ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No. 93-3048

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



MANUEL JOHN MATHIS, Defendant-Appellant.



_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________



BRIEF OF DEFENDANT-APPELLANT

MANUEL JOHN MATHIS



_________________________________________________________________









A. J. Kramer

Federal Public Defender



Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500











District Court

Cr. No. 92-380

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, Manuel Mathis, hereby states as follows:

A. Parties and Amici:

The parties to this appeal are Defendant-Appellant, Manuel Mathis, and Plaintiff-Appellee, The United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal by Mr. Mathis of the ruling by the district court, the Honorable Joyce Hens Green, on January 22, 1993, denying his motion for a new trial (A. at 71).

C. Related Cases:

There are no related cases and Mr. Mathis' case has not previously been before this Court.



TABLE OF CONTENTS





TABLE OF AUTHORITIES iii



STATUTES AND RULES 1



JURISDICTION 1



ISSUES PRESENTED 1



STATEMENT OF THE CASE 2



A. Proceedings Below 2



B. Statement of Facts 2



i. The Evidence At Trial 2



ii. The Motion For A New Trial 6



SUMMARY OF ARGUMENT 15



STANDARD OF REVIEW 16



ARGUMENT



I. THE PRESENCE ON THE JURY OF A CONVICTED FELON WHO CONCEALED DURING VOIR DIRE HIS FELONY STATUS AND HIS NUMEROUS ARRESTS AND CONVICTIONS DEPRIVED MR. MATHIS OF A TRIAL BY AN IMPARTIAL JURY 16



A. Mr. Bailey Failed To Answer Honestly A Material Question On Voir Dire When He Failed To Disclose His Nine Arrests, His Three Misdemeanor Convictions and His Felony Conviction 17



B. Had Mr. Bailey Provided Correct Responses During Voir Dire, Those Responses Would Have Provided A Valid Basis For A Challenge For Cause 19



C. Mr. Bailey's Deliberate Nondisclosure During Voir Dire Of Material Information And His Testimony At The Post-Trial Hearing Demonstrate His Bias 21



II. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY AN IMPARTIAL JURY BECAUSE MR. BAILEY WAS NOT A TRUSTWORTHY JUROR 27



CONCLUSION 30



CERTIFICATE OF SERVICE 31



CERTIFICATE OF LENGTH 31

TABLE OF AUTHORITIES



CASES



Atlas Roofing Manufacturing Company v. Parnell,

409 F.2d 1191 (5th Cir. 1969) 20



Burton v. Johnson, 948 F.2d 1150 (10th Cir. 1991),

cert. denied, 113 S.Ct. 1879 (1993) 22



In re Murchison, 349 U.S. 133 (1955) 27



Irvin v. Dowd, 366 U.S. 717 (1961) 27



Marvins Credit v. Steward, 133 A.2d 473 (D.C. App. 1957) 16-17



McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548 (1984) 16, 17, 18, 20



Murphy v. Florida, 421 U.S. 794 (1975) 22



Powers v. Ohio, 111 S.Ct. 1364 (1991) 27



Shannon & Luchs Management Company, Inc. v. Roberts,

447 A.2d 37 (D.C. App. 1982) 16



*Smith v. Phillips, 455 U.S. 209 (1982) 21, 25, 26



United States v. Arnett, 342 F.Supp. 1255 (D.Mass. 1970) 28



*United States v. Boney,

977 F.2d 624 (D.C. Cir. 1992) 19, 20, 22, 23, 26, 29



United States v. Brooks, 677 F.2d 907 (D.C. Cir. 1982) 18



United States v. Bynum, 634 F.2d 748 (4th Cir. 1980) 22



United States v. Foxworth, 599 F.2d 1 (1st Cir. 1979) 28



United States v. Fryar, 867 F.2d 850 (5th Cir. 1989) 18



*United States v. Greene, 995 F.2d 793 (8th Cir. 1993) 28



United States v. Hall, 989 F.2d 711 (4th Cir. 1993) 28



United States v. Hefner, 842 F.2d 731 (4th Cir.),

cert. denied, 488 U.S. 868 (1988) 28



* Cases chiefly relied upon are marked with an asterisk





United States v. Lafayette, 983 F.2d 1102 (D.C. Cir. 1993) 16



United States v. Nell, 526 F.2d 1223 (5th Cir. 1976) 21, 30



United States v. North, 910 F.2d 843 (D.C. Cir. 1990),

cert. denied, 111 S.Ct. 2235 (1991) 16, 22, 23, 24



United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984) 21, 22



*United States v. Scott, 854 F.2d 697 (5th Cir. 1988) 24, 25



United States v. Test, 550 F.2d 577 (10th Cir. 1976) 28



STATUTES



18 U.S.C. 2113(a) 2



28 U.S.C. 1865(b)(5) 20, 28



H.R. Rep. No. 1076, 90th Cong., 2d Sess 6 (1968) 28



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________



No. 93-3048

_______________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



MANUEL JOHN MATHIS, Defendant-Appellant.



_____________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________



BRIEF FOR DEFENDANT-APPELLANT

MANUEL JOHN MATHIS

_____________________________________________



STATUTES AND RULES



Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 11(a)(3), the pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. 3231. A timely notice of appeal having been filed within the ten day period allowed by Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED

I. Whether the district court erred in denying appellant's motion for a new trial where a juror was a convicted felon and that juror concealed during voir dire his nine arrests, three misdemeanor convictions and felony conviction, and where he failed to disclose his felony conviction on the Juror Qualification Questionnaire.

II. Whether the district court erred in denying appellant's motion for a new trial where the juror in question proved himself to be untrustworthy by his status as a felon and by his conduct in concealing his criminal history from the court and the parties.

