                                   PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                  No. 11-2420
                 _____________

        UNITED STATES OF AMERICA

                        v.

             RICARDO MITCHELL,
                           Appellant
                _____________

  On Appeal from the United States District Court
       for the District of the Virgin Islands
              (No. 3-10-cr-00059-001)
    District Judge: Honorable Curtis V. Gomez

               Argued May 7, 2012

Before: CHAGARES, JORDAN, and COWEN, Circuit
                   Judges.


              (Filed: August 7, 2012)
Yohana M. Manning, Esq. (Argued)
P.O. Box 1576
Christiansted, St. Croix, VI 00821

Darren John-Baptiste, Esq.
The Practice
Professional Building #1
Fortets Gade Suites 11 & 12
St. Thomas, VI 00802
              Counsel for Appellant

Ishmael A. Meyers, Jr., Assistant United States Attorney
(Argued)
Office of the United States Attorney
550 Veterans Building, Suite 260
United States Courthouse
Charlotte Amalie, St. Thomas, VI 00802
              Counsel for Appellee

                        ____________

                          OPINION
                        ____________

CHAGARES, Circuit Judge.

       Ricardo Mitchell appeals his conviction on charges
related to his possession of a firearm with an obliterated serial
number. We consider whether the “close cousin” of the
prosecutor and an employee of the police department who
worked with Government witnesses should have been
disqualified as jurors in Mitchell’s trial pursuant to the
doctrine of implied bias. The law, we conclude, presumes




                               2
bias in jurors who are close relatives of the parties in a case.
Because the District Court did not elicit sufficient information
on the nature of the relationship between the prosecutor and
Juror 28, his cousin, we will remand for additional
factfinding. However, we will affirm the District Court’s
denial of Mitchell’s motion to strike Juror 97, the police
department employee, because the law does not categorically
impute bias to coworkers of key witnesses in a trial.

                               I.

       Mitchell was arrested on September 27, 2010 after an
encounter with police officers. While on patrol that evening,
Officers Joseph Brown and Bruce Taylor detected the smell
of marijuana near where Mitchell was leaning into a car
window. Planning to conduct a field interview, Officer
Brown exited his squad car and approached Mitchell, who
started to backpedal and fumble for something in his
waistband. Worried that it was a gun, Officer Brown ran and
tackled him. An object clattered to the ground as the men fell
to the street. After Officer Brown handcuffed Mitchell, he
discovered a loaded magazine underneath Mitchell’s body
and a loaded semiautomatic handgun nearby. The serial
number on the gun had been filed down and was
undecipherable. In response to questioning by Officer
Taylor, Mitchell later admitted that he did not have a license
to possess a weapon.

       The grand jury returned a three-count indictment
charging Mitchell with possession of a firearm with an
obliterated serial number, in violation of 18 U.S.C. § 922(k)
(Count 1) and V.I. Code Ann. tit. 23, § 481(a) and (b) (Count
3), and possession of an unlicensed firearm, in violation of




                               3
V.I. Code Ann. tit. 14, § 2253(a) (Count 2). The District
Court held a two-day trial. During voir dire, the District
Judge asked the jury venire if anyone was related by blood,
business, or marriage to the prosecutor. Juror 28 raised her
hand, leading to the following colloquy:

      Juror 28:    He’s my blood relative.

      The Court:   How is he related to you?

      Juror 28:     By father side.

      The Court:   What is his relation to you?

      Juror 28:    Cousin.

      The Court:   All right. Is there anything in that
                   relationship that would — are you a
                   close cousin or a distant cousin?

      Juror 28:    Close. But I don’t think that have
                   anything to do with it.

      The Court:   All right. Is there anything in that
                   relationship that would prevent you from
                   following my instructions on the law?

      Juror 28:    No, Your Honor.

      The Court:   Is there anything in that relationship that
                   would prevent you from listening to the
                   evidence in this case fairly and
                   impartially?




                             4
      Juror 28:     No, Your Honor.

      The Court:    All right. Thank you.

Appendix (“App.”) 20-21. Neither party sought to ask Juror
28 additional questions, and neither party challenged her for
cause or used a peremptory strike on her.

      Subsequently, the District Judge read the parties’
witness lists and asked if any venireperson had a relationship
by blood, marriage, or business to those individuals. Juror 97
responded affirmatively:

      Juror 97:     I work for the V.I. Police Department, so
                    I’m familiar with Officer Lans and
                    Officer Taylor. I’m their coworker.

      The Court:    All right. Do you work with them daily?

      Juror 97:     I work in the fiscal and property, so I
                    issue supplies and stuff, uniform.

      The Court:    All right. You not in the field or
                    anything with these —

      Juror 97:     No.

      The Court:    All right. Is there anything in your
                    relationship with these two individuals
                    that would prevent you from following
                    my instructions on the law?

      Juror 97:     No.




                              5
       The Court:    Is there anything in your relationship
                     with those individuals that would prevent
                     you from listening to the evidence in this
                     case fairly and impartially?

       Juror 97:     No.

App. 24-25. Again, neither party posed additional questions
to Juror 97, challenged her for cause, or used a peremptory
strike on her.

        Jurors 28 and 97 were seated as members of the jury.
Later that evening, Mitchell filed a motion to strike Juror 97
for cause. He argued that she could not remain impartial
because she was a coworker of key witnesses in the case and
would feel pressured to vote in the interests of her employer,
the police department. The District Court denied the motion.
The jury found Mitchell guilty on all counts, and the District
Court sentenced him to a 15-year term of imprisonment on
Count 3 and one-year terms of imprisonment on both Counts
1 and 2, to be served concurrently with Count 3. Mitchell
filed this timely appeal to challenge the presence of Jurors 28
and 97 on his jury. 1

                              II.

                              A.



1
  The District Court exercised subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28
U.S.C. § 1291.




                              6
        The Sixth Amendment guarantees every criminal
defendant “the right to a . . . trial[] by an impartial jury.” U.S.
Const. amend. VI. Complementing this right are the
protections afforded by the Due Process Clause, which have
“long demanded that, if a jury is to be provided the defendant,
regardless of whether the Sixth Amendment requires it, the
jury must stand impartial and indifferent to the extent
commanded by the Sixth Amendment.” Morgan v. Illinois,
504 U.S. 719, 727 (1992). Voir dire examination serves to
protect the right to an impartial jury by providing the parties a
means of uncovering juror bias. J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 143-44 (1994); Morgan, 504 U.S. at 729-
30; Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). Bias that
emerges in response to voir dire questioning can lead to
excusal of a juror for cause or may facilitate the parties’
intelligent exercise of peremptory strikes. McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984).

       Traditionally, courts have distinguished between two
types of challenges for cause: those based on actual bias, and
those based on implied bias. E.g., Dennis v. United States,
339 U.S. 162, 167-68 (1950); United States v. Wood, 299
U.S. 123, 133 (1936); United States v. Mitchell, 568 F.3d
1147, 1151 (9th Cir. 2009); United States v. Torres, 128 F.3d
38, 43 (2d Cir. 1997). Actual bias, also known as bias in fact,
is “the existence of a state of mind that leads to an inference
that the person will not act with entire impartiality.” Torres,
128 F.3d at 43. All members of the venire are subject to
examination for actual bias, which may become apparent
when a venireperson admits partiality or may be inferred from
responses to voir dire questioning. Wood, 299 U.S. at 133-
34; Torres, 128 F.3d at 43. District courts possess broad
discretion in excusing prospective jurors for cause on the




                                7
basis of actual bias. Dennis, 339 U.S. at 168. We defer to
rulings of the district court on actual bias because it possesses
a superior capacity to observe the demeanor of prospective
jurors and to assess their credibility. Wainwright v. Witt, 469
U.S. 412, 428 (1985); Torres, 128 F.3d at 44.

