Prospective Juror Number 30 first filled out a 69-question form, which included four inquiries about her commitment to impartiality. During the following voir dire, she said “…it would be difficult to look at charges involving minors without being biased ”and that she”…probably . . . wouldn’t be a good juror.” However, she repeatedly answered that she would “try best” to be impartial.”

This exchange and a similar one with Juror Number 17 were the grounds for an appeal after defendant Albert Pinedo, 78, was found guilty of one count of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b), which makes it a crime “to induce or attempt to induce a minor to engage in illegal sexual activity.” Pinedo had posted a query on Craigslist about a proposed sexual encounter. The posting said, “I am a retired senior looking for casual contact with young men.” Unbeknownst to him, the person who answered the ad was a Special Agent named Paul Radlinski who was posing as a 14-year-old boy named “Robby.”

When Pinedo showed up for his encounter, he was arrested by law enforcement personnel who took pictures of Pinedo and the “sex toys and lubricant” he brought to the encounter. In March 2020, Pinedo was indicted on one count of “attempted enticement of a minor to engage in oral copulation and lewd and lascivious acts with a child” in violation of California Penal Code §287 (b )(2) and 288 (c)(1) as well as the US Code Section cited above. He was convicted and sentenced to ten years in prison and an additional five years of supervised release. He appealed to the United States District Court for the Central District of California, where Presiding Judge George H. Wu affirmed his conviction.

Pinedo again appealed to the Ninth Circuit, where his case was heard by a three-justice panel that decided by a vote of 2-1 to affirm Wu’s ruling on May 7. The unpublished memorandum opinion was authored by Circuit Justices Consuelo Callahan and Gary S. Katzmann (sitting by designation), with a dissent by Justice Mark J. Bennett.

At the district court, Pinedo had argued that both Jurors 17 and 30, whom he had challenged for cause, had repeatedly voiced actual biases, and neither had “unequivocally stated they could be fair and impartial as required by the Sixth Amendment of the U.S. Constitution.” The Ninth Circuit opinion noted that Pinedo’s trial was one of the first to take place after the COVID-19 pandemic, and as a result, jury selection proceeded “differently than usual.” After completing their questionnaires, the prospective jurors were called into a courtroom where they individually had to answer questions while standing at a lectern before district court members, the defendant and his counsel.

The Ninth Circuit affirmed that the district court did not abuse its discretion when it empaneled Juror Number 17, although he had stated on his written questionnaire that the subject matter was “disturbing” for a “father of two young children.” He nonetheless answered voir dire questions three times by stating he would be “impartial.” He also said that he “would like to think he could put personal feelings aside and that “as a citizen of this country, I would do my best to be as impartial as I can be.”

The Ninth Circuit wrote that “Those statements clear the threshold set by our precedent,” which referred to United States v. Gonzalez, 214 F.3d 1109, that said rulings on actual bias are to be reviewed for “manifest error or abuse of discretion” and noted that “the deference due to district courts is at its pinnacle.”

The opinion then turned to Juror No. 30 about whom the Ninth Circuit also found no abuse of discretion. The justices confirmed that she made some “equivocal statements during voir dire. After repeating her statements about how difficult it would be to “look at charges involving minors without being biased and that she “…probably . . . wouldn’t be a good juror,” the justices also pointed out that she repeatedly said she “would try her best to be impartial” and she continued to be honest during voir dire when she “faced tough questions from the prosecution, defense, and district court, as if being cross-examined.”

Callahan and Katzmann then cited precedent that says, “Equivocal statements, by themselves, do not satisfy the Sixth Amendment,” while repeating that both Jurors 17 and 30 had made unequivocal commitments to impartiality on their written juror questionnaires. They continued by stating, “The Sixth Amendment right to an impartial jury is inviolable….and the presence of even one biased juror cannot be harmless.” But they also pointed to precedents that hold “jury selection is particularly within the province of the trial judge.” They concluded that the decision to empanel Juror Number 30 “was not an abuse of discretion.”

Pinedo’s next argument on appeal concerned his request to exclude the testimony of Detective Wayne Nichols, the Government’s expert witness on internet crimes against children and related investigations. He claimed that Nichols' testimony “improperly bolstered the testimony of Radlinski,” the officer who had posed as “Robby.” Once again, the Ninth Circuit said that the court did not abuse its discretion when it admitted the expert testimony because he had “specialized knowledge on the modus operandi of online pedophiles and on the law enforcement investigations of internet crimes against children.”

The defendant’s next challenge disputed the court’s decision to allow exhibits of sex toys and lubricants into evidence. The court again denied that this was an abuse of discretion because they were not challenged at trial and because admitting those items would have been “harmless error.”

Pinedo’s final challenge centered on whether the “wet sidewalk” example of circumstantial evidence should have been made by the district court. This comparison explains that if someone wakes up in the morning and finds the sidewalks are wet, it may be proper to assume it rained during the night. The Ninth Circuit ruled that the instruction says a juror “may” find it rained, but does not preclude other explanations. Also, any ambiguity in the instruction would have been harmless.

Bennett’s dissent said Juror 30 should not have been empaneled because of her “unambiguous bias” that violated Pinedo’s Sixth Amendment rights. He thought Pinedo should get a new trial. He won’t.

This case demonstrates the difficulty of determining whether pledges of impartiality under oath should be judged with skepticism or suspicion. Most likely, it will not be the only case to do so in the future.