                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 14a0003p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                      No. 11-4399
          v.
                                                  ,
                                                   >
                                                  -
                         Defendant-Appellant. -
 TRENT SHEPARD,
                                                 N
                   Appeal from the United States District Court
                 for the Northern District of Ohio at Youngstown.
             No. 4:10-CR-415-1—David D. Dowd, Jr., District Judge.
                        Decided and Filed: January 7, 2014
          Before: DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

                                _________________

                                     COUNSEL
ON BRIEF: Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati,
Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.
                                _________________

                                     OPINION
                                _________________

       MARTHA CRAIG DAUGHTREY, Circuit Judge. After a jury found defendant
Trent Shepard guilty of three counts of receipt of visual depictions of minors engaged
in sexually explicit conduct and an additional count of attempted receipt, the district
court sentenced Shepard to 168 months in prison and five years on supervised release.
The district court also imposed a $400 special assessment on the defendant, ordered
Shepard to pay $3,000 in restitution to child victim “Vicky,” and imposed as special
conditions of supervision prohibitions on any access by Shepard to computers, cameras,
or video equipment without prior written approval from the probation officer or the


                                          1
No. 11-4399        United States v. Shepard                                       Page 2


court. On appeal, the defendant now challenges: (1) the seating of a juror who asserted
he would not view the pornographic images; (2) the sufficiency of the evidence
introduced to convict Shepard; and (3) the reasonableness of the sentence imposed upon
him. For the reasons discussed below, we conclude that the district court abused its
discretion in failing to remove from the jury a member of the panel who was unable to
swear that he would give the defendant a fair trial. As a result, the case must be
remanded for retrial.

              I. FACTUAL AND PROCEDURAL BACKGROUND

       Trent Shepard was employed as an outside salesman by Blue Tarp Financial, a
company that provided trade credit to building suppliers. Although Blue Tarp Financial
was headquartered in Charlotte, North Carolina, Shepard lived in Poland, Ohio, and
worked out of that home base. In the process of terminating Shepard from employment
at Blue Tarp, company officials discovered child pornography on three different Blue
Tarp laptops that Shepard had used in the course of his job. As later described by a
witness at trial, many of the files contained very graphic images of naked, prepubescent
children. After contacting the company’s attorneys, the laptops were secured and then
turned over to the FBI.

       Eventually, all three computers were sent to the FBI office in Cleveland, Ohio.
Once there, the laptops were examined by a forensic examiner with the FBI’s Computer
Analysis Response Team.       He discovered that the three laptops contained child
pornography in the computers’ temporary internet files, caches, free spaces, and shared
folders. The evidence led to a multi-count indictment against Shepard, charging him
with receipt and attempted receipt of visual depictions of minors engaged in sexually
explicit conduct. He pleaded not guilty, intending to claim as a defense that he did not
know how the pornographic material in question got into his computer, and went to trial.

       Prior to commencement of voir dire, the district court distributed two
questionnaires to prospective jurors. One of those questionnaires asked, “Does the fact
that the defendant is charged with crimes involving sexually explicit materials cause you
to be predisposed either for or against the defendant or the government?” Because Juror
No. 11-4399        United States v. Shepard                                          Page 3


29 answered that inquiry in the affirmative, the district judge asked him whether he cared
to elaborate on that reply. In response, the following colloquy occurred:

       JUROR 29: Well, I mean, just the nature of the case, obviously. You
       know, I’ve got little kids, so obviously just the nature of the case.
       THE COURT: Well, if it was a murder case, would you have a problem
       with it?
       JUROR 29: No.
       THE COURT: If it was a robbery case, would you have a problem?
       JUROR 29: No.
       THE COURT: Burglary case, would you have a problem?
       JUROR 29: No.
       THE COURT: See, the issue still is, is the government able to prove, by
       proof beyond a reasonable doubt, the elements of the crime? And if they
       do, the jury’s response is guilty. And if they fail, the jury’s response is
       not guilty.
       Now, you don’t have any problem with that concept, do you?
       JUROR 29: No. I thought I should at least mark it to be fair.
       THE COURT: I understand, and I appreciate the fact you marked it. But
       what I’m really trying to get you to do is think intellectually about what
       jury service is all about.
       JUROR 29: Correct, I understand.
       THE COURT: No matter what the crime is, the government has to prove
       it. And you already indicated you wouldn’t have a problem if it was a
       murder case or robbery case or burglary case. I’m just [trying] to get you
       to think through your – I don’t think you’re in favor of murder?
       JUROR 29: No.
       THE COURT: You are not in favor of robbery or burglary. So, see, it’s
       the sexual connotations that makes you stop and think. And I don’t – I
       appreciate the fact you told me about this fairly and honestly, but I want
       you to think about it in terms of whether or not you really can serve as a
       juror in this case. And I think you can based on answers you’ve given
       me. Let me say, there is no indication here – there is no establishment or
       no proof that the defendant is a pedophile. It has to do with materials
       that he’s charged with.
No. 11-4399        United States v. Shepard                                           Page 4


