United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-3231

_____________

United States of America, *

*

 Appellee, *

*

v. * Appeal from the United States

* District Court for the

Jim Guy Tucker, * Eastern District of Arkansas.

*

 Appellant. *

_____________

Submitted: April 17, 1997

Filed: February 23, 1998

_____________

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

_____________

JOHN R. GIBSON, Circuit Judge. 

Jim Guy Tucker, the Governor of Arkansas until his conviction in this case,

appeals from his conviction for conspiracy and mail fraud. Tucker was indicted in a

twenty-one count indictment, together with James and Susan McDougal, the former

controlling persons of Madison Guaranty Savings and Loan, a thrift institution that

failed. The first count of the indictment charged an overarching conspiracy to misuse

the funds of Madison and of Capital Management Services, a small business investment

company headed by alleged co-conspirator and key government witness David Hale.
Counts 8-11 alleged substantive offenses in connection with a loan by Capital 1

Management Services to The Communication Company.

Counts 2-4 alleged various types of fraud in connection with a loan to Dean

2

Paul. Counts 20 and 21 alleged misapplication of Capital Management's money and

causing false statements to be entered in the books and records of Capital Management

in connection with a loan by Capital Management to Southloop Construction.

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Tucker was indicted on the conspiracy charge and ten substantive counts based on

individual transactions. At the close of the government's case, the district court

dismissed Counts 8-11. The remainder of the case was submitted to the jury, which 1

acquitted Tucker of Counts 2-4 and 20-21 and convicted him of Count 1, conspiracy, 2

18 U.S.C § 371 (1994), and Count 12, mail fraud in connection with a loan from

Capital Management Services to Castle Sewer and Water Corp. 18 U.S.C. § 1341

(1994).

 

On appeal, Tucker contends the convictions should be reversed because after

trial it was discovered that a juror was married to a former state prisoner to whom

Tucker, as governor, had denied clemency. Tucker also attempted to establish that the

juror and her husband had engaged in discussions about the case during the trial.

Tucker further objected to the empaneling of a juror who gave answers to a written jury

questionnaire that were inconsistent with a defendant's right to remain silent and the

presumption of innocence. Tucker contends that there was insufficient evidence to

convict him of mail fraud and conspiracy. He also raises several points of evidentiary

and instructional error. We conclude that Tucker has not demonstrated error on any

ground except for the limitations the district court imposed on the hearing concerning

alleged misconduct of one juror. We remand for a fuller hearing on the issues

pertaining to the one juror. 

 The government's case involved the several mutually dependent business

transactions of Jim Guy Tucker, Susan and James McDougal, and David Hale, as
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described in the testimony of David Hale. Hale was a municipal judge in Little Rock,

where the McDougals operated Madison Guaranty and where Tucker practiced law. All

were active in state politics in one capacity or another and all had multifarious business

interests.

 Hale described a meeting between Tucker, James McDougal, and himself in the

fall of 1985. The three went out to a new development called Castle Grande, which

McDougal had developed, to view thirty-four acres of property McDougal had just sold

Tucker. In fact, McDougal had made Tucker buy the property as a prerequisite to

Madison loaning Tucker money he needed to pay off another debt. After viewing the

thirty-four acres, the three went to Tucker's house and sat around the kitchen table,

visiting. James McDougal asked Hale about the lending limit of Capital Management

Services, Hale's small business investment company. Hale told McDougal that the

lending limit was $150,000.

The lending limit was a function of the amount of capital Hale had available to

invest in Capital Management Services. The owner of a small business investment

company would invest a certain amount, and the Small Business Administration would

then provide three times the amount of that capital for the company to lend to small

businesses. The company could only lend a particular borrower an amount equal to

thirty percent of the company's capital. Since Hale had $500,000 capital in the company

at that point, his lending limit to a particular borrower was therefore $150,000.

After asking Hale about his lending limit, James McDougal then turned to Tucker

and said, "We're going to have to get some more money into David's SBIC [small

business investment company]." McDougal said, "I'm going to need some funds, and

Jim Guy is going to need some funds, and we're going to have to clean up--clean up

some members of the political family. . . ." The three decided that Hale should sell some

property to generate the capital needed to increase Capital Management's lending
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limit to $300,000, so it could make loans for the benefit of Tucker and McDougal. They

settled on a piece of property used for a restaurant known as Etta's Place. The three

discussed whether the Etta's Place property would appraise out at a high enough value

to generate a profit of $500,000, but McDougal said to let him worry about that. They

agreed Hale should sell this property to a straw man to generate a profit of $500,000.

Madison would loan the purchase money to the straw man. Hale would then invest the

money in Capital Management Services. For every dollar Hale invested in Capital

Management, the Small Business Administration would make available three dollars for

Capital Management to loan to other businesses. In this way, the friends could leverage

a dollar lent by Madison to the straw man into four dollars of available money. 

 In order to get an appraisal to support the Etta's Place deal, Hale's colleague,

William Watt, hired Robert Palmer to appraise the property. Upon first looking at the

property, Palmer reported to Watt that it would only be worth $300-400,000. Watt told

him that the appraisal was for David Hale, who was "doing a favor" for James

McDougal, and that Hale needed an appraisal of $750,000. Watt told Palmer to "do

whatever you have to do." Palmer issued an appraisal valuing the property at $755,000,

though he testified that he knew it was not an accurate appraisal. Hale found a buyer,

Dean Paul, to serve as straw man in the Etta's Place transaction. 

During the time that the Etta's Place transaction was being worked out, Tucker

told Hale that Madison owned the sewer and water system at Castle Grande, and that

Madison needed to divest itself of this property before an upcoming federal regulatory

examination, because Madison was not supposed to own a utility. Tucker was to set up

a corporation to buy the sewer and water system. To finance the sale, the corporation

would borrow the down payment from Capital Management and the rest of the purchase

price from Madison.
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Tucker incorporated Castle Sewer and Water Corp., naming two of his

employees, Dwight Harlan and Lorita King, as president and secretary. Tucker owned

two-thirds of the stock and the other third was owned by R. D. Randolph, a McDougal

associate. Tucker then submitted a loan application to Capital Management asking for

a loan of $150,000, or $300,000 if possible. In the loan application, Tucker stated that

the loan proceeds would be used "for initial operating capital and maintenance and

painting of the [water] storage tank." Hale stated that at the time he received the

application, he knew that this statement in the application was false, because the real

purpose of the loan would be to make the down payment on the water and sewer

facilities. With the loan application, Tucker submitted a proposed, or pro forma, balance

sheet showing what Castle Sewer and Water's financial condition would be if it received

the proposed $300,000 loan. The pro forma balance sheet showed as assets both the

water and sewer facility, valued at $1.5 million, and the $300,000 in proceeds from the

loan. In fact, in order to obtain the sewer and water facility, the corporation would have

to use the $300,000 as a down payment, and so would never have both the facility and

the $300,000 cash at the same time. Therefore, Tucker's pro forma balance sheet

overstated the corporation's assets by $300,000 and hid the fact that the loan from

Capital Management was to be used as a down payment on the facility.

Capital Management made the loan to Castle Sewer and Water in the amount of

$150,000. The loan closed the same day as the straw man's purchase of Etta's Place.

Tucker received the check, personally endorsed it and deposited it in a Castle Sewer and

Water bank account. 

Tucker did not undertake any personal obligation in connection with the purchase.

The co-owner of Castle Sewer and Water Corp., R. D. Randolph, signed a personal

guaranty of the corporate debt to Madison, although he testified at trial that he did not

realize he had done so at the time. Tucker later gave his stock to Randolph, who

actually ran the utility for some time. Randolph made some interest payments on
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the loan from Capital Management, but eventually the corporation defaulted on the debt.

Randolph discharged the guaranty through personal bankruptcy.

 

After the Castle Sewer loan was made, Hale filled out and mailed to the Small

Business Administration a Form 1031, which was required by the administration for

every loan. The Form 1031 required a statement of the purpose of the loan. Hale filled

in the purpose: "working capital." 