STATEMENT OF THE CASE

A. Proceedings Below

On October 8, 1992, the grand jury returned a one-count indictment charging Mr. Mathis with bank robbery by fear and intimidation in violation of 18 U.S.C. 2113(a). A jury trial before the Honorable Joyce Hens Green commenced on December 3, 1992. The jury returned a verdict of guilty on December 7, 1992. Appellant orally moved for a new trial on December 18, 1992. The district court held an evidentiary hearing on the motion for new trial and denied the motion in an oral ruling on January 22, 1993. On March 26, 1993, Judge Green sentenced Mr. Mathis to a 240 month term of imprisonment. Mr. Mathis filed a timely notice of appeal.

B. Statement of Facts

i. The Evidence At Trial

On September 2, 1992, a man approached Dahlia Smikle, a teller at the Riggs Bank located at 7th Street and Pennsylvania Avenue, N.W., and gave her a handwritten note that read "bitch, the money" (12/4/92 at 27-28). (1) Ms. Smikle handed bundles of money, amounting to just over 10,000 dollars, over the counter to the man (12/4/92 at 31, 33-34, 99-100). While she handed the bundles of money to the robber he mumbled, "more" (12/4/92 at 32). Included in the bundles of money was a dye pack designed to emit red smoke and dye (12/4/92 at 31).

A pedestrian standing across the street from the Riggs Bank, Jeffrey Hall, saw a man run across the street from Riggs Bank heading north toward Chinatown. (12/4/92 at 58-59). The man crouched as he ran, as though he was holding something or was in pain, and red smoke emitted from his stomach area (12/4/92 at 59, 61-62). Mr. Hall followed the path in which the man ran and discovered two or three red-stained bundles of money lying on the ground (12/4/92 at 61).

Two bank employees, Ms. Smikle and Mr. Benjamin Allen, described the robber. (2) Ms. Smikle described the man in general terms (black, medium build, medium height) (12/4/92 at 30). Mr. Allen, the branch manager of the bank, described the robber in slightly more detailed terms: 5'9" or 5'10" in height, about 160 pounds, medium brown-skinned. (12/7/92 at 187, 191). Both agreed that the robber wore a black hat, a black shirt and green pants or green shorts (12/7/92 at 30, 187, 191). Neither Ms. Smikle nor Mr. Allen described the hat as bearing insignias or writing. In addition, Ms. Smikle testified that she had an opportunity to observe the robber's eyes and that his eyes had been red (12/3/92 at 37, 42).

The results of the identification procedures were mixed. Ms. Smikle identified Mr. Mathis' photograph from an array of photographs as the perpetrator of the robbery (12/4/92 at 38-40, 150). Mr. Allen, however, positively identified someone other that Mr. Mathis as the robber at a lineup (12/7/92 at 194). The pedestrian, Mr. Hall, had not seen the man's face and, therefore, could not make any identification (12/4/92 at 60).

The police executed a search warrant at 769 Columbia Road, N.W., and recovered several items of evidence from a bedroom of the house. Although there was no evidence that Mr. Mathis resided at that address, he was present when the search warrant was executed (12/4/92 at 113). Two $20 bills and four $5 bills were recovered from a shoe box, a black hat, latex gloves, cotton swabs, bandages, and a money strap used to bind bundles of cash were recovered from a trash can, and strips of paper were recovered from the floor of the bedroom (12/4/92 at 115, 119, 121). The officers did not recover any men's clothing from the bedroom or any papers bearing Mr. Mathis' name (12/4/92 at 123-124). Each of the seized items was found to bear traces of the particular brand of red dye used in dye packs purchased by Riggs Bank (12/4/92 at 103, 133-137). (3) Mr. Mathis was arrested.

After Mr. Mathis was arrested, Officer Paul Grusky observed that Mr. Mathis had marks on his thumbs and fingers and that his fingertips and fingernails were red. He asked Mr. Mathis to raise his shirt. Officer Grusky observed marks on Mr. Mathis' abdomen (12/4/92 at 145).

Viola Temoney, a manager at a Popeye's Restaurant, testified that she had known Mr. Mathis when he was employed at Popeye's (12/4/92 at 67). According to Ms. Temoney, she received a telephone call from Mr. Mathis on the evening before her trial testimony during which he said, "I robbed this bank, and the lady, you know, slipped a dye bag on me . . . . Will you go to court? I need you to tell them that I got burnt at Popeye's, you know, cooking chicken" (12/4/92 at 73-75). According to Ms. Temoney, Mr. Mathis also told her that he had been burned by the dye pack (12/4/92 at 75). As far as Ms. Temoney was aware, Mr. Mathis had not been burned at Popeye's (12/4/92 at 76).

ii. The Motion For A New Trial

Subsequent to the jury verdict, the district court learned that one of the jurors, David Bailey, had failed to disclose to the court and to the parties that he had been arrested nine times and had incurred three convictions in addition to the one conviction that he did disclose. (4)

In addition, Mr. Bailey failed to disclose his felony conviction on the Juror Qualification Questionnaire, and failed to disclose to the court and the parties that that conviction was a felony and not a misdemeanor. See Juror Qualification Questionnaire (A. at 74-75).

During voir dire the district court asked of the veniremen,

Is there any member of our prospective jury panel or any close relative who has ever been arrested for any crime anywhere, any time, ever been convicted of a crime anywhere, any time, ever been a victim of a crime anywhere, any time, or a witness to a crime anywhere, any time? If so, we must know the response to that question.

(12/3/92A at 2) (emphasis added). The judge told the veniremen that she would repeat the question "so that we are certain that each of you has heard it and understood it . . . ." (Id.). She did so:

Any among you who has ever been arrested or convicted of a crime anywhere, any time, or been a victim of a crime or a witness to a crime anywhere, any time?

(Id.) (emphasis added).

Venireman David Bailey responded to the question by revealing only one arrest. He told the court and the parties, "in my younger years I had a drug problem and was arrested" (Id.). The judge asked, "What happened after you were arrested?", to which Mr. Bailey responded, "Well, I had treatment and been clean ever since. Been in AA fellowship" (Id.).

