### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No s. 21-2874, 21-3056 & 21-3382
U NITED S TATES OF A MERICA , Plaintiff-Appell ee ,

v.

D ERRICK G RANGER , C LIFFORD R. K ING J R ., and E RIC W ALKER , Defendants-Appellants

.

____________________ Appeal s from the United States District Court for the Southern District of Indiana
, Indianapolis Division. No. 1:20

- cr

- 00097

- JRS

- DLP — James R. Sweeney II
, Judge

.

____________________
A RGUED F EBRUARY 15, 2023

— D ECIDED J UNE 9, 2023

____________________

Before E ASTERBROOK

, W OOD , and L EE , Circuit Judges

. E ASTERBROOK

, Circuit Judge

. A jury convicted Derrick Granger, Clifford King, and Eric Walker of conspiring to distribute heroin and methamphetamine in and around Indianapolis, Indiana. The jury also convicted them of some firearms offenses. The judge sentenced Granger and King to 360 months’ imprisonment and Walker to 330 months. They present seven issues on appeal. Five of these do not require2 Nos. 21

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- 3056 & 21

- 3382

discussion , beyond saying that we agree wi th how the district judge handled them . We address the other two in this opinion. Defendants’ principal argument is that the court should have struck Juror 70 for cause. He was subject to voir dire examination after all three defendants had exhausted their peremptory challenges. The judge asked a group of potential jurors whether any of them thought that a law enforcement officer’s testimony should receive extra weight. Juror 70 raised his hand. The judge asked w h at “greater weight” meant to him, and he rep lied:
Well, being a retired police officer with 30 years of service, the vast majority of police officers in my experience take their oath very, very seriously; and I can’t think of too many times or any times actually in my entire career where I have seen or heard of evidence being presented by a police officer that wasn’t the straight

up truth. So yes, police officers lie. We’ve all seen coverage of those kind of things; but in the day

- to

- day actions, the vast majority of them take their, as I said, oath very, very seriously; and I’m inclined to give them the benefit of the doubt if they say something. Juror 70 added that he evaluated honesty on the “totality of the circumstances and the evidence”
, and if that evidence contradicted a person’s statements th en “that person is not being honest.” He allowed that factual mistakes “happen[] to everybody, including police officers, especially in quick

- time

frame type of situations”

. Indeed , Juror 70 said that he had “done it myself.” This followed:

THE COURT: ... [S]o the question is, can you listen to the testimony here, judge each witness by their testimony, how they present themselves, how it aligns with the other evidence, so on and so forth?Nos. 21

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JUROR 70: Yes, because I think the truth is the most importa nt thing here. THE COURT: So you can do that with an open mind?
JUROR 70: Yes, sir. Defendants asked the judge to strike Juror 70 for cause. Before ruling, the judge asked some additional questions:
THE COURT: I think you said to me that you can afford these defendants their presumption of innocence; is that right?
JUROR 70: Yes, sir. THE COURT: And you can judge each witness by their testimony?JUROR 70: I have had a lot of experience with witnesses and informants and their credibility ranges. So you just have to just takeit as face value and make the best decision you can as to their credibility.

THE COURT: What does that mean? JUROR 70: You have the full spectrum of people being straight up honest, and you have some that couldn’t tell the truth if you were dangling them over the edge of a cliff. So you have to just judge what they’re saying and whether it meets the logic test and if it backs up what other people are saying and what evidence says. Basically, what I’m saying is there’s no presumpt ion with any of them. You’ve got to approach each one with a completely open mind because you’ll get a full range there. Defense counsel asked Juror 70 whether he would give greater weight to testimony by police officers. This ensued:
JUROR 70: I would lik e to believe I’m fair and take everything at face value; but I mean, it’s what I’ve done for over 30 years, and I’m still involved in an ancillary role as a rider. So I would say that police officers

— I look at them as coming in veaed already. The guys and gals that aren’t doing a good job generally get taken care of preay quickly.4 Nos. 21

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And again, I go back to it’s an oath and it’s a calling. So I have to look at it from that regard, whereas other people testifying, they’re a witness or a victim or whatever. So they have maybe a liale different motivation. So again, the overarching thing here is I want to be fair and honest; but being completely and uaerly honest, it’s hard to disassociate myself from what I did for a long, long time.
Defense counsel asked one more question:
[QUESTION]: So I mean, you know, you can’t put your experience and training aside. We all get that. So is it fair to say you would probably be more inclined to believe a police officer than you would be a civilian witness who you know nothi ng about? JUROR 70: Well, if you want an honest answer, yes, sir.The judge then denied the motion to disqualify Juror 70, remarking that he had promised to keep an open mind when evaluating all witnesses’ testimony. The judge observed that he understood J uror 70’s use of the word “vefed” to mean that officers are subject to background checks, not that police officers take tests to ensure that they invariably tell the truth