        Implied bias, by contrast, is “bias conclusively
presumed as [a] matter of law,” or, put another way, “bias
attributable in law to the prospective juror regardless of actual
partiality.” Wood, 299 U.S. at 133, 134. This doctrine is
rooted in the recognition that certain narrowly-drawn classes
of jurors are highly unlikely, on average, to be able to render
impartial jury service despite their assurances to the contrary.
E.g., Dennis, 339 U.S. at 175 (Frankfurter, J., dissenting);
Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988). 2 For

2
  Discussing implied bias under the pre-Erie authority of
general common law, the Supreme Court offered an apt
summary of the rationale for the doctrine:

       Bias or prejudice is such an elusive condition of
       the mind that it is most difficult, if not
       impossible, to always recognize its existence,
       and it might exist in the mind of one (on
       account of his relations with one of the parties)
       who was quite positive that he had no bias, and
       said that he was perfectly able to decide the
       question wholly uninfluenced by anything but
       the evidence. The law therefore most wisely
       says that, with regard to some of the relations
       which may exist between the juror and one of
       the parties, bias is implied, and evidence of its
       actual existence need not be given.




                               8
example, the victim of a crime might insist that she can serve
as an impartial juror in her assailant’s trial.           But,
understanding that the average person in her situation likely
would harbor prejudice, consciously or unconsciously, the
law imputes bias to her categorically and mandates her
excusal for cause. Smith v. Phillips, 455 U.S. 209, 222
(1982) (O’Connor, J., concurring); United States v. Greer,
285 F.3d 158, 172 (2d Cir. 2002).

        Because implied bias deals in categories prescribed by
law, the question whether a juror’s bias may be implied is a
legal question, not a matter of discretion for the trial court.
Smith, 455 U.S. at 222 n.* (O’Connor, J., concurring); Burton
v. Johnson, 948 F.2d 1150, 1158-59 (10th Cir. 1991). The
test focuses on “whether an average person in the position of
the juror in controversy would be prejudiced.” Torres, 128
F.3d at 45; accord Mitchell, 568 F.3d at 1151; United States
v. Cerrato-Reyes, 176 F.3d 1253, 1260-61 (10th Cir. 1999),
abrogated on other grounds by United States v. Duncan, 242
F.3d 940 (10th Cir. 2001). Courts look to the facts
underlying the alleged bias to determine if they would create
in a juror an inherent risk of substantial emotional
involvement. United States v. Russell, 595 F.3d 633, 641-
42 (6th Cir. 2010); Solis v. Cockrell, 342 F.3d 392, 399 (5th
Cir. 2003). A prospective juror’s assessment of her own
ability to remain impartial is irrelevant for the purposes of the
test. Torres, 128 F.3d at 45. Because the right to an impartial
jury is constitutive of the right to a fair trial, “[d]oubts
regarding bias must be resolved against the juror.” United
States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000)



Crawford v. United States, 212 U.S. 183, 196 (1909).




                               9
(quoting Burton, 948 F.2d at 1158); see also United States v.
Polichemi, 219 F.3d 698, 704 (7th Cir. 2000) (explaining that
a juror who belongs to a class presumed biased “may well be
objective in fact, but the relationship is so close that the law
errs on the side of caution”).

                              B.

        The most oft-discussed precedent of recent vintage
addressing implied bias is the Supreme Court’s decision in
Smith v. Phillips, 455 U.S. 209 (1982). The case involved a
juror in a criminal trial who submitted a job application to the
District Attorney’s office while trial was ongoing. Id. at 212.
The prosecutors chose not to mention the development to
defense counsel or to the judge until weeks after the jury
returned a guilty verdict. Id. at 212-13. The trial court held a
hearing on the matter and concluded that the indiscretion did
not prejudice the outcome of the case. Id. at 213-14.
Reviewing a subsequent habeas petition, the United States
District Court found insufficient evidence that the juror was
actually biased, but nevertheless ordered the defendant’s
release or retrial on the basis of implied bias. Id. at 214.
Because the average person in the juror’s position would
expect his vote for guilt or acquittal to affect his job
application, the District Court reasoned, the law must impute
bias to the juror. Id.

       The Court of Appeals for the Second Circuit affirmed,
but the Supreme Court reversed, finding there was an
insufficient basis for a due process violation. Id. at 214, 217-
18. The Court explained that “the remedy for allegations of
juror partiality is a hearing in which the defendant has the
opportunity to prove actual bias.” Id. at 215. And it




                              10
concluded that the post-verdict hearing held by the trial court
was sufficient for this purpose because “due process does not
require a new trial every time a juror has been placed in a
potentially compromising situation.” Id. at 217.

        Justice O’Connor joined the majority, but concurred
separately to express her conviction that the opinion did not
disturb the implied bias doctrine. 455 U.S. at 221 (O’Connor,
J., concurring). In most cases of juror bias, she explained, a
post-conviction hearing will ferret out actual bias. Id. at 222.
But “in certain instances a hearing may be inadequate for
uncovering a juror’s biases[.]”          Id.    Those “extreme
situations” able to “justify a finding of implied bias” include

       a revelation that the juror is an actual employee
       of the prosecuting agency, that the juror is a
       close relative of one of the participants in the
       trial or the criminal transaction, or that the juror
       was a witness or somehow involved in the
       criminal transaction.

Id. 3 In these rare circumstances, Justice O’Connor reasoned,
“the Sixth Amendment right to an impartial jury should not
allow a verdict to stand[.]” Id.


3
   Justice O’Connor also cited with approval Leonard v.
United States, 378 U.S. 544, 545 (1964) (per curiam), which
accepted the Government’s position that individuals who
heard the defendant’s guilty verdict announced in a previous
case should have been “automatically disqualified from
serving [as jurors] at [his] second trial, if the objection [wa]s
raised at the outset.”




                               11
       In the wake of Smith, some Courts of Appeals
questioned whether the majority opinion quietly discarded the
doctrine of implied bias. E.g., Johnson v. Luoma, 425 F.3d
318, 326 (6th Cir. 2005) (“[T]he implied-bias doctrine may
not even be viable after Smith.”); Conner v. Polk, 407 F.3d
198, 206 n.4 (4th Cir. 2005) (“There may be some question as
to whether implied bias remains a viable doctrine following
the Supreme Court’s majority opinion in Smith[.]”); Williams
v. Griswald, 743 F.2d 1533, 1538 n.7 (11th Cir. 1984)
(observing that the majority in Smith “declined to use the
urged ‘implied bias’ test”). Our Court thrice declined to
decide whether implied bias survived Smith. See United
States v. Skelton, 893 F.2d 40, 46 (3d Cir. 1990); United
States v. Salamone, 800 F.2d 1216, 1225 n.11 (3d Cir. 1986);
United States v. Ferri, 778 F.2d 985, 993 (3d Cir. 1985).