The judge followed up on this disclosure about his arrest by asking Mr. Bailey whether he was "ever prosecuted for any kind of crime?" While the court's question did not work as a prompt to Mr. Bailey to reveal his other convictions, it did prompt him to explain that, in the one case, he had pleaded guilty to a lesser charge of possession of narcotics for which he was sentenced to probation (12/3/92A at 3-4). He explained that he incurred this conviction in 1985. Mr. Bailey explained that he did not harbor negative feelings toward the authorities who arrested and prosecuted him, but rather he felt gratitude because the prosecution against him gave him "the opportunity to clean up my life, straighten myself out" (12/3/92A at 4-5).

It was discovered post-trial that Mr. Bailey had failed during voir dire to disclose his numerous arrests and his other convictions and had failed to disclose his felony conviction on the Juror Qualification Questionnaire. The district court held a post-trial hearing on Mr. Mathis' motion for a new trial at which Mr. Bailey testified under a grant of immunity (1/22/93 at 3) (5). Before appearing for jury service, David E. Bailey executed a Juror Qualification Questionnaire in which he declared under penalty of perjury that he had never been convicted of a felony (A. at 74-75; 1/22/93 at 6). Mr. Bailey testified at the post-trial hearing that, rather than execute the form himself, his girlfriend had read the form aloud to him and noted his answers on the form (1/22/93 at 5-7). Mr. Bailey twice testified that he told his girlfriend to respond "yes" to the question about whether he had been convicted of a felony (1/22/93 at 8). He then changed his testimony, however, and swore that he told her to respond, "No. That's what I said, no, because I was convicted of a misdemeanor" (1/22/93 at 9). He signed the form himself (1/22/93 at 6-7).

At the hearing, Mr. Bailey testified that he had been arrested "about twelve" times and admitted that he failed to disclose all but one of those arrests (1/22/93 at 9). (6) Mr. Bailey testified that he had not been confused about his own prior criminal record during voir dire, but failed to fully disclose his criminal record to the court only because he

didn't know how far you're supposed to go back. Are you supposed to, you know, go through 20 years, ten years, for life? I don't know. I just gave the last conviction.

(1/22/93 at 10-11, 15). He testified that he heard the judge ask him whether he had been "arrested for any crime anywhere, any time," and that he knew that the question applied to him (1/22/93 at 10-11). He claimed, however, that he relied on his friends' advice about what to disclose rather than heeding the judge's command:

. . . well, see, I work government, and a lot of the folks there have been on jury trials before, and they tell me no, the Judge asks you what's the last, you know, you've ever been in trouble, your family and the police officers and stuff like that, for the last five years or seven years. That's what I'm thinking, you know: I'm supposed to go back at least five to seven years. So I went to the last conviction that I had, and that's what I told the court.

(1/22/93 at 15). Mr. Bailey testified that he had not forgotten his prior convictions and arrests, but that he "didn't think they was important" (1/22/93 at 30). He testified that he believed that his limited disclosure of one conviction would result in his removal from the jury (1/22/93 at 27), and claimed his failure to disclose the other convictions and arrests was not related to a desire to remain on the jury (1/22/93 at 36, 38). Rather, he failed to disclose the convictions and arrests because he "didn't think they was, you know, important, really" (1/2/93 at 36).

Mr. Bailey's post-trial testimony relating to his beliefs about the state of his criminal record was contradictory. First, Mr. Bailey testified that he believed that his felony conviction (in F-3390-85), which he had disclosed during voir dire but which he had not disclosed on the Juror Qualification Questionnaire, was a misdemeanor (1/22/93 at 16). Next, he admitted that he knew that it was a felony, but said he believed that the conviction was removed from his record since he had been sentenced to probation with drug treatment (1/22/93 at 16). Finally, he testified that he thought that the felony conviction wasn't a conviction at all because "when you cop to a plea, to a lesser sentence, it's something different than what you're saying; he's not convicted. I didn't know if you cop you still convicted. At that time I didn't know that" (1/22/93 at 16). Mr. Bailey testified that he believed that he disclosed his felony conviction when he applied for federal employment, but that he did not recall "specifically" (1/22/93 at 26-27).

Significantly, Mr. Bailey had had the opportunity to address the matter of his felony conviction even before the post-trial hearing was held in this case. On December 15, 1992, less than two weeks after the trial in the instant case, Mr. Bailey appeared before U.S. District Judge Norma Holloway Johnson for jury selection in another trial (1/22/93 at 28). In that case, he told the court and the parties that he "had a drug problem back in '85" and was "arrested and sentenced to a drug treatment program" (12/15/92 at 2; A. at 77). When asked how long he'd been drug free he said, "Since '85, since the day I got locked up . . . ." (12/15/92 at 3; A. at 78). In that case the government discovered that Mr. Bailey had been convicted of a felony and moved to strike him for cause from the jury panel (12/15/92 at 4; A. at 79). When questioned further, Mr. Bailey first claimed that he had not been convicted of a felony, but rather that he "copped a plea . . . of drug possession" (12/15/92 at 5; A. at 80). Upon further questioning, however, Mr. Bailey admitted that he knew that he could have been sentenced to more than a year in that case (12/15/92 at 6; A. at 81), and said, "I don't think it was a misdemeanor" (12/15/92 at 7; A. at 82). Judge Johnson granted the government's motion to strike Mr. Bailey from the venire and declared that "[e]ven he believes he's been convicted of a felony" (12/15/92 at 8; A. at 83).

Mr. Bailey also claimed that he did not know that his three pleas of guilty meant that he was convicted of the crimes to which he pleaded guilty. He testified that he believed that pleading guilty meant that "[y]ou wasn't saying you was guilty and you wasn't saying you wasn't guilty" (1/22/93 at 17). Mr. Bailey claimed that he learned that the word "conviction" applied to him only after talking to his lawyer who was appointed to represent him in the post-trial hearing (1/22/93 at 33). And, although he claimed not to know that the criminal cases for which he served sentences of imprisonment were convictions, he admitted that he understood that it was not "possible in this legal system that a man can go to jail and serve time . . . [but] not be convicted of a crime" (1/22/93 at 28).

