                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JASON RUTAN PAPPAS,                             No.    16-55191

                Petitioner-Appellant,           D.C. No.
                                                5:14-cv-01994-CJC-SS
 v.

AMY MILLER, Warden,                             MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   Cormac J. Carney, District Judge, Presiding

                        Argued and Submitted June 5, 2018
                              Pasadena, California

Before: WARDLAW and PAEZ, Circuit Judges, and CHHABRIA,** District
Judge.

      Jason Rutan Pappas (“Pappas”) appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. He argues that his due process right to a fair

trial was violated by prosecutorial misconduct during closing argument and his



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
constitutional right to a fair trial by impartial jurors was violated by juror

misconduct. We review under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). We have jurisdiction under 28 U.S.C. §§ 1291 and 2245, and

we grant in part and deny in part.

      1.     On his certified ground, Pappas argues that the prosecutor made

several inflammatory statements during closing argument that deprived him of his

right to a fair trial, including improper calls to the jury to protect the community;

appeals to the jury’s sympathies for the victim; and misstatements of the law. We

acknowledge that some of the prosecutor’s comments during closing argument

constituted prosecutorial misconduct. See Deck v. Jenkins, 814 F.3d 954, 980 (9th

Cir. 2014); Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014). However, not all

prosecutorial misconduct rises to the level of a due process violation. “The

relevant question is whether the prosecutor[’s] comments ‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)). We must defer to the California courts’ conclusion that the

prosecutor’s comments during closing argument here did not so taint the trial as to

violate due process, unless that conclusion was either contrary to, or an objectively

unreasonable application of, clearly established federal law or based on an

unreasonable determination of material fact. See 28 U.S.C. § 2254(d). In addition,


                                           2
a habeas petitioner is not entitled to relief based on trial error unless that error was

prejudicial under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619

(1993). See Trillo, 769 F.3d at 1001 (9th Cir. 2012) (quoting Brecht, 507 U.S. at

637).

        In light of the evidence of Pappas’s guilt, we conclude that the prosecutor’s

improper remarks did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht, 507 U.S. at 637 (quotation omitted). As

the California Court of Appeal explained, the only issue at trial was whether

Pappas had the requisite mental state for implied malice second-degree murder.

There was significant evidence that Pappas knew that driving under the influence

while evading the police was dangerous. Pappas’s blood-alcohol level was .25%,

three times above the legal limit; he drove at speeds upwards of eighty miles per

hour in thirty-five miles per hour zones while being pursued by the police; and he

ran a red light during the pursuit. Prior to the incident, Pappas had been convicted

of driving under the influence in 2007 and arrested for—but not charged—with

driving under the influence in 2004. At the time of the 2007 conviction, he

expressly affirmed that he knew and understood that driving while under the

influence was extremely dangerous to human life. Finally, Pappas had previously

caused an accident while evading the police in 1997, the very circumstance

underlying Pappas’s conviction. Thus, “the State’s evidence of guilt was, if not


                                            3
overwhelming, certainly weighty.” Id. at 639. Therefore, the prosecutor’s

statements during closing argument did not “substantially influence” the jury’s

verdict. Id.

      2.       We grant Pappas’s motion to expand the Certificate of Appealability

(“COA”) to include a second habeas ground: whether there was juror misconduct.

See Ninth Cir. R. 22-1(e) (providing that when a petitioner briefs an uncertified

issue, we construe the briefing as a motion to expand the COA). Pappas argues

that his Sixth Amendment constitutional right to an impartial jury was violated

because one of the jurors might have been a member of Mothers Against Drunk

Driving (“MADD”), and when he raised this issue to the trial court, its “fact-

finding process [was] . . . defective” under § 2254(d)(2). The district court, in

affirming the Magistrate Judge’s findings, held that the state trial court’s inquiry

into Pappas’s claims of juror misconduct was sufficient. Because “jurists of

reason” might find that conclusion “debatable,” we grant the motion. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

      A state defendant has a federal constitutional right to an impartial jury. See

Turner v. State of La., 379 U.S. 466, 472 (1965) (Sixth Amendment); Irvin v.