       JUROR 29: That’s correct. I understand.
       THE COURT: Now, having thought that through, let me ask you this:
       If you’re chosen as a juror in this case, will you accept the responsibility
       to decide the facts in dispute?
       JUROR 29: Yes.
       THE COURT: Will you follow the law as I instruct you the law to be?
       JUROR 29: Yes.
       THE COURT: Do you know of any reason why you could not be fair
       and impartial in this case?
       JUROR 29: No, I do not.
       THE COURT: Okay.

       Neither the government nor the defendant exercised a peremptory challenge to
remove Juror 29 from the panel. Consequently, he became a member of the jury that
was empaneled and sworn but was released for the evening before any testimony was
heard. The following morning, however, prior to the return of the jury to the courtroom,
the district judge informed counsel for the government and for the defendant that his
courtroom deputy, Debbie Mattei, had received the following recorded message from
Juror 29 the previous afternoon after the jury had been discharged for the day:

       Hi Debbie, I’m a juror that was in the courtroom today for Judge Dowd’s
       case. And I just left there and I don’t know how I’m going to be able to
       do this tomorrow. I’ll be honest with you. I’m, like, half sick. I guess
       they’re showing pictures or a video tomorrow.
       There is just no way I’m going to be able to view these pictures or video.
       So I really don’t know what to do. I just called in, and they put me to
       your number. You know, there is just no way I can view any of these
       pictures or video on this case tomorrow.
       I don’t know what to do, to be honest with you, or who I need to talk to.
       My cell phone number is [xxx-xxx-xxxx]. I just don’t know who to talk
       to. You know, I don’t want to ruin anything, but there is no way I can
       view any of these pictures or video. I have kids and can’t do this. So if
       you or someone else – or so if you or someone can give me a call, give
       me some direction, I would really appreciate it.
       Thank you so much. Bye-bye.
No. 11-4399         United States v. Shepard                                         Page 5


        When the district judge inquired of the attorneys how they would resolve the
dilemma, the prosecutor suggested that “rather than ignore it, just to voir dire him briefly
just to maybe indicate to him that any decent person that views these images is sick to
their [sic] stomach.” However, David Betras, one of Shepard’s defense attorneys,
argued that the juror should be excused because “he doesn’t think he can fulfill his
obligations as a juror.” In the end, the district court called Juror 29 back into the
courtroom and advised him that he was still under oath. At that time, the district judge,
Betras, and Michael Sullivan, the prosecutor, engaged in the following conversation:

        MR. BETRAS: We have been informed that you’re having some
        difficulty sitting as a juror in this case; is that fair for me to say?
        JUROR 29: That’s fair.
        THE COURT: [W]hat we have done is we’ve transcribed the telephone
        call, and the counsel have the transcript of your telephone call to Debbie
        yesterday. So they have the complete text of what you said.
        JUROR 29: Okay.
        MR. BETRAS: So the question becomes, even though the images are –
        they’re hard to look at, like I said in opening, but can you be fair and
        impartial? Or do you think you could no longer fulfill your job as being
        a fair and impartial juror in this case?
        JUROR 29: I won’t be able to view the pictures or the video.
        THE COURT: Excuse me?
        JUROR 29: I will not be able to view the pictures or video.
        THE COURT: What do you mean you will not be able to? Are you
        going to close your eyes? You’re saying yes, you’re going to close your
        eyes?
        JUROR 29: Yes. I don’t – I’m sorry. Am I able to speak?
        THE COURT: Sure.
        JUROR 29: I don’t – I mean, I understand the context of it. I don’t think
        the pictures and the video, it is what it is. I know what that is. And I
        don’t think that’s going to – I guess it comes down to, Your Honor, when
        right before we left yesterday, you made the comment that do not look
        anything up on the internet after we leave because that stuff will stay in
        your brain, you can’t get it out. Your brain has a way of keeping it. And
No. 11-4399      United States v. Shepard                                           Page 6