       Today, however, most Courts of Appeals endorse the
view that the implied bias doctrine retains its vitality after
Smith. See Treesh v. Bagley, 612 F.3d 424, 437 (6th Cir.
2010); United States v. Brazelton, 557 F.3d 750, 753-54 (7th
Cir. 2009); Conaway v. Polk, 453 F.3d 567, 586-87 & nn. 21,
22 (4th Cir. 2006); Brooks v. Dretke, 444 F.3d 328, 330 (5th
Cir. 2006); Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir.
1998) (en banc); Torres, 128 F.3d at 45-46; Amirault v. Fair,
968 F.2d 1404, 1406 (1st Cir. 1992); Burton, 948 F.2d at
1158-59; Cannon v. Lockhart, 850 F.2d 437, 440 (8th Cir.
1988). Merely two years after the decision, they point out,
five justices joined opinions in McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. at 556-57, 558, that
reinforced the viability of the doctrine. See Conaway, 453
F.3d at 587; Solis, 342 F.3d at 395 n.6; Dyer, 151 F.3d at 985.
Nor, they reason, would the Supreme Court abandon a
centuries-old doctrine sub silentio. E.g., Conaway, 453 F.3d




                              12
at 586-87; Brooks, 444 F.3d at 329-30 & n.5; Dyer, 151 F.3d
at 984-85; see also Shalala v. Ill. Council on Long Term Care,
Inc., 529 U.S. 1, 18 (2000) (“Th[e] Court does not normally
overturn, or so dramatically limit, earlier authority sub
silentio.”). 4 Our Court signaled agreement, observing in
United States v. Calabrese that Smith did not foreclose the
applicability of implied bias. 942 F.2d 218, 224 n.2 (3d Cir.
1991).

       For the reasons well developed by our sister Courts of
Appeals, today we confirm what Calabrese suggested in dicta:
implied bias remains available, in appropriate circumstances,
to disqualify jurors whose connection with the litigation
makes it highly unlikely that they can remain impartial
adjudicators. Moreover, we do not find lurking in Smith a
renunciation of implied bias. The District Court in Smith
anchored its holding in implied bias, but the Supreme Court
majority never considered the question of whether a juror
who applies to work with the prosecutor mid-trial falls within
an implied bias category. By finding the post-verdict hearing
adequate to protect the defendant’s rights, the majority
implicitly answered in the negative. Justice O’Connor agreed
and saw no tension between her concurrence and the


4
   Blackstone’s Commentaries discuss a challenge for
“principal cause,” the common law analogue of an implied
bias challenge that “carries with it prima facie evident marks
of suspicion, either of malice or favor” and “which, if true,
cannot be overruled.” William Blackstone, 3 Commentaries
*363; see also Wood, 299 U.S. at 138 (citing Blackstone with
approval); Crawford, 212 U.S. at 196 (same).




                             13
majority. 5 The case was not one where implied bias was
apparent on appeal, and in light of comprehensive record
developed in the post-verdict hearing, the Justices had no
basis for expecting that additional fact-finding would assist in
determining whether the law imputed bias to the juror.

                              III.

       Having concluded that the implied bias doctrine
survived Smith, we turn to consider Mitchell’s challenges to
Jurors 28 and 97.

                              A.

       Mitchell contends that the District Court should have
excused for cause Juror 28, the close cousin of the prosecutor,
because she falls within a category of individuals to whom
the law categorically imputes bias. Because Mitchell did not
object to Juror 28’s empanelment, his challenge is subject to
plain error review. Salamone, 800 F.2d at 1222. To show
plain error, Mitchell must demonstrate (1) that an error
occurred; (2) the error was clear or obvious under current
law; and (3) the error affected his substantial rights by
influencing the outcome of the District Court proceedings.
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
732-34 (1993); United States v. Tann, 577 F.3d 533, 537-38

5
 This accords with the common law, which never hinted that
a juror applying to work for the prosecuting agency — as
opposed to a juror actually employed by the prosecuting
agency — is presumptively biased. See, e.g., Blackstone, 3
Commentaries *363 (listing categories of jurors presumed
biased as a matter of law).




                              14
(3d Cir. 2009). Even if all three elements of the test are met,
the error may be corrected only when it “‘seriously affect[s]
the fairness, integrity or public reputation’” of the
proceedings. Olano, 507 U.S. at 732 (quoting United States
v. Young, 470 U.S. 1, 15 (1985)).

       It is well settled that the Sixth Amendment, like the
common law, under some circumstances presumes bias when
the relative of a party in a case serves on his or her jury in a
criminal trial. E.g., Wood, 299 U.S. at 138, 146-47;
Brazelton, 557 F.3d at 753; Dyer, 151 F.3d at 982; Torres,
128 F.3d at 45. 6 Indeed, consanguinity is the classic example
of implied bias. Conaway, 453 F.3d at 586. Presiding over
Aaron Burr’s trial for treason while riding circuit, Chief
Justice Marshall explained that “the most distant relative of a
party cannot serve upon his jury [because] . . . the law
suspects the relative of partiality; suspects his mind to be
under a bias, which will prevent his fairly hearing and fairly
deciding on the testimony which may be offered to him.”
United States v. Burr, 25 F. Cas. 49, 50 (C.C. Va. 1807) (No.
14,692g). To secure an impartial jury, he continued, “the law
cautiously incapacitates [the juror] from serving on the jury . .

6
  We refer throughout to the relationship between a juror and
a “party” in a case. Of course, in a criminal case such as this,
the United States is the party in interest, and the United States
Attorney’s Office represents the United States. But it is also
true that the prosecutor is the “representative not of an
ordinary party to a controversy, but of a sovereignty.” Berger
v. United States, 295 U.S. 78, 88 (1935). For the purposes of
this case, we will continue to employ the term “party” to refer
to both the party in interest and its embodiment in the person
of the prosecutor.




                               15
. because in general persons in a similar situation would feel
prejudice.” Id. This is true even if “[t]he relationship [is]
remote; the person . . . ha[s] [never] seen the party; [and] he .
. . declare[s] that he feels no prejudice in the case[.]” Id.

       Chief Justice Marshall’s “kinship category” of implied
bias endures. Nearly two centuries later, Justice O’Connor’s
concurrence included “close relative[s]” as one of the
“extreme” situations where courts impute bias to a juror
irrespective of actual partiality. Smith, 455 U.S. at 222
(O’Connor, J., concurring). And the Court of Appeals for the
Ninth Circuit, sitting en banc, reiterated the rule:

       Of course, a juror could be a witness or even a
       victim of the crime, perhaps a relative of one of
       the lawyers or the judge, and still be perfectly
       fair and objective. Yet we would be quite
       troubled if one of the jurors turned out to be the
       prosecutor’s brother because it is highly
       unlikely that an individual will remain impartial
       and objective when a blood relative has a stake
       in the outcome. Even if the putative juror
       swears up and down that it will not affect his
       judgment, we presume conclusively that he will
       not leave his kinship at the jury room door.

Dyer, 151 F.3d at 982; see also United States v. Quinones,
511 F.3d 289, 302 (2d Cir. 2007) (commenting that
“[i]rrevocable bias would be so evident” from a juror’s
admission “that he was the defendant’s brother or the
prosecutor’s uncle” that any further inquiry into the “the
juror’s ability to follow legal instructions and to serve
impartially” would be “superfluous”).