Dowd, 366 U.S 717, 722 (1961) (due process); Bayramoglu v. Estelle, 806 F.2d

880, 887 (9th Cir. 1986). “One touchstone of a fair trial is an impartial trier of

fact—‘a jury capable and willing to decide the case solely on the evidence before


                                           4
it.’” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)

(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). There are three recognized

forms of juror bias: (1) “actual bias, which stems from a pre-set disposition not to

decide an issue impartially”; (2) “implied (or presumptive) bias, which may exist

in exceptional circumstances where, for example, a prospective juror has a

relationship to the crime itself or to someone involved in a trial, or has repeatedly

lied about a material fact to get on the jury”; and (3) “‘so-called McDonough-style

bias, which turns on the truthfulness of a juror’s responses on voir dire’ where a

truthful response ‘would have provided a valid basis for a challenge for cause.’”

United States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013) (quoting Fields v.

Brown, 503 F.3d 755, 766–67 (9th Cir. 2007) (en banc)). Pappas’s allegations

raise issues of actual bias and McDonough-style bias.1

      Pappas made a strong showing of juror misconduct under McDonough. It

was undisputed that most, if not all, of the prospective jurors had been questioned

during voir dire regarding their affiliation with MADD or similar organizations.

See McDonough, 464 U.S. at 556 (holding that a juror’s untruthful responses


1
      The California Court of Appeal issued the last reasoned decision on the
MADD juror misconduct claim, electing to “defer to the trial court’s finding that
no jury misconduct occurred because it was supported by sufficient evidence.”
However, “[b]ecause that decision affirmed the trial court and adopted one of the
reasons cited by the trial court,” analysis of this claim “will necessarily include
discussion of the trial court’s decision as well.” Lewis v. Lewis, 321 F.3d 824, 829
(9th Cir. 2003).

                                          5
during voir dire may give rise to a constitutional claim of juror misconduct). An

affirmative response “would have provided a valid basis for a challenge for cause.”

Id. The trial court and defense counsel both acknowledged that an earlier venire

member, who admitted she was a member of MADD, was dismissed for cause.

Further, the trial court expressed strongly held views about the need to gauge the

prospective jurors’ views on drinking and driving. Thus, there is little doubt that

another challenge for cause on the same ground would have been successful.

      In addition, if a juror was (or had been) a member of MADD and did not

disclose that membership when asked, this would have shown “actual bias.”

Olsen, 704 F.3d at 1189. Pappas presented substantial evidence that a juror may

have dishonestly concealed an affiliation with MADD, including declarations from

two jurors and the live testimony of one juror.

      The Sixth Amendment requires that jurors in a criminal case base their

verdict solely on the evidence presented at trial. See Turner, 379 U.S. at 472–73.

In Smith v. Phillips, the Supreme Court observed that “[t]his Court has long held

that the remedy for allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias.” 455 U.S. at 215. The Smith

Court went on to hold that “[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




                                           6
prevent prejudicial occurrences and to determine the effect of such occurrences

when they happen.” Id. at 217.

      Although we clarified in Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998),

that due process does not mandate a formal evidentiary hearing whenever juror

bias is alleged, we held that

      [a] court confronted with a colorable claim of juror bias must
      undertake an investigation of the relevant facts and circumstances.
      An informal in camera hearing may be adequate for this purpose; due
      process requires only that all parties be represented, and that the
      investigation be reasonably calculated to resolve the doubts raised
      about the juror’s impartiality.

Id. at 974–75 (citations omitted).

      Despite a clear indication of a violation of Pappas’s Sixth Amendment right

to a fair trial, the state trial court did not allow Pappas to subpoena the MADD

membership records to determine if any juror who did not agree to be contacted

was a MADD member because the trial judge was concerned this would be an

improper invasion of juror privacy. However, allowing Pappas to subpoena

MADD’s records would have been minimally invasive to the jurors’ privacy rights

because the trial judge could have performed an in camera review of MADD’s

response to the subpoena and, therefore, not revealed any juror names or

information to counsel or Pappas.

      Instead, the trial court based its finding on an incomplete set of facts. In

holding that Pappas was not entitled to a new trial, the trial court reasoned, “there’s

                                          7
not enough evidence for me to grant a mistrial or a new trial, rather, because I

don’t know based on what I’ve heard whether any of the jurors were members or

affiliated with MADD or not.” Contrary to the dissent’s assertions, the trial court

deemed the juror who provided live testimony credible, explaining that she “is a

decent honorable person[,]” and the trial court had “no doubt” that her assertion

that “something was said about MADD somewhere by a juror probably” was true.

Instead, the trial court’s finding was premised on the erroneous assumption that it

could not definitively determine whether there was a juror who was or had been a

member of MADD. But the facts show the trial court could have definitively

concluded whether a juror was (or had been) a MADD member because MADD

complied with the initial subpoena for juror membership in this case, and there is

no reason to believe that MADD would have declined to respond to a second

subpoena for the same information.