      as I was driving home I thought the exact same thing with these pictures
      and video, and that’s the last thing I want in my head with two little kids
      at home.
      MR. BETRAS: Well, if you’re required as a juror to look at everything
      that is shown to you as an exhibit and you can’t do it, do you feel you
      could be a juror in this case?
      JUROR 29: No, I do not.
      MR. BETRAS: No further questions, Your Honor.
      JUROR 29: Sorry.
      MR. SULLIVAN: Good morning, [Juror 29].
      JUROR 29: Good morning.
      MR. SULLIVAN: Okay. You understand the importance of having a
      jury that’s fair and impartial to the defendant and also to the government?
      JUROR 29: Absolutely. That’s why I brought this up.
      MR. SULLIVAN: Right. And do you understand that if we had a jury
      of only people who had no discomfort in viewing images of child
      pornography, that probably won’t be a jury that would be fair and
      impartial to the government? Do you understand that?
      JUROR 29: I truly understand that.
      MR. SULLIVAN: And these images are disturbing. They would be
      disturbing to any decent person; is that right?
      JUROR 29: Correct.
      MR. SULLIVAN: And if you were in a homicide case you might have
      to see some very graphic photographs of a dead body or an autopsy, and
      that might make you uncomfortable as well; is that fair?
      JUROR 29: Fair.
      MR. SULLIVAN: So as a sworn juror, if you are – I mean, you have an
      obligation to weigh all the evidence, as uncomfortable or as distasteful
      as that might be, can you understand that?
      JUROR 29: That’s correct.
      MR. SULLIVAN: And realizing that as a percentage of the time of the
      trial, the time that the jurors are going to be looking at any images or
      videos is going to be just a small fraction of the totality of the evidence
      in this case. Can you tell us whether or not you can fulfill your
No. 11-4399        United States v. Shepard                                             Page 7


       obligation, as uncomfortable as it may be? I’m not saying you have to
       stare and have it burned in your memory, but just to view the evidence
       for what it’s worth and then to carry on your obligation so that you can
       – so that the government and the defendant can both have a fair and
       impartial jury?
       JUROR 29: I wish I could as a citizen, I really do, because I think that
       is the fair thing to do. It’s just – I don’t want it in my head. My two little
       kids, I got home last night and I just gave them a hug. And that’s the last
       thing I want to think about. To me it’s the lowest part of humanity, and
       that’s, you know, whoever did it, that’s, you know, a good question. It’s
       just – I don’t want those images in my head, trying to get those out of my
       head for the next ten years, you know. I’ve never seen anything like that
       and I don’t ever intend to. It’s just disturbing. And I thought about it a
       lot. You know, and that’s why I think we had the small side-bars, as we
       come up, and I answered that one question on my questionnaire about
       prejudice to that sort of case. And I think it would be difficult.

       At that time, the district judge began questioning Juror 29 regarding any
conversations he might have had with other jurors concerning his hesitancy to view the
images and videos. He admitted that one of his fellow jurors commented to him that
morning, “It’s going to be a hard day.” Juror 29 responded, “Yes, I called in because I
thought it would be a rough day. I don’t know if I’ll be able to view those pictures.”
Although defense counsel then moved for a mistrial because Juror 29 “talked to one of
the jurors about the pictures, and it’s going to be rough,” the prosecutor argued that
“there is really nothing that could have prejudiced the other jurors other than the same
predisposition that they came into Court with yesterday before they were voir dired.”

       The district court denied the motion for a mistrial and also refused to excuse
Juror 29 or any other juror. In a post-trial memorandum explaining his decision, the
district judge noted:

       The views that [Juror 29] expressed in his phone call and during
       questioning regarding his call were his inability to actually witness the
       child pornography. There was no dispute of fact as to whether the
       material was child pornography, and the issue that was before the jury
       was whether or not Mr. Shepard in fact knowingly viewed the material.
       Thus, when considering [Juror 29’s] responses during voir dire, the
       phone call, and his questioning regarding his phone call, he never stated
       that he would not be able to impartially determine whether or not the
No. 11-4399        United States v. Shepard                                         Page 8


       defendant viewed this material, only that the images and videos caused
       him severe discomfort.
       As indicated, [Juror 29’s] response was likely elicited by the defense
       counsel’s opening remarks saying how disgusting and horrendous the
       material was. However, since the concerns expressed by the juror were
       over viewing material which was in support of facts that were not in
       dispute, the Court found that [Juror 29] could fulfill his commitment as
       a juror. Thus, when considering that dismissing [him] would result in
       having no alternate jurors on the panel, plus the possibility that one or
       more jurors might also ask to be excused based on the nature of the
       evidence if [Juror 29] was excused, the Court exercised its discretion and
       decided not to sua sponte excuse [him], and concluded that the
       defendant’s oral motion for a mistrial should be and was denied.