Hale testified that Tucker was angry when he discovered that Susan McDougal

had drawn a real estate commission on Madison's sale of the sewer and water facility to

Castle Sewer and Water Corp. and that James McDougal had received a sizable bonus

because of the sale. Hale testified that Tucker complained to him that the McDougals'

"commissions could get us all put in jail." Later, Hale said Tucker called him from the

governor's mansion, upset by newspaper articles about the Castle Sewer and Water loan.

Hale said that Tucker said the article had some facts that no member of the Arkansas

press had the "IQ high enough to dig . . . out." Tucker told Hale not to talk to the press

about the transaction, and he, Tucker, would "shut the locals down." 

Although there was a great quantity of evidence of other transactions, in light of

the district court's dismissal of Counts 8-11 and the jury's acquittal of Tucker on Counts

2-4 and 20-21, it is unnecessary to recite it.

I.

Tucker's most substantial argument is that the district court erred in denying

Tucker's motion for a new trial on the grounds of alleged misconduct of Juror Renee

Johnson Hayes in failing to respond to questions on voir dire and in engaging in private

communications about the case during trial.
For instance, the Judge said to the jury: 3

Let me give you [an] example. Suppose we have a juror who has read

certain articles about this case and, . . . you talked with a friend who

knows everything that goes on in the State of Arkansas, and you take the

position I will do my best to base my verdict on that evidence that is

presented during the next six or eight weeks, but I don't know, that friend

of mine, he's pretty close to me. I might give his views some weight.

Now, if that's disclosed, the lawyers would ask the Court to excuse that

juror for cause.

During the questioning of the individual venire members concerning whether they had

been a victim of crime or involved in law enforcement, or had relatives or close friends

who were involved in law enforcement, the district judge asked:

Is there anything that you think, I don't care how insignificant you might

regard it, anything that you think you should disclose that might have

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A.

(1.)

Johnson's juror questionnaire contained answers that she was single, that questions

concerning a spouse were not applicable, and that she had one three-month- old child.

In response to a question asking whether "any member of your family had ever been

charged with a crime," she stated that a member of her family had a drug conviction and

was serving four years. She stated that she had not formed an opinion regarding the guilt

or innocence of any of the defendants. 

During the district court's comments to the jury following the reading of the

indictment in the voir dire examination, the judge repeatedly emphasized the need for the

venire members to reveal possible sources of bias during voir dire and gave them

multiple opportunities to disclose anything that could have any bearing on their

partiality.3
some bearing on whether you can be fair and impartial to both the United

States Government and each defendant. Now, it's going to take us

approximately six to eight weeks to try this lawsuit. Anything that you

would like to disclose that might have some bearing. 

After several responses the court stated further:

Is there anything you would like to disclose at this point that might have

some bearing on whether or not you can be fair and impartial to both

sides, and is there anything that you think that you should disclose that

might have some bearing on whether you can be fair and impartial to both

sides?

The court further stated that:

We also want to avoid not only impropriety in fact, but even the

appearance of it.

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The judge assured the venire members that they could bring up matters privately:

But let me admonish you that in the event there is a question that you feel

that you would like to respond in private, you make that request, I'll

consider it, and we will retire to chambers. 

The prosecutor then addressed a group of four jurors including Ms. Johnson, in

a small group:

I want to cast this question in the broadest terms as possible, and I

have touched on this specifically with regard to the areas we've covered

before now, but is there anything that comes to mind of any of you, Mr.

Swope, is there anything you can tell us that would affect your ability to

serve fairly and impartially in this case? It may not be something I've
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asked you about directly but it may be something that is in the back of your mind, hasn't

come up before now, hasn't occurred to you before now, before your opportunity to tell

about it now, and maybe it's something you don't want to talk about publicly. If that's

the case, we can make arrangements to tell the Court outside the public forum. This is

true for each of you. Is there anything that you can bring to our attention that would

affect your ability to serve fairly and impartially in this case. Mr. Swope?

A. No, sir.

Q. Ms. Johnson?

A. No.

Counsel for Tucker asked that same group of four jurors: 

Q. As you sit here this afternoon is there anything at all, and I'm saying

you are the only one that knows this, is there anything at all negative that

you harbor about him? . . . 

Q. Ms. Johnson?

A. I have no opinion.

Q. As I asked the others, I will ask you, just examine yourself. What do

you think? How do you feel? How do you feel about Governor Tucker?

A. I have no opinion. I don't know. 

Q. You have no feelings at all?

A. Yes, I have feelings.

Q. Tell me what those are.
A copy of the marriage license was attached to Tucker's motion as Exhibit 7;

4

the license was issued March 14, 1996, and the marriage was performed on that date.

(The voir dire in this case began on March 4, 1996 and the first day of trial was March

11, 1996.)

The marriage license stated that Hayes's mother was "Emma McIntosh." 5

In our opinion affirming the grant of habeas corpus, we recited that Hayes,

6

Tommy McIntosh, and Crawford were arrested together and charged with the same

crime. Hayes v. Lockhart, 989 F.2d 505 (8th Cir. 1993) (unpublished). 

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A. About Governor Tucker? I guess he's been a good governor.

No one asked Ms. Johnson any question particularly directed to the statement in

her questionnaire that a member of her family had previously been convicted of drug

charges.

(2.)

After trial, Tucker filed a new trial motion alleging that he learned after trial that

Juror Renee Johnson married Charles Marvin Hayes during the trial. Tucker's motion 4

alleged that he had reason to believe that Hayes was the father of Juror Johnson's child.

Tucker's motion contained detailed factual allegations. It stated that there was

reason to believe that Hayes's mother was Emma Ruth McIntosh Hayes, which would 5

make Charles Hayes the nephew of Robert "Say" McIntosh. Hayes had been convicted

of possession of two kilograms of cocaine and received a forty year sentence. He was

arrested and convicted together with Maurice Dan Crawford and Tommy McIntosh, the 6

son of Say McIntosh, who would have been a first cousin of Charles M. Hayes. While

Tucker was serving as Acting Governor of Arkansas, State Senator William L. Walker,

Jr., asked Tucker to exercise executive clemency in favor of Hayes. Tucker sent Hayes

a letter denying his application for executive clemency. Later, when Tucker
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was Governor, under the Arkansas Constitution State Senator Jerry Jewell became

Acting Governor whenever Tucker left the state of Arkansas. When Tucker left the state

to attend President Clinton's inauguration, Jewell, as Acting Governor, granted executive

clemency to Tommy McIntosh. As a result of instructions given by Tucker to his chief

of staff, Hayes did not receive clemency from Jewell.

Hayes thereafter received habeas relief and was released from imprisonment. See

Hayes v. Lockhart, 989 F.2d 505 (8th Cir. 1993) (unpublished).

Tucker's motion alleged that when Juror Johnson was before the court on voir dire

she must have known that Tucker had denied clemency to Hayes, but, when Johnson

was asked about any prejudice against any party, she said nothing about Hayes or his

history with Tucker.

Tucker's motion alleged that Say McIntosh, Hayes's uncle, had made frequent

public demonstrations of hatred and contempt for Tucker, including demonstrations in

front of the courthouse. Tucker submitted the affidavits of two Arkansas policemen

reporting that Say McIntosh "frequently distributed leaflets attacking Governor Tucker"

and "has appeared frequently at public events where Governor Tucker was present,

criticizing the Governor, and on occasion been very loud and disruptive." Appended to

the affidavits were fliers, said to be representative of those Say McIntosh routinely

distributed. The fliers accused Tucker of racism in failing to exercise clemency for a

black prisoner sentenced to death and compared Tucker's criminal activity to the

prisoner's, labeling Tucker "A Real Thief." One flier stated: "Our governor who has

14 felony indictments will kill an innocent man just for racist reasons, and try to make

some white jury sympathetic of his 14 indictments." The flier concluded: "If the

governor goes through with the killing of Barry Lee Fairchild, every ounce of blood shed

on the streets of Little Rock, the Governor, Jim Guy Tucker, will be sadly responsible

for."
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Tucker alleged that he had information that Juror Johnson received

communications during trial from Hayes and/or Tommy McIntosh regarding the matters

on trial, and in support he filed the affidavit of State Senator William L. Walker, Jr.,

who had requested clemency for Hayes, Tommy McIntosh, and Maurice Crawford.

