Under the federal case law, while the right to inspection is unqualified, the scope of that right is not unlimited with respect to the materials sought to be made available or inspected. See, e.g., United States v. Miller, 116 F.3d 641, 658 (2d Cir. 1997) (defendant has right of access "only to records and papers already in existence [;][w]e see nothing that entitles defendants to require the jury administrator to analyze data on their behalf); United States v. Curry, 993 F.2d 43, 44 (4th Cir. 1993) (Section 1867(f) "did not entitle [defendant] to juror qualification questionnaires without some demonstration of necessity") (citation omitted). The relevant authorities are summarized in United States v. Rice, 489 F.Supp.2d 1312, 1316-17 (S.D.Ala. 2007):
Neither a motion, seeking either dismissal or a properly selected array, nor a sworn statement of facts constituting a substantial failure to comply with the Federal Act is a precondition of the right to inspect in the preparation of a motion. See United States v. Curry, 993 F.2d 43, 44 (4th Cir. 1993); United States v. Alden, 776 F.2d 771, 773-74 (8th Cir. 1985); United States v. Lawson, 670 F.2d 923, 926 (10th Cir. 1982); United States v. Marcano-Garcia, 622 F.2d 12, 18 (1st Cir. 1980); Government of the Canal Zone v. Davis, 592 F.2d 887, 889 (5th Cir. 1979); People of the Territory of Guam v. Palomo, 511 F.2d 255, 258 (9th Cir. 1975) (dicta); United States v. Beaty, 465 F.2d 1376, 1381-82 (9th Cir. 1972); United States v. Carlock, 606 F. Supp. 491, 492 (W.D.La. 1985); United States v. Layton, 519 F. Supp. 946, 958 (D.C.Cal. 1981). Cf. United States v. Grey, 355 F. Supp. 529 (W.D.Okla.
Our holding is consistent with those other circuits that have found error under Test after defendants were convicted by a jury. See, e.g., Royal, 100 F.3d at 1025-26 (noting that remand and not reversal of a defendant's conviction is the appropriate remedy when the district court erroneously denies a defendant's motion to inspect the jury list); United States v. Curry, 993 F.2d 43, 44-45 (4th Cir. 1993) (same); United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986) (same); Alden, 776 F.2d at 775 (same); United States v. Lawson, 670 F.2d 923, 926 (10th Cir. 1982) (same). IV.
Due to the isolated nature of these remarks, as well as the overwhelming evidence of Campbell's guilt, we cannot conclude that Campbell was deprived of a fair trial. See United States v. Curry, 993 F.2d 43, 46 (4th Cir. 1993) (finding defendant failed to establish prejudice where remarks were isolated and evidence of guilt was overwhelming). Accordingly, we affirm the judgment of the district court.
Comments by a prosecutor can constitute grounds for reversal where the comments were improper and where they so prejudicially affected the defendant's substantial rights as to deprive him of a fair trial. See United States v. Ollivierre, 378 F.3d 412, 420 (4th Cir.2004), sentence vacated under Ollivierre, 543 U.S. 1112, 125 S.Ct. 1064, 160 L.Ed.2d 1050 (2005); United States v. Curry, 993 F.2d 43, 45 (4th Cir.1993); United States v. Chorman, 910 F.2d 102, 113 (4th Cir.1990). If a court finds the prosecution's remarks to be improper, their prejudicial effect is assessed through a consideration of a number of factors, including (1) the degree to which the remarks tended to mislead the jury or prejudice the accused; (2) whether the remarks were isolated or extensive; (3) the strength of the evidence supporting guilt in die absence of me remarks; (4) whether the comments were deliberately placed in front of the jury to divert attention to extraneous matters; (5) whether the remarks were invited by improper conduct of defense counsel; and (6) whether curative instructions were given to the jury.
We note that Livingston does not argue that the prosecutor's improper comment provides an independent basis for a mistrial, nor could he successfully advance such an argument, in that Livingston concedes that the jury was never made aware of the prosecutor's comment. See United States v. Curry, 993 F.2d 43, 45 (4th Cir. 1993) (noting that for prosecutorial misconduct to warrant a mistrial, the misconduct must have "prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial"). Having concluded that Livingston's gesture was not caused by prosecutorial misconduct, we next address whether Livingston is entitled to a mistrial because the threatening gesture nevertheless tainted the jurors' ability to render a fair and impartial verdict, violating his Sixth Amendment right.
In line with this ruling, the Fourth Circuit has held that a litigant is entitled to “inspect, reproduce, and copy the master jury list” when determining “if there was a factual basis for a motion challenging the jury selection procedures.” See U.S.v.Curry, 993 F.2d 43, 44 (4th Cir. 1993). Therefore, this Court will permit Landaverde-Giron's counsel to inspect, reproduce, and/or copy the master jury list/jury wheel.
Under Test, a criminal defendant “has essentially an unqualified right to inspect jury lists.” Test, 420 U.S. at 750; see also 28 U.S.C. §§ 1861, 1867, 1868; McLernon, 746 F.2d at 1123 (ordering disclosure of “the Master Lists and the relevant demographic data about the general pool from which the specific grand jurors were selected”); United States v. Curry, 993 F.2d 43, 44 (4th Cir.1993) (reversing district court and holding that a litigant is “entitled to inspect, reproduce, and copy the master jury list to support a motion . . . based upon a substantial failure to comply with the provisions of [the Act] in selecting the grand or petit jury”); O'Reilley, 2008 WL 302310 at *2 (finding that “access to the demographic data concerning the current master and qualified jury wheels appropriate . . . [but] begins and ends with the relevant master jury list, and accompanying demographic data”)(citations omitted); Rice, 489 F.Supp.2d at 1318 (granting defendant “inspection of this district's database which contains both the list of 100, 000 names in the master jury wheel . . . and the list of 30, 029 names in the qualified wheel”); Diaz, 236 F.R.D. at 481 (ordering disclosure of master and qualified jury lists along with JS-12s); Causey, 2004 WL 1243912 at *12 (similar); Unite
Also, the Fourth Circuit has held that § 1867(f) does "not entitle [defendant] to the juror qualification questionnaires without some demonstration of necessity." United States v. Curry, 993 F.2d 43, 44 (4th Cir. 1993) (citing United States v. Davenport, 824 F.2d 1511, 1514-15 (7th Cir. 1987)). Indeed, juror questionnaires contain a significant amount of personal information and the relevant demographic data disclosed therein can be obtained from other jury materials.
The state court therefore did not unreasonably conclude that Petitioner did not show prejudice. See, e.g., See United States v. Curry, 993 F.2d 43, 46 (4th Cir. 1993) (finding defendant failed to establish prejudice where improper remarks were isolated and evidence of guilt was overwhelming). Petitioner has failed to show that the state court's rejection of this claim involved an unreasonable application of Strickland, or was based on an unreasonable determination of the facts.