                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 96-3492
                                    ___________

United States of America,                 *
                                          *
              Appellee,                   *
                                          * Appeal from the United States
     v.                                   * District Court for the
                                          * Western District of Arkansas.
Phillip Eugene Parmley,                   *
                                          *         [PUBLISHED]
              Appellant.                  *
                                    ___________

                     Submitted:     February 7, 1997

                           Filed:    March 17, 1997
                                    ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                               ___________

PER CURIAM.

     Phillip Eugene Parmley appeals after a jury convicted him of being
a felon in possession of a firearm.      He contends that the district court1
erred in refusing to strike the jury panel because eighteen members had
participated in the voir dire, but had not served as jurors, at an earlier
trial of the same offense which ended in a mistrial for lack of a unanimous
verdict.   We affirm.


     Prior to the second trial, the district court denied Parmley's motion
to quash the jury panel.    At the start of voir dire, the court advised the
prospective jurors that Parmley's previous trial for this offense had ended
in a mistrial.    The court explained:




     1
      The HONORABLE JIMM LARRY HENDREN, United States District
Judge for the Western District of Arkansas.
"There was no conviction, there was no acquittal.      So in the eyes of the
law, it simply did not happen."     Noting that some panel members might have
participated in the earlier voir dire, the court admonished that the
previous trial "has nothing whatever to do with our activities today" and
asked whether any prospective juror would be prejudiced for or against
Parmley because of the earlier mistrial.      No one responded.


     Later in the voir dire, one panel member, Camila Norton, advised the
court outside the hearing of the others that she had a brief conversation
with a juror from the first trial during another phase of their jury
service.   That juror told Norton that the jury could not reach a decision
even though the juror thought Parmley should have been convicted.      After
Norton gave assurances (i) that she could accept the fact that the prior
mistrial "doesn't mean anything one way or the other," and (ii) that she
would not be influenced by her conversation with the prior juror, the court
denied Parmley's motion to strike Norton for cause.        It later denied a
motion to strike for cause all panel members who had participated in the
earlier voir dire.      Six of those panel members served on the second jury,
                    2
including Norton.


     On appeal Parmley argues only that the district court erred in
denying his motion to quash the entire jury panel.      Conducting voir dire
and striking jurors for cause are matters committed to the district court's
discretion.    "[T]he mere selection of jurors from panels who may have
previously participated in voir dire, even in a similar case, is not error,
unless actual bias is shown."       United States v. Dion, 762 F.2d 674, 693
(8th Cir. 1985), rev'd on other




     2
      Parmley did not peremptorily strike Norton from the jury and
does not separately challenge the district court’s decision not to
strike Norton for cause.

                                       -2-
grounds, 476 U.S. 734 (1986).    When the issue is, as in this case, whether
a juror must be excused or stricken as a matter of law because of
information acquired during prior jury service, the question becomes
whether that information is so prejudicial, or was so improperly obtained,
that actual bias must be presumed.


     Here, Parmley did not prove actual bias, he argues that bias should
be presumed.   He relies primarily on two cases involving jurors who had
acquired information from a different but related case.       In Leonard v.
United States, 378 U.S. 544 (1964), the separate jury in the second of two
consecutive trials heard the first jury announce defendant guilty in open
court.   The Supreme Court summarily reversed based upon the government's
confession of error on appeal.   In United States v. Patterson, 648 F.2d 625
(9th Cir. 1981), six members of a jury that convicted defendant of drug
trafficking charges had been members of a venire panel called for his trial
on different drug charges the previous day.


     In Leonard and Patterson, the overlapping jurors learned about
defendant's prior criminal history as a result of their involvement in the
first trial -- a prior conviction in Leonard, and charges of different
criminal conduct in Patterson.     In those situations, the jurors acquired
prejudicial information without regard to its admissibility in the second
trial under the standards of Federal Rules of Evidence 403 and 404(b).
Here, on the other hand, all the overlapping jurors learned from the first
voir dire was that Parmley was previously charged with this same offense,
and the district court advised them at the second voir dire that the first
jury had been unable to reach a verdict.     This information was of little
                                             3
inherent significance in the second trial, the district