Walker stated that he "personally vigorously advocated to Governor Tucker on behalf

of all three men." Walker recounted the story of how Acting Governor Jewell commuted

McIntosh's sentence, but not Hayes's. Walker stated, "I know that as a result of action

taken by Governor Tucker, Hayes and Crawford remained in prison." Walker said,

"Hayes expressed anger over the denial of his applications." Walker said he knew that

during Tucker's trial, Hayes told Tommy McIntosh that Hayes's wife, Renee Hayes, was

on the Tucker jury. Walker also said that during the course of the trial Tommy McIntosh

called him and said, "[W]e have someone on the jury." Walker took McIntosh to mean

that the McIntosh family had someone on the jury. Walker said he knew that Tommy

McIntosh talked several times with Hayes, and that Hayes discussed the trial with his

wife during the trial. 

Tucker filed his own affidavit, recounting how he was able to prevent Jewell from

commuting Hayes's and Crawford's sentences by instructing his chief of staff to tell

Senator Jewell that no commutation could be granted if the prisoner's files were not in

his office. 

Tucker alleged that if Juror Johnson had revealed her relationship to the Hayes

case at voir dire, Tucker could have successfully challenged her for cause. He alleged

that her presence on the jury denied him his right to a fair trial.

(3.)

On August 1, 1996, the district court conducted a hearing. Before taking

evidence, the court stated that it was persuaded that Tucker had not submitted specific

evidence demonstrating impropriety on the part of Juror Johnson or the entire panel and
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that Tucker had only submitted rank hearsay based on speculation and conjecture.

"Erring on the side of caution," however, the court granted a hearing at which the jurors,

including Juror Johnson, could be examined under oath to allow the United States to

demonstrate that no extraneous evidence entered into the jury room during deliberations.

The court stated that it would track the decision of the Eighth Circuit in United States

v. Swinton, 75 F.3d 374 (8th Cir. 1996). The court determined that Tucker's counsel

would be allowed to cross-examine, but limited such examination to the area developed

by the government. Tucker's counsel asked for clarification of the scope of the hearing,

stating that Tucker's motion had two thrusts--one that Juror Johnson was not candid on

voir dire, and the other that she was "in touch" with Charles Marvin Hayes, whom she

married during the trial. The court responded that Tucker would be limited to the

extraneous evidence issue, but that Tucker could proffer anything he liked for the Court

of Appeals in the form of a summary, but not in the form of questions and answers. 

At the hearing, Renee Johnson Hayes testified that at the time she served as juror

she did not know that her husband had ever applied for executive clemency while he was

in prison. She did not know her husband while he was in prison. She testified that at the

time she served as a juror, she was not aware that Governor Tucker had denied her

husband's clemency petition and therefore never told any other juror that Tucker had

denied her husband clemency. 

On cross-examination, Johnson testified that she had become engaged to marry

Hayes in 1994, but they had "never set a date." Tucker's counsel was permitted to

establish that she had lived with Hayes, but counsel was not permitted to ask how long

she had lived with him. Johnson said she knew when she began to live with Hayes that

he had been in the Arkansas prison. She also knew Hayes had an uncle named Say

McIntosh, but she did not know him. 
-14-

Counsel began to inquire about her answer to the jury questionnaire item asking

whether "any member of [her] family [had] ever been charged with a crime," but the

court prohibited the question on the ground that it was outside the scope of the hearing.

Counsel then asked Johnson whether she was aware that her husband's uncle was

picketing outside the courthouse during the trial, telling people that Tucker was a crook;

the court again disallowed the question as beyond the scope of the hearing. Johnson said

she knew of a mock cemetery Say McIntosh had set up on the south side of Little Rock,

but she had not read any signs on it saying that Tucker was a crook, although she passed

the cemetery when she was going that direction.

Johnson said she had no contact with Tommy McIntosh. She said she knew that

her husband was imprisoned as a result of an incident involving Tommy McIntosh, her

husband's cousin, and Maurice Crawford. She couldn't say whether her husband is still

in touch with Tommy McIntosh. Tucker's counsel asked whether there had been any

phone calls between Tommy McIntosh and her husband, and the court sustained an

objection to the question. 

Johnson testified that her husband never discussed Governor Tucker with her.

Counsel asked whether she was aware of Say McIntosh's animosity toward Tucker, but

the court sustained the government's objection to the question. She said she and her

husband never discussed the trial in any manner, "not a word." She said her husband

never discussed with her the circumstances under which clemency was granted to

Tommy McIntosh, but denied to Hayes himself, nor did he express bitterness about his

unjust conviction on the drug charge. The court sustained an objection when counsel

asked whether she and her husband had ever discussed his conviction on the drug

charge. She answered that she did not tell about her husband's conviction when she

filled out her jury questionnaire. When counsel asked if she told about the brother-inlaw's conviction, the government objected, arguing that Tucker had waived the right to
-15-

inquire about the jury questionnaire by not asking about it at voir dire. The court

sustained the objection.

Tucker's counsel asked Johnson if she got married over a noon hour during the

trial, and Johnson said she really didn't know the time. Counsel asked if it was one of

the days when"we had an hour and a half" for lunch, and she said, "I think so." She did

not mention to any of the other jurors that she got married over the lunch break.

Tucker's counsel asked whether she considered herself part of a family with Charles

Hayes and her child before the trial; the court sustained the government's objection to

that question. 

The government then called the other jurors and asked whether any of them knew

before reaching a verdict that Tucker had denied a petition for executive clemency for

Renee Johnson's husband, or whether this was discussed in the jury room. All answered

no. One juror testified that after the trial was over she had talked with Ms. Johnson

about Tucker's position on executive clemency for Hayes. The court sustained an

objection to further inquiry about that conversation.

At the conclusion of the evidence, the government stated that the record

established that no extraneous matters were injected before the jury. 

Tucker's counsel then asked to make his proffer. Counsel stated that Tucker was

prepared to prove everything alleged in the motion papers. 

Additionally, counsel offered to prove that when Governor Tucker was out of the

state and Jerry Jewell became Acting Governor, Jewell asked for Charles Hayes's

clemency file, but that Tucker's staff kept the file away from Jewell so that he did not

succeed in granting Hayes clemency. Tucker's counsel stated that there would be

testimony that the Hayes-McIntosh family was aware that Tucker's staff prevented

Jewell from granting Hayes clemency that day. Counsel additionally stated that he
-16-

would prove by Juror Johnson that she formed a family with Hayes some time around

the beginning of 1994, and that they were living together as man and wife at the time of

the voir dire. Tucker's counsel proffered the birth certificate showing the birth of

Johnson's child, Taylor, in November, 1995, with the father shown as Charles Hayes.

The Hayes-Johnson marriage license and Hayes's prison records were also proffered.

Counsel stated that Johnson's sister, Celina, is married to Charles Hayes's brother, Brian

Hayes. Counsel offered to prove that the family visits back and forth. Counsel stated

that telephone records would show telephone calls between Charles Hayes, Say

McIntosh, and Tommy McIntosh from time to time. Tucker's counsel further offered to

prove that Renee Johnson's answer to the jury questionnaire about family members who

had been charged with crime related to her brother-in-law, who was in prison on a drug

charge, and not to her husband. 

The court denied the new trial motion, because the court was not persuaded that

the jury had access to extraneous evidence in deliberating on the verdict.

(4.)

Tucker argues that his Sixth Amendment right to an impartial jury was violated

because Juror Johnson concealed her relationship to Hayes and the McIntosh family and

because she was subjected to outside influence. These are two discrete legal theories,

calling for proof of different facts. The first theory is juror bias; in other words, when

Johnson arrived at voir dire, she had an existing bias that should have disqualified her

from serving as a juror in this case, but that she concealed the bias during voir dire. The

second theory is private communication, contact, or tampering with a juror--the

allegation that Johnson discussed the trial during its pendency with someone who tried

to influence its outcome.
The opinions concurring and concurring in judgment in McDonough,

7

representing five justices altogether, state that dishonesty is merely a factor relevant to

the ultimate issue of whether a juror is biased. 464 U.S. at 556, 557-58. We have

counted the votes in McDonough and concluded: "It would thus appear that a juror's

dishonesty is not a predicate to obtaining a new trial. The focus is on bias." Cannon

v. Lockhart, 850 F.2d 437, 440 (8th Cir. 1988). Cf. United States v. Wright, 119 F.3d

630, 636 (8th Cir. 1997) (McDonough analysis ends once court concludes there was

no showing of dishonesty). However, Tucker has briefed his case under the

McDonough plurality's standard, and does not ask us to decide whether he could

receive a new trial without a showing of dishonesty.