With regard to the conviction that he incurred after a trial by jury (M-808-78), Mr. Bailey testified that when, during voir dire, the court asked whether anyone had been convicted of a crime, he recalled but did not disclose that he had been convicted of a misdemeanor for which he received a sentence of about five months, in addition to the conviction that he did disclose (1/22/93 at 11-12). Specifically, Mr. Bailey remembered that he went to trial in that case (M-808-78), unlike in other cases in which he pleaded guilty (M-6832-78, M-10320-78, and F-3390-85) (1/22/93 at 14). He also remembered that he had originally been sentenced in that case to one year imprisonment and one year of probation, but was then resentenced to five months because the first sentence had been illegal (1/22/93 at 18). Yet, he did not disclose that conviction. (7)

As to his conviction in M-6832-78, Mr. Bailey remembered being arrested on charges of distribution of Dilaudid, but claimed not to have remembered that he was convicted of possession of Dilaudid in that case, or that he received a sentence of 120 days imprisonment (1/22/93 at 13-14). When he was asked whether he remembered that in 1978 he appeared before Judge Pratt in Superior Court on those charges he answered, "I'm not sure. I don't know. Maybe. Probably." (1/22/93 at 13).

Similarly, as to his conviction in M-10320-78, Mr. Bailey claimed not to remember having been arrested and charged with the sale of Phenmetrazine, and claimed not to remember having received a sentence of 120 days imprisonment after pleading guilty to possession of Phenmetrazine (1/22/93 at 23).

When the judge asked Mr. Bailey whether he had intentionally deceived the court in order to serve as a juror and convict Mr. Mathis he answered, "no" (1/22/93 at 45). He testified that he had not "tr[ied] to pull the wool over the eyes of the court or any of the lawyers . . ." (1/22/93 at 32). When the judge asked for Mr. Bailey's own evaluation of whether he approached his "decision fairly and openly towards Mr. Mathis, or unfairly," he opined that he approached the decision "fairly" (1/22/93 at 45). As he had during voir dire, he stated during the post-trial hearing that he did not feel any prejudice toward Mr. Mathis or toward the government (1/22/93 at 44).

In response to questions from the government, Mr. Bailey testified that he had decided the case only upon the evidence presented at trial:

GOVERNMENT: Did you decide this case in any fashion thinking that if you convicted this man, he'd clean himself up, too?



MR. BAILEY: Oh, no. Oh, no, not at all.



GOVERNMENT: Okay. Did you decide this case in any fashion that you thought, "Well, if I convict his man, then I can prove myself as a redeemed, reformed person?"



MR. BAILEY: No.



GOVERNMENT: "That he government will then in some way look at me as a better person?"



MR. BAILEY: No. Not at all.

(1/22/93 at 34).

Although the district court found that "there is no question that there has been some inconsistency in the responses of Mr. Bailey" (1/22/93 at 62), the court found his own evaluation of his fairness and lack of bias to be credible:

He has advised the court, and the court finds this testimony highly credible, that he decided this case only on the facts and the evidence before him; that he really didn't want to get on the jury; that he expected when he told the court of the conviction in 1985, that he would not be put on the jury; that he was not trying to get on the jury. He repeated he wasn't wanting to get on the jury. He didn't favor one side or the other in the case. And there is absolutely nothing in the record to show anything other than all of that was true and accurate.

(1/22/93 at 63). The district court summarized its findings:

I find absolutely no prejudice of Mr. Bailey towards Mr. Mathis. I find absolutely no bias towards Mr. Mathis. And I find that while it is unfortunate we didn't have the full record before us so that [defense counsel], had she elected to do so on behalf of Mr. Mathis, could have exercised a peremptory challenge, there is nothing to tell me that Mr. Mathis did not receive a full and fair trial. And I therefore deny the motion for a new trial.

(1/22/93 at 64-65).

SUMMARY OF ARGUMENT

The district court abused its discretion by denying appellant's motion for a new trial on the grounds that Juror Bailey failed to answer honestly a material question about his arrests and convictions, where an honest response to the question would have provided a basis for a challenge for cause, and where it was shown that Mr. Bailey was not impartial. In addition, Mr. Bailey's status as a felon and his concealment of his numerous arrests and convictions demonstrated that he was untrustworthy, thereby depriving appellant of a trial by a fair jury.

STANDARD OF REVIEW



Whether the district court erred in denying appellant's motion for a new trial is a mixed question of fact and law. The district court's factual findings are reviewed for clear error. United States v. North, 910 F.2d 843 (D.C. Cir. 1990). The district court's legal conclusion is reviewed for abuse of discretion. United States v. Lafayette, 983 F.2d 1102 (D.C. Cir. 1993).

ARGUMENT

I. THE PRESENCE ON THE JURY OF A CONVICTED FELON WHO CONCEALED DURING VOIR DIRE HIS FELONY STATUS AND HIS NUMEROUS ARRESTS AND CONVICTIONS DEPRIVED MR. MATHIS OF A TRIAL BY AN IMPARTIAL JURY.

The Sixth Amendment to the Constitution commands that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." The purpose of voir dire is to protect that constitutional right by "exposing possible biases, both known and unknown, on the part of potential jurors." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984). To that end, every juror has a duty to answer questions affecting his or her qualifications fully and honestly. The criminal defendant's constitutional right to an indifferent and impartial jury is thwarted unless each juror makes "full and truthful answers to such questions as are asked, neither falsely stating any facts nor concealing any material matter." Shannon & Luchs Management Company, Inc. v. Roberts, 447 A.2d 37, 42 (D.C. App. 1982), quoting Marvins Credit, Inc. v. Steward, 133 A.2d 473, 476 (D.C. App. 1957) (emphasis in original).

A new trial is necessary where a party demonstrates

that a juror failed to answer honestly a material question on voir dire, and . . . that a correct response would have provided a valid basis for a challenge for cause. The motive for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 556.

The district court abused its discretion by denying appellant's motion for a new trial where it was shown that Juror Bailey failed to answer honestly a material question about his arrests and convictions, and an honest response to the question would have provided a basis for a challenge for cause, and it was shown that Mr. Bailey was not impartial. In addition, Mr. Bailey's status as a felon and his concealment of his numerous arrests and convictions demonstrated that he was untrustworthy and thereby deprived appellant of a trial by a fair jury.