                               16
       Likely because it is so uncommon for a relative of a
party to be seated as a juror, little case law explores the outer
boundary of the kinship category. Chief Justice Marshall’s
formulation suggests that even distant relatives are
categorically presumed biased. Burr, 25 F. Cas. at 50. The
Seventh Circuit Court of Appeals likewise finds implied bias
whenever a juror shares “any degree of kinship with a
principal in a case.” Brazelton, 557 F.3d at 754. The Second
Circuit Court of Appeals uses an intermediate standard,
explaining that “automatically presumed bias deals mainly
with jurors who are related to the parties.” Torres, 128 F.3d
at 45 (emphasis added). Justice O’Connor’s formulation in
Smith is narrower still; it presumes bias only in the case of a
“close relative.” Smith, 455 U.S. at 222 (O’Connor, J.,
concurring).

       Our Court has not considered the parameters of the
kinship category.      The touchstone of the inquiry, as
previously discussed, is whether the average person in the
position of the juror would be prejudiced and feel substantial
emotional involvement in the case. In view of that inquiry,
we reject the most expansive formulations that categorically
presume bias whenever a juror shares any degree of kinship
with a party in a case. A distant relative, on average, is
unlikely to harbor the sort of prejudice that interferes with the
impartial discharge of juror service. On the other hand, the
bond between close relatives is intimate enough, on average,
to generate a stronger likelihood of prejudice, whether
unconscious or intentionally concealed. Compare Conaway,
453 F.3d at 586-88 (presuming bias when it was discovered
that a juror was the double first cousin of a key prosecution
witness), and Brazelton, 557 F.3d at 754 (suggesting, without
explicitly holding, that it “might seem prudent” to disqualify




                               17
a victim’s second cousin from juror service), with Allen v.
Brown Clinic, P.L.L.P., 531 F.3d 568, 572-73 (8th Cir. 2008)
(rejecting an implied bias challenge to a juror whose first
cousin was married to the brother-in-law of the defendant).
These considerations lead us to agree with Justice O’Connor
that the kinship category of implied bias excludes jurors who
are “close relative[s]” of a principal in a case. Smith, 455
U.S. at 222 (O’Connor, J., concurring). This formulation, we
believe, is most faithful to the notion that implied bias is a
limited doctrine, one reserved for exceptional circumstances.
See id.; United States v. Tucker, 243 F.3d 499, 509 (8th Cir.
2001); Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir.
1996).

        In adopting the “close relative” standard, we are
concerned both with the right of the defendant to an impartial
jury and with preservation of the appearance of justice in the
courts. See Dyer, 151 F.3d at 983. If the seating of a party’s
relative as a juror would lodge serious doubts in the public’s
mind about the neutrality of the proceedings, that
consideration favors legal attribution of bias.           Public
confidence in the fairness of the proceedings would suffer if a
trial court permitted a juror to deliberate and pass judgment in
a case in which her close relative labored as prosecutor to
procure a conviction or faced years in prison and the moral
and societal condemnation that accompanies a criminal
conviction. We cannot say the same for distant relatives,
whose relationship is sufficiently attenuated so as not to
undermine the appearance of fairness in judicial proceedings. 7

7
  We note that this approach recognizes the difficulty inherent
in seating a jury in a small community where distant family
members may share ties with trial participants. A per se rule




                              18
        In this case we have only a bare-bones description of
Juror 28’s relationship to the prosecutor. Juror 28 stated that
she was the prosecutor’s close cousin. Neither the District
Court nor the attorneys clarified the degree of kinship the two
shared. Perhaps Juror 28 was the prosecutor’s first cousin,
but it is also possible that she was a more distant cousin who
happened to share a close personal relationship with the
prosecutor. The abbreviated voir dire questioning leaves a
notable gap in the record and hinders our review of Mitchell’s
implied bias claim.

        Rather than attempt to divine from the record whether
Juror 28 and the prosecutor are close relatives, the more
prudent path is to remand this matter to the District Court for
a brief evidentiary hearing. As we have said, Smith held that
a post-verdict hearing to probe a compromised juror for actual
bias satisfies due process when there is no basis for finding
implied bias. See 455 U.S. at 217. The majority was
convinced that a post-verdict hearing is preferable to retrial.
It follows that, when confronting a colorable claim of implied
juror bias on appeal, a reviewing court can remand for an
evidentiary hearing to develop key facts necessary to decide
the claim.

       We leave for the District Court to consider, in the first
instance, the specific contours of the kinship category within
the context of this case. If on remand the District Court
determines that Juror 28 was a close relative of the
prosecutor, then the failure to excuse her offended Mitchell’s



eliminating any relative, no matter how distant, could unduly
hamper the jury selection process in such areas.




                              19
right to trial by an impartial jury. 8 That error, clear and
obvious under existing case law, must be remedied by retrial.
This is so because the denial of the defendant’s right to an
impartial adjudicator, “‘be it judge or jury,’” is a structural
defect in the trial. Gomez v. United States, 490 U.S. 858, 876
(1989) (quoting Gray v. Mississippi, 481 U.S. 648, 668
(1987)); see also Szuchon v. Lehman, 273 F.3d 299, 331 (3d
Cir. 2001) (holding that the presence of a biased juror in the
sentencing phase of a capital case is a structural defect
requiring resentencing despite the defendant’s failure to
object); Hughes v. United States, 258 F.3d 453, 458, 463 (6th
Cir. 2001); Dyer, 151 F.3d at 973 n.2; Johnson v.
Armontrout, 961 F.2d 748, 755-56 (8th Cir. 1992). And, we
have held, errors classified as structural defects are
“coextensive” with errors presumed prejudicial on plain error
review. United States v. Syme, 276 F.3d 131, 153 (3d Cir.
2002) (citing United States v. Adams, 252 F.3d 276, 285 &
n.6 (3d Cir. 2001)). 9

8
  It bears repeating that if Juror 28 was the prosecutor’s close
relative, her guarantee that she could remain impartial is
immaterial, for implied bias is “bias attributable in law to the
prospective juror regardless of actual partiality.” Wood, 299
U.S. at 133, 134. In arguing that Juror 28’s assurances of
impartiality shield her from disqualification, the Government
conflates implied bias and actual bias.
9
  One might be concerned that by presuming prejudice even
when a juror reveals information at voir dire that puts the
defendant on notice of an implied bias challenge, the law
creates a perverse incentive for the defendant to avoid
objecting in order to bolster a potential implied bias claim on
appeal. This type of tactical maneuvering is obviously




                              20
                           *****

        Because Mitchell has raised a colorable claim of
implied bias, we will remand for additional factfinding on
Juror 28’s degree of kinship with the prosecutor. If Juror 28
falls within the “close relative” category of implied bias, the
District Court must order retrial to satisfy Mitchell’s right to
trial by an impartial jury.

                              B.