      We therefore hold that Pappas presented sufficient evidence of juror bias to

warrant an evidentiary hearing. The state court’s factual determination was

unreasonable under § 2254(d)(2) because “the fact-finding process [was] itself

defective,” Taylor, 366 F.3d at 1001, and the state court’s denial of an opportunity

to properly develop the record “goes to a material factual issue that is central to




                                           8
petitioner’s claim.” Id. Accordingly, we reverse and remand to the district court

for an evidentiary hearing on Pappas’s juror misconduct claim.2

      GRANTED IN PART, DENIED IN PART, AND REMANDED FOR

AN EVIDENTIARY HEARING.




2
       Although neither party raised Rule 606(b), and thus on appeal it’s waived,
the district court need not rely upon evidence precluded by Rule 606. All that need
be done is to subpoena MADD records for the relevant time, compare them to
names of jurors who deliberated, and ascertain the response to voir dire for any
juror who appears on the MADD records. This is readably doable either through
available records or motion.

                                         9
Pappas v. Miller, No. 16-55191                                             FILED
CHHABRIA, District Judge, concurring in part and dissenting in part: OCT 23 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                                           I.

      Notwithstanding the prosecutor’s inappropriate statements at closing and the

trial judge’s failure to respond adequately to that misconduct on the spot, I agree

with the majority that Pappas is not entitled to habeas relief on his claim of

prosecutorial misconduct.

      Pappas is correct that the California Court of Appeal made a factual error in

rejecting the prosecutorial misconduct claim. In explaining why the evidence of

implied malice at trial was so strong that it rendered the prosecutor’s misconduct

harmless, the Court of Appeal said Pappas had a prior conviction for driving both

recklessly and under the influence, which led to an admonition by the sentencing

court (and acknowledgement by Pappas) that driving under the influence could cause

someone to be killed. The Court of Appeal described this conviction as having taken

place twelve years before the current offense. In fact, there were two convictions –

a conviction twelve years prior for evading the police while driving (which resulted

in a collision), and a conviction one year prior for driving under the influence. It was

after this more recent conviction that Pappas received the admonition and

acknowledged that he could kill someone if he drove drunk again.
      Pappas argues that this erroneous recitation of his criminal history by the

Court of Appeal was a factual error that should have triggered de novo review of the

prosecutorial misconduct claim pursuant to 28 U.S.C. § 2254(d)(2). But a state

court’s factual error does not trigger de novo review unless the state court “plainly

misapprehend[ed] or misstate[d] the record in making [its] findings, and the

misapprehension goes to a material factual issue that is central to petitioner’s claim.”

Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (emphasis added), overruled

on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014). The

erroneous description of Pappas’s prior convictions was not “material.” Cf. id. at

1001-14; Campos v. Stone, 201 F. Supp. 3d 1083, 1095-97 (N.D. Cal. 2016). If

anything, the misstatement by the Court of Appeal undersold the strength of the

evidence of implied malice – the fact that Pappas had received the admonition one

year before the current offense, rather than twelve, meant that the admonition was

fresher in his mind than the Court of Appeal assumed. And had the Court of Appeal

described Pappas’s prior convictions accurately, the general takeaway about his state

of mind would have been essentially the same: from his past experiences, Pappas

was on notice that it is dangerous to take the police on a car chase and that it is

dangerous to drive drunk – which means he would have known that it is especially

dangerous to do both at the same time.




                                              2
      Because there was no material factual error, any claim for habeas relief based

on prosecutorial misconduct should be analyzed under 28 U.S.C. § 2254(d)(1),

which requires us to ask whether the state court’s ruling “was contrary to, or involved

an unreasonable application of, clearly established Federal law . . . .” The Court of

Appeal’s conclusion that the prosecutor’s improper statements at closing were

harmless was not contrary to, or an unreasonable application of, clearly established

federal law. As the Court of Appeal noted, the evidence of implied malice was

“overwhelming.” The most probative of this evidence was that Pappas decided to

lead the police on a high-speed chase with a .25 percent blood alcohol content and a

passenger in the car. Additionally, Pappas had acknowledged at his sentencing a year

prior that if he drove drunk again he could kill someone. In light of this evidence, a

fairminded jurist could conclude that the prosecutor’s improper statements at closing

likely did not affect the verdict. See Harrington v. Richter, 562 U.S. 86, 101 (2011);

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted).1




1
       Pappas’s claim is premised, at least in part, on his contention that the Court of
Appeal concluded that the only evidence of implied malice was the prior conviction
and did not consider any of Pappas’s conduct during the current offense. Although
the opinion is somewhat ambiguous on this point, the better reading is that the state
court concluded that all the evidence presented at trial, “includ[ing]” but not limited
to Pappas’s criminal history, strongly supported the jury’s finding of implied malice.
To the extent there is any ambiguity, AEDPA “demands that state-court decisions
be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam); see also Taylor, 366 F.3d at 1000; Campos, 201 F. Supp. 3d at 1092-94.
                                               3
                                          II.

