In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2696

GILBERT R. ARREOLA,

Plaintiff-Appellant,

v.

MOHAMMED CHOUDRY, M.D.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 2854—Matthew F. Kennelly, Judge.

____________

ARGUED JANUARY 25, 2008—DECIDED JULY 14, 2008

____________

Before BAUER, WOOD and EVANS, Circuit Judges.

BAUER, Circuit Judge. Gilbert Arreola brought this

action under 42 U.S.C. § 1983, alleging that prison doctor

Mohammed Choudry’s treatment of his injured ankle

constituted a deliberate indifference to a medical need

in violation of the Eighth Amendment. Following a twoday trial, a jury found in favor of Dr. Choudry. Arreola

moved for a new trial, arguing that conversations between his lawyer and various jury members after the

verdict revealed that the foreperson was biased. The

district court denied the motion. Arreola challenges the

refusal to grant a new trial, arguing that his due process
2 No. 07-2696

1 Arreola has filed a separate, unrelated interlocutory appeal

challenging the Crutch Policy of Cook County Department of

Corrections, No. 07-1700, which is currently pending before

this court. 

rights were violated and the court misapplied the standard for evaluating juror bias set forth in McDonough Power

Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104

S.Ct. 845, 78 L.Ed.2d 663 (1984).1

 For the following reasons, we affirm.

I. BACKGROUND

In 2003, Arreola, a prisoner at Hill Correctional Center,

injured his ankle during a soccer match and was taken to

the prison infirmary for treatment. Dr. Choudry examined him and found no bone tenderness. Based on

Arreola’s symptoms, Dr. Choudry diagnosed him with a

sprained ankle, ordered him back to his cell, and scheduled a follow-up visit in seven to ten days. Days later,

Arreola was transferred to Cook County Jail, where

another doctor took an x-ray of his ankle and determined

that Arreola had a broken ankle. Arreola brought this

suit, alleging that Dr. Choudry failed to conduct a proper

examination of his ankle to determine the nature of the

injury. The central issue at trial was whether Dr. Choudry’s

treatment of Arreola’s ankle constituted deliberate indifference to Arreola’s serious medical needs.

The jury voir dire process began with each prospective

juror’s completion of a written questionnaire. Question 19

asked: “Have you or any family member ever had a broken

or severely sprained ankle, foot, or leg?” Juror Laterza,

who was later elected foreperson, answered “no.” Fourteen
No. 07-2696 3

prospective jurors answered this question affirmatively,

and Judge Kennelly conducted a series of follow-up

questions to clarify the extent of the injuries and whether

there had been any problems with the medical treatment.

Arreola challenged two jurors for cause, based on their

personal experiences with ankle sprains suffered by family

members. Judge Kennelly questioned them further by

asking whether they would be able to put aside those

experiences; both replied they could and Arreola withdrew his challenge to these jurors. Judge Kennelly seated

twelve jurors, six of whom had answered affirmatively to

the question involving ankle injuries.

The jury returned a verdict in favor of Dr. Choudry; later

Judge Kennelly permitted both parties to speak to the

jurors. Arreola’s counsel filed a Motion for New Trial,

supported by her own affidavit recounting her conversations with the jurors. The affidavit stated that Juror

Laterza, who answered “no” to Question 19, told Arreola’s

counsel that she had once suffered a bad ankle sprain, and

that based on this experience, she had no problem believing that Dr. Choudry could press on Arreola’s ankle

without finding tenderness. Counsel also stated that

information she obtained from another juror during the

post-trial interview indicated that the jury had given

weight to Laterza’s experience during deliberations.

Judge Kennelly made further inquiry and arranged for

Laterza to be available by telephone. He requested that

both parties submit questions to ask Laterza. Arreola’s

questions included: Did you see a doctor regarding your

ankle sprain? Did you compare the actions taken by

your doctor regarding your ankle sprain with the actions

taken by Dr. Choudry regarding Arreola’s ankle injury?

Did you discuss this comparison with the other jurors? Did
4 No. 07-2696

you disclose your sprained ankle on your Juror Questionnaire form, and if not, why? Judge Kennelly rejected these

questions, particularly those involving juror deliberations, commenting that the conversation would “be done

in a way that does not do anything that in the least bit

will deter any person from wanting to serve on a jury.”

Judge Kennelly placed the call to Laterza with both

parties’ counsel and a court reporter present. He began the

conversation by asking Laterza whether she had told

Arreola’s counsel after trial that she had suffered a

sprained ankle, and Laterza responded, “You know

what? I did.” The following discussion then took place:

Judge: Was it a sprain that you regard as a severe

sprain?

Laterza: It hurt to walk. Oh, my gosh, yes, I did.