A. Mr. Bailey Failed To Answer Honestly A Material Question On Voir Dire When He Failed To Disclose His Nine Arrests, His Three Misdemeanor Convictions and His Felony Conviction.

The district court's inquiry of the jury panel about whether they had "ever been arrested or convicted of a crime anywhere, any time . . . ." was "material, relevant, clear, definite, and should have been easily understood." Marvins Credit v. Steward, 133 A.2d at 475. Although jurors "are not necessarily experts in English usage," and "may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges," McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 555, Mr. Bailey was not required to interpret ambiguous or complex language. He need not have been a judge, a lawyer, or even an expert in the English language to answer forthrightly whether he had ever, at any time, been arrested or convicted of a crime.

Indeed, Mr. Bailey admitted at the post-trial hearing that he understood the question and he that he knew that it applied to him (1/22/93 at 10-11, 15). He testified that he consciously censored disclosure of his eight other arrests and three other convictions, however, based on advice from his friends that he need only reveal the convictions incurred within the last five or seven years and because he "didn't think they was, you know, important, really" (1/22/93 at 10-11, 15, 30, 36). Thus, Mr. Bailey's nondisclosure cannot be said to be inadvertent since inadvertent nondisclosure occurs when the venireman does not disclose the information because he does not recollect the information at the time of voir dire. United States v. Brooks, 677 F.2d 907 (D.C. Cir. 1982) (juror's nondisclosure not deliberate where juror was not aware that he recognized defendant until after trial, when third person brought it to juror's attention). (8)

Mr. Bailey's various excuses for his failure to disclose this crucial information cannot change the fact that he was fundamentally dishonest during voir dire. He knew that he had been arrested nine times. He knew that he had been convicted more than once. And, although he presented various and inconsistent explanations about his understanding of his criminal record, he at least knew that he had more arrests than the one he revealed. (9) Mr. Bailey knew that the judge asked him to talk about his arrests and convictions. And, finally, the judge's question "would strike the average juror as extremely serious and sensitive." United States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992).

Although the district court did not make factual findings about whether Mr. Bailey had been dishonest on the Juror Qualification Questionnaire and during voir dire, after hearing his testimony at the post trial hearing, she observed that there was "no question there has been some inconsistency in the responses of Mr. Bailey" (1/22/93 at 62).

B. Had Mr. Bailey Provided Correct Responses During Voir Dire, Those Responses Would Have Provided A Valid Basis For A Challenge For Cause.

Had Mr. Bailey disclosed his extensive involvement with the criminal justice system and his felony conviction, he would have been stricken from the panel for cause. Materiality is determined, in large part, by whether the juror would have been excused for cause if the information had been revealed during voir dire. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984).

While a felony conviction does not automatically render a person incompetent as a matter of law to serve as a juror, it does provide a valid basis for a challenge for cause. Atlas Roofing Manufacturing Company v. Parnell, 409 F.2d 1191 (5th Cir. 1969) (while previous felony conviction does not render convicted person fundamentally incompetent to sit as juror, it is ground for challenge for cause); see also United States v. Boney, 977 F.2d at 633. But for Mr. Bailey's dishonest answers, he would not even have been in the jury panel; had he answered the Juror Qualification Questionnaire honestly he would have been removed from the panel pursuant to 28 U.S.C. 1865(b)(5), because he was a felon. And, had Mr. Bailey disclosed his nine arrests, his felony conviction and his three misdemeanor convictions during voir dire, he would have been stricken from the jury panel for cause.

Notably, the government moved to strike Mr. Bailey from a subsequent jury panel for cause after the prosecutor discovered that Mr. Bailey was a convicted felon. Judge Norma Holloway Johnson granted the government's motion and Mr. Bailey was stricken from the panel (12/15/92 at 4-8; A. at 79-83).

C. Mr. Bailey's Deliberate Nondisclosure During Voir Dire Of Material Information And His Testimony At The Post-Trial Hearing Demonstrate His Bias.

The Supreme Court in Smith v. Phillips, 455 U.S. 209 (1982), rejected the argument that bias can be imputed as a matter of law, and held that the defendant must prove actual bias. (10) While bias will not ordinarily be implied as a matter of law, proof of actual bias can be inferential. Actual bias may be revealed in two ways: "[B]y express admission or by proof of specific facts showing such a close connection to the circumstances at hand that bias must be presumed." United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976). (11) See also United States v. Perkins, 748 F.2d 1519 (11th Cir. 1984) (actual bias inferred from juror's deliberate concealment of his knowledge of defendant and his involvement in prior criminal and civil cases). Of course, it is often difficult to discern the reasons for a juror's concealment of material information. As Justice O'Connor recognized in her concurring opinion in Smith v. Phillips, 455 U.S. at 221-222,

[d]etermining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it. The problem may be compounded when a charge of bias arises from juror misconduct, and not simply from attempts of third parties to influence a juror.

Certainly, a juror's assurance that he or she can render a fair and impartial verdict is not dispositive. Murphy v. Florida, 421 U.S. 794, 800 (1975).

Dishonesty during voir dire is evidence of bias. United States v. North, 910 F.2d 843, 904 (D.C. Cir. 1990), cert. denied, 111 S.Ct. 2235 (1991) (dishonesty is important factor in test for actual bias); Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir. 1991) (same), cert. denied, 113 S.Ct. 1879 (1993); United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984) (juror's dishonesty, in and of itself, is strong indication that he was not impartial); United States v. Bynum, 634 F.2d 768 (4th Cir. 1980) (when possible nonobjectivity is secreted and compounded by deliberate untruthfulness of potential juror's answers on voir dire, result is deprivation of defendant's rights to fair trial).