Following presentation of the evidence by both the government and the defense, the jury
found the defendant guilty as charged. He now appeals his conviction and sentence,
continuing to assert his innocence and to dispute the legal sufficiency of the evidence
introduced to prove his guilt. Because we conclude that seating Juror 29 was was an
abuse of discretion on the part of the district court that requires remanding the case for
retrial, we need not address the validity of Shepard’s conviction and sentence.

                                     DISCUSSION

       The principle of law is well established that the Sixth Amendment’s right to a
trial by jury “guarantees to the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). A juror’sverdict,
therefore, must “be based upon the evidence developed at the trial . . . regardless of the
heinousness of the crime charged, the apparent guilt of the offender or the station in life
which he occupies.” Id. (citations omitted).

       The question of whether a trial court has seated a fair and impartial jury “is
essentially one of credibility,” and “the trial court’s resolution of such questions is
entitled, even on direct appeal, to ‘special deference.’” Patton v. Yount, 467 U.S. 1025,
1038 (1984) (citation omitted). As this court has held, even a juror’s expressed doubts
about his or her impartiality “does not necessarily entail a finding of actual bias.”
Hughes v. United States, 258 F.3d 453, 458 (6th Cir. 2001). As examples, the court in
No. 11-4399         United States v. Shepard                                         Page 9


Hughes cited Patton, 467 U.S. at 1032, Murphy v. Florida, 421 U.S. 794 (1975), United
States v. Rigsby, 45 F.3d 120 (6th Cir. 1995), and United States v. Pennell, 737 F.2d 521
(6th Cir. 1984), all cases in which at least one juror initially expressed preconceived
notions regarding a defendant’s guilt or in which other information known by the jurors
might have cast doubt on their ability to render an objective, impartial verdict. In this
case, the district court exercised its discretion to hold that the circumstances did not
require a mistrial, once the court had seated the juror in question and the jury had been
sworn.

         The parties’ arguments regarding Shepard’s motion for a mistrial focus on
whether Juror 29’s comments to a fellow juror could have prejudiced that second juror.
However, we review a district court’s denial of a motion for a mistrial only for an abuse
of discretion. United States v. Howard, 621 F.3d 433, 458 (6th Cir. 2010), cert. denied,
131 S.Ct. 1623 (2011). Absolutely nothing in the appellate record indicates that Juror
29’s innocuous comments to the other juror that “it would be a rough day” or that he was
not sure he would “be able to view those pictures” resulted in prejudice so obvious that
we should find an abuse of discretion by the district court in holding otherwise. In fact,
the questioning during voir dire and the statements made by defense counsel during
opening argument indicated that the images and videos to be presented to the jury were
“horrendous,” “disgusting,” could make one sick to one’s stomach, and make the case
“so difficult.” Against such a backdrop, Juror 29’s comments to the other juror did not
inject any information or context into the trial or into the jury room that was not already
conceded by the defendant himself. We conclude that the denial of the motion for a
mistrial was not improper.

         On the other hand, it is equally clear that Juror 29 should not have been permitted
to sit on Shepard’s jury. There was, for example, no effective rehabilitation of Juror 29
in this case. He had responded honestly to a jury questionnaire by admitting that “the
fact that the defendant is charged with crimes involving sexually explicit materials
[would] cause [him] to be predisposed either for or against the defendant or the
government.” He followed up that admission during voir dire by stating that “just the
No. 11-4399         United States v. Shepard                                        Page 10


nature of the case” would cause him to view the defendant in a different light. It is true
that the district court then elicited from Juror 29 responses indicating that, if chosen as
a juror, he would “accept the responsibility to decide the facts in dispute” and would
“follow the law as [the judge] instruct[ed].” Juror 29 also claimed that he did not “know
of any reason why [he] could not be fair and impartial in this case” and was, therefore,
accepted and sworn in as a juror. Subsequently, however, he informed the district court
that further reflection led him to the inevitable conclusion that, in fact, he could not
fulfill all the responsibilities imposed upon him as a juror in this case.