      I also concur in the decision to grant the certificate of appealability on the

juror misconduct claim. And I agree that the trial court should have done a better job

handling the investigation into whether a juror had concealed her membership in

Mothers Against Drunk Driving (“MADD”). Nonetheless, although it’s a close

question on which reasonable minds can differ, I dissent from the decision to remand

for an evidentiary hearing pursuant to 28 U.S.C. § 2254(d)(2). On these peculiar

facts, and in light of the incomplete record we have been given, I cannot conclude

that the trial judge’s investigation was so shoddy as to rise to the level of a “defect

in the state-court fact-finding process” – particularly because it seems quite unlikely,

based on the limited record we have, that the jury included a member of MADD.

Taylor, 366 F.3d at 1001; see also Jones v. Harrington, 829 F.3d 1128, 1136 (9th

Cir. 2016). Moreover, even if the jury did include a member of MADD, it is not at

all clear that Pappas would be entitled to habeas relief.

                                          A.

      The allegation that a juror from Pappas’s trial was a member of MADD came

from Juror 1, who claimed after trial that another juror – an “elderly” woman juror

– made a passing reference to her membership in MADD during deliberations. But

it appears from the record that Juror 1 was someone whose credibility, or at least her

ability to perceive things accurately, could legitimately be questioned.

                                                4
      By the time she made her allegations about MADD membership, Juror 1 had

already accused a different juror – in fact arguably all the other jurors – of bias.

During deliberations, she sent the trial judge a note saying, “I need to speak to you

ASAP.” When the trial judge met with her on the record, she accused a male juror

of being biased (by which she appeared to mean that he went into deliberations with

his mind already made up). She claimed this juror had “tainted the rest of the jurors,

because they’re not willing to listen to other people’s concerns . . . .” Juror 1 went

on to say that she felt personally intimidated by this juror, and she believed another

juror was intimidated by him as well. She also said (somewhat contradictorily) that

the other jurors had already made up their minds and that she was feeling pressured

by them. But after all that, Juror 1 stated that she had no problem continuing

deliberations, “because I am standing my ground. I am not – nobody is pushing me

around.” The trial judge then spoke with the foreperson on the record, inquiring

whether Juror 1 was being intimidated and whether the deliberations were still

proceeding productively. The foreperson said that Juror 1’s “feelings are very

tender” but insisted that she did not appear to be intimidated.

      After the verdict, Juror 1 spoke with defense counsel’s investigator multiple

times, as a result of which defense counsel called her to testify at a post-trial hearing.

At the hearing, she made a variety of allegations about the jury’s conduct. She

alleged that the other jurors pressured her to vote guilty. She alleged that she never

                                               5
actually voted guilty in the jury room, instead merely saying “whatever” when asked

for her vote. She alleged that she was upset with the prosecution for charging Pappas

with murder and not the lesser included offense of manslaughter (though when the

prosecutor read from a news article quoting Juror 1 saying this to a reporter after the

trial, Juror 1 denied that she had ever made those statements). She alleged that an

elderly woman juror made reference to her MADD membership. And she alleged

that, when the jury was polled in the courtroom after the jury’s verdict was

announced, she hung her head and mumbled, “I guess guilty.” This last allegation is

belied by the trial transcript, which reflects that she said “yes” when asked if she had

voted guilty. Later, the trial judge described Juror 1 as “very emotionally distraught.”

      Based on Juror 1’s statements and conduct, the trial judge would almost

certainly have been justified in concluding that her allegation that an elderly woman

juror was a MADD member lacked credibility and declining to investigate it further.

See Tracey v. Palmateer, 341 F.3d 1037, 1038-45 (9th Cir. 2003); United States v.

Angulo, 4 F.3d 843, 847 (9th Cir. 1993). This alone is a reason to be cautious about

granting habeas relief based on the assumed bias of the alleged MADD member.

