by David Kim

The United States Court of Appeals for the Ninth Circuit held that when the presence of a racially biased juror is discovered, or a juror is found to have made a racially biased statement, but the juror is excused before the trial court accepts a verdict, the governing framework for evaluating prejudice is the presumption-of-prejudice standard established in Remmer v. United States, 347 U.S. 227 (1954). Under that standard, the biased juror’s presence is presumptively prejudicial, and the Government carries a heavy burden to prove harmlessness. The Court rejected the standard previously articulated in United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999), which asked whether the biased juror’s comments so affected the jury’s fair consideration of the evidence that the verdict was tainted, concluding that standard was neither binding nor persuasive on this issue. Applying Remmer, the Court determined that the Government failed to overcome the presumption, reversed the denial of Sanchez’s motion for a new trial, and remanded.

Background

Andres Sanchez, a person of Mexican descent who worked at a Spanish-language tax preparation business in Boise, Idaho, was indicted on eight counts of aiding in the preparation of false and fraudulent tax returns under 26 U.S.C. § 7206(2). After one count was dismissed, the case proceeded to trial on the remaining seven counts. During the second day of deliberations, Juror 16 contacted court staff to report racially biased conduct in the jury room. The U.S. District Court for the District of Idaho and counsel agreed that an investigation was required before accepting the jury’s partial verdict.

Through individual questioning, Juror 16 testified that Juror 5 had stated during deliberations, in substance, that Mexicans come to the U.S. to take advantage of Americans. Juror 25 independently corroborated this account. Two additional jurors, Juror 12 and Juror 15, also reported hearing racially charged statements from Juror 5, though neither initially characterized what they heard as reflecting bias. Juror 15 disclosed that Juror 5 had suggested during deliberations that Sanchez’s employer “could have come up from the cartel.” When questioned directly, Juror 5 denied making any biased remark. The District Court found that Juror 5 had made a statement demonstrating bias based on national origin or ethnicity and concluded he could not be fair and impartial.

After denying Sanchez’s motion for a mistrial, the District Court excused Juror 5 for good cause under Federal Rule of Criminal Procedure 23(b)(3) and directed the remaining 11 jurors to resume deliberations. The court did not instruct the jury to disregard prior deliberations or to start anew. Instead, it told the jurors to consider whether the removal of Juror 5 changed their verdict. After 13 minutes, the jury returned a partial verdict, convicting Sanchez on six of seven counts.

Sanchez moved for a new trial, contending that Juror 5’s participation in nearly all deliberations violated his Sixth Amendment right to an impartial jury. The District Court denied the motion, applying the Sarkisian standard of whether Juror 5’s comments “so affected the jury’s ability to consider the totality of the evidence fairly that it tainted the verdict.” Finding that most jurors were unaware of the biased comments and that those who heard them uniformly denied any effect on their verdicts, the District Court concluded no new trial was warranted.

Analysis

The Court reviewed the denial of Sanchez’s motion for a new trial for abuse of discretion under the framework from United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc). Under that framework, the reviewing court first determines de novo whether the trial court identified the correct legal standard. If it did not, the trial court abused its discretion.

Rejection of the
Sarkisian Standard

The Court began by evaluating whether Sarkisian supplied the appropriate legal rule. In Sarkisian, a juror harboring bias against Roma people was removed before deliberations after making a prejudicial remark about “gypsies,” though the defendants were not Romani. The Sarkisian Court questioned whether Remmer applied in that context but did not resolve the issue, alternatively concluding that even if Remmer governed, the Government had demonstrated harmlessness. Because Sarkisian left the question open and applied Remmer only in the alternative, the Court explained that Sarkisian “did not decide the standard that applies when a biased juror is present or when a juror makes biased comments to other jurors” and accordingly did not bind it.

The Court identified three deficiencies in Sarkisian’s reasoning. First, Sarkisian’s skepticism of Remmer’s reach, based on the fact that Remmer involved external contact rather than intra-jury bias, was irreconcilable with United States v. Shapiro, 669 F.2d 593 (9th Cir. 1982), which had already held that Remmer applies when “jury taint originates from within the jury itself.” Second, the alternative standard Sarkisian employed was drawn from United States v. Smith, 962 F.2d 923 (9th Cir. 1992), which had articulated a plain error formulation in a prosecutorial vouching case, a standard with no logical connection to timely raised juror bias claims. Third, Sarkisian offered no explanation for transplanting a plain error standard into this fundamentally different context.