Judge: So when you answered “no”on that particular question—In other words, the question

didn’t say whether you had a sprained ankle.

It said: Have you had a severely sprained

ankle? Would you have regarded it as a

severe sprain?

Laterza: Well, I still went on vacation. I mean, it

was—I mean, I still worked and I still went

on—I had plans. I went on a cruise, and I

went on the vacation. I mean, I did the tours

and everything.

Judge: How long after the sprain did you do that?

Laterza: Oh, immediately. It was like—I think I had to

work the next day and then I was leaving

that Saturday.
No. 07-2696 5

Judge: So you didn’t miss any work, in other words?

Laterza: No.

Judge: And then you went right on vacation within

a day or two after?

Laterza: Right.

Judge: I mean, if I were to ask you today, have you

ever had a—the wording is important here—

have you ever had a severely sprained ankle,

how would you answer that; yes or no?

Laterza: Okay, but what degree now are you talking

severe?

Judge: Actually that is a really darned good question, and I guess the answer is—

Laterza: It hurt.

Judge: It would be a question of whether you regarded it as severe. So did you have—would

you regard the sprained ankle you had as a

severe sprain?

Laterza: No.

Judge: Okay. And when you answered the question

on the questionnaire “no,” were you trying

to conceal or hide anything or anything like

that?

Laterza: No. You know what? I forgot about it.

Judge: All right. But even now, you would not

regard this—because of the way it was, you

would not have regarded it as a severe

sprain; is that a fair characterization?
6 No. 07-2696

Laterza: Well, severe being that, okay, it hurt—

Judge: Yes.

Laterza: —but I still functioned.

Judge: Okay. So, in other words, if I were to ask you

right now, do you regard that as having been

a sprain that you would characterize as a

severe sprain, would you say it was severe or

it wasn’t severe?

Laterza: I would have to say no because I was able to

walk.

Judge Kennelly ended the conversation, and subsequently denied the motion for new trial in a written

order, concluding that, under McDonough, Laterza was not

dishonest because (1) she had not recalled the injury at

the time she filled out the questionnaire, and (2) Arreola

failed to even prove that Laterza’s answer was incorrect

because she affirmed that she would not have regarded

it as a severe sprain that would have called for an affirmative answer on the questionnaire.

II. ANALYSIS

We review a decision to deny a motion for a new trial

based on juror bias for an abuse of discretion. Artis v.

Hitachi Zosen Clearing Inc., 967 F.2d 1132, 1141 (7th Cir.

1992). “[T]here are ‘compelling institutional considerations militating’ in favor of appellate deference to the trial

judge’s evaluation of the significance of possible juror

bias.” United States v. Medina, 430 F.3d 869, 875 (7th Cir.

2005) (citation omitted); United States v. Sanders, 962 F.2d

660, 673 (7th Cir. 1992) (“The trial judge will always be

in a better position than the appellate judges to assess
No. 07-2696 7

the probable reactions of jurors in a case over which he

has presided.”) (citation omitted). The Fifth and Sixth

Amendments guarantee due process of law and trial by

an impartial jury. United States v. Brodnicki, 516 F.3d 570,

574 (7th Cir. 2008). Trial courts have wide discretion in

deciding a motion for a new trial. United States v.

McClinton, 135 F.3d 1178, 1186 (7th Cir. 1998).

Arreola first contends that he must be retried because

the “truncated” juror bias hearing in Judge Kennelly’s

chambers violated his procedural due process rights.

Arreola argues that as soon as Judge Kennelly determined

that a hearing was necessary, he was entitled to a meaningful hearing. Specifically, he argues that Laterza was not

sworn in, he did not have an opportunity to cross-examine

Laterza or call witnesses, and thus, the proceeding failed

to provide him with a meaningful opportunity to be heard.

Due process does not require a new trial every time

jurors have been placed in a potentially compromising

situation. Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 78

L.Ed.2d 267 (1983); McClinton, 135 F.3d at 1186. “[D]ue

process means a jury capable and willing to decide the

case solely on the evidence before it, and a trial judge

ever watchful to prevent prejudicial occurrences and to

determine the effect of such occurrences when they

happen.” Oswald v. Bertrand, 374 F.3d 475, 478 (7th Cir.

2004) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct.