       Mitchell’s second claim is that the District Court erred
in denying his motion to strike Juror 97 because she, too,
should have been presumed biased. 10 We review for abuse of
discretion the denial of a motion to strike a juror for cause.
United States v. Mitchell, 502 F.3d 931, 955 (9th Cir. 2007);
United States v. Nelson, 277 F.3d 164, 201 (2d Cir. 2002).
However, a “district court by definition abuses its discretion
when it makes an error of law,” Koon v. United States, 518
U.S. 81, 100 (1996), and implied bias is a question of law.
Smith, 455 U.S. at 222 n.* (O’Connor, J., concurring); United


discouraged. We expect, however, that in the vast majority of
cases, a prospective juror’s admission that she is a close
relative of a party will immediately alert the District Court
that the juror should be excused for cause. See Hughes, 258
F.3d at 464 (“[T]he presiding trial judge has the authority and
responsibility, either sua sponte or upon counsel’s motion, to
dismiss prospective jurors for cause.” (citing Torres, 128 F.3d
at 43)).
10
   Mitchell concedes that the record does not support a
challenge to Juror 97 on the basis of actual bias.




                              21
States v. Powell, 226 F.3d 1181, 1189 (10th Cir. 2000). We
review questions of law de novo. United States v. Bansal,
663 F.3d 634, 657 (3d Cir. 2011).

       Juror 97 testified at voir dire that she worked with two
of the Government’s witnesses, both police officers, at the
Virgin Islands Police Department. 11 Her duties, she reported,
included issuing equipment and uniforms to police officers,
but did not involve work as a field agent. The record is
devoid of information about the nature and regularity of her
interaction with the officers.

       Mitchell argues that Juror 97 is an employee of the
prosecuting agency and therefore falls within a category of
implied bias listed in the Smith concurrence. See 455 U.S. at
222 (O’Connor, J., concurring). Factually, he is incorrect.
Juror 97 is not an employee of the prosecuting agency, but
rather works for the Virgin Islands Police Department, the
investigating agency. Mitchell concedes that employment at
a police department, standing alone, does not justify an
implication of bias. See Dennis, 339 U.S. at 171-72
(declining, in the trial of a Communist Party official, to
impute bias to jurors who were employees of the federal
government and had taken an oath of loyalty to the United
States as a condition of employment); Polichemi, 219 F.3d at
704 (“[G]overnment employment alone is not, and should not
be, enough to trigger the rule under which an employee is
disqualified from serving as a juror in a case involving her
employer.”).


11
   One officer was present at Mitchell’s arrest. The other
arrived later to conduct the forensic investigation.




                              22
       At oral argument, Mitchell pressed the more nuanced
view that Juror 97’s employment at the police department and
her employment interactions with the officers together supply
a sufficient basis for legal attribution of bias. He identifies no
controlling precedent that presumes bias in a juror who
works, possibly on a daily basis, for the Government with key
witnesses in a case. To the contrary, we have observed that
“at common law certain relations between jurors and others
resulted in a legal conclusion of partiality, [but] the
relationship of a juror to a witness was not among them.”
Gov’t of V.I. v. Gereau, 502 F.2d 914, 934 (3d Cir. 1974),
abrogated on other grounds, Corley v. United States, 556 U.S.
303 (2009).

        To the extent that Mitchell urges us to fashion a new
category of implied bias for coworkers of police officers who
testify as witnesses in a criminal trial, we decline to do so.
“Prudence dictates that courts” considering an implied bias
claim “should hesitate before formulating categories of
relationships [that] bar jurors from serving in certain types of
trials.” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990).
And our precedent disfavors extending implied bias to cover
relationships between jurors and Government witnesses. In
United States v. Ferri, we held that the occupational
acquaintance between the husband of a juror and a
Government witness did not justify a presumption of bias.
778 F.2d at 993. Likewise, in Government of Virgin Islands
v. Gereau, we concluded that a juror who was the ex-wife of a
non-critical police officer witness, and who interacted with
him occasionally, was not presumptively excludable. 502
F.2d at 934. See also Sanders v. Norris, 529 F.3d 787, 793-
94 (8th Cir. 2008) (holding that the county coroner who
retrieved and autopsied the victims in the defendant’s murder




                               23
trial did not fall within a category of jurors presumed biased
as a matter of law); United States v. Bradshaw, 787 F.2d
1385, 1390 (10th Cir. 1986) (finding no implied bias even
though a juror had prior business dealings with key
Government witnesses); United States v. Brown, 644 F.2d
101, 104-05 (2d Cir. 1981) (declining to impose “a set of
unreasonably constricting presumptions that jurors be
excused for cause due to certain occupational or other special
relationships which might bear directly or indirectly on the
circumstances of a given case, where . . . there is no showing
of actual bias or prejudice”).

       We do not agree with our learned dissenting colleague
that employees of the investigating agency, like employees of
the prosecuting agency, should be presumptively excluded
under the implied bias doctrine.         Elimination of any
distinction between these classes of prospective jurors would
invite irregularity and confusion in the district courts. The
dissent’s proposed category — law enforcement employees
who share a close working relationship with a law
enforcement witness — is unrecognized at common law and
in decisions from this Court, the Supreme Court, or other
Courts of Appeals. 12 District courts applying this new
category of implied bias would have no guidance in policing
the nebulous boundary between an employee who works
closely with a testifying officer and one who does not. By
contrast, the body of case law on the kinship category of
implied bias, stemming both from the common law and from
centuries of American constitutional interpretation, sharpens

12
  Indeed, the dissent does not cite a single case that presumes
bias in all prospective jurors who work closely with the
arresting officer called to testify on behalf of the Government.




                              24
the contours of that category. It supplies the district court a
basis for discriminating between jurors who are
presumptively biased and those who are not.

       The dissenting judge is rightly concerned that certain
relationships between law enforcement witnesses and
prospective jurors who work with those witnesses are tinged
by partiality. We share those concerns. But we also
recognize that the implied bias doctrine erects an
impenetrable barrier. Were we to enlarge the categories of
implied bias beyond those accepted at common law and
hallowed by years of constitutional interpretation, we might
unwittingly ensnare a larger swath of prospective jurors than
is necessary to ensure the integrity of the jury trial. That
consequence could encumber the selection of jurors in less
populated areas like the Virgin Islands.

        We believe the better approach in this case is to resist
the temptation to wall off another class of jurors from service
and to trust in the procedural safeguards built into jury
selection within the adversarial structure of the trial. A
prospective juror who works closely with a testifying police
officer may, for example, be challenged for cause on the basis
of actual bias. The prospective juror is subject to peremptory
strikes. The juror may be questioned in a hearing during or
after trial if doubts regarding his or her impartiality emerge
during the proceedings. All of these checks in the system
exist to protect the defendant’s right to be judged by an
impartial jury, consistent with the Sixth Amendment.

       Under the circumstances, Mitchell’s right to trial by an
impartial jury was protected adequately by inquiry for actual
bias, and that inquiry yielded no evidence of actual bias. The




                              25
law, we hold, does not categorically impute bias to coworkers
of key Government witnesses. The District Court therefore
properly denied Mitchell’s motion to strike Juror 97 on an
implied bias theory.

                            IV.

       For the foregoing reasons, we will affirm the District
Court’s denial of Mitchell’s motion to strike Juror 97, and
will remand for further proceedings consistent with this
opinion on Juror 28’s relationship with the prosecutor.