And, while "felon status, alone, does not necessarily imply bias," United States v. Boney, 977 F.2d at 633, deliberate concealment of felon status is an indicator of actual bias. As this Court observed in Boney, a

juror's failure to disclose his status [as a felon] in response to the voir dire examination presents serious concerns. After all, lying or failing to disclose relevant information during voir dire itself raises substantial questions about the juror's possible bias.

Id. at 634.

The Court in Boney addressed a circumstance in which it was discovered post-trial that one of the jurors previously had been convicted of a felony. The Court noted that "a juror's refusal to admit his felony status is particularly troublesome," id. at 634, because "[l]ying about a factor as important (and as easy to verify through public records) as felon status raises at least the inference that the juror had an undue desire to participate in a specific case, perhaps because of partiality." Id. However, because the district court had not held an evidentiary hearing, the determination of actual bias could not be made. The Court remanded the case to the district court for an evidentiary hearing "to determine whether a juror's failure to disclose his felon status resulted in actual bias against the appellants." Id. at 637.

Mr. Bailey's dishonesty about his felon status and about his nine arrests and three misdemeanor convictions reflect his bias against Mr. Mathis. The circumstances of Mr. Bailey's numerous experiences with the criminal justice system and his lack of candor about those experiences, even in the face of direct questions, distinguish this case from United States v. North, 910 F.2d 843. In North, a juror failed to reveal during voir dire her brothers' experiences with the criminal justice system. One brother had pleaded guilty and had been sentenced to serve time in prison and the juror had testified before a grand jury investigating her other brother in connection with a robbery. The juror had not herself ever been arrested or convicted of a crime. The Court upheld the district court's determination that while the juror's dishonesty was significant, nothing about the circumstances of her brothers' arrests and convictions or about her testimony at the hearing led to the conclusion that she was biased against the defendant. Id. at 904-905.

In contrast, Mr. Bailey concealed his own history of arrests and convictions, not those of someone else. Mr. Bailey was not related to a felon; he was a felon. He did not observe someone else's experience with the criminal justice system from the sidelines; he was the subject of four criminal prosecutions and five aborted criminal prosecutions. In addition, Mr. Bailey's deception was more egregious than that of the juror in North. Mr. Bailey concealed his felony status on the Juror Qualification Questionnaire and then again during voir dire. Even though he was twice asked to reveal any arrests at any time, he consciously chose to reveal only one, and then to minimize it by giving the impression that it was a misdemeanor conviction.

Mr. Bailey's conduct is akin to the conduct of a juror in United States v. Scott, 854 F.2d 697 (5th Cir. 1988). In that case, a juror failed to disclose that his brother was a deputy sheriff. When the nondisclosure came to light post-trial, the juror explained that he had not disclosed the information because "he did not think that it would affect his judgment in the case." Id. at 698. Similarly, Mr. Bailey testified that he "didn't think [his arrests and convictions] was important" (1/22/93 at 30). The juror in Scott, like Mr. Bailey, "did not simply misunderstand the question asked . . . . [n]or did he simply forget the question . . ." or that it related to him. Id. at 699. "Rather, [he] consciously censored the information. He believed that it was his place, and not the place of the court or defense counsel, to determine whether his [status was] a bar to jury service in this case." Id. The Fifth Circuit held that the juror's relationship to a law enforcement officer and his explanation of his failure to reveal that relationship during voir dire required a new trial. Likewise, Mr. Bailey's status as a felon and his explanation about his failure to reveal that status, which "limps [as] badly" id., as the juror's explanation in Scott, requires reversal and a new trial.

In addition, Mr. Bailey's testimony that he was "grateful to God" that he was arrested and prosecuted for his crimes because the government's prosecution gave him "the opportunity to clean up" his life illustrates his bias (12/3/92A at 4-5). A juror who has been convicted of a felony and, as in Mr. Bailey's case, who has been arrested and convicted numerous times, may well want to show his rectitude by being sympathetic to the government. Indeed, Mr. Bailey's gratitude may have affected him in ways in which he was not even consciously aware. See Smith v. Phillips, 455 U.S. at 221-222 (1982) (O'Connor, J., concurring) (determining whether juror is biased is difficult in part because juror may be unaware of it).

Moreover, Mr. Bailey's particular experience as a reformed drug addict is extremely troublesome in the context of this case. The bank teller, Ms. Smikle, testified at trial that she had had a good opportunity to see the robber's eyes and that his eyes had been red (12/3/92 at 37, 42), leading to the commonplace inference that the robber had been under the influence of drugs. Because he was a former drug addict who felt "grateful" for his arrest and conviction, Mr. Bailey was unlikely to be impartial in a trial in which another defendant -- Mr. Mathis -- might also "benefit" from a criminal conviction.

Mr. Bailey's post hoc protestations to the contrary (1/22/93 at 34) are deserving of little weight. See Smith v. Phillips, 455 U.S. at 220 (O'Connor, J., concurring) ("juror may have an interest in concealing his own bias" and "[t]he problem may be compounded when a charge of bias arises from juror misconduct"). Mr. Bailey's protestations of impartiality are particularly suspect because he was dishonest not just once, but again and again. He concealed his felony conviction on the Juror Qualification Questionnaire, he concealed his nine arrests and felony conviction and misdemeanor convictions during voir dire, and he later deceived a second district court judge about those same matters. United States v. Boney, 977 F.2d at 642 (Randolph, J., dissenting) (doubting veracity of juror based on his status as felon and because he deceived court about this status).

Finally, Mr. Bailey's testimony that he did not desire to sit on the jury was patently incredible. Mr. Bailey testified that he had expected to be removed from the jury panel upon disclosing one misdemeanor conviction. Yet, of course, when he was not removed he did not then disclose the eight other arrests and three other convictions. "All other things being equal, the likelihood that a juror who conceals information is biased increases with the likelihood that disclosure of the information will lead to his disqualification. Because the disclosure of a felon status during trial leads to almost certain disqualification, concern about concealing that status is particularly appropriate." Id. at 634 n. 9.

Under these circumstances, the trial court's fine parsing of Mr. Bailey's testimony -- crediting his agreement with the prosecutor that he had not wanted to be seated on the jury and that he was not partial -- ignored the clear import of his testimony and was reversible error. Therefore, Mr. Mathis must be granted a new trial because he was denied his right to an impartial jury.

II. APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BY AN IMPARTIAL JURY BECAUSE MR. BAILEY WAS NOT A TRUSTWORTHY JUROR.

"The purpose of the jury system is to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair." Powers v. Ohio, 111 S.Ct. 1364 (1991). A "fair trial in a fair tribunal is a basic requirement of due process." Irvin v. Dowd, 366 U.S. 717, 722 (1961), quoting In re Murchison, 349 U.S. 133, 136 (1955). Thus, a criminal defendant is constitutionally entitled to impartial jurors, id., and to mentally competent jurors, United States v. Hall, 989 F.2d 711 (4th Cir. 1993). It is a small step further to conclude that the right to a fair trial before impartial, competent jurors also entitles a defendant to trustworthy jurors.

Congress expressed its concern with the probity of jurors in passing 28 U.S.C. 1865. See H.R.Rep. No. 1076, 90th Cong., 2d Sess 6 (1968) ("The bill also contains some guarantee of 'probity' at least to the extent that persons are disqualified who have charges pending against them for, or have been convicted of, a crime punishable by imprisonment for more than 1 year. . . [The bill] will eliminate virtually all of those who ought not to be allowed to serve on a jury -- the illiterate, the feebleminded, the insane, the decrepit, the infirm, the accused, and the criminal."); see also United States v. Hefner, 842 F.2d 731 (4th Cir.) (28 U.S.C. 1865(b)(5) was designed to ensure the "probity" of the jury), cert. denied, 488 U.S. 868 (1988); United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979) (same); United States v. Test, 550 F.2d 577, 594 (10th Cir. 1976) (same); United States v. Arnett, 342 F.Supp. 1255, 1261 (D.Mass. 1970) (same).

Courts also have expressed the view that the probity of jurors is of legitimate concern and of constitutional dimension. For example, in United States v. Greene, 995 F.2d 793 (8th Cir. 1993), the Eighth Circuit upheld the district court's finding that the exclusion of jurors charged with, but not convicted of, a felony "was rationally related to the purpose of trying to achieve a reputable and reliable jury . . . whose judgment society can respect." Id. at 796. The court held that there is a legitimate purpose in "assuring the unquestionable integrity of jurors. . . ," id. at 798, and "the exclusion from juror eligibility of persons charged with a felony is rationally related to the legitimate governmental purpose of guaranteeing the probity of the jurors." Id. at 795. See also United States v. Boney, 977 F.2d at 642 (Randolph, J., dissenting) ("felons are generally less trustworthy and responsible than others, and . . . they just cannot be counted on to be 'fair.'").

Mr. Bailey was not a trustworthy juror; first, because he was a convicted felon and, second, because he deceived the court again and again about his arrests and convictions. He ignored the district court's command during voir dire because he made his own judgment that his prior convictions were not important. And he gave grossly inconsistent explanations about his beliefs about his own criminal past. As Judge Randolph declared in his dissent in Boney, in which he concluded when a juror is seated in violation of 28 U.S.C. 1865(b)(5) because he concealed his status as a felon the verdict must be vacated,

the status of the juror as a felon plus the juror's deception of court and counsel during voir dire demonstrates that this individual could not be trusted to conform to the court's instructions and to discharge faithfully his duties as a juror.

Id. at 637 (Randolph, J., dissenting). Those words might well have been written about Mr. Bailey.

Mr. Bailey's untrustworthiness is additionally illustrated by his deception of the court and the parties in the face of a direct question. Again, Judge Randolph pointed out

[t]hat a felon has been unwilling to conform his conduct raises doubts about his capacity to honor the juror's oath, and to comply with the trial judge's instructions. These concerns intensify when, as occurred here, the felon deceived the court and counsel about his status on voir dire. Such a person simply cannot be trusted to perform faithfully the solemn duty of sitting in judgment of others.



Id. at 642. Because Mr. Bailey could not be trusted to be a fair and impartial juror, the trial court erred in denying Mr. Mathis a new trial. In short, "[t]he jury box is a holy place," United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976), and the presence of an untrustworthy juror -- Mr. Bailey -- in that holy place deprived Mr. Mathis of the fair and impartial jury to which he is entitled.

CONCLUSION

The district court abused its discretion by refusing to grant appellant's motion for a new trial. Appellant's conviction must be reversed and remanded for a new trial.

Respectfully submitted,



A.J. Kramer

Federal Public Defender



_______________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500



CERTIFICATE OF BRIEF LENGTH

I HEREBY CERTIFY that the foregoing brief for appellant, Manuel Mathis, does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.



____________________________________

Sandra G. Roland





CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant, and one copy of the Appendix for Appellant, have been delivered by first class mail to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001, this 20th day of December, 1993.

___________________________________ Sandra G. Roland









UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No. 93-3048

_________________________________________________________________



APPENDIX FOR DEFENDANT-APPELLANT

MANUEL JOHN MATHIS

_________________________________________________________________



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



MANUEL JOHN MATHIS, Defendant-Appellant.



_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________













A. J. Kramer

Federal Public Defender



Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500











District Court

Cr. No. 92-380



TABLE OF CONTENTS



INDICTMENT 1



TRANSCRIPT OF VOIR DIRE BEFORE JUDGE JOYCE HENS GREEN 2



TRANSCRIPT EXCERPTS OF PROCEEDINGS HELD ON JANUARY 22, 1993 7



JUROR QUALIFICATION QUESTIONNAIRE EXECUTED BY DAVID BAILEY 74



TRANSCRIPT OF VOIR DIRE BEFORE JUDGE NORMA HOLLOWAY JOHNSON 76



JUDGMENT IN UNITED STATES V. DAVID BAILEY, M-6832-78 85



JUDGMENT IN UNITED STATES V. DAVID BAILEY, M-10320-78 86



JUDGMENT IN UNITED STATES V. DAVID BAILEY, M-808-78 87



JUDGMENT IN UNITED STATES V. DAVID BAILEY, F-3390-85 88



INFORMATION IN UNITED STATES V. DAVID BAILEY, M-8025-79 89



CRIMINAL JACKET IN UNITED STATES V. DAVID BAILEY, M-13102-79 90



CRIMINAL JACKET IN UNITED STATES V. DAVID BAILEY, M-8288-79 92



CRIMINAL JACKET IN UNITED STATES V. DAVID BAILEY, M-6540-84 94



CRIMINAL JACKET IN UNITED STATES V. DAVID BAILEY, M-15045-84 97



JUDGMENT 103

1. Numbers preceded by "12/3/92A" refer to pages in the excerpted transcript of the voir dire held on December 3, 1992. The entire excerpt is included in the Appendix at pages 2-6.