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B.

(1.)

Tucker bases his claim of concealed juror bias on McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. 548 (1984). In McDonough, after a products liability trial,

the plaintiff discovered that one of the jurors had failed to respond to a question during

voir dire about whether any one in his family had had any serious accident. Actually, the

juror's son had suffered a broken leg in an explosion. The Court of Appeals held that the

juror's failure to respond showed bias, because it showed the juror had a particularly

narrow concept of what constitutes a serious injury. 464 U.S. at 552. Writing for a

plurality of the Supreme Court, Justice Rehnquist stated:

We hold that to obtain a new trial in such a situation, a party must first

demonstrate that a juror failed to answer honestly a material question on

voir dire, and then further show that a correct response would have

provided a valid basis for challenge for cause. The motives for concealing

information may vary, but only those reasons that affect a juror' s

impartiality can truly be said to affect the fairness of a trial.

Id. at 556. Thus, Tucker would have to prove three things about the voir dire: 1) that

Juror Johnson answered dishonestly, not just inaccurately; 2) that she was motivated 7
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by partiality; and 3) that the true facts, if known, would have supported striking her for

cause. 

The district court did not allow Tucker to put on evidence on the McDonough

claim, but instead limited the new trial hearing to the extraneous evidence theory. The

district court has broad discretion in handling allegations that jurors have not answered

voir dire questions honestly, and we defer to its discretion in deciding whether a posttrial hearing is necessary. See United States v. Williams, 77 F.3d 1098, 1100 (8th Cir.),

cert. denied, 117 S. Ct. 392 (1996). That discretion is not unlimited, however, and a

movant who makes a sufficient showing of McDonough-type irregularities is entitled

to the court's help in getting to the bottom of the matter. In United States v. St. Clair,

855 F.2d 518 (8th Cir. 1988), the defendant discovered after trial that a juror had not

responded to a voir dire question about whether anyone had experience with explosives,

although the juror had seven years' such experience. The district court failed to permit

the defendant to question the juror under oath "as to his reasons for holding back this

pertinent information, and his ability in having reached a guilty verdict without relying

on his specialized knowledge." Id. at 523. We reversed the district court and ordered

a new trial. Id. Accord United States v. Boney, 68 F.3d 497, 502-03 (D.C. Cir. 1995)

(party with McDonough claim entitled to cross-examine juror; limited inquiry permitted

by district court "virtually assured that the hearing would fail to discover any possible

prejudice.") Therefore, taking into account the district court's discretion in responding

to the situation, we must nevertheless examine Tucker's motion papers and proffer of

evidence to determine if he made a sufficient showing to entitle him to a McDonough

hearing.

 

In his new trial motion, Tucker contended that Juror Johnson deceived the court

by not responding to the general questions about sources of bias and by giving an

incomplete response to the question about whether "any member of your family" had

ever been charged with a crime. Tucker contended that Johnson shared a familial

relationship with Hayes in fact if not in law, and that this relationship was so important
-19-

that Johnson deceived the court in not revealing Hayes's conviction or her relationship

to him. 

Although Tucker asks us to order a new trial, the present state of the record is not

complete enough to warrant such a drastic step. Any evidence that Johnson deceived

the court is only circumstantial. As for her failure to respond to the numerous general

questions about sources of bias, the only direct evidence is that Johnson herself was

unaware of any grudge her husband and his family harbored against Tucker. She

testified that she did not know Hayes until he got out of jail, and that at the time she

served as a juror, she did not know Governor Tucker had denied her husband's clemency

petition. Even more categorically, she denied that she and her husband had ever

discussed Governor Tucker. She testified they never discussed the trial in any manner,

"not a word." Significantly, one fellow juror testified that after the trial she and Johnson

had discussed Tucker's denial of clemency to Hayes, but the district court cut off

questioning before counsel could find out what Johnson said. Tucker had subpoenaed

Hayes, but the court did not permit Tucker to examine him as part of the proffer.

On this record, we cannot say that Tucker has established that Johnson deceived

the court, but only that he made enough of a showing to entitle him to a hearing and

findings of fact on this issue. Johnson's own testimony indicates that she was in a state

of complete ignorance about events that nearly caused her husband to spend much of

his life in prison. On the other hand, Tucker offered affidavits that indicated that

Johnson's husband and extended family were quite preoccupied with those very events.

According to Tucker's proffer, Hayes expressed anger to Walker over the denial of his

applications for clemency. During the trial, Hayes's uncle Say McIntosh was outside the

courthouse decrying Tucker. Tucker's affidavits contain fliers McIntosh distributed in

Little Rock, characterizing Tucker's denial of clemency to a black prisoner as racist and

juxtaposing the innocence of the prisoner with Tucker's guilt. One flier specifically

derides Tucker's expectation of a "sympathetic" white jury. According to Tucker's
-20-

proffer, Say McIntosh's acrimony arose at least in part from Tucker's role in denying

Hayes and Crawford clemency and in stymieing their backup plan of receiving relief

from Jewell when Tucker left the state. The information in Tucker's proffer is very

difficult to reconcile with Johnson's testimony that she knew nothing about her family's

grudge against Tucker. Tucker has raised enough question about what Johnson knew

at the time of voir dire to entitle him to a full hearing on this issue, including crucial

credibility determinations. 

Apart from her failure to respond to questions about whether she had any bias,

Tucker also contends that Johnson intentionally failed to identify Hayes as a family

member in order to conceal her relationship with him. Specifically, Tucker argues that

she deceived the court in failing to report Hayes's conviction in the questionnaire item

about whether she had any family member who had been charged with a crime. Johnson

testified at the hearing that her response on the questionnaire, "Drug conviction--guilty

(serving four years)," did not refer to Hayes, who originally had a forty-year sentence

and who was not in jail at the time of voir dire. Counsel offered to prove that Johnson's

questionnaire answer referred to her brother-in-law, who was in prison on a drug charge.

The court would not permit Tucker's counsel to ask Johnson whether she considered

herself to be part of a family with Hayes at the time of the voir dire. 

The government argues that Johnson's answer to the questionnaire was accurate

because she was not married to Hayes at the time of the voir dire and therefore he was

not her family. The government's argument receives some support from United States v.

Wright, 119 F.3d 630, 636 (8th Cir. 1997), in which a juror failed to respond to a

question asking whether he was related to any "law enforcement officer." His uncle was

a tribal children's court judge. We said the juror "could have honestly believed" that a

tribal court judge was not a law enforcement officer, so we rejected the defendant's claim

of bias without a hearing. Id. (citing Bolin v. Black, 875 F.2d 1343, 1350 (8th Cir.) (

no need for hearing to ascertain juror's subjective honesty when juror's
-21-

answer was literally true), cert. denied, 493 U.S. 993 (1989)). We do not believe

Wright represents a per se rule that if a question is ambiguous, an answer that is correct

under any interpretation of the question cannot be a "false" answer under McDonough.

Rather, in Wright the court made an assessment that the answer was a reasonable one.

Moreover, the alleged misrepresentation in Wright was not particularly material and

probably would not have led to a successful challenge for cause. See United States v.

Humphreys, 982 F.2d 254, 261 (8th Cir. 1992) (to obtain new trial, must show

misrepresentation showed actual bias or prejudice), cert denied, 510 U.S. 814 (1993);

Coughlin v. Tailhook Ass'n, 112 F.3d 1052, 1062 (9th Cir. 1997) (dishonesty limited to

collateral matters; no relief granted). 

In contrast to the facts in Wright, Johnson was alleged to have concealed a

relationship of great significance to her and one that would have been of great

significance to Tucker if he had known of it. According to Tucker's proffer, Johnson

lived with Hayes, had a child with him, and was only a few days away from marrying

him at the time of voir dire. Whether a juror in such a position would either understand

Hayes to be included in the term "family" or at least would understand that the

questionnaire meant to ask about people with whom she shared such a close relationship,

is, we believe, an issue that requires further detailed inquiry. Therefore, we hold that

Tucker made a sufficient showing to entitle him to a McDonough hearing on whether

Johnson meant to deceive the court in her questionnaire answer.