                             26
United States of America v. Mitchell, No. 11-2420
JORDAN, Circuit Judge, concurring in part and dissenting in
part

       I agree with the Majority’s result with respect to the
question of whether Juror 28 was impliedly biased, and I
therefore join in holding that we should remand for additional
factfinding on Juror 28’s degree of kinship with the
prosecutor. But because I conclude that, depending on facts
not available on this record, the average person in Juror 97’s
position may also pose an inherent risk of bias, and because
we must resolve doubts regarding bias by not seating the
affected juror, I would remand for additional factfinding
concerning the character and frequency of Juror 97’s
interactions with her police officer co-workers involved in the
case against Mitchell. I therefore respectfully dissent in part.

        As the Majority explains, the “implied bias [doctrine]
remains available, in appropriate circumstances, to disqualify
jurors whose connection with the litigation makes it highly
unlikely that they can remain impartial adjudicators.” (Slip
Op. at 13 (citing United States v. Calabrese, 942 F.2d 218 (3d
Cir. 1991)).) In dicta in Calabrese, we cited with approval
Justice O’Connor’s observation in Smith v. Phillips, 455 U.S.
209 (1982), that a “juror [who] is an actual employee of the
prosecuting agency” is one example of an “extreme
situation[] that would justify a finding of implied bias.” 1

       1
        At common law, a “servant” of a party in a case was
impliedly biased. See 3 William Blackstone, Commentaries
480-81 (W. Hammond ed. 1980) (noting that jurors may face
a “principal challenge … where the cause assigned carries




                               1
Calabrese, 942 F.2d at 226 (quoting Smith, 455 U.S. at 222
(O’Connor, J., concurring)); accord United States v.
Polichemi, 201 F.3d 858, 861-64 (7th Cir. 2000) (holding,
without citing to Justice O’Connor’s concurrence in Smith,
that a juror who was a 15-year secretarial employee in the
civil division of the prosecuting agency was impliedly
biased).

        It is true, as the Majority says, that Juror 97 is not an
employee of the prosecuting agency, the United States
Attorney’s Office for the District of the Virgin Islands.
Rather, Juror 97 is an employee of the investigative agency,
the Virgin Islands Police Department. She knows two of the
officers who testified against Mitchell because she works
with them. The Virgin Islands Police Department was
responsible for conducting the investigation that led to
Mitchell’s prosecution and was cooperating with the
prosecuting agency to convict Mitchell. In my view, a law
enforcement agency employee with a close working
relationship with testifying officers from the same agency has
at least the same risk of inherent prejudice as has an employee
of the prosecuting agency. In fact, because of the closer
proximity to criminal activity and the often dangerous nature
of the work done by agencies like the police department here,
employees of such agencies may more likely be seen as
impliedly biased against criminal defendants than are
employees of a prosecuting agency. Compare Coolidge v.

with it prima facie evident marks of suspicion, either of
malice or favour … that a juror … is the party’s … servant
…; which, if true, cannot be overruled, for jurors must be
omni exceptione majores”).




                               2
New Hampshire, 403 U.S. 443, 481 (1971), abrogated on
other grounds by Horton v. California, 496 U.S. 128, 130
(1990) (noting that “the warrant requirement … is … an
important working part of our machinery of government,
operating as a matter of course to check the well-intentioned
but mistakenly over-zealous executive officers who are part
of any system of law enforcement” (citation and internal
quotation marks omitted)), with Kang v. Att’y Gen., 611 F.3d
157, 167 (3d Cir. 2010) (observing that an attorney for a
prosecuting agency “carries a double burden” and, although
“he owes an obligation to government … to conduct his case
zealously,” he also “must be ever cognizant that he is the
representative of a government dedicated to fairness and
equal justice to all and … he owes a heavy obligation to [his
adversary]” (alteration in original) (citations and internal
quotation marks omitted)).

        I agree with the Majority that we should not only be
“concerned … with the right of the defendant to an impartial
jury” but also “with preservation of the appearance of justice
in the courts.” (Slip Op. at 18.) Indeed, public perception
matters. Like the seating of a close relative, the seating of
someone who goes to work with two of the testifying officers
could, depending upon the nature of their interaction on the
job, “lodge serious doubts in the public’s mind about the
neutrality of the proceedings” which would “favor[] legal
attribution of bias.” (Id.) In my view, the “[p]ublic
confidence in the fairness of the proceedings would suffer if a
trial court permitted a juror to deliberate and pass judgment in
a case in which” certain of her co-workers, with whom she
might have had a close working relationship, were an integral
part of “procur[ing] a conviction.” (Id.)




                               3
       The Majority points out that Mitchell, at oral
argument, “concede[d] that employment at a police
department, standing alone, does not justify an implication of
bias.” (Id. at 19-20.) Citing to Dennis v. United States, 339
U.S. 162, 171-72 (1950), and United States v. Polichemi, 219
F.3d 698, 704 (7th Cir. 2000), the Majority suggests that
Mitchell’s concession is well-founded since the law mandates
that government employment alone is not enough for a
finding of implied bias. 2 Then, saying that “our precedent
disfavors extending implied bias to cover relationships
between jurors and Government witnesses” (Slip Op. at 23), 3

       2
         The Majority seems to equate employment at an
investigative agency that is involved in the prosecution with
employment by a government agency that is in no way
connected to law enforcement. As discussed supra, there is a
sound argument that, in the implied bias context, working for
a law enforcement agency which is cooperating with the
prosecuting agency presents a much different situation than
employment at an agency that is not involved in the
prosecution.
       3
         The precedents that the Majority cites to support that
proposition are United States v. Ferri, 778 F.2d 985 (3d Cir.
1985), and Government of Virgin Islands v. Gereau, 502 F.2d
914 (3d Cir. 1974), abrogated on other grounds by Corley v.
United States, 556 U.S. 303 (2009). In both of those cases,
however, the district court during voir dire conducted a
meaningful inquiry with respect to the nature of the
relationship at issue. In Ferri, “the day after the jury had
been empanelled, the defendants discovered that the husband
of one juror was a fireman … [and] an issue arose as to
whether she knew [a] … government witness” who was the




                              4
the Majority rejects Mitchell’s claim that jurors who are co-
workers of testifying police officers at a criminal trial can be
impliedly biased. The Majority concludes that “[t]he law …
does not categorically impute bias to coworkers of key
Government witnesses.” (Id. at 25-26.)

       That holding frames Mitchell’s claim too narrowly, by
ignoring Juror 97’s employer and the role that her employer
played in securing Mitchell’s conviction. The Majority fails
to acknowledge that even the government accepts the premise


fire department captain and “apparently knew the juror’s
husband.” 778 F.2d at 991. “[T]he district court conducted
an additional voir dire examination of the juror,” where the
juror indicated that she had never heard of the fire department
captain’s name prior to the trial. Id. at 992 & n.5. In Gereau,
the district court, after learning that a juror was the divorced
wife of a police officer who was to testify at trial, questioned
that juror to elicit information regarding the nature of their
current relationship – that they had been divorced for seven
years, had a child together that lived with the juror, saw each
other infrequently and only when it related to the care of that
child, and that he contributed to child support. 502 F.3d at
934.
        The level of detail elicited from the respective jurors in
those two cases stands in stark contrast to the lack of inquiry
by the District Court here, as discussed infra. The failure of
the District Court to conduct additional voir dire with respect
to Juror 97 left open material questions regarding the contours
of the working relationship between Juror 97 and the two
testifying officers that she knew in her employment capacity.