Adoption of Remmer and the
Role of Peña-Rodriguez

Under Remmer, the Supreme Court established that “any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.” The Government then carries the heavy burden of proving that such contact was harmless.

The Court rejected the Government’s effort to limit Remmer to cases involving external sources of jury taint, noting that Shapiro had already extended the presumption to situations where the taint originated within the jury. The Court likewise rejected the argument that Remmer ceases to apply when the tainted juror is removed before the verdict, observing that Shapiro applied the presumption even where the biased juror was dismissed before deliberations began, explaining that removal “would be some evidence that no prejudice occurred” but did not warrant abandoning the presumption altogether.

To support applying Remmer to racial bias, the Court drew extensively on Peña-Rodriguez v. Colorado, 580 U.S. 206 (2017). In Peña-Rodriguez, the Supreme Court carved out a constitutional exception to the no-impeachment rule for cases involving juror racial animus, even though no comparable exception exists for other forms of juror misconduct. The Court identified three principles from that decision supporting heightened vigilance: (1) the Civil War Amendments imposed an imperative to eliminate racial prejudice from the justice system, (2) racial bias poses a “familiar and recurring evil” that is qualitatively distinguishable from other juror irregularities, and (3) existing safeguards, including voir dire, are frequently inadequate to expose racial prejudice because the “stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations.” Because the Remmer presumption already applies to forms of juror taint warranting less stringent precautions than racial bias, the Court reasoned that racially biased comments during deliberations must also be deemed presumptively prejudicial.

Rejection of Dyer
Structural Error

The Court declined to adopt Sanchez’s primary argument that the biased juror’s participation constituted structural error under Dyer, in which the Ninth Circuit had stated in a footnote that “the presence of a biased juror introduces a structural defect not subject to harmless error analysis.” The Court agreed with the Government that Dyer’s pronouncement was limited to circumstances where the biased juror’s vote contributed to the verdict the trial court accepted. Drawing a workable line between cases meriting structural error treatment and those governed by Remmer would prove impracticable, the Court concluded, and the Remmer framework, with its heavy burden on the Government, provides adequate safeguards while preserving District Court flexibility.

Application to the Facts

Turning to whether the Government rebutted the presumption, the Court concluded it had not, distinguishing the case from Sarkisian in three respects. In Sarkisian, the juror’s bias targeted an ethnic group unrelated to the defendants; only two jurors heard the biased juror make an obscure reference they could not understand; and the biased juror was removed before deliberations began. In the present case, Juror 5 directed his bias at the same ethnic group as the defendant; at least four jurors heard specific, comprehensible biased statements; and Juror 5 participated in virtually all deliberations.

The Court identified two independent channels of potential prejudice, i.e., the direct influence of Juror 5’s overtly biased remarks, and the possibility that his racially distorted evaluation of the evidence shaped other jurors’ reasoning even absent their awareness of his expressly biased comments. The District Court’s investigation addressed only the first channel, the Court stated.

The Court determined that the special voir dire was also insufficient to dispel the presumption, for several reasons. The District Court’s initial question, whether jurors heard a comment that “might reflect some bias,” depended on each juror’s subjective perception of what constitutes bias. At least two jurors who initially denied hearing any biased comment later revealed hearing objectively biased statements but continued to characterize them as innocuous. Several other jurors were never asked follow-up questions designed to elicit information independent of their subjective assessment.

The Court also stated that jurors’ self-assessments of impartiality are not dispositive, as “a juror’s good faith belief in his own impartiality is not dispositive.” Shapiro. Additionally, some jurors who identified a biased remark reacted more strongly to Juror 16’s accusation of racism than to the underlying biased statements themselves, a dynamic reflecting the concern in Peña-Rodriguez that stigma surrounding accusations of bigotry inhibits reporting, according to the Court. Because the Government bore the heavy burden of dispelling the presumption and had the opportunity to request additional remedial measures but did not, the Court resolved the record’s ambiguities against the Government.

Conclusion

Thus, the Court held that when a racially biased juror is discovered, or a juror is found to have made a racially biased statement, but the juror is excused before the trial court accepts a verdict, the Remmer presumption of prejudice applies, and the Government bears the heavy burden of proving that the biased juror’s presence was harmless. In addition, the biased juror’s participation in deliberations constitutes further evidence of prejudice that the Government must overcome. The Court concluded that the Government failed to meet that burden.

Accordingly, the Court reversed the District Court’s denial of Sanchez’s motion for a new trial and remanded for a new trial. See: United States v. Sanchez, 175 F.4th 1134 (9th Cir. 2026).  

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