      It’s also worth noting that the testimony given by Juror 1 about statements

made during the jury’s deliberations, their effects on jurors’ votes, and jurors’ mental

processes in connection with the verdicts – including the alleged reference by an

elderly woman juror to her MADD membership – was likely inadmissible and

                                              6
therefore could not have formed the basis for a new trial motion. This is yet another

reason to be cautious before relying on Juror 1’s testimony as the primary basis for

habeas relief. Cal. Evid. Code § 1150; see Fed. R. Evid. 606(b); Warger v. Shauers,

135 S. Ct. 521, 525-30 (2014); United States v. Leung, 796 F.3d 1032, 1035-38

(9th Cir. 2015); Fields v. Brown, 503 F.3d 755, 778 (9th Cir. 2007) (en banc) (citing

Sassounian v. Roe, 230 F.3d 1097, 1108-09 (9th Cir. 2000)); see also Peña-

Rodriguez v. Colorado, 137 S. Ct. 855, 864-68 (2017); Estrada v. Scribner, 512 F.3d

1227, 1237 & n.10 (9th Cir. 2008).

      The further investigation that the trial judge did allow – while not particularly

thorough or methodical – primarily served to rebut Juror 1’s allegation that an elderly

woman juror stated that she was a member of MADD. The trial court contacted the

six other women who had been on the jury and sought their consent to be contacted

by the lawyers in Pappas’s case. Four consented, and spoke with both the prosecutor

and Pappas’s lawyer. The prosecutor obtained affidavits from these four jurors.

Although these affidavits are not in the record before us, it appears from the trial

judge’s description of them that none of the four women recalled a woman juror

making reference to her MADD membership. Three apparently did not remember

any reference to MADD at all. A fourth said that someone had mentioned MADD,

but referred to the organization as “they,” not “we.” According to the trial judge’s

description of her affidavit, this juror asserted that she “was not left with the

                                              7
impression that this juror [who made the comment] was affiliated with MADD” and

had she “been left with the impression that this juror was affiliated with MADD, it

would have raised red flags as the jurors were asked about their relationship with

MADD during jury selection.”2

      It also appears from the transcript (although again we haven’t been given

direct evidence of this) that defense counsel subpoenaed MADD for membership

records, and that MADD provided an affidavit from a MADD representative for the

trial judge to review in chambers. From this, the trial judge appears to have

confirmed that these four women jurors were not members of the organization.

      Perhaps the trial judge should have agreed to disclose the identities of the two

other women jurors. Or perhaps he should have protected their confidentiality but

found a way to check their names against whatever information MADD was willing

to provide him for review in chambers. But the trial judge’s decision not to further

investigate these two jurors was probably of no consequence, at least if Pappas’s

assertions on direct appeal are to be believed. On direct appeal, Pappas did not argue



2
       In describing his conversations with the four women jurors who had agreed to
be contacted, Pappas’s lawyer told the judge that one juror “had a recollection of
someone saying there was a MADD member – saying that they were a MADD
member during jury voir dire and that they were left on the jury.” However, when
the trial judge later described the four women jurors’ affidavits, he did not describe
any of the women as having made such a statement in their declarations, which
strongly suggests that this assertion by defense counsel never made it into the juror's
affidavit, which means it has no evidentiary value.
                                              8
that one of the two “missing” jurors was biased. He seemed to argue that the

allegedly biased MADD member was one of the four women (specifically, Juror 12)

whose identities were disclosed to the lawyers and whose non-membership in

MADD was apparently verified by the trial judge. It therefore appears, at least on

this murky record, that the trial court obtained fairly reliable information that no

MADD member lied her way onto the jury.

      And in fact, contrary to the majority’s portrayal, the trial judge made a finding

that there was no MADD member on the jury. The majority quotes the trial judge as

saying: “I don’t know, based on what I’ve heard, whether any of the jurors were

members or affiliated with MADD or not.” But the trial judge’s next sentence was:

“The evidence seems to indicate they’re not.” And at the next hearing, when the trial

judge finally ruled on the claim of juror misconduct raised in Pappas’s motion for a

new trial, he stated: “In any case, nobody said they were a member of Mothers

Against Drunk Driving, leading me to conclude that there were no members of

Mothers Against Drunk Driving on the jury. So I didn’t find that there was any

misconduct.” Although we need not defer to a factual finding of this sort if it was

the product of a defective fact-finding process within the meaning of section

2254(d)(2), I don’t believe the flaws in the fact-finding process rise to that level, so

I would accord greater deference to the trial judge’s finding. See 28 U.S.C.