                                5
that at least some employees of an investigative agency would
be impliedly biased. At oral argument, the government
conceded that a field agent employed by an investigative
agency could not serve as a juror because that agent would be
biased as a matter of law. 4 (See Oral Arg. at 25:28, United
States v. Mitchell (No. 11-2420), available at
http://www.ca3.uscourts.gov/oralargument/audio/11-
2420USAv.Mitchell.wma (“[Q:] Would it have been close
enough [of a working relationship with the testifying officers
for a finding of implied bias] if [Juror 97] was riding in the
squad car with [the testifying officer]? [A:] Yes, that would
be close enough. [Q:] Would it be close enough if she
weren’t riding in the squad car but she was a fellow officer in
the field and sometimes saw him in the field? [A:] Yes. [Q:]
So would it be close enough if she never saw him in the field
but she was still a field agent? [A:] Yes I believe a field
agent in this particular matter would be close enough.”).) The
government indicated that the test to determine whether a
juror who is an employee of an investigative agency is
impliedly biased is whether that employee had a “close
working relationship” with the testifying officer. In applying
its test, because Juror 97 is not an officer in the field but
rather is an office worker who issues equipment and
uniforms, the government argued that Juror 97 could not have
had a “close working relationship” with the officers and
therefore could not be impliedly biased.


      4
          The Majority’s view thus goes well beyond what
even the government is willing to claim. By my colleagues’
position, not even a juror who was a testifying officer’s
partner in a squad car could be held biased as a matter of law.




                              6
        The District Court likewise seemed to recognize that a
juror could be impliedly biased based on her relationship to
the agency that collaborated with the prosecuting agency to
convict Mitchell. By asking Juror 97 whether she works with
the testifying officers on a daily basis, the District Court
appeared attuned to the idea that certain employees of an
investigative agency can be impliedly biased, depending upon
the nature of their interactions with co-workers who would be
testifying officers. Juror 97, however, did not indicate how
often or how closely she works with the testifying officers,
and, unfortunately, the District Court made no attempt to
obtain that information. All Juror 97 indicated is that her
duties include issuing equipment and uniforms to the officers
and that she does not work in the field. By allowing her to
remain on the jury, the District Court, like the government,
seemed to take the position that the only employees of an
investigative agency who can be impliedly biased are field
agents. Notwithstanding their ultimate position on whether
Juror 97 may be impliedly biased, both the government and
the District Court recognized that there is an inherent risk of
undermining the appearance of justice if certain employees of
an investigative agency are allowed to sit on a jury. 5

       5
          That everyone involved in this case except the
Majority accepts this proposition is telling, particularly since
the Majority makes a point of observing that I have not
“cite[d] a single case that presumes bias in all prospective
jurors who work closely with the arresting officer called to
testify on behalf of the Government.” (Slip Op. at 24 n.12.)
The rejoinder to the “you have no precedent” observation is
that there is probably no case on point because no one before
us has ever thought to say that a close work colleague of an




                               7
       Although I agree with the government’s assertion –
and the implication of the District Court’s line of questioning
– that we need to examine the parameters of a juror’s working
relationship with a testifying officer to determine whether that
juror should be seen as impliedly biased, I do not agree that a
bright line can rightly be drawn so that only field agents
employed by the investigative agency satisfy the requisite
working relationship to be deemed biased as a matter of law.
Such an approach “fine-tunes matters too far.” Polichemi,
201 F.3d at 864 (rejecting government’s argument that juror
who was a secretary in the civil division of the prosecuting
agency “should be disqualified [as impliedly biased] only if
she was under the actual supervision of the officer signing the
indictment”). Rather, we should consider the specifics of a
case in deciding whether bias should be imputed to a juror
who is an employee of an investigative agency involved in
the prosecution at hand. Consideration should be given, for
example, to the character and frequency of the co-workers’
interactions. Similar to how degrees of consanguinity are
significant in the “close relative” inquiry, the closer the
degree of the working relationship between co-workers, the
more likely it is that an average person in the co-worker’s
shoes would be prejudiced, despite any claim to the contrary. 6

investigative and testifying agent could fairly sit on a jury. It
is that position which seems to be unprecedented.
       6
         This type of examination is distinguishable from an
actual bias inquiry. In determining actual bias, a court should
look into a juror’s “state of mind that [would] lead[] to an
inference that the person will not act with entire impartiality.”
United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)). In
contrast, the aforementioned considerations would not be




                               8
       The Majority posits that a refusal to accept as jurors
any “law enforcement employees who share a close working
relationship with a law enforcement witness” constitutes the
creation of “a new category of implied bias” which is
“unrecognized at common law and in decisions from this
Court, the Supreme Court, or other Courts of Appeals.” (Slip
Op. at 24.) Thus, says the Majority, “[d]istrict courts …
would have no guidance in policing the nebulous boundary
between an employee who works closely with a testifying
officer and one who does not.” 7 (Id.) As an initial matter, I

used to determine Juror 97’s personal feelings about the
particular testifying officers. Rather, the considerations
would be used to gather information to make the
determination of whether Juror 97 is impliedly biased due to
the nature of the working relationship. See Skaggs v. Otis
Elevator Co., 164 F.3d 511, 516 n.3 (10th Cir. 1998) (noting
that implied bias is “a question of law proved by facts which
show [the requisite] connection …” (emphasis added)).
       7
          The Majority “contrast[s]” this “new category” of
implied bias with “the body of case law on the kinship
category of implied bias, stemming both from the common
law and from centuries of American constitutional
interpretation,” which “supplies the district court a basis for
discriminating between jurors who are presumptively biased
and those who are not.” (Slip Op. at 24-25.) Although the
Majority has not said how “close” a “close relative” needs to
be for an implied bias finding with respect to Juror 28 –
instead “leav[ing] it for the District Court to consider, in the
first instance, the specific contours of the kinship category
within the context of this case” (id. at 19) – I do not read its
opinion to adopt the common-law rule of presuming bias to




                               9
do not believe that I am suggesting anything genuinely new.
As already discussed, for purposes of the implied bias
question, an investigative officer can be seen as part of the
prosecution team. Cf. Messerschmidt v. Millender, 132 S. Ct.
1235, 1249 (2012) (noting that a police officer is not
“automatically entitled to qualified immunity for seeking a
warrant unsupported by probable cause” on the basis of his
supervisor’s review of it “because the officers’ superior …
[was] part of the prosecution team”); Jackson v. Brown, 513
F.3d 1057, 1074 (9th Cir. 2008) (observing that, in the
context of nondisclosure of evidence, “investigative officers
are part of the prosecution” (citations omitted)); United States
v. Antone, 603 F.2d 566, 569 (5th Cir. 1979) (noting that “[i]n
considering use of perjured testimony” the United States
Court of Appeals for the Fifth Circuit “focus[es] upon the
‘prosecution team,’ which includes both investigative and
prosecutorial personnel” (citation omitted)). Moreover, like
jurors who are employees of the prosecuting agency, there is
a significant risk that jurors who are close colleagues of the

“a juror … of kin to either party within the ninth degree,” 3
William Blackstone, Commentaries 480-81. If a district court
were to look to the common law, which would result in a
finding that a third cousin once removed would be biased as a
matter of law, “[t]hat consequence” surely would “encumber
the selection of jurors in less populated areas like the Virgin
Islands,” much more so than presuming bias in a select group
of employees at an agency like the police department here.
(Slip Op. at 25.) In any event, I am confident that federal
district judges have the ability to make appropriate
distinctions “between an employee who works closely with a
testifying officer and one who does not.” (Id. at 24)




                              10
investigative agents involved in the prosecution would feel
pressured to convict the defendant because, as Mitchell’s trial
counsel argued in his motion to remove Juror 97 for cause,
“anything other than a guilty verdict … would mean that
[Juror 97] went/voted against her various co-workers and
their testimony and against the interest of her direct employer
the Virgin Islands Police Department.” (App. at 3.)