If Tucker can prove that Johnson deceived the court at voir dire, he will also have

to prove that she did so because of partiality, rather than for some reason that is

irrelevant to the fairness of the trial. "The motives for concealing information may vary,

but only those reasons that affect a juror's impartiality can truly be said to affect the

fairness of a trial." McDonough, 464 U.S. at 556. In St. Clair, we emphasized that the

court should have questioned the juror to find out "his reasons for holding back . . . his

pertinent information," 855 F.2d at 523. If Tucker can prove the facts alleged in his

proffer, there will be a sufficient showing to support a finding that the incomplete
This is a shorthand way of referring to both the common law categories of

8

challenge for cause and challenge for favor. See 28 U.S.C. § 1870 (1994) (recognizing

challenges for cause and favor); United States v. Boney, 977 F.2d 624, 641 (D.C. Cir.

1992)(Randolph J., concurring) (explaining distinction between challenge for cause,

based on lack of statutory qualification, and challenge for favor, based on bias).

-22-

answer was motivated by partiality. However, it is also possible that the evidence at a

hearing could support a finding of some other motivation for incomplete answers, such

as embarrassment. See United States v. Boney, 68 F.3d at 502 (once dishonesty shown,

need further inquiry to determine whether dishonesty motivated by bias); United States

v. Boney, 977 F.2d 624, 634-35 (D.C. Cir. 1992) (same).

Finally, under the McDonough test, Tucker must prove that if Johnson had given

complete and honest answers at voir dire, she would have been subject to challenge for

cause. There are various grounds for such a challenge, see 28 U.S.C. § 1865 (listing 8

conditions that would disqualify a person for jury service); Humphreys, 982 F.2d at 260-

61 (claim of juror disqualification because of felon status). The ground Tucker alleges

is partiality, known at common law as a challenge for favor (which coincides to a large

extent with the second element of the McDonough test). "[T]o challenge for cause, a

party must show actual partiality growing out of the nature and circumstances of [the]

particular case." United States v. Bascope-Zurita, 68 F.3d 1057, 1063 (8th Cir. 1995)

(citation and internal quotations omitted), cert. denied, 116 S.Ct. 741 (1996). The

decision of whether a particular juror should be excused for bias is entrusted to the sound

discretion of the district court, see Bascope-Zurita, 68 F.3d at 1063, although of course

that discretion has limits. See Kirk v. Raymark Industries, Inc., 61 F.3d 147, 152-56 (3d

Cir. 1995) (reversing district court for failure to strike jurors whose comments showed

they were biased), cert. denied, 116 S.Ct. 1015 (1996). The matters asserted in Tucker's

proffer would support a decision by the district court to strike Juror Johnson for cause.

See Cox v. Norris, No. 97-1280, 1997 WL 790331 at *5 (8th Cir. Dec. 29, 1997)

("ample reason" to excuse juror for cause where "she was acquainted
Tucker also argues that the court erred in refusing to strike another juror, Jerry 9

Haustein, whose responses to the questionnaire were inconsistent with a defendant's

right to silence and the presumption of innocence. After the questionnaires had been

completed, Tucker moved to strike Haustein on the basis of the questionnaire. The

district court did not grant the motion. The district court then held a voir dire hearing,

at which the parties were permitted to ask the jurors about problematic answers to the

questionnaires. The district court excused some jurors after their oral responses made

it clear that they were biased, while in other cases, the oral examination cleared up

problems that appeared in the questionnaires. Tucker did not question Haustein about

the questionnaire answers. After the district court refused to strike Haustein on the

basis of the answers to the questionnaire items, which could have been confusing to

a lay person, it was incumbent on Tucker to press his objection at the hearing. His

failure to do so resulted in waiver of the objection. See United States v. Hoelscher, 914

F.2d 1527, 1542-43 (8th Cir. 1990), cert. denied, 500 U.S. 943 (1991). 

-23-

with, and had reason to have animosity toward, the prosecution."); United States v.

Campbell, 845 F.2d 782, 786 (8th Cir.) (juror properly excused for cause where parentsin-law had worked for defendant's political campaign), cert. denied, 488 U.S. 965

(1988); United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984) (challenge can

be for "remote" relationship with party).

 

Tucker has therefore made a sufficient showing of a McDonough claim to entitle

him to a hearing on his claim that he was denied his right to an impartial jury. 

The government contends that Tucker waived Juror Johnson's bias by failing to

ask questions about it in voir dire. Failure to ask the questions necessary to expose bias

at voir dire can result in waiver of objections to a juror. See United States v. Williams,

77 F.3d 1098, 1100-01 (8th Cir.), cert. denied, 117 S.Ct. 392 (1996); Johnson v.

Armontrout, 961 F.2d 748, 754 (8th Cir. 1992) (if defendant fails to object to juror, has

Sixth Amendment claim only if proves actual bias). Nevertheless, the government's

argument is beside the point, because in this case Tucker asked the questions and he

contends that Johnson gave incorrect or incomplete responses.9
-24-

Tucker contends that he has made a showing sufficient to compel a finding of

partiality and that we should reverse his convictions outright. To the contrary, we have

a woefully incomplete record, with most of Tucker's allegations supported only by his

counsel's narrative offer of proof. We cannot anticipate what facts a full hearing may

bring out and what credibility determinations the district court will make. We therefore

reject Tucker's suggestion that we reverse or grant a new trial, and instead remand to the

district court for a hearing on the issues we have outlined.

(2.)

Tucker also contends that the district court wrongly prevented him from proving

that Juror Johnson was subjected to outside influence during the trial. Before the

hearing, the district court stated that it was convinced that Tucker had "not submitted any

specific evidence demonstrating any impropriety on the part of juror Johnson, or the

entire panel, but has submitted rank hearsay." However, out of abundance of caution,

the district judge allowed Tucker to examine Johnson and the other jurors on the model

of the hearing prescribed in United States v. Swinton, 75 F.3d 374, 381-82 (8th Cir.

1996), another case in which he served as trial judge. Swinton involved the jury's

consideration of an extraneous fact not in evidence, rather than an allegation that a juror

was subjected to outside influence, as in this case. Id. at 381. Following the Swinton

model, the district court focussed on what was said in the jury room, but largely

excluded evidence of what was said to Juror Johnson outside the jury room. Tucker

offered the affidavit of Arkansas State Senator Walker stating: "I know that Tommy

McIntosh talked several times with Hayes and that Hayes discussed the trial with his

wife during the trial." However, the court did not allow Tucker to call Walker, Tommy

McIntosh, or Charles Hayes to substantiate these assertions.

To gain a new trial on the ground of juror misconduct, a movant must present

evidence that is not barred by Federal Rule of Evidence 606(b) and that establishes
-25-

grounds recognized as adequate to overturn a jury verdict. See United States v.

Caldwell, 83 F.3d 954, 956 (8th Cir. 1996). 

Rule 606(b) specifically allows a juror to testify "on the question whether

extraneous prejudicial information was improperly brought to the jury's attention or

whether any outside influence was improperly brought to bear upon any juror."

When there has been an outside intrusion into the jury's privacy and secrecy

during trial, a party is entitled to a new trial if he has been prejudiced by the impropriety.

Under Remmer v. United States, 347 U.S. 227 (1954) (Remmer I):

In a criminal case, any private communication, contact, or tampering,

directly or indirectly, with a juror during a trial about the matter pending

before the jury is, for obvious reasons, deemed presumptively prejudicial,

if not made in pursuance of known rules of the court and the instructions

and direction of the court made during the trial, with full knowledge of the

parties.

