A woman convicted of methamphetamine trafficking appealed her conviction by claiming that her electronic ankle monitor kept making audible beeping alerts during jury selection, thus telling the jury that she was “subject to government restraint.” She said the monitor’s noise prejudiced members of the jury against her. After she was found guilty she appealed, arguing the noisy monitor warranted a new trial. On appeal, the Ninth Circuit affirmed the lower court’s ruling because “actual prejudice” was not established.

Defendant/appellant Chanel Wiley was arrested by federal agents for selling a small amount of methamphetamines. Before her trial, she was released on bond, but “struggled with pretrial supervision,” and was arrested again. She told the judge her family would lose their home if she had to forfeit the bond, so the magistrate judge allowed her to wear an ankle bracelet monitor that would constantly track her movements and make sure she would appear at trial.

She did appear for trial, but during jury selection, her monitor kept going off, and some members of the jury told the judge that they were having difficulty hearing him. Defense counsel objected to the distracting sounds and asked the judge to intervene. The trial judge initially disagreed, saying that even though he, too, heard the alert, he did not “think anyone really knows what that sound is.” That said, when the noise continued, he had the monitor removed during the next break because no one, including a case agent and Pretrial Services, was able to stop the beeping.

Senior District Court Judge John A. Kronstadt affirmed her conviction for conspiracy to distribute methamphetamine but acquitted her of distributing the drug. She was sentenced to 16 months in prison. Wiley then appealed her conviction to the Ninth Circuit Court of Appeals, where a unanimous three-justice panel affirmed her conviction. Circuit Judge John B. Owens wrote the opinion, with a concurrence by Circuit Judge Patrick Bumatay, and a separate concurrence by Circuit Judge Salvador Mendoza, who agreed with the result, but not the reasoning of the majority.

Owens’ opinion began with a brief recitation of the facts concerning the ankle monitor. Owens wrote that there was sufficient evidence to conclude that “the ankle monitor was perceptible to the jury.”

That determined, the opinion then turned to precedents that explained what is needed to determine whether the right to a fair trial is violated because jury members knew the defendant was “subject to government restraint.” He cited two U.S. Supreme Court cases. In the first, Holbrook v. Flynn, 475 U.S. 560 (1986), Justice Thurgood Marshall established a test with three conditions. First, the court had to review the “scene presented to the jurors to determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial.” Second, the court had to determine if the ankle bracelet interfered with Wiley’s right to counsel, and third, the court needed to see if the use of the restraint in court “…affront the ‘dignity and decorum of judicial proceedings that the judge is seeking to uphold.”

Owens looked to the Supreme Court’s Holbrook precedent to determine whether ankle monitors “tend in eyes with an unmistakable mark of guilt” or “create ‘an unacceptable risk . . . of impermissible factors coming into play.” He noted that jurors “understand that some security measures are required at courthouses, so such measures are not inherently prejudicial unless they impermissibly suggest guilt.” He concluded that ankle monitors and Wiley’s right to ride the same elevators as jurors prove that “she is not a dangerous person.” He also said that ankle monitors are “far less intrusive than a phalanx of guards.”

The second Supreme Court case, Deck v Missouri, 544 U.S. 622 (2005), took a closer look at the use of shackles, which, unlike ankle monitors, would be prejudicial. In that case, Justice Stephen Breyer concluded that the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury unless they are essential.

Wiley relied on Deck to argue that her ankle monitor was “so inherently prejudicial that she did not have to demonstrate actual prejudice.” The Ninth Circuit disagreed, writing that shackles and ankle bracelets are “two very different things,” and unobtrusive ankle monitors alone do not entitle the defendant to a presumption of prejudice. Thus, Wiley would have to prove actual prejudice occurred. In addition, Owens wrote that the ankle bracelet did not interfere with Wiley’s right to counsel or the dignity and decorum of the court.

Since ankle monitors were far less prejudicial than other means of government restraint, the Ninth Circuit wrote that Wiley had to show actual prejudice in order to win her appeal. He found none and pointed out that the trial judge had displayed “a thoughtful approach” to handling the beeping problem when he ordered a recess and removed the monitor. Defense counsel did not object, nor did the defendant voir dire the jury about what they saw and felt. In addition, Owens wrote that Wiley’s acquittal on charges of distributing methamphetamines weakened her argument that there was actual prejudice. Owens wrote that the district judge’s “appropriate curative measures eliminated the risk of actual prejudice to right to a fair trial.”

Justice Mendoza’s concurrence expressed concern that Owens’ assumption regarding how jurors perceived ankle monitors was not supported by the record. He said it “assumed a material fact” that an ankle monitor is not perceived the same as a shackle, but it still undermined the presumption of innocence.

Despite this concern, all the justices agreed that all of Wiley’s evidence of prejudice was merely speculative and Wiley failed to prove that prejudice was present. She will not get a new trial.