Appellate Case: 10-4197 Document: 01018527544 Date Filed: 11/04/2010 Page: 1

Case No. 10-4197

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re: BRIAN DAVID MITCHELL,

Petitioner.

On Appeal from the United States District Court

for the District of Utah, Central Division
The Honorable Dale A. Kimball, District Judge

UNITED STATES’ RESPONSE TO COURT’S NOVEMBER 4, 2010, ORDER

REGARDING MOOTNESS OF PETITION FOR WRIT OF MANDAMUS

CARLIE CHRISTENSEN
United States Attorney
District of Utah

/s/ Elizabethanne C. Stevens

ELIZABETHANNE C. STEVENS
Assistant United States Attorney
Utah Bar No. 7314
185 South State Street, Suite 300
Salt Lake City, Utah 84111
(801) 325-3257
elizabethanne.stevens@usdoj.gov

Attorneys for Respondent

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TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF PRIOR AND RELATED APPEALS. . . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF RELEVANT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. ....................................................... 3

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE

CERTIFICATION OF DIGITAL SUBMISSIONS

ATTACHMENT A (PARTIAL TRIAL TRANSCRIPT)

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TABLE OF AUTHORITIES

DOCKETED CASES PAGE

United States v. Brian David Mitchell, Case No. 2:08CR125DAK. . . . . . . . . . . . . 2

FEDERAL CASES

Brown v. New Jersey, 175 U.S. 172 (1899). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Building and Construction Department v. Rockwell Intern. Corp.,

7 F.3d 1487 (10th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Church of Scientology of Ca. v. United States, 506 U.S. 9 (1992).. . . . . . . . . . . . . 4

County of Los Angeles v. Davis, 440 U.S. 625 (1979). . . . . . . . . . . . . . . . . . . . . . . 3

Mills v. Green, 159 U.S. 651 (1895). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Murphy v. Hunt, 455 U.S. 478 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Prier v. Steed, 456 F.3d 1209 (10th Cir. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ross v. Oklahoma, 487 U.S. 81 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Skilling v. United States, - U.S. -, 130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . . 4

United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971). . . . . . . . . . . . . . . . . . 4

United States v. Guerrero, 488 F.3d 1313 (10th Cir. 2007).. . . . . . . . . . . . . . . . . . 5

United States v. Lacey, 86 F.3d 956 (10th Cir. 1996).. . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Williams, 417 F.2d 630 (10th Cir. 1969). . . . . . . . . . . . . . . . . . . . 4

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Utah Animal Rights Coalition v. Salt Lake City Corp.,

371 F.3d 1248 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

STATEMENT OF PRIOR AND RELATED APPEALS

10-4186 In Re: Brian David Mitchell (District Court No. 2:08CR00125DAK)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:
No. 10-4197

BRIAN DAVID MITCHELL, UNITED STATES’ RESPONSE TO

COURT’S NOVEMBER 4, 2010,
ORDER REGARDING
Petitioner.
MOOTNESS OF PETITION FOR
WRIT OF MANDAMUS

INTRODUCTION

On November 4, 2010, this Court ordered simultaneous briefing requiring

the parties to “(1) inform the court whether a jury has in fact been empaneled; and

(2) if a jury has been empaneled, what each party’s position is on whether the

petition for mandamus is moot.” (Order at 1.) As explained more fully below, a

jury has been empaneled and Mitchell’s petition is moot because the jury, as

empaneled, does not include any of the jurors who Mitchell alleged in his

Supplemental Memorandum showed actual bias.

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STATEMENT OF RELEVANT FACTS

A jury of twelve, plus two alternates, was empaneled in United States v.

Brian David Mitchell, Case No. 2:08CR125DAK, on the morning of November 4,

2010. (11/4/10 Tr. at 558-65) (Attachment A). Jurors 1, 7, 14, 15, 28, 32, 33, 34,

37, 39, 41, 42, 44, and 48 were sworn in by the district court. (Id. at 559-60.)

Thereafter, the United States gave its opening statement. (Id. at 566-83.) The trial

was halted shortly after Mitchell’s counsel began his opening statement as a result

of the stay ordered by this Court.1 (Id. at 583-85.)

On November 3, 2010, Mitchell filed a Petition for Writ of Mandamus that

was, by his own admission, “essentially identical to the prior petition, No. 10-

4186.” (Pet. at 5.) On November 4, 2010, Mitchell filed a Supplemental Brief

Memorandum in Support of Petition for Writ of Mandamus, in which he claimed

that jurors 4, 5, 18, 27, 30, and 46 showed “actual bias.” (Supp. Mem. at 2.2)

These six jurors were included in the panel of 32 from which the parties made

their selections. In his Supplemental Memorandum, Mitchell also referenced

1
A complete statement of the factual background was provided in the United
States’ Response to Mitchell’s first Petition for Mandamus in case number 10-
4186, filed on October 27, 2010. The United States incorporates its Response
herein.
2
Petitioner’s Memorandum does not include page numbers. Therefore, the page
numbers contained in the Appellate Case header are used herein.

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“four jurors whose removal for cause was stipulated to by the government,” and he

highlighted statements made by one of those jurors. (Id. at 2.)

In his Supplemental Memorandum, Mitchell explained that this Court “now

. . . has the evidence of the venire’s actual attitudes and biases to consider” and he

went on to discuss answers given by the six jurors he claimed “prejudged guilt.”

