United States v. Kennedy Russell, Sr. , 463 F. App'x 585 ( 2012 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 22, 2012*
Decided February 22, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11-3168
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:10-CR-30196-001-DRH
KENNEDY M. RUSSELL, SR., David R. Herndon,
Defendant-Appellant. Chief Judge.
ORDER
Kennedy Russell, Sr., was convicted after a jury trial of willful failure to file a federal
income-tax return, 26 U.S.C. § 7203, and sentenced to 27 months’ imprisonment. On appeal
he argues that we should remand for a new trial because the district court abused its
discretion in granting the prosecutor’s motion to dismiss a potential juror for cause. We
affirm the judgment.
*
The parties have waived oral argument in this case, and thus the appeal is
submitted on the briefs and record. See FED. R. A PP. P. 34(f).
No. 11-3168 Page 2
During voir dire the trial judge questioned potential jurors regarding their ability to
impartially try the case. One potential juror told the judge that he might not be able to view
evidence objectively or be fair to both sides because of an “issue” his son had with the legal
system. Later, under questioning from defense counsel, he elaborated that he had visited
his son in prison and “would have a real hard time doing that” to someone else. After
being informed that he would have to determine only guilt or innocence, not the ultimate
sentence, he was then asked by defense counsel whether he could still follow the law
despite his feelings about his son; he replied that he could. But the trial judge over Russell’s
objection granted the prosecutor’s motion to dismiss him for cause, finding that his
statement to defense counsel did not override his earlier admission that he might not be
fair.
On appeal Russell insists that the district court’s ruling was an abuse of discretion
because the potential juror’s responses sufficiently established his impartiality
notwithstanding his son’s circumstances. See 28 U.S.C. § 1866(c)(2); United States v. Hicks,
635 F.3d 1063, 1067 (7th Cir. 2011). But we need not even consider whether the court erred
because Russell has not suggested that any juror who ultimately tried his case was biased.
His argument that one prospective juror who did not sit on his jury would have been
unbiased does not establish a violation of his constitutional rights to due process and an
impartial jury; these rights are satisfied as long as a defendant is tried before a “qualified
jury composed of individuals not challengeable for cause.” Rivera v. Illinois, 556 U.S. 148,
157 (2009). A defendant has no legally cognizable right to have any particular juror
participate in his case. United States v. Polichemi, 201 F.3d 858, 865 (7th Cir. 2000).
AFFIRMED.