Id. at 229; accord Caldwell, 83 F.3d at 956; United States v. Melius, 123 F.3d 1134,

1139 (8th Cir. 1997), cert. denied, 118 S. Ct. 871 (1998). Our circuit does not apply the

presumption shifting the burden of proof to the government if the contact pertained to

outside legal advice, not extraneous facts. See United States v. Hall, 85 F.3d 367, 371

(8th Cir. 1996). We do not have sufficient facts before us to ascertain whether the

presumption of prejudice should apply, since Walker's affidavit does not reiterate the

substance of the alleged communications between Johnson and Hayes. However, the

type of contact suggested by the record is neither outside legal advice nor exposure to

extraneous facts, but private communication, contact, or tampering. Tampering was

exactly the sort of contact involved in Remmer I, in which the Supreme Court stated the

presumption rule. See 347 U.S. at 229. But whether the presumption shifts the burden

of proof to the government or not, the ultimate question is the same: "Did the
-26-

intrusion affect the jury's deliberations and thereby its verdict?" United States v. Olano,

507 U.S. 725, 739 (1993).

We defer to a district court's discretion in deciding how to handle allegations of

intrusions on the jury. See Caldwell, 83 F.3d at 957; United States v. Williams, 97 F.3d

240, 246 (8th Cir. 1997). However, if a party shows that outside contact with the jury

presents a reasonable possibility of prejudice to the verdict, he is entitled to a hearing on

the matter. See Remmer, 347 U.S. at 230; Rushen v. Spain, 464 U.S. 114, 119-20

(1983) (per curiam); Smith v. Phillips, 455 U.S. 209, 215 (1982); see generally United

States v. Madrid, 842 F.2d 1090, 1093-94 (9th Cir.), cert. denied, 488 U.S. 912 (1988);

26 Moore's Federal Practice ¶ 633.07[1] and n.3 (Matthew Bender 3d ed. 1997). The

Supreme Court "has long held that the remedy for allegations of juror partiality is a

hearing in which the defendant has the opportunity to prove actual bias." Smith, 455

U.S. at 215. The Eleventh Circuit has summarized its cases on the parameters of the

district court's discretion in investigating allegations of juror misconduct:

Examination of all of the cited authorities . . . leads us to the conclusion

that the cases fall along a continuum focusing on two factors. At one end

of the spectrum the cases focus on the certainty that some impropriety has

occurred. The more speculative or unsubstantiated the allegation of

misconduct, the less the burden to investigate . . . . At the other end of the

continuum lies the seriousness of the accusation. The more serious the

potential jury contamination, especially where alleged extrinsic influence

is involved, the heavier the burden to investigate.

United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985). In sum, the depth of

investigation required depends on both the gravity of the alleged misconduct and the

substantiality of the movant's showing of misconduct.
-27-

 In this case, Tucker presented the affidavit of Walker, that Walker had

knowledge that Hayes and Johnson had talked about the case. Walker's affidavit must

be contrasted to the anonymous tips discounted by the Eleventh and Fifth Circuits. See

Caldwell, 776 F.2d at 999; United States v. Sedigh, 658 F.2d 1010, 1013-14 (5th Cir.

1981), cert. denied, 455 U.S. 921 (1982). Significantly, Walker had championed

Hayes's cause in the effort to obtain clemency, and Tucker had denied his request.

Walker's earlier alliance with the McIntosh-Hayes family gives added credence to his

report that they have engaged in wrongdoing.

 

The background of Walker's assertions makes the alleged misconduct far graver

than an ordinary case of husband and wife communication during trial. Cf. Caldwell, 83

F.3d at 956 (allegation that a juror's husband was present in the jury room was too

vague to warrant further investigation); United States v. Williams-Davis, 90 F.3d 490,

495-99 (D.C. Cir. 1996) (juror's contact with husband harmless, since juror did not

appear to be influenced by husband's "two cents' worth"), cert. denied , 117 S. Ct. 986

(1997). The allegations of ex parte contact must be viewed in light of the extraordinary

saga of Hayes's attempts to gain clemency; Tucker's frustration of those attempts

directly and then by hiding Hayes's file from Jewell; and the McIntosh family's campaign

against Tucker. With these facts in the background, the assertion that Johnson and

Hayes had discussed the case during the trial must be taken as an allegation of serious

misconduct, with a significant potential for prejudice to Tucker. See Swinton, 75 F.3d

at 381 (juror's statement that another juror said defendant had criminal record holds

sufficient potential for prejudice to require full hearing). 

The district court's investigation of the misconduct focussed on whether the

contamination was spread throughout the jury, but the court foreclosed a thorough

inquiry into the existence and effect of the alleged communication to Johnson. The

district court underlined its narrow view of the issues presented in its written order

denying Tucker's new trial motion: "Each juror, under oath, denied knowledge of

Tucker's action in denying clemency of Johnson's husband, and stated that the matter
-28-

was never discussed during deliberations. Hence, the Court finds that no extraneous

prejudicial information was improperly brought to the jury's attention and that no outside

influence was improperly brought to bear upon any juror." The question of prejudice

depends on whether "there is any reasonable chance that the jury would have been

deadlocked or would have reached a different verdict but for the fact that even one

reasonable juror was exposed to prejudicial extraneous matter." United States v. Hall,

116 F.3d 1253, 1255 (8th Cir. 1997) (emphasis added), pet'n for cert. filed, No. 97-7602

(Nov. 19, 1997). Therefore, prejudice is possible even if Johnson was the only juror to

be contaminated.

 

In extraneous evidence cases, we have looked to see the extent and timing of jury

exposure to the extraneous fact. See United States v. Blumeyer, 62 F.3d 1013, 1017

(8th Cir. 1995), cert. denied, 116 S.Ct. 1263 (1996); Hall, 85 F.3d at 371. This is simply

part of the calculation in determining how much weight to accord one improperly

received fact in the context of a trial's worth of other facts. Contamination of a different

kind occurs when, rather than being exposed to a fact not in evidence, a juror is

subjected to psychological pressure by an outsider trying to coopt that juror's vote. In

such a case, the effect on the particular juror is intense and can be harmful to the

litigants, even though the rest of the jury remains unaware of the impropriety and even

though no extraneous evidence is admitted. For instance, in Remmer v. United States,

350 U.S. 377 (1956) (Remmer II), the Supreme Court vacated the conviction and

ordered a new trial because an outsider had made an overture of a bribe to one juror.

The district court had found that the incident was harmless because it did not affect the

integrity of the jury's deliberations. Id. at 379. The Supreme Court reversed, holding

that the bribery attempt did indeed affect the state of mind of the one juror involved, and

that this deprived the defendant of a fair trial. "[The juror] had been subjected to

extraneous influences to which no juror should be subjected, for it is the law's objective

to guard jealously the sanctity of the jury's right to operate as freely as possible from

outside unauthorized intrusions purposefully made." Id. at 382. More recently, in

United States v. Cheek, 94 F.3d 136 (4th Cir. 1996), the Fourth Circuit held
-29-

that a habeas petitioner was entitled to relief because of an implicit bribery attempt

directed at one juror by a co-defendant. On habeas, the district court held the incident

was innocuous because the juror was not exposed to extraneous facts, he did not tell the

other jurors about the incident, and he testified that he listened to all the evidence and

based his vote on the evidence. Id. at 141. The Fourth Circuit reversed, holding that the

evidence showed the juror was "devastated and fearful" after the incident. Id. at 144.

"Objectively, there is at least a reasonable possibility that the extraneous contact affected

the verdict." Id. Similarly, in United States v. Maree, 934 F.2d 196, 202 (9th Cir.

1991), the Ninth Circuit held that there was actual prejudice where a juror was subjected

only to "aggressive" comments on the case by her friends, without any additional

extraneous facts or contamination of the rest of the jury. See also Church v. Sullivan,

942 F.2d 1501, 1508 (10th Cir. 1991) (habeas petitioner entitled to hearing on whether

jurors were exposed to jailer's wife's expressions of moral outrage); Stockton v. Virginia,

852 F.2d 740, 742, 746 (4th Cir. 1988) (habeas granted where jurors exposed to opinion

in diner that "they ought to fry" petitioner), cert. denied, 489 U.S. 1071 (1989). Thus,

a hearing limited to the issues of whether the other jurors were exposed to extraneous

facts was not suited to the kind of impropriety alleged in this case--intense emotional

pressure brought to bear on one juror. 