940, 71 L.Ed.2d 78 (1982)). The nature of the hearing, in

which all interested parties are permitted to participate,

to some extent should include a determination by the trial

judge of the circumstances, the impact of those circumstances on the jury, and whether or not the result of those

circumstances prejudiced the verdict. Smith, 455 U.S. at

215, 102 S.Ct. 940.
8 No. 07-2696

Arreola’s claims seek to expand present due process

protections in situations involving post-verdict allegations

of pre-existing juror bias. This Circuit has held that

while due process may require some sort of hearing to

determine whether extraneous contacts may have affected a jury’s ability to be fair, the standard applies

only to prejudicial extraneous contacts, and not to preexisting juror bias. McClinton, 135 F.3d at 1186 (emphasis

added); Artis, 967 F.2d at 1141. In the due process context, the tool for examining an intrinsic influence like

juror bias is voir dire. McClinton, 135 F.3d at 1186. Other

circuits have drawn similar distinctions. See United States

v. Connolly, 341 F.3d 16, 34-35 (1st Cir. 2003) (holding

that a juror’s notes are an intrinsic influence on a jury’s

verdict, thus an evidentiary hearing is not required);

United States v. Sotelo, 97 F.3d 782, 796 (5th Cir. 1996)

(holding that trial courts are afforded broader discretion

in dealing with intrinsic influences due to jury misconduct than it has afforded in cases of extrinsic influences);

United States v. Bassler, 651 F.2d 600, 602 (8th Cir. 1981)

(holding that a distinction may be drawn between extrinsic influences, such as publicity, consideration of

matters not admitted into evidence, communications

between a juror and an outside person, and intrinsic

influences, such as a juror’s notes, discussions or intimidation among jurors) (citing United States v. Winters, 434

F.Supp. 1181, 1186 (N.D. Ind. 1977), aff’d 582 F.2d 1152 (7th

Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 50 L.Ed.2d

332 (1978)).

Laterza’s prior experience with an ankle injury constitutes an intrinsic influence that does not require an evidentiary hearing, let alone a new trial. See Marquez v. City

of Albuquerque, 399 F.3d 1216, 1223 (10th Cir. 2005)
No. 07-2696 9

(“[A] juror’s personal experience does not constitute

extraneous prejudicial information.”); Peterson v. Wilson,

141 F.3d 573, 577-78 (5th Cir. 1998) (holding that juror

discussion of personal past experience is not “extrinsic”

evidence that requires a new trial). Moreover, jurors are

expected to bring commonly known facts and their experiences to bear in arriving at their verdict. “We cannot

expunge from jury deliberations the subjective opinions

of jurors, their attitudinal expositions, or their philosophies. These involve the very human elements that constitute one of the strengths of our jury system.” Shillcutt v.

Gagnon, 827 F.2d 1155, 1159 (7th Cir. 1987) (internal quotations omitted). Although jurors may not go beyond

the record to develop their own evidence, they are entitled to evaluate the evidence presented at trial in light

of their own experience. United States v. O’Brien, 14 F.3d

703, 708 (1st Cir. 1994) (“[I]n gauging witness credibility

and choosing from among competing inferences, jurors

are entitled to take full advantage of their collective

experience and common sense.”).

We find Judge Kennelly conducted a post-verdict voir dire

to investigate pre-existing juror bias that satisfied due

process. He made the inquiry into the allegation of

bias in a direct and conscientious manner, keeping in

mind that the integrity of jury proceedings must not be

jeopardized by unauthorized invasions. Remmer v. United

States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954);

United States v. Vitale, 459 F.3d 190, 197 (2d Cir. 2006)

(instructing that district courts should be reluctant “to haul

jurors in after they have reached a verdict in order to

probe for potential instances of bias, misconduct or extraneous influences.”). Any further inquiry into Laterza’s (or

any other juror’s) thought processes throughout jury
10 No. 07-2696

2 Federal Rule of Evidence 606(b) states: “Upon an inquiry into

the validity of a verdict or indictment, a juror may not testify as

to any matter or statement occurring during the course of the

jury’s deliberations or to the effect of anything upon that or any

other juror’s mind or emotions as influencing the juror to assent

to or dissent from the verdict or indictment or concerning

the juror’s mental processes in connection therewith. But a

juror may testify about (1) whether extraneous prejudicial

information was improperly brought to the jury’s attention,

(2) whether any outside influence was improperly brought to

bear upon any juror, or (3) whether there was a mistake in

entering the verdict onto the verdict form. A juror’s affidavit or

evidence of any statement by the juror may not be received on

a matter about which the juror would be precluded from

testifying.”

deliberations would have violated Fed. R. Evid. 606(b),2

which severely restricts post-trial inquiry into a verdict.

United States v. Tanner, 483 U.S. 107, 117, 107 S.Ct. 2739, 97

L.Ed.2d 90 (1987); United States v. Briggs, 291 F.3d 958, 963-

64 (7th Cir. 2002) (holding that post-verdict allegations of

juror intimidation during the deliberative process were

not extraneous prejudicial information or an outside

influence, thus under Rule 606(b) neither a hearing nor

a new trial was warranted); United States v. Muthana, 60

F.3d 1217, 1223 (7th Cir. 1995) (“Juror testimony regarding the jury’s deliberations is not admissible to

impeach the verdict unless an extraneous influence was

alleged to have affected the jury.”).