Numbers preceded by "12/4/92" refer to pages in the transcript of the trial held on December 4, 1992.



Numbers preceded by "12/7/92" refer to pages in the transcript of the trial held on December 7, 1992.



Numbers preceded by "12/15/92" refer to pages in the excerpted transcript of the voir dire in United States v. Donald Nichols, the Honorable Judge Norma Holloway Johnson presiding, held on December 15, 1992. The entire excerpt is included in the Appendix at pages 76-84.



Numbers preceded by "1/22/93" refer to pages in the transcript of the post-trial hearing held on January 22, 1993. This entire transcript is included in the Appendix at pages 7-73

2. No photographs or videotapes of the robber were available because Ms. Smikle failed to activate the camera. Ms. Smikle testified that she did not activate the camera because she did not want to make any movement (12/4/92 at 36).

3. The government failed to introduce any evidence about how or where the exploded dye pack given by Ms. Smikle to the robber was recovered. Nevertheless, the dye pack (Government's Exhibit 8) was introduced into evidence. The serial number of one of the bills of currency from the "exploded" dye pack matched the serial number of the bill placed on a dye pack at Riggs Bank and assigned to teller Dahlia Smikle (12/4/92 at 106-107).

4. Mr. Bailey had incurred the following felony conviction and three misdemeanor convictions:



1. On August 2, 1978, Mr. Bailey was arrested and charged with two counts of sale of Dilaudid in M-6832-78. He entered a plea of guilty to one count of possession of Dilaudid and was sentenced on March 8, 1979, to 120 days imprisonment to run concurrently with his sentence in M-10320-78 (A. at 85).



2. On November 8, 1978, Mr. Bailey was arrested and charged with sale of Phenmetrazine in M-10320-78. He entered a plea of guilty to possession of Phenmetrazine and was sentenced on March 8, 1979, to 120 days to run consecutively with his sentence in M-6832-78 (A. at 86).



3. On January 31, 1978, Mr. Bailey was arrested and charged with possession of Dilaudid in M-808-78. After a trial by a jury, over which Judge Hannan presided, he was found to be guilty of possession of Dilaudid and was sentenced on May 23, 1979, to 270 days imprisonment (A. at 87).



4. On May 8, 1985, Mr. Bailey was arrested and charged with distribution of Dilaudid in F-3390-85. He entered a plea of guilty to distribution of Dilaudid and was sentenced on May 27, 1986 to a five year term of probation with mandatory drug treatment (A. at 88).



In addition, Mr. Bailey had incurred the following five arrests that did not result in conviction:



5. On August 7, 1979, Mr. Bailey was arrested and charged with sale of Dilaudid in M-8025-79. The charge was dismissed for want of prosecution on May 14, 1980 (A. at 89).



6. On August 12, 1979, Mr. Bailey was arrested in M-13102-79. The charge was "no papered" (A. at 90).



7. On August 14, 1979, Mr. Bailey was arrested on the charge of possession of Dilaudid in M-8288-79. The charge was "no papered" (A. at 92).



8. On May 22, 1984, Mr. Bailey was arrested and charged with possession of heroin in M-6540-84. The charge was dismissed for want of prosecution on January 23, 1985 (A. at 94).



9. On December 3, 1984, Mr. Bailey was arrested and charged with unlawful entry in M-15045-84. The charged was dismissed for want of prosecution of August 16, 1985 (A. at 97).

5. The district court appointed an attorney to represent Mr. Bailey. Mr. Bailey's attorney was present during the post-trial hearing (Tr. 1/22/93 at 2-3).

6. At least in the District of Columbia, Mr. Bailey has been arrested on nine occasions. See, supra, note 4.

7. All of Mr. Bailey's convictions involved narcotics violations. In response to the prosecutor's question, "Given that you were a drug addict, do you have a real clear recollection of your years in the fog of drug addition?", Mr. Bailey answered, "No, sir, I don't. You know, most of my time in drugs was real foggy" (1/22/93 at 31).

8. Because Mr. Bailey heard and understood the question asked by the court, and because he understood that it applied to him, the cases in which courts have analyzed inadvertent nondisclosure are inapposite. See, e.g., United States v. Brooks, 677 F.2d 907 (D.C. Cir. 1982); United States v. Fryar, 867 F.2d 850 (5th Cir. 1989) (juror failed to disclosure conviction for driving while intoxicated because his attorney had informed him that it was traffic violation rather than crime).

9. Additionally, less than two weeks after the trial in Mr. Mathis' case, Mr. Bailey admitted to Judge Norma Holloway Johnson during jury selection in another case that he knew that he had been convicted of a felony (12/15/92 at 8; A. at 83).

10. Justice O'Connor's concurring opinion in Smith v. Phillips expressed the view that in some situations, such as where the juror is an employee of the prosecuting attorney, or a close relative of a participant in the trial, or was a participant in the criminal transaction, a finding of implied bias would be justified. 455 U.S. at 220.

11. The court in Nell used the phraseology "presumed" bias to mean "situations in which the circumstances point so sharply to bias in a particular juror that even his own denials must be discounted . . . ." as distinct from "implied bias" -- bias as a matter of law -- which might include relationships such as those suggested by Justice O'Connor in Smith v. Phillips. Nell, 526 F.2d at 1229 n. 8.