Ninth Circuit Holds Defense Counsel Cannot Waive Court’s Duty to Investigate Juror Bias

Bolandian was convicted of insider trading related to trades involving companies advised by J.P. Morgan in merger and acquisition transactions: Integrated Device Technology’s acquisition of PLX Technologies and ExactTarget’s tender offer from Salesforce.com. The appeal centered on Juror No. 6, who sent the court a note during trial disclosing that his uncle owned an investment firm with past business ties to J.P. Morgan and might possibly have a relationship to a witness.

When questioned by the judge, Juror No. 6 stated he was not sure whether he could be fair to both sides. Rather than conducting a further inquiry, the district court instructed the juror to notify the judge if he felt biased after hearing all the evidence. Defense counsel agreed with the juror’s continued service, and the government deferred to that position. Juror No. 6 remained on the jury and eventually served as foreman.

The panel held that the district court’s independent duty to investigate juror bias is a prerequisite to any knowing waiver of a juror bias claim. Defense counsel could not waive the court’s obligation to conduct a reasonable inquiry into bias that emerged during trial. Because no such investigation occurred, Bolandian forfeited rather than waived his challenge to Juror No. 6 for actual bias on appeal.

Reviewing the claim for plain error, the court concluded that the district court impermissibly delegated its responsibility to investigate bias to the juror himself. The judge abdicated his indispensable role in preserving an impartial jury by putting the onus on Juror No. 6 to monitor his own bias without further inquiry or an attempt at rehabilitation.

The panel noted that Juror No. 6 never affirmatively stated he could be impartial, and his repeated expressions of uncertainty were more equivocal than statements previously found inadequate. The court held that the district court plainly erred in failing to strike Juror No. 6 from the jury, as the presence of a biased juror cannot be harmless error and requires a new trial without a showing of actual prejudice.

The court highlighted the tension between Bolandian’s conviction and the acquittal of his former college friend and co-defendant, Ashish Aggarwal, in a separate trial. Because the different outcomes could not be attributed to jury bias without speculation, and because even one biased juror denies a defendant his Sixth Amendment right to an impartial panel, the conviction was vacated.