 

Johnson testified that she and her husband did not talk about the case during the

trial, and the other jurors testified that she had not mentioned anything about her

husband. However, the court denied Tucker the opportunity to test that evidence by

examining Walker, Tommy McIntosh, and Charles Hayes, whom Tucker has reason to

believe could tell a different story from Juror Johnson's. We conclude that a defendant

who makes an allegation of serious misconduct by a juror, supported by evidentiary

materials with significant indicia of reliability, is entitled to a more thorough

investigation of his complaint than merely asking the juror whether he committed the

misconduct. In United States v. Brantley, 733 F.2d 1429, 1439 (11th Cir. 1984), cert.

denied, 470 U.S. 1006 (1985), after an allegation that one juror had informed the others

of a fact not in evidence, the district court questioned the juror, who denied the
-30-

misconduct. The court only permitted the parties to submit written questions and refused

to ask many of the questions submitted by counsel. The Eleventh Circuit held that a

more searching inquiry was required, since the juror's "natural inclination would be to

deny making those remarks." Id. at 1440-41. See also United States v. Boney, 68 F.3d

at 502-03. We do not suggest that a juror's testimony on the subject of his own conduct

is "inherently suspect," Smith, 455 U.S. at 217 n.7, but only that, since other sources of

evidence are available, Tucker should be allowed to use them. 

 We therefore remand with instructions that the district court permit Tucker a

hearing on the private communication, contact, or tampering issue, with the opportunity

to examine Walker, Tommy McIntosh, and Hayes on the subject of private

communications to Juror Johnson during trial and the effect of any such communications

on Johnson's ability to serve impartially.

 

II.

Tucker contends that there was not sufficient evidence to convict him.

 In reviewing a claim of insufficiency of the evidence, we view the evidence in the

light most favorable to the government, with all reasonable inferences and credibility

determinations made in support of the jury's verdict. See Glasser v. United States, 315

U.S. 60, 80 (1942); United States v. Liebo, 923 F.2d 1308, 1311 (8th Cir. 1991). We

must uphold the verdict if any reasonable jury could have found the elements of the

crime beyond a reasonable doubt. Liebo, 923 F.2d at 1311. Conversely, we will reverse

only if the jury must have had a reasonable doubt about an essential element of the

crime. Id.

Additionally, once the existence of a conspiracy has been established, even slight

evidence connecting a particular defendant to the conspiracy will suffice to prove
To prove a conspiracy, the government must prove that "there was an

10

agreement to achieve some illegal purpose, that the defendant knew of the agreement,

and that the defendant knowingly became a part of the conspiracy." United States v.

Bass, 121 F.3d 1218, 1220 (8th Cir. 1997). Additionally, one of the conspirators must

have acted to effect the object of the conspiracy. United States v. Dolan, 120 F.3d 856,

868 (8th Cir. 1997).

-31-

involvement. See United States v. Maza, 93 F.3d 1390, 1399 ( 8th Cir. 1996), cert.

denied, 117 S. Ct. 1008 (1997).

Tucker attacks his conspiracy conviction, saying that there is no evidence that 10

he was anything but a bystander to a conspiracy between Hale and James McDougal.

Tucker contends that the conspiracy was said to be for the benefit of "the political

family," and there was no reliable evidence that Tucker was related to that family. This

argument ignores the whole context of the "political family" remark. At the same

meeting, indeed in the same sentence in which Hale said McDougal referred to the

"political family," McDougal said specifically, "Jim Guy is going to need some funds..."

There is no ambiguity about whether the conspiracy, as reported by Hale, was meant to

include and benefit Tucker.

Tucker also points out that on cross examination, Hale undermined his own

testimony about the meeting around Tucker's kitchen table. Tucker's counsel asked Hale

about a television interview he had given about when the "political family matter" first

came up, in which he indicated that it may have been in a phone call or meeting after that

evening meeting around the kitchen table.

Q: But you don't know whether it came up with Jim Guy there or not, do

you?

A: Not positive. You're right.
-32-

This uncertainty is powerful ammunition that could have severely damaged Hale's

credibility in front of the jury. However, we believe it stops short of rendering Hale's

testimony insufficient to support the verdict. Hale's credibility was for the jury to

determine. Even without Tucker's presence for the "political family" remark, Hale's

testimony still establishes that he, McDougal, and Tucker arranged the Castle Sewer

and Water transaction so as to conceal the fact that Capital Management was providing

the down payment for a business in which Tucker made no investment. According to

Hale, the Castle Sewer and Water plan was first revealed to him by Tucker himself,

who said that he was undertaking the transaction because it was urgent for Madison to

divest itself of the sewer and water system to avoid trouble with the regulators. Hale

said he talked to Tucker about it more than once and that Tucker said: "We need to get

this loan done for McDougal. He's really got problems and we need to at least show

some type of due diligence." Tucker described to Hale the transaction, including the

hundred percent financing of the purchase, and Tucker "prepared most all of the [loan]

documents." Though the conversation around Tucker's kitchen table may have summed

up the government's theory of the conspiracy in a nutshell, the case does not stand or

fall on Tucker's presence at one conversation. "The agreement which lies at the heart

of any conspiracy case need not, of course, be expressly stated. Instead, the

Government must only establish a tacit understanding between the parties, and this may

be shown wholly through the circumstantial evidence of [the defendant's] actions."

Bass, 121 F.3d at 1220 (internal quotation omitted). Hale's testimony, together with

the transactions that took place, provides abundant evidence of a conspiracy to extract

money from Madison and Capital Management by fraud. Once the conspiracy is

established, even slight evidence will suffice to connect the defendant with the

conspiracy. Maza, 93 F.3d at 1399. There is more than slight evidence that Tucker

voluntarily linked himself with the scheme.

Tucker contends that he was not proved to be a member of the conspiracy

because he had no "stake" in the cycle of benefits conferred by the interlocked

transactions. Tucker contends he did not receive any benefit from the Etta's Place
As we already stated, the jury acquitted Tucker on the substantive charges

11

arising out of the Etta's Place transaction. Acquittal by the jury on those charges does

not affect our analysis on the sufficiency of the evidence of the conspiracy charge. See

United States v. Suppenbach, 1 F.3d 679, 681 (8th Cir. 1993).

-33-

transaction, because the Castle Sewer and Water loan closed on February 28, 1986, 11

and the Etta's Place proceeds were not deposited to Capital Management's account until

April 2, 1986. This argument ignores the role of James McDougal as source of the

Etta's Place money and ultimate beneficiary of the Castle Sewer and Water loan.

According to Hale, Tucker's purchase of the sewer and water system was an

accommodation of McDougal's need to get ownership of the utility out of Madison

Financial. Therefore, Hale's fraudulent loan to Tucker to finance the purchase of the

sewer and water system was a way of benefitting McDougal indirectly. In turn,

McDougal was about to finance an extremely lucrative transaction for Hale's benefit.

Participation in the Castle Water and Sewer transaction may not have been to Tucker's

great advantage, but there is certainly evidence that he was a knowing participant in the

scheme, rather than a bystander. It is not necessary to show that Tucker profited in

order to prove he was part of the conspiracy.

Moreover, it is not true that Tucker had nothing to gain from the conspiracy,

since there was evidence of a pattern of favors and reciprocal obligations running

between James McDougal and Tucker. For instance, Hale said that on the night of the

first meeting out at Castle Grande, it was mentioned that McDougal was going to let

Tucker put his cable television company at Castle Grande. There was also evidence

that McDougal had Madison loan Tucker money when Tucker was liable on a note in

default at another institution. However, the money did not come without strings.

Tucker had to buy from McDougal the 34 acres near Castle Grande that Hale described

as a "turkey." Hale described a symbiotic relationship in which benefitting one

conspirator would eventually work to the good of all.
18 U.S.C. § 1341 provides: 12

Whoever, having devised or intending to devise any scheme or artifice to

defraud, or for obtaining money or property by means of false or

fraudulent pretenses . . . for the purpose of executing such scheme . . .

places in any post office . . . any matter or thing whatever to be sent or

delivered by the Postal Service . . . or knowingly causes to be delivered

by mail . . . any such matter or thing, shall be fined under this title or

imprisoned not more than five years, or both.

The statute requires proof of: (1) a scheme to defraud; (2) use of the mails for

the purpose of executing such scheme; and (3) intent to defraud. United States v.

Midtaune, 589 F.2d 370, 374 (8th Cir.), cert. denied, 442 U.S. 917 (1979).