§ 2254(e)(1); see also Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014) (holding

                                              9
that the court “cloak[s] the state court’s factual findings in a presumption of

correctness” under section 2254(e)(1) “if the state court’s fact-finding process

survives” review under section 2254(d)(2)).

                                         B.

      Now assume for the sake of argument that one of the two remaining female

jurors was a member of MADD. The majority assumes that this would necessarily

have entitled Pappas to a new trial. That’s not obvious to me. To get a new trial,

Pappas needed to show at least two things. The first is that the elderly woman juror

was actually asked about MADD membership during jury selection and failed to

disclose it. See Fields v. Brown, 503 F.3d 755, 766-67 (9th Cir. 2007) (en banc)

(quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554-56

(1984)). But we have not been given the transcript of jury selection; all we have are

the post-trial discussions between the judge and the lawyers about what they thought

might have happened during jury selection. From these discussions, it’s not clear

that all prospective jurors were even asked whether they were members of MADD.

Nor is it clear how prominent the issue of MADD membership was during jury

selection, which matters because any false answer given by a prospective juror must

be to a “material” question. Id.

      Let’s say, though, that all prospective jurors were asked whether they were

MADD members and one juror lied. The second thing Pappas needed to show to get

                                              10
a new trial was that the defense could have successfully challenged that juror for

cause had she disclosed her alleged MADD membership. See Fields, 503 F.3d at

767 (quoting McDonough, 464 U.S. at 556). But all we have in the record is a post-

trial assertion by the defense lawyer to the trial judge that the defense lawyer had

successfully challenged another MADD member for cause. Because we don’t have

the transcript of jury selection, we don’t know if that successful cause challenge was

based on the prospective juror’s MADD membership per se, or on her answers to

follow-up questions about whether her membership would interfere with her ability

to be a fair juror.

       And if you made me guess, I might guess the latter, since it’s not clear that a

person should automatically be excused from serving on a jury in a drunk driving

trial by virtue of her membership in MADD. As a general matter, if a prospective

juror expresses a strong distaste for the kind of crime the government alleges the

defendant to have committed, a trial judge will not excuse that person for cause if

she says she would nonetheless refrain from convicting the defendant if the

government did not prove its case beyond a reasonable doubt. A successful challenge

for cause will, in most cases, require a showing of more than mere membership in a

civic organization that has an interest in the subject matter at hand. See United States

v. Padilla-Mendoza, 157 F.3d 730, 733-34 (9th Cir. 1998) (discussing United States




                                              11
v. Salamone, 800 F.2d 1216, 1226-28 (3d Cir. 1986)); cf. Rodriguez v. Cty. of Los

Angeles, 891 F.3d 776, 805-06 (9th Cir. 2018).

                                              C.

         As with all habeas petitioners, Pappas bears the burden of demonstrating that

he is entitled to relief. 28 U.S.C. § 2254(d); see also Harrington, 562 U.S. at 98. Yet,

as should be obvious by now, the district court had (and we have) an incomplete

record relating to this claim, which significantly hinders our ability to develop a

meaningful understanding of what happened in the trial court, much less a

meaningful understanding of the gravity of the misconduct allegation. There’s

nothing wrong with a federal district court ordering the record augmented in a habeas

proceeding, so that the district judge is able to consider everything that was before

the state courts. But I think we should be reluctant in a habeas case to respond to an

incomplete record by ordering an entirely new evidentiary hearing in federal district

court.

         Speaking of which, what’s supposed to happen at this evidentiary hearing? As

mentioned previously, Juror 1’s accusation of bias against the elderly woman juror

was likely inadmissible under California law, and it almost certainly would not have

been admissible in federal court following a federal prosecution, so I wonder if it

would be admissible in the habeas hearing the majority has ordered. I also question

whether it would be appropriate to compel MADD to produce its membership

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records, to the extent that is what is envisioned for the evidentiary hearing. See, e.g.,

Church of Hakeem, Inc. v. Superior Court, 110 Cal. App. 3d 384, 388 (1980). And,

although I suppose there’s a possibility that the remaining two women jurors could

somehow be identified during this new federal district court proceeding and

questioned about whether they were MADD members at the time of the trial, I’m

not sure how this identification process would take place, and I’m highly skeptical

it would produce anything probative of juror bias.

                                          III.

      Accordingly, I would affirm the district court’s denial of the petition.




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