror bias. McClinton, 135 F.3d at 1186 (emphasis
added); Artis, 967 F.2d at 1141. In the due process con-
text, the tool for examining an intrinsic influence like
juror bias is voir dire. McClinton, 135 F.3d at 1186. Other
circuits have drawn similar distinctions. See United States
v. Connolly, 341 F.3d 16, 34-35 (1st Cir. 2003) (holding
that a juror’s notes are an intrinsic influence on a jury’s
verdict, thus an evidentiary hearing is not required);
United States v. Sotelo, 97 F.3d 782, 796 (5th Cir. 1996)
(holding that trial courts are afforded broader discretion
in dealing with intrinsic influences due to jury miscon-
duct than it has afforded in cases of extrinsic influences);
United States v. Bassler, 651 F.2d 600, 602 (8th Cir. 1981)
(holding that a distinction may be drawn between ex-
trinsic influences, such as publicity, consideration of
matters not admitted into evidence, communications
between a juror and an outside person, and intrinsic
influences, such as a juror’s notes, discussions or intimida-
tion among jurors) (citing United States v. Winters, 434
F. Supp. 1181, 1186 (N.D. Ind. 1977), aff’d 582 F.2d 1152 (7th
Cir.), cert. denied, 439 U.S. 936, 99 S. Ct. 333, 50 L. Ed. 2d
332 (1978)).
Laterza’s prior experience with an ankle injury consti-
tutes an intrinsic influence that does not require an eviden-
tiary hearing, let alone a new trial. See Marquez v. City
of Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005)
No. 07-2696 9
(“[A] juror’s personal experience does not constitute
extraneous prejudicial information.”); Peterson v. Wilson,
141 F.3d 573, 577-78 (5th Cir. 1998) (holding that juror
discussion of personal past experience is not “extrinsic”
evidence that requires a new trial). Moreover, jurors are
expected to bring commonly known facts and their ex-
periences to bear in arriving at their verdict. “We cannot
expunge from jury deliberations the subjective opinions
of jurors, their attitudinal expositions, or their philoso-
phies. These involve the very human elements that con-
stitute one of the strengths of our jury system.” Shillcutt v.
Gagnon, 827 F.2d 1155, 1159 (7th Cir. 1987) (internal quota-
tions omitted). Although jurors may not go beyond
the record to develop their own evidence, they are en-
titled to evaluate the evidence presented at trial in light
of their own experience. United States v. O’Brien, 14 F.3d
703, 708 (1st Cir. 1994) (“[I]n gauging witness credibility
and choosing from among competing inferences, jurors
are entitled to take full advantage of their collective
experience and common sense.”).
We find Judge Kennelly conducted a post-verdict voir dire
to investigate pre-existing juror bias that satisfied due
process. He made the inquiry into the allegation of
bias in a direct and conscientious manner, keeping in
mind that the integrity of jury proceedings must not be
jeopardized by unauthorized invasions. Remmer v. United
States, 347 U.S. 227, 229, 74 S. Ct. 450, 98 L. Ed. 654 (1954);
United States v. Vitale, 459 F.3d 190, 197 (2d Cir. 2006)
(instructing that district courts should be reluctant “to haul
jurors in after they have reached a verdict in order to
probe for potential instances of bias, misconduct or extra-
neous influences.”). Any further inquiry into Laterza’s (or
any other juror’s) thought processes throughout jury
10 No. 07-2696
deliberations would have violated Fed. R. Evid. 606(b),2
which severely restricts post-trial inquiry into a verdict.
United States v. Tanner, 483 U.S. 107, 117, 107 S. Ct. 2739, 97
L. Ed. 2d 90 (1987); United States v. Briggs, 291 F.3d 958, 963-
64 (7th Cir. 2002) (holding that post-verdict allegations of
juror intimidation during the deliberative process were
not extraneous prejudicial information or an outside
influence, thus under Rule 606(b) neither a hearing nor
a new trial was warranted); United States v. Muthana, 60
F.3d 1217, 1223 (7th Cir. 1995) (“Juror testimony re-
garding the jury’s deliberations is not admissible to
impeach the verdict unless an extraneous influence was
alleged to have affected the jury.”).
Judge Kennelly properly treated the allegation as an
“internal matter,” thus keeping the integrity of the jury’s
deliberations intact. The post-trial interview, in which
he determined that Laterza was honest and forthright
about her response to Question 19, did not provide him
2
Federal Rule of Evidence 606(b) states: “Upon an inquiry into
the validity of a verdict or indictment, a juror may not testify as
to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon that or any
other juror’s mind or emotions as influencing the juror to assent
to or dissent from the verdict or indictment or concerning
the juror’s mental processes in connection therewith. But a
juror may testify about (1) whether extraneous prejudicial
information was improperly brought to the jury’s attention,
(2) whether any outside influence was improperly brought to
bear upon any juror, or (3) whether there was a mistake in
entering the verdict onto the verdict form. A juror’s affidavit or
evidence of any statement by the juror may not be received on
a matter about which the juror would be precluded from
testifying.”