(Id. at 2-5.) Although these six jurors were part of the panel of 32 from which the

jury was selected, not one of the jurors enumerated in Mitchell’s Supplemental

Memorandum was actually seated on the jury.

ARGUMENT

“In general a case becomes moot when the issues presented are no longer

live or the parties lack a legally cognizable interest in the outcome.” Murphy v.

Hunt, 455 U.S. 478, 481 (1982) (internal quotations and citations omitted). “In

elaborating on this principle, the Supreme Court has said that a case properly

brought in the first instance only becomes moot where ‘interim relief or events

have completely and irrevocably eradicated the effects of the alleged violation.’”

Building and Construction Dept. v. Rockwell Intern. Corp., 7 F.3d 1487, 1491

(10th Cir. 1993) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631

(1979)). The crucial question is whether granting a present determination of the

issues offered will have some effect in the real world. Utah Animal Rights

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Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1256 (10th Cir. 2004) (internal

quotations and citations omitted). A case may also become moot “if an event

occurs while a case is pending on appeal that makes it impossible for the court to

grant ‘any effectual relief whatever to a prevailing party.’” Prier v. Steed, 456

F.3d 1209, 1212-13 (10th Cir. 2006) (citing Church of Scientology of Ca. v. United

States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895))).

“The purpose of voir dire is to enable the parties to obtain an impartial

jury.” United States v. Crawford, 444 F.2d 1404, 1405 (10th Cir. 1971) (citing

Brown v. New Jersey, 175 U.S. 172 (1899); United States v. Williams, 417 F.2d

630 (10th Cir. 1969)). Significantly, “the partiality of the petit jury is evaluated in

light of those persons ultimately empaneled and sworn, not those who are excused

from service.” United States v. Lacey, 86 F.3d 956, 969 (10th Cir. 1996).

“Statements by nonjurors do not themselves call into question the adequacy of the

jury-selection process; elimination of these venire members is indeed one indicator

that the process fulfilled its function.” Skilling v. United States, – U.S. –, 130 S.

Ct. 2896, 2920, n.24 (2010) (criticizing the dissent for relying extensively on

venire members not selected for the jury in considering whether defendant was

tried before an impartial jury); Ross v. Oklahoma, 487 U.S. 81, 86 (1988) (“Any

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claim that the jury was not impartial . . . must focus . . . on the jurors who

ultimately sat.”)

Here, the only jurors about which Mitchell specifically complained in his

Supplemental Memorandum were six jurors who did not end up on the jury.

Although he noted in his Memorandum that “[o]f the additional 32 jurors who the

court passed for cause, the defense raised objections to 29 of them, 28 of which

included the grounds of prejudged guilt,” (Supp. Mem. at 2-3), Mitchell makes no

specific argument with respect to any of the other jurors in his Mandamus Petition.

Of course, the Court is not required “to dig through the record, like a hound to a

truffle, in search of a claim.” United States v. Guerrero, 488 F.3d 1313, 1316 (10th

Cir. 2007). Given that Mitchell provided specific arguments with respect to only

six jurors from the panel from which the jury was ultimately selected, his Petition

must be considered based only on those six.

Because no jurors about which Mitchell specifically complained in his

Supplemental Brief were seated on the jury, there is no prejudice to eradicate,

there is no relief for this Court to grant, and the mandamus petition is moot and

should be denied.

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CONCLUSION

For the foregoing reasons, the petition for a writ of mandamus should be

dismissed as moot.

RESPECTFULLY SUBMITTED this 4th day of November, 2010.

CARLIE CHRISTENSEN
United States Attorney

/s/ Elizabethanne C. Stevens

ELIZABETHANNE C. STEVENS
Assistant United States Attorney
s/Elizabethanne C. Stevens
Utah Bar No. 7314
185 South State Street, Suite 300
Salt Lake City, Utah 84111
(801) 325-3257
elizabethanne.stevens@usdoj.gov

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am an employee of the United States Attorney's

Office, and that an electronic copy of the foregoing UNITED STATES’

RESPONSE TO COURT’S NOVEMBER 4, 2010, ORDER REGARDING

MOOTNESS OF PETITION FOR WRIT OF MANDAMUS was sent via the ECF

system, and via email, to all parties named below, this 4th day of November, 2010.

Parker Douglas, Esq.

Utah Federal Defender
46 West Broadway, Suite 110
Salt Lake City, UT 84101
Parker_Douglas@fd.org

The Honorable Dale A. Kimball

United States District Court
utdecf_kimball@utd.uscourts.gov

/s/Christine Allred
CHRISTINE ALLRED
Legal Assistant
s/Christine Allred
185 South State Street, Suite 300
Salt Lake City, Utah 84111
(801) 325-3231
chris.allred@usdoj.gov

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CERTIFICATION OF DIGITAL SUBMISSIONS

I HEREBY CERTIFY that I am an employee of the United States Attorney's

Office, and that:

(1) All required privacy redactions have been made; and

(2) The ECF submission has been scanned for viruses with the most

recent version of “Trend Micro OfficeScan,” version number 6.5, last

updated this 4th day of November, 2010, and according to the

program, is free of viruses.

/s/Christine Allred
CHRISTINE ALLRED
Legal Assistant
s/Christine Allred
185 South State Street, Suite 300
Salt Lake City, Utah 84111
(801) 325-3231
chris.allred@usdoj.gov