United States v. Brooks, ___F.3d ___, 2009 WL 1862529 (10th Cir. 2009)
Tenth Circuit upholds denial of evidentiary hearing on issue of juror bias, and finds no plain error at Defendant’s initial appearance for alleged failure to advise him of all his rights.
District court did not abuse discretion in finding no actual bias and no extraordinary circumstances. Defendant’s ultimate bid was for a new trial if he could show bias. A juror who Defendant said he had met and that his sister(who was on witness list), knew, had answered during voir dire that she did not know Defendant or any witnesses. The sister owed this juror money. Tenth Circuit said there was no evidence that this juror knew Defendant, who had been in her presence only 5 or 6 times over a six year period, ending 2 years before trial. Defendant did not recognize the juror. The sister’s first name was wrong on the witness list read during voir dire. Defendant failed to state how a hearing would help him elicit more facts, or be useful and necessary in exposing actual or implied bias.
District court did not err in failing to tell Defendant of his right to a Rule 5(d) preliminary hearing at his initial appearance–he had been indicted before his initial and had no right to a prelim. There was error in not informing Defendant of right not to make a statement but it was not plain because Defendant exercised right to remain silent.