### Th e HONORABLE JIMM LARRY HENDREN, United States Distric t 1 

### Judge for the Western District of Arkansas.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3492

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Phillip Eugene Parmley, * * [PUBLISHED] Appellant. *

___________ Submitted: February 7, 1997 Filed: March 17, 1997

___________ Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

___________ PER CURIAM. Phillip Eugene Parmley appeals after a jury convicted him of bein g a felon inpossession of a firearm. He contends that the district court 1 erred in refusing to strike the jury panel because eighteen members ha d participated in the voir dire, but had not serve d as jurors, at an earlier trial of the same offense which ended in a mistrial for lack of a unanimou s verdict. We affirm.
Prior to the second trial, the district court denied Parmley's motion to quash the jury panel. At the start of voir d ire, the court advised the prospective jurors that Parmley's previous trial for this offense had ende d in a mistrial. The court explained:

### Parmley did not peremptorily strike Norton from the jury and 2 

### does not separately challenge the district court’s decision not to strike Norton for cause. -2- "There was no conviction, there was no acquittal. So in the eyes of the law, it simply did not happen." Noting that som e panel members might have part icipated in the earlier voir dire, the court admonished that th e previous trial "has n othing whatever to do with our activities today" and asked whether any prospective juror would be prejudiced for or agains t Parmley because of the earlier mistrial. No one responded.
Later in the voir dire, one panel me mber, Camila Norton, advised the court outside the hea ring of the others that she had a brief conversation with a juror from the first trial during another phase of their jur y service. That juror told Norton that the jury could not reach a decision
even though the juror thought Parmley should have been convicted. After Norton gave assurances (i) that she could accept the fact that the prior mistrial "doesn't mean anything one way or the other," and (ii) that she would not be influenced by her conversation with the prior juror, the cour t denied Parmley's motion to strike Norton for cause. It later denied a motion to strike for cause all panel members who had participated in the earlier voir dire. S ix of those panel members served on the second jury, including Norton. 2

On app eal Parmley argues only that the district court erred i n denying his motion to quash the entire jury panel. Conducting voir dire and striking jurors for cause are matters committed to the district court' s discretion

. "[T]he mere selection of jurors from panels who may hav e previously participated in voir dire, even in a similar case, is not error , unless actual bias is shown." United States v. Dion , 762 F.2d 674, 69 3 (8th Cir. 1985), rev'd on other

### Contraryto the dissent's intimation, the record reflect s 3 

### that prospective juror Norton's brief conversation with a juror -3- grounds , 476 U.S. 734 (1986). When the issue is , as in this case, whether
a juror must be excused or stricken as a matter of law because o f in formation acquired during prior jury service, the question become s whether that information is so prejudicial, or w as so improperly obtained, that actual bias must be presumed.

Here, Par mley did not prove actual bias, he argues that bias should be presum ed. He relies primarily on two cases involving jurors who ha d acqui red information from a different but related case. In Leonard v

. United States , 378 U.S. 544 (1964), the separate jury in the second of two consecutive trials he ard the first jury announce defendant guilty in open court. The Supreme Court summarily reversed based upon the government's confession of error on appeal. In United States v. Patterson , 648 F.2d 62 5 (9th Cir. 1981), six members of a jury that convicted defendant of dru g trafficking charges had been members of a venire panel called for his tria l on different drug charges the previous day.

In Leo nard and Patterson , the overlapping jurors learned abou t defendant's prior criminal history as a result o f their involvement in the first trial -- a prior conviction in Leonard , and charges of differen t criminal conduct in Patterson . In those situations, the jurors acquired prejudicial informati on without regard to its admissibility in the second trial under the standards of Federal Rules of Evidence 403 and 404(b)

. Here, on the other hand, all the overlapping jur ors learned from the first voir dire was that Pa rmley was previously charged with this same offense , and the district court advised them at the secon d voir dire that the first juryhad been unable to reach a verdict. This information was of little inherent significance in the second trial, the district 3