        On the morning after being sworn in as a member of the jury, Juror 29 stated
unequivocally that he would not be able to look at any images or videos of child
pornography that were introduced into evidence. In fact, he went so far as to advise the
district judge that he would close his eyes when such evidence was shown.

        In his memorandum opinion explaining why he did not excuse Juror 29 from the
panel, the district judge rationalized that it was not necessary for the juror to observe the
pornographic images because neither party disputed that the images and videos should
be classified as child pornography. Therefore, the district court concluded, the jury’s
primary function in this prosecution was to determine only whether Shepard knowingly
accessed those images and videos, an exercise that the court apparently thought would
not require viewing the visual evidence. On one level, that decision is understandable.
The district judge had conducted a lengthy voir dire and had effectively exhausted the
available jury pool. By dismissing Juror 29, the court risked providing an opportunity
for other jurors to have themselves excused from service because of the nature of the
evidence to be presented.

        Nevertheless, the role of the district judge is not to gloss over serious issues for
the sake of preventing additional work for the court. Rather, in a criminal trial, the judge
is entrusted with the responsibility of ensuring that the constitutional rights of the
accused are safeguarded from the whims of public opinion, prejudice, and expediency.
Here, despite his earlier pronouncement that he could be fair and impartial in serving on
Shepard’s jury, Juror 29 later informed the court that he had serious doubts about his
No. 11-4399         United States v. Shepard                                       Page 11


ability to do so. Although the district court sought to frame those doubts merely in terms
of an ability to view certain evidence, Juror 29’s’s comments on the morning that
evidence was actually presented were much more troubling. In fact, when asked by the
prosecutor whether he could carry out his obligation “so that the government and the
defendant can both have a fair and impartial jury,” Juror 29 responded that he wished he
could but did not think he would be able to do so. Instead, he expressed without
qualification his belief that child pornography was evidence of “the lowest part of
humanity” and is “just disturbing.” He concluded his explanation by reiterating that he
had stated on the jury questionnaire that he would be prejudiced against the defendant
because of Shepard’s alleged contact with child pornography and that it would be
difficult for him to overcome that prejudice.

        Fundamentally, the situation that the district court faced reflected some
indication by Juror 29 that he could not decide the case fairly and impartially, as well as
a clear indication that he could not perform his constitutional duty to “lay aside his
impression or opinion and render a verdict based on the evidence presented in court.”
Irwin, 366 U.S. at 723 (emphasis added); see also Skilling v. United States, 561 U.S.
358, ___, 130 S.Ct. 2896, 2925 (2010). In the context of jury deliberation, courts have
found just cause for dismissal when a juror “violates the sworn jury oath and prevents
the jury from fulfilling its constitutional role.” United States v. Boone, 458 F.3d 321,
329 (3rd Cir. 2006); see also United States v. Baker, 262 F.3d 128, 131 (2nd Cir. 2001).
It seems clear that if violation of the oath impermissibly taints the verdict at the
deliberation stage, violation at an earlier point is equally problematic.

        Whether Juror 29 could have been rehabilitated is a question that must remain
unanswered. Following his expression of an inability to rise above his disgust toward
and prejudice against a defendant found with child pornography on his computer, the
district judge did not take the opportunity to explore Juror 29’s opinions in greater detail
or “establish record support for the claim that [Juror 29] was able to cast aside [his]
opinion and render a verdict based on the evidence presented in court.” Hughes,
258 F.3d at 459. Instead, the district court turned its attention to the question of whether
No. 11-4399         United States v. Shepard                                       Page 12


Juror 29 had communicated those views to other members of the jury. Thus, as in
Hughes, “because [the juror’s] declaration was not followed by any attempt at
clarification or rehabilitation, there is no ambiguity in the record as to [his] bias.” Id.

       In light of this evidence of bias and inability to follow the dictates of the oath,
we conclude that the district court abused its discretion in denying Shepard’s request to
have Juror 29 removed from the jury. In order to preserve the sanctity of the defendant’s
Sixth Amendment right to be tried by a fair and impartial jury, it thus becomes necessary
to reverse the defendant’s conviction, vacate his sentence, and remand this matter to the
district court for a new trial. See id. at 463 (“Failure to remove biased jurors taints the
entire trial, and therefore . . . [the resulting] conviction must be overturned.” (citation
omitted)).

                                    CONCLUSION

       For the reasons set out above, we VACATE the judgment of the district court and
REMAND this case for a new trial.
