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708 F.3d 1023

Docket No. 12-2521.

United States v. Klopfenstine

Eighth Circuit Court of Appeals

Submitted: Feb. 15, 2013.

Filed: March 4, 2013.

Rehearing and Rehearing En Banc Denied April 11, 2013.

Eighth Circuit Court of Appeals · decided 2013-03-04

Cited by 2 later decisions — most recently July 2021

1 federal appellate ·

2 counsel of record

Applies 18 U.S.C. § 2251 (Child Pornography Prevention Act of 1996)

Relies on United States v. Olano · Mader v. United States · United States v. Pennington

Good law ✅— No negative treatment on recordhow we know

Decided 2013-03-04

View the full empirical analysis of this case →

¶1Elizabeth Unger Carlyle, Kansas City, MO, for appellant.

¶2Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, Jim Y. Lynn, Asst. U.S. Atty., Jefferson City, MO (Tammy Dickinson, U.S. Atty., Kansas City, MO, on the brief), for appellee.

¶3Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

¶4RILEY, Chief Judge.

¶5A jury convicted Matthew Klopfenstine of producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e). Klopfenstine challenges the district court’s1 failure sua sponte to dismiss a juror for cause after the juror arguably expressed an inability to consider the evidence against Klopfenstine impartially. Because Klopfenstine admittedly failed to raise this objection during the jury selection process, he has waived the issue, intentionally relinquishing or abandoning a known right. See United States v. Johnson, 688 F.3d 494, 501 (8th Cir.2012) (deciding “failing to object to the seating of [a jjuror ... during voir dire [equates to] ‘intentional[ ] relinquish[ment] or abandonment of] ... a known right,’ ” waiving any challenge to the seating of a juror on appeal (quoting United States v. Olano, *1024507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993))).2

¶6The subject juror’s answers, which are now challenged on appeal, were heard and addressed by the district court and defense counsel during voir dire without defense counsel either asking the trial court to strike the juror for cause or exercising a peremptory strike to remove the juror. Jury selection is driven by the strategy of legal counsel, and while that strategy often is not much more accurate than reading tea leaves, we will not review that strategy on direct appeal without the juror qualification issue being raised in a timely manner.

¶7We affirm.

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