### fromthe first trial did not reveal what evidence the first jur y

heard, only how that juror eva luated the evidence. Learning about evidence at an earlier trial w ould compromise a juror's ability to consider only the trial evidence. Learning that one juror v oted to convict at a trial that produc ed no unanimous verdict did not tell Norton anything new or prejudicial. -4- court instructed the jurors to ignore it, and Pa rmley made no showing that any juror knew more t han he or she disclosed during the second voir dire. In these circumstances, bias may not be presumed. Thus, the district cour t did not abuse its dis cretion in questioning the jurors for potential bias and, based upon their responses, accepting assur ances that their knowledge of the prior mistrial would not affect their ability to give Parmley a fai r and impar tial second trial. Cf. United States v. Young , 553 F.2d 1132 , 1136 (8th Cir.), cert. denied , 431 U.S. 959 (1977).
Parmleyinstead urges us to mandate the procedure followed i n McClendon v. United States , 587 F.2d 384, 386-87 (8th Cir. 1978), cert
. denied , 440 U.S. 983 (1979), where the district court granted defendant's motion to strike the entire overlapping panel, not just the panel members who in fact served as jurors in an earlier trial of a codefendant

. McClendonmay well reflect the more prudent practice, but this remains a question committed to the district court's discretion. Parmley has n o evidence that the overlapping jurors brought pri or knowledge to his second trial that would inev itably have tainted or augmented their consideration of the evidence properly admitted at that trial.

The judgment of the district court is affirmed. Parmley's pro s e motion for leave to raise an additional issue is denied.
McMILLIAN, Circuit Judge, dissenting.

### -5- I respec tfully dissent. This is not a typical juror qualificatio n case. “Rulings on juror qualifications will not be interfered with o n appeal absent a clear showing of abuse of the sound discretion that i s vested in the Distric t Court. Unless actual bias is shown the [District] Court’s refusal to st rike potential jurors will not be deemed a basis for error.” United States v. Young , 553 F.2d 1132, 1136 (8th Cir.), cert
. denied , 431 U.S. 959 (1977). Rather, the present case involves overlappin g jury venir es; some of the prospective jurors in the present case wer e members of the venire in the first trial. See United States v. Patterson , 648 F.2d 625, 629-30 (9th Cir. 1981). As noted by the majority opinion, “the mere selection of jurors from panels who may have previousl y participa ted in voir dire, even in a similar case, is not error, unles s actual bias is shown.” United States v. Dion , 7 62 F.2d 674, 693 (8th Cir. 1985) (citations omitted), rev’d on other grounds , 476 U.S. 734 (1986). In the p resent case, however, the prospective jurors did more tha n participate in voir dire in connection with the first trial. At least one prospective juror, Camila Norton, discussed the first trial with “Nina,”
one of the jurors who had served on the jury in the first case. Some of the other prospective jurors probably overheard their conversation. Nina told Norton what she thought about the evidence and what she thought the outcome should have been. The prospective jurors already knew that th e first trial had involved the same charges but had ended in a mistrial

. These circumstances s uggest a significant risk of prejudice, which, in my vi ew, was not negated by either examination or admonition of th e prospe ctive jurors. Except for Norton, examination of the prospectiv e jurors focused on the fact that the first trial ended in a mistrial, not whether they had over heard Nina discuss the evidence and what the outcome should have been or, if they had, whether that information would have had any influence on them. Of

### -6-

the 18 “overlapping” prospective jurors, 6, including Norton, served on th e jury in the second trial.
For this reason, I would hold the district court erred in denyi ng the motion to strike the overlapping jury venires, see McClendon v. Unite d States , 587 F.2d 384, 386-87 (8th Cir. 1978) (35 prospective jurors called to trial of another b ut involving similar charges and same witnesses were not called to defendant’s trial; jury chosen fro m remaining 37 prospective juror s), cert. denied , 440 U.S. 983 (1979), and reverse and remand fo r further proceedings.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.