Ninth Circuit Orders New Trial in Tax Fraud Case After Racially Biased Juror Participated in Deliberations

The panel ruled that the presence of a racially biased juror during deliberations triggers a heavy presumption of prejudice under United States v. Remmer, and the government failed to rebut that presumption. The court rejected Sanchez’s argument that the error was structural, but found the government did not meet its burden to prove the juror’s presence was harmless.

Sanchez, a person of Mexican descent, was convicted on six counts of preparing and presenting false and fraudulent tax returns. The appeal centered on Juror 5, who made racially biased comments during jury deliberations before being excused by the district court.

It is undisputed that Juror 5 was present during most of the jury’s deliberations and made racially biased comments. Juror 16 testified that Juror 5 said, “Yeah. And anyway, the Mexicans, all they want to do is screw us over anyway.” Juror 25 corroborated the incident, recalling the comment was “about the Mexican culture and more of how they act compared to Americans when they come over here[.]”

The district court conducted a special voir dire and found that Juror 5 made the biased statement. The court excused Juror 5 for good cause under Federal Rule of Criminal Procedure 23(c) and allowed the remaining 11 jurors to resume deliberations. The jury resumed deliberations for only 13 minutes before returning a partial verdict.

The district court denied Sanchez’s motion for a new trial, applying the standard from United States v. Sarkisian. Under Sarkisian, the court asked whether the jurors’ exposure to the biased juror’s comments “so affected the jury’s ability to consider the totality of the evidence fairly that it tainted the verdict.” The district court concluded the verdict was not tainted because the remaining jurors stated they were not affected.

The Ninth Circuit panel, in an opinion by Judge Jennifer Sung, held that the district court applied an incorrect legal standard. The panel rejected Sanchez’s argument that the presence of a biased juror constitutes structural error under Dyer v. Calderon, but ruled that the Remmer presumption of prejudice applies when a racially biased juror is discovered or found to have made a racially biased statement but is excused court accepts a verdict.

Applying the Remmer standard, the panel concluded that the government did not effectively rebut the strong presumption of prejudice. The panel distinguished the case from Sarkisian, noting that in Sarkisian, the biased juror’s comments concerned an ethnic group unrelated to the defendants, whereas Juror 5’s bias was directed at Mexicans and Sanchez is of Mexican descent. Additionally, Juror 5 participated in almost the entirety of the deliberations, unlike the juror in Sarkisian who was excused mid-trial before deliberations began.

The panel also noted that the district court’s inquiry focused only on whether jurors heard the biased comments, failing to assess whether Juror 5’s bias tainted his own assessment of the evidence, which could have influenced other jurors.

Judge Carlos T. Bea concurred in part and dissented in part. Judge Bea agreed that Dyer’s structural error standard does not apply but dissented. He wrote that the majority “incorrectly extended Remmer’s presumption of prejudice to situations where, absent any outside contact to or itself, a racially biased juror participates in some jury deliberations but is removed... before the jury’s final verdict is reached.”

Sanchez is entitled to a new trial.

The panel included Judges Carlos T. Bea, Lucy H. Koh, and Jennifer Sung.