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Diplarakos v. Poole

filed: September 14, 1992.

JOAN BETTS DIPLARAKOS PETITIONER-APPELLANT,
v.
SUSAN POOLE, WARDEN, ET. AL. RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Central District of California. DC No. CV 90-886-DWW(T). David W. Wiliiams, District Judge, Presiding

Before: Boochever, Norris, and Noonan, Circuit Judges.

MEMORANDUM

Joan Betts Diplarakos, a California state prisoner, appeals the denial of her habeas corpus petition challenging her state convictions for grand theft. She argues that the disqualification of the only juror who did not believe in her guilt and the trial Judge's interrogation of several jurors about their deliberations denied her due process and violated her sixth amendment right to an impartial jury. We AFFIRM.

I. Dismissal of Juror Carter

Diplarakos argues that the trial court violated due process*fn1 when it dismissed juror Karen Carter, who was not convinced of Diplarakos' guilt. Based on interviews with Carter and four other jurors, the court found that Carter was disregarding jury instructions by using restitution as a defense, and that this was a failure to follow the law. RT 2167-68. The Judge therefore replaced Carter with an alternate juror pursuant to Cal. Penal Code §§ 1089 and 1123, which provides for the discharge of a juror if the court finds "good cause" that a juror is "unable to perform [her] duty."*fn2

This court reviews de novo a district court's denial of a habeas corpus petition. Bayramoglu v. Estelle, 806 F.2d 880, 886-87 (9th Cir. 1986). In reviewing the district court's decision, the state court's factual determinations are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). See Rushen v. Spain, 464 U.S. 114, 120 (1983) (per curiam). A trial court's findings regarding juror fitness are entitled to special deference. Cf. Patton v. Yount, 467 U.S. 1025, 1036-38 & n.12 (1984) (juror impartiality is a question of historical fact entitled to special deference). The state court's Conclusion regarding juror impartiality may be set aside only if it lacks "fair support in the record," Bayramoglu, 806 F.2d at 887 (quoting Patton, 467 U.S. at 1038), and we apply the same standard here to the analogous issue of juror misconduct.

Here, the trial court's factual finding that Carter had failed to follow the law is fairly supported by the evidence. Separate interviews with four jurors revealed fairly consistent descriptions of Carter's statements during deliberations: Carter said she disagreed with the instruction stating that restitution is not a defense to theft or she said that the instruction did not mean what it said. See RT 2119-20 (Williams interview); RT 2123-24 (Des Jardien note) (reporting that Carter "argued that the 'fact' that the defendant planned to make restitution to the victims proved that she had no criminal intent"); RT 2129-30 (Des Jardien interview); RT 2157 (Castaneda interview); RT 2163 (Hart interview) (alleging that Carter stated that "the restitution, as long as [Diplarakos] made good later on, that it was all right."). Jurors also testified that the restitution instruction was read to Carter "over and over and over," RT 2157 (Castaneda), or "eleven dozen times." RT 2120 (Williams).

In contrast, Carter stated during her voir dire that she agreed that the restitution instruction was the law, and denied ever saying that she disagreed with the restitution instruction. RT 2145. She also denied that the restitution instruction had been referred to in a group deliberation; she said she had only discussed the instruction with one other juror. RT 2141.

Because the jurors' demeanor and credibility were critical in resolving these inconsistencies, the state court's finding that Carter was not following the law is entitled to deference. The court's implicit finding that Carter was less credible is supported by the consistency among the other jurors' recollections and the evasive nature of some of Carter's responses to the court.*fn3 See generally United States v. Shapiro, 669 F.2d 593, 601 (9th Cir. 1982) (juror's belief in her own impartiality is not dispositive).

Diplarakos nonetheless contends Carter was dismissed because she inferred a lack of intent to defraud from evidence regarding the reorganization of First Home Investments (FHI) under Chapter 11 of the Bankruptcy Code. See 11 U.S.C. §§ 1101-1174 (1988). She asserts that Carter was entitled to consider such evidence and that such consideration constituted an improper basis for Carter's dismissal.

The record reveals conflicting evidence whether Carter had made a link between reorganization and a lack of criminal intent. For example, Note Q-4 from the jury does indicate that Carter had made such a connection:

One juror [Carter] feels that intent to defraud cannot be proven because the defendant had asked and filed for reorganization rather than bankruptcy. Eleven jurors feel that whether or not the defendant . . . filed for reorganization rather than bankruptcy is not relevant. It is not the issue. . . .

RT 2074; see also RT 2163 (Hart interview) ("That's what [Carter] keeps bringing [up], the reorganization, that it was all right because [Diplarakos] went into reorganization."). On the other hand, Carter herself denied drawing any Conclusions between reorganization and the restitution instruction; moreover, she stated that it was not herself, but another juror who felt that the restitution instruction "has to do with reorganization." RT 2141-43.

We need not decide whether Carter was entitled to infer or did infer lack of intent from the reorganization, because sufficient evidence establishes that Carter also considered restitution as a defense, and that her belief in restitution as a defense -- not reorganization -- provided the basis for her dismissal. While the court recognized that the jurors felt Carter was treating reorganization as a defense, RT 2165, its decision to dismiss Carter was premised solely upon her failure to follow the restitution instruction. RT 2167-68. Furthermore, we are not persuaded by Diplarakos' argument that "even if [Carter] did use the word 'restitution' during deliberations, it remains clear she did not mean restitution as it is used in the jury instruction -- she simply meant the defendant had no fraudulent intent." Petitioner's Reply Br. at 7. We decline petitioner's invitation to speculate that Carter really did not mean 'restitution' and to impute a different meaning to her words in the face of the trial Judge's decision which is supported by consistent, corroborated ...


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