No. 07-2696 11
with any reason to conduct further inquiry into the
matter. See United States v. Calbas, 821 F.2d 887, 896 (2d
Cir. 1987) (holding that the trial court “wisely refrained
from allowing the inquiry to become an adversarial
evidentiary hearing, so as to minimize intrusion on the
jury’s deliberations.”). Judge Kennelly was under no
obligation to ask the specific questions posed by Arreola
during the post-verdict voir dire for potential bias, particu-
larly when those questions (as Judge Kennelly noted)
would violate Rule 606(b). See id. at 897 (holding that
counsel’s more active participation in the post-verdict
voir dire was not necessary; it was enough that the court
permitted counsel to submit proposed questions in ad-
vance); see also United States v. Meader, 118 F.3d 876, 878-
81 (1st Cir. 1997) (holding that the court has no obliga-
tion to ask counsel’s specific questions while conducting
a post-verdict voir dire of a juror for potential bias).
Arreola also argues that he is entitled to a new trial
because Laterza did not give an honest answer on the voir
dire questionnaire, contending that Laterza heard other
jurors relate previous ankle injuries during voir dire, but
remained silent as to her injury. He also believes that
Judge Kennelly misapplied the McDonough test because a
correct response by Laterza to Question 19 would have
provided a valid basis for a challenge for cause under
McDonough. In order to obtain a new trial on this basis, a
party must show “that a juror failed to answer honestly a
material question on voir dire,” and, if successful, then
must demonstrate that “a correct response would have
provided a valid basis for a challenge for cause.” Medina,
430 F.3d at 875 (citing McDonough, 464 U.S. at 556, 104 S. Ct.
845). We review the district court’s conclusion that
Arreola failed to show that Laterza’s answer to the voir
12 No. 07-2696
dire question was not honest for an abuse of discretion.
United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989).
Throughout the pre-trial voir dire, other jurors related
incidents in the past in which they or a family member
injured an ankle. Presumably Laterza heard their answers,
but this does not make her a dishonest person. Question 19,
as it is worded, is partially subjective, in that it requires
the juror to decide whether a previous ankle injury was
a “severe” sprain, or simply a slight injury.3 One
woman’s severe ankle injury could be another woman’s
tolerable ankle discomfort. Had she remembered her
ankle injury during the pre-trial voir dire, Laterza still could
have honestly answered “no” to Question 19 if, in her
judgment, the sprain was not severe. While Laterza
stated that the injury “hurt a lot,” she was still able to go
to work the next day and leave for vacation the fol-
lowing day. Judge Kennelly found that at the time she
filled out the voir dire questionnaire, she did not recall
the injury, but nonetheless affirmed that she would not
have regarded it as a severe sprain that would have
called for an affirmative answer to Question 19. To invali-
date the result of Arreola’s trial “because of a juror’s
mistaken, though honest, response to a question, is to
insist on something closer to perfection than our judicial
system can be expected to give.” McDonough, 464 U.S. at
556, 104 S. Ct. 845. Judge Kennelly did not abuse his
discretion in denying the motion for new trial.
Judge Kennelly declined to address the second prong of
the McDonough test, as do we, because Laterza was not
3
Judge Kennelly seemed to agree as to the subjective nature
of a “severe” injury, noting during the post-trial voir dire that
Laterza’s inquiry about the degree of severity was “a really
darned good question.”
No. 07-2696 13
dishonest in her answers at voir dire. We note, however,
that given there were six members of the seated jury
that answered “yes” to Question 19, and Arreola with-
drew his challenge for cause for two potential jurors
with prior experiences with ankle injuries, after they
assured the court they would be able to remain impartial,
the court presumably would not have granted a chal-
lenge for cause if these facts about Laterza’s injury came
out during the pre-trial voir dire. See Zerka v. Green, 49 F.3d
1181, 1187 (6th Cir. 1995) (holding that, in an excessive
force action, despite voir dire admissions by several
jurors that they had relationships with police officers,
plaintiff’s counsel never challenged any of them for
cause, thus failing to meet the second prong of the
McDonough test).
III. CONCLUSION
Arreola was afforded due process protection that he
was entitled to and received a fair trial by an impartial
jury. Accordingly the district court’s denial of Arreola’s
motion for new trial is AFFIRMED.
USCA-02-C-0072—7-14-08