       However, even if recognizing that law enforcement
employees may be viewed as biased in favor of their work
colleagues were somehow an innovation in the law, that
would not undermine the propriety of the innovation. It is
hardly dispositive that a “new category” was not recognized
at common law. The common law of implied bias, like
common law generally, develops over time. See United
States v. Haynes, 398 F.2d 980, 984 (2d Cir. 1968) (“Not only
have the[] common law grounds for causal challenge [based
on implied bias] retained their vitality, but to them have been
added others from which prejudice or bias may be implied.”
(internal citation omitted)); cf. Leegin Creative Leather
Prods, Inc. v. PSKS, Inc., 515 U.S. 877, 899 (2007) (“[T]he
common law adapts to modern understanding and greater
experience … .”).

       The United States Court of Appeals for the Ninth
Circuit, sitting en banc in a habeas case, recognized as much
when fashioning a new category of implied bias in Dyer v.
Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc). Dyer
involved a defendant whose trial resulted in a murder
conviction and a death sentence. Id. at 972. During voir dire,
one of the prospective jurors who ended up sitting on the jury
indicated that none of her close relatives or friends had ever
been a victim of any type of crime, even though that juror’s




                              11
brother had been shot and killed approximately six years
earlier. Id. The Dyer court concluded that it should “presume
bias where a juror lies in order to secure a seat on the jury.” 8
Id. at 983. It deemed a prior Supreme Court opinion –
outside of the implied bias context – “instructive because
Justice Cardozo there equate[d] a juror who lies his way onto
the jury to a juror who is related to a litigant.” Id. (citing
Clark v. United States, 289 U.S. 1, 11 (1933)). In so doing,
the Dyer court understood that it did not matter whether or
not a prospective juror was part of a recognized category of
implied bias that had been established by the common law or
other precedents. Rather, it recognized that the focus of the
inquiry should be on whether “it is highly unlikely that an
individual will remain impartial and objective” even if that
“putative juror swears up and down that [the bias at issue]
will not affect his judgment.” Id. at 982. To that end, the
Dyer court listed a number of representative individuals who
– notwithstanding the fact that some of them fell outside the
traditional categories of persons thought to be impliedly
biased – would have been deemed biased as a matter of law in
Dyer’s trial:



       8
          The Ninth Circuit constructed this new category of
implied bias less than a decade after its decision in Tinsley v.
Borg, which the Majority cites for the principle that
“‘[p]rudence dictates that courts’ considering an implied bias
claim ‘should hesitate before formulating categories of
relationships [that] bar jurors from serving in certain types of
trials.’” (Slip Op. at 23 (alteration in original) (quoting 895
F.2d 520, 527 (9th Cir. 1990)).)




                               12
       No opinion in the two centuries of the Republic
       – except the dissent in [Dyer] – has suggested
       that a criminal defendant might lawfully be
       convicted by a jury tainted by implied bias.
       Under the dissent’s logic, reasonable jurists
       could hold that Dyer would have been accorded
       due process even if he had been convicted by a
       jury comprised of the following twelve
       individuals: (1) the mother of … the prosecutor,
       (2) [the prosecutor’s] former law partner, (3)
       [the city’s] Chief of Police, (4) the Grand
       Dragon of the … [a]rea KKK, (5) the sister of
       [an individual] who died in the shooting, (6)
       [that victim’s] mother, (7) the victim of Dyer’s
       prior robbery, (8) Dyer’s ex-wife, (9) the
       District Attorney, (10) a[] [city] councilman
       running for re-election on a “tough-on-crime”
       platform, (11) … Dyer’s cellmate, and (12)
       [Dyer’s cellmate’s] wife … – so long as they
       had all sworn they would be fair. We, on the
       other hand, believe that no reasonable jurist
       would take that position. Rather, jurists of
       reason would all agree that each of these
       individuals, had they made their way onto the
       jury, should have been struck without stopping
       to inquire into their subjective state of mind.

Id. at 985 (first emphasis added) (internal footnote omitted).

       Although the Majority in the present case is correct
that no decision is exactly on all fours with the fact scenario
we are presented with here, see supra note 5, it is also true
that “[n]o opinion in the two centuries of the Republic … has




                              13
suggested that a criminal defendant might lawfully be
convicted by a jury tainted by implied bias,” Dyer, 151 F.3d
at 985. In sum, “[m]ore is at stake here than the rights of
petitioner; justice must satisfy the appearance of justice. An
irregularity in the selection of those who will sit in judgment
casts a very long shadow.” Id. at 983 (citations and internal
quotation marks omitted). With respect to Juror 97, I have
serious doubts whether judicial outsiders would think it fine
that an arresting officer’s work colleague sat on the jury. 9
And, as the Majority notes, “[d]oubts regarding bias must be
resolved against the juror.” (Slip Op. at 9 (alteration in
original) (citations and internal quotation marks omitted).)

      9
         The doctrine of implied bias “has a counterpart in the
canons of judicial ethics which require judges to disqualify
themselves … if they believe that their impartiality might
reasonably be questioned.” Dyer, 151 F.3d at 983 n.22. If a
judge fails to do so, a party may move to disqualify a judge
under 28 U.S.C. § 455(a). When determining whether to
grant a motion for disqualification pursuant to § 455(a), we
look to “whether a reasonable person, with knowledge of all
the facts, would conclude that the judge’s impartiality might
reasonably be questioned.” In re Kensington Int’l Ltd., 353
F.3d 211, 220 (3d Cir. 2003). “[T]he hypothetical reasonable
person under § 455(a) must be someone outside the judicial
system because judicial insiders … may regard asserted
conflicts to be more innocuous than an outsider would.” In re
Kensington Int’l Ltd., 368 F.3d 289, 303 (3d Cir. 2004)
(citation and internal quotation marks omitted). In the
implied bias context, we should likewise be sensitive to the
fact that a judicial outsider may not regard certain juror bias
claims as innocuous, even if a judicial insider would.




                              14
       Whether Juror 97 has the kind of working relationship
that warrants a conclusion of implied bias is not something I
would venture to determine on this record, since “[t]he record
is devoid of information about the nature and regularity of her
interaction with the officers.” (Id. at 22.) Juror 97 “may well
be objective in fact,” but because yet-to-be-developed facts
may indicate that “the [working] relationship is so close” that
the law requires us to “err[] on the side of caution” and
impute bias, I would have the District Court gather more
facts. Polichemi, 219 F.3d at 704. In particular, I believe it is
our duty to direct the District Court to dig deeper into the
character and frequency of the interactions that Juror 97 has
had with the two testifying officers. Accordingly, I would
remand the case for factfinding to determine whether Juror 97
should be considered biased as a matter of law.




                               15