. The judge summed up: “I think that he has been honest and has said that he will be fair.” Appellants ask us to discard the district judge’s conclusion and make an independent (“de novo”) decision about Juror70’s suitability. Our decisions say, to the contrary, that deferential review is appropriate. See, e.g., Thompson v. Altheimer & G ray , 248 F.3d 621, 624

– 25 (7th Cir. 2001). T hat approach is wise. The district judge can hear the prospective juror’s toneof voice, which can help make a reliable assessment of honesty. A transcript lacks that information. The district judge can see the p rospective juror’s facial expressions and bodylanguage. These, too, are valuable when assessing how a person will behave, but they are missing from the appellateNos. 21

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record. A court of appeals could not do befer than a district judge in evaluating whether a prospective juror not only promises to keep an open mind but also is likely to keep thatpromise. Some people may think they will keep such a promise but are fooling themselves. The cues available during a live colloquy may help separate those who will kee p the promise from those who can’t or won’t. The perspective available on a wrifen record is less helpful in making that decision.Appellants have a separate legal argument: that a prospective juror’s assurances must be the last thing he says . They
recogn ize that Juror 70 made an unequivocal promise to evaluate all testimony appropriately, but they observe that this was not his final word. Instead, while answering a questionfrom defense counsel, Juror 70 conceded that he would be inclined to give more wei ght to a police officer’s testimony than to that of a witness he knew “ nothing about.” That was his final word (no one asked h i m any more questions) and, appellants insist, falls short of the necessary assurance. Some language in Thompson could be read to imply a last

in

- time requirement for evaluating the statements of a prospective juror. The opinion mentions that the “last thing” a prospective juror mentioned was that an issue may cloud her judgment. 248 F.3d at 626. It observed that the judge should hav e followed up but didn’t, and that if the prospective juror had “finally given unequivocal assurances” the judge would have been entitled to credit them. Ibid . But these passages do not announce (or even consider) a last

- in

- time rule; they are instead desc riptions of what happened. Other decisions consider everything the prospective juror said, without any suggestion that only the final statement mafers. See, e.g., Griffin v. Bell , 694 F.3d 817 , 823

– 24 (7th Cir. 2012)

. Wesley v. Pfister
,6 Nos. 21

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659 Fed. App’x 360, 363 (7th Cir. 2016), deems the holistic approach so well established that it resolves a contest in a nonprecedential order, observing that a prospective juror’s “expression of doubt” in response to defense counsel’s questioning did not require h er exclusion when “[s]he had previously answered unequivocally to the court’s questions that she understood that the case of her relative’s murder had nothing to do with [defendant].” That’s the same sort of sequence that happened in today’s proceeding.

It is not appropriate to read descriptive language in Thompson as establishing a per se final

- answer rule. The norm in this circuit has been, and remains, that a district judge maytake into account everything a potential juror says when deciding whether tha t person can be impartial. We do not see any clearly erroneous factual finding or abuse of discretion in the district judge’s resolution of these defendants’ objectionsto the seating of Juror 70. This was undoubtedly a closely balanced situation; other ju dges might have granted the request to remove Juror 70 for cause, given the equivocation in severalof his statements. But Juror 70 also recited the correct standard, and the district judge was entitled to find that he possessed enough self

- awareness and h onesty to carry out his promises. The only other argument we need consider concerns the propriety of Walker’s sentence. The district judge deemed him accountable, under the relevant

- conduct Guideline, for all drugs that the conspiracy as a whole distribute d during Walker’s time as a participant. Guideline 1B1.3(a)(1)(B) provides that
, for jointly undertaken criminal activity, each participant is accountable for “ all acts and omissions of others that were

— (i) within the scope of the jointly undertakenNos. 21

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crimin al activity, (ii) in furtherance of that criminal activity,and (iii) reasonably foreseeable in connection with that criminal activity ”. The district judge made findings (i) and (ii) butnot finding (iii). He did not address what conduct was “reasonably fo reseeable” to Walker. That omission requires a remand for resentencing.The judgments of conviction are affirmed, as are the sentences of Granger and King. Walker’s sentence is vacated, and the case is remanded for further proceedings consistent with this opinion.