Judge Kennelly properly treated the allegation as an

“internal matter,” thus keeping the integrity of the jury’s

deliberations intact. The post-trial interview, in which

he determined that Laterza was honest and forthright

about her response to Question 19, did not provide him
No. 07-2696 11

with any reason to conduct further inquiry into the

matter. See United States v. Calbas, 821 F.2d 887, 896 (2d

Cir. 1987) (holding that the trial court “wisely refrained

from allowing the inquiry to become an adversarial

evidentiary hearing, so as to minimize intrusion on the

jury’s deliberations.”). Judge Kennelly was under no

obligation to ask the specific questions posed by Arreola

during the post-verdict voir dire for potential bias, particularly when those questions (as Judge Kennelly noted)

would violate Rule 606(b). See id. at 897 (holding that

counsel’s more active participation in the post-verdict

voir dire was not necessary; it was enough that the court

permitted counsel to submit proposed questions in advance); see also United States v. Meader, 118 F.3d 876, 878-

81 (1st Cir. 1997) (holding that the court has no obligation to ask counsel’s specific questions while conducting

a post-verdict voir dire of a juror for potential bias).

Arreola also argues that he is entitled to a new trial

because Laterza did not give an honest answer on the voir

dire questionnaire, contending that Laterza heard other

jurors relate previous ankle injuries during voir dire, but

remained silent as to her injury. He also believes that

Judge Kennelly misapplied the McDonough test because a

correct response by Laterza to Question 19 would have

provided a valid basis for a challenge for cause under

McDonough. In order to obtain a new trial on this basis, a

party must show “that a juror failed to answer honestly a

material question on voir dire,” and, if successful, then

must demonstrate that “a correct response would have

provided a valid basis for a challenge for cause.” Medina,

430 F.3d at 875 (citing McDonough, 464 U.S. at 556, 104 S.Ct.

845). We review the district court’s conclusion that

Arreola failed to show that Laterza’s answer to the voir
12 No. 07-2696

3 Judge Kennelly seemed to agree as to the subjective nature

of a “severe” injury, noting during the post-trial voir dire that

Laterza’s inquiry about the degree of severity was “a really

darned good question.”

dire question was not honest for an abuse of discretion.

United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989).

Throughout the pre-trial voir dire, other jurors related

incidents in the past in which they or a family member

injured an ankle. Presumably Laterza heard their answers,

but this does not make her a dishonest person. Question 19,

as it is worded, is partially subjective, in that it requires

the juror to decide whether a previous ankle injury was

a “severe” sprain, or simply a slight injury.3

 One

woman’s severe ankle injury could be another woman’s

tolerable ankle discomfort. Had she remembered her

ankle injury during the pre-trial voir dire, Laterza still could

have honestly answered “no” to Question 19 if, in her

judgment, the sprain was not severe. While Laterza

stated that the injury “hurt a lot,” she was still able to go

to work the next day and leave for vacation the following day. Judge Kennelly found that at the time she

filled out the voir dire questionnaire, she did not recall

the injury, but nonetheless affirmed that she would not

have regarded it as a severe sprain that would have

called for an affirmative answer to Question 19. To invalidate the result of Arreola’s trial “because of a juror’s

mistaken, though honest, response to a question, is to

insist on something closer to perfection than our judicial

system can be expected to give.” McDonough, 464 U.S. at

556, 104 S.Ct. 845. Judge Kennelly did not abuse his

discretion in denying the motion for new trial.

Judge Kennelly declined to address the second prong of

the McDonough test, as do we, because Laterza was not
No. 07-2696 13

dishonest in her answers at voir dire. We note, however,

that given there were six members of the seated jury

that answered “yes” to Question 19, and Arreola withdrew his challenge for cause for two potential jurors

with prior experiences with ankle injuries, after they

assured the court they would be able to remain impartial,

the court presumably would not have granted a challenge for cause if these facts about Laterza’s injury came

out during the pre-trial voir dire. See Zerka v. Green, 49 F.3d

1181, 1187 (6th Cir. 1995) (holding that, in an excessive

force action, despite voir dire admissions by several

jurors that they had relationships with police officers,

plaintiff’s counsel never challenged any of them for

cause, thus failing to meet the second prong of the

McDonough test).

III. CONCLUSION

Arreola was afforded due process protection that he

was entitled to and received a fair trial by an impartial

jury. Accordingly the district court’s denial of Arreola’s

motion for new trial is AFFIRMED.

USCA-02-C-0072—7-14-08