     3
      Contrary to the dissent's intimation, the record reflects
that prospective juror Norton's brief conversation with a juror

                                     -3-
court instructed the jurors to ignore it, and Parmley made no showing that
any juror knew more than he or she disclosed during the second voir dire.
In these circumstances, bias may not be presumed.   Thus, the district court
did not abuse its discretion in questioning the jurors for potential bias
and, based upon their responses, accepting assurances that their knowledge
of the prior mistrial would not affect their ability to give Parmley a fair
and impartial second trial.   Cf. United States v. Young, 553 F.2d 1132,
1136 (8th Cir.), cert. denied, 431 U.S. 959 (1977).


     Parmley instead urges us to mandate the procedure followed in
McClendon v. United States, 587 F.2d 384, 386-87 (8th Cir. 1978), cert.
denied, 440 U.S. 983 (1979), where the district court granted defendant's
motion to strike the entire overlapping panel, not just the panel members
who in fact served as jurors in an earlier trial of a codefendant.
McClendon may well reflect the more prudent practice, but this remains a
question committed to the district court's discretion.       Parmley has no
evidence that the overlapping jurors brought prior knowledge to his second
trial that would inevitably have tainted or augmented their consideration
of the evidence properly admitted at that trial.


     The judgment of the district court is affirmed.       Parmley's pro se
motion for leave to raise an additional issue is denied.


McMILLIAN, Circuit Judge, dissenting.




from the first trial did not reveal what evidence the first jury
heard, only how that juror evaluated the evidence. Learning about
evidence at an earlier trial would compromise a juror's ability to
consider only the trial evidence. Learning that one juror voted to
convict at a trial that produced no unanimous verdict did not tell
Norton anything new or prejudicial.

                                   -4-
        I respectfully dissent.         This is not a typical juror qualification
case.     “Rulings on juror qualifications will not be interfered with on
appeal absent a clear showing of abuse of the sound discretion that is
vested in the District Court.          Unless actual bias is shown the [District]
Court’s refusal to strike potential jurors will not be deemed a basis for
error.”    United States v. Young, 553 F.2d 1132, 1136 (8th Cir.), cert.
denied, 431 U.S. 959 (1977).          Rather, the present case involves overlapping
jury venires; some of the prospective jurors in the present case were
members of the venire in the first trial.           See United States v. Patterson,
648 F.2d 625, 629-30 (9th Cir. 1981).             As noted by the majority opinion,
“the    mere   selection   of   jurors     from   panels   who    may   have   previously
participated in voir dire, even in a similar case, is not error, unless
actual bias is shown.”      United States v. Dion, 762 F.2d 674, 693 (8th Cir.
1985) (citations omitted), rev’d on other grounds, 476 U.S. 734 (1986).
        In the present case, however, the prospective jurors did more than
participate in voir dire in connection with the first trial.               At least one
prospective juror, Camila Norton, discussed the first trial with “Nina,”
one of the jurors who had served on the jury in the first case.                   Some of
the other prospective jurors probably overheard their conversation.                    Nina
told Norton what she thought about the evidence and what she thought the
outcome should have been.            The prospective jurors already knew that the
first trial had involved the same charges but had ended in a mistrial.
These circumstances suggest a significant risk of prejudice, which, in my
view,    was   not   negated    by    either   examination   or    admonition     of   the
prospective jurors.        Except for Norton, examination of the prospective
jurors focused on the fact that the first trial ended in a mistrial, not
whether they had overheard Nina discuss the evidence and what the outcome
should have been or, if they had, whether that information would have had
any influence on them.         Of




                                           -5-
the 18 “overlapping” prospective jurors, 6, including Norton, served on the
jury in the second trial.


     For this reason, I would hold the district court erred in denying the
motion to strike the overlapping jury venires, see McClendon v. United
States, 587 F.2d 384, 386-87 (8th Cir. 1978) (35 prospective jurors called
to trial of another but involving similar charges and same witnesses were
not called to defendant’s trial; jury chosen from remaining 37 prospective
jurors), cert. denied, 440 U.S. 983 (1979), and reverse and remand for
further proceedings.


     A true copy.


           Attest:


                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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