-34-

Tucker also argues that the mailing of the Form 1031 did not satisfy the mailing

element of 18 U.S.C. § 1341, citing United States v. Maze, 414 U.S. 395 (1974). We 12

have dealt at length with the identical argument in our decision in the case of Tucker's

co-defendant, Susan McDougal, filed today, and have concluded that the mailing of the

Form 1031's did indeed perpetuate a fraud. See United States v. McDougal, No. 96-

3270, slip op. at p. ___ (8th Cir. ________, 1997). We will not repeat what we have

written there. The evidence showed that Tucker himself prepared the loan application

hiding the fact that the purpose of the Castle Sewer loan was to make the down

payment on a facility for a corporation in which there was no investor money, only

loans from Madison and Capital Management. In this context, a jury could certainly

conclude that Hale's incorporation of the "working capital" language from Tucker's

application into the Form 1031 perpetuated a falsehood to avoid scrutiny by the Small

Business Administration.

Finally, Tucker contends that the loan application offered into evidence was

superseded by a different application, which was lost between the date of the

transaction and the trial. He points to records showing that an associate in his firm

spent time preparing a loan application for Castle Sewer and Water Corp. after the date
-35-

Tucker submitted the application that was in evidence at trial. The billing records are

a very thin reed on which to hang a theory of multiple, superseding loan applications,

especially since the associate in question does not remember any such superseding

application and since the trial revealed other instances of backdating. At any rate,

Tucker's argument is that the billing records could support an alternative version of the

facts in which the Castle Sewer and Water Corp. transaction would not be fraudulent.

However, under our standard of review of a jury verdict, we must resolve disputed

facts in favor of the verdict, not against it. "The evidence need not exclude every

reasonable hypothesis except that of guilt." United States v. Termini, 992 F.2d 879,

881 (8th Cir. 1993). There is sufficient evidence to support the conviction.

III.

Tucker argues that several evidentiary rulings were abuses of discretion. First,

he argues that the district court abused its discretion in letting the government impeach

James McDougal with a prior statement to the FBI that Tucker was a "thief who would

steal anything that wasn't nailed down." Tucker did not testify, so his credibility was

not in issue. McDougal had initially testified that he had known Tucker thirty-five

years and knew of nothing Tucker had ever done that was illegal. During the course

of his testimony, McDougal denied participating in the various crimes he was accused

of, stating that he had not entered a conspiracy with Tucker or committed wire fraud,

etc. In cross-examination, the government gave notice that it wanted to use the

statement to the FBI for impeachment. Tucker objected vehemently, but the court

permitted the use of the statement. The court gave a cautionary instruction:

The government is about to elicit certain information from Mr. McDougal

to develop from a document a statement previously made by Mr.

McDougal [that] might be inconsistent with the testimony that he has

given already. Now, you are admonished, and I want to make this crystal

clear, it is being received for one purpose and one purpose only,

impeachment.
-36-

The district court's decision to admit evidence is reviewed only for abuse of

discretion. See United States v. Fairchild, 122 F.3d 605, 610 (8th Cir. 1997), pet'n for

cert. filed, No. 97-7312 (Dec. 22, 1997). In this case, the impeachment was not a

perfect fit with the statements the government now points to as prior inconsistent

statements. The statement in the FBI report was vague, amounting to little more than

name-calling, and was not directly contrary to, for instance, McDougal's statement that

he and Tucker had not committed wire fraud. Nevertheless, we cannot say that the

decision to allow the impeachment was an abuse of discretion. Moreover, the limiting

instruction channeled the jury's use of this evidence. See United States v. Delpit, 94

F.3d 1134, 1144-45 (8th Cir. 1996).

Tucker also contends the district court abused its discretion in allowing

testimony by William Watt that he did not believe a statement Tucker made about one

of the transactions on which Tucker was acquitted. The district court admitted this

evidence as lay opinion under Fed. R. Evid. 701. Regardless of whether this was an

appropriate use of Rule 701, we can say that in light of Tucker's acquittal on the

substantive count and in the context of the entire trial, admission of Watt's statement

was harmless beyond a reasonable doubt. See Fed. R. Crim. P. 52(a); United States

v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991) (opinion as to veracity of witness was

harmless error), cert. denied, 502 U.S. 1062 (1992).

IV.

Tucker contends that the district court erred in denying his request for jury

instructions about various regulatory requirements. Tucker contends that these

instructions were appropriate because there had been testimony that various

transactions were structured to avoid violating regulations or to conceal such violations.
-37-

A defendant who requests a specific instruction is entitled to an instruction that

conveys the substance of his request if his request is timely, it is supported by evidence

in the case, and is a correct statement of the law. See United States v. Darden, 70 F.3d

1507, 1544 (8th Cir. 1995), cert. denied, 116 S. Ct. 1449 (1996). The defendant is not

entitled to any particular formulation, as long as the instructions given adequately

convey the law. Id. We review the district court's decision to give or deny an

instruction for abuse of discretion, considering the court's ruling in the context of the

entire charge. See United States v. Lynch, 58 F.3d 389, 391 (8th Cir. 1995); United

States v. Parker, 32 F.3d 395, 400 (8th Cir. 1994).

The court denied Tucker's requests for instructions about the substance of

particular regulations, but gave an instruction that was actually more to the point. The

court instructed the jury:

You have heard testimony during this trial concerning certain federal and

state regulations of financial institutions, including regulations of the

Small Business Administration, the Federal Home Loan Bank Board, and

regulations of the State of Arkansas concerning savings and loan

institutions. Such federal and state regulations are civil, not criminal laws.

Therefore, violation of any such regulations should not be considered by

you as a violation of the criminal law. 

This instruction correctly told the jury that regulatory violations were not elements of

the charged crimes. In contrast, Tucker's proposed instructions would have required

even further instructions to avoid misleading the jury and would have focussed the

jury's attention on collateral issues. Tucker introduced evidence about one of these

regulations; this was the appropriate way to undermine what he considers to be

misleading testimony by Hale about the effect of such regulations on Tucker's actions.

The district court did not abuse its discretion in denying the requested instructions.
Section 1341 does not use the word "wilfully." Cf. United States v. Jain, 93 13

F.3d 436, 440-41 (8th Cir. 1996) (looking at Medicare anti kick-back statute's use of

"wilfully" to decide whether court should give instruction), cert. denied, 117 S. Ct.

2452 (1997).

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Tucker contends the district court erred in denying his proposed instruction

number 7, to wit: "An act is done 'wilfully' if done voluntarily and intentionally with

the purpose of violating a known legal duty." Thus, Tucker wanted the court to

13

instruct the jury that Tucker had to intend to break the law. "The critical inquiry [in

mail fraud] is not whether [the defendant] intended to break the law, but, rather,

whether he intended to defraud . . . ." United States v. Wicker, 80 F.3d 263, 267 (8th

Cir. 1996) (internal quotations omitted). Tucker's requested instruction would have

misled the jury, and therefore the court did not err in declining to give it.

* * *

We conclude that the district court did not err with respect to the issues

discussed in parts II, III and IV, but remand with instructions that the district court

conduct a full hearing on the issues discussed in part I pertaining to Juror Johnson.

BEAM, Circuit Judge, concurring in part and dissenting in part,

I concur in Parts II, III, and IV of the court's decision. However, I respectfully

dissent from Part I because, in my view, the district court did not err in finding that

Tucker had failed to raise reasonable grounds for a more searching post-trial hearing

than that conducted. Indeed, under clearly established law, the pleadings and papers

advanced by Tucker required no hearing whatsoever. Thus, the court violates the

applicable "abuse of discretion" standard of review with this remand.
-39-

The district court determined that Tucker failed to submit "any specific evidence

demonstrating any impropriety on the part of juror Johnson, or the entire panel, but has

submitted rank hearsay." Tr. of Hr'g at 3 (August 1, 1996). The district court

characterized the Tucker argument as "based on speculation and conjecture." Id.

Everything before the court, on appeal, supports the district court's conclusion. The

court, in conducting its erroneous analysis, has converted conclusory allegations by

Tucker into findings of fact at odds with evidentiary rulings and credibility

determinations reached by the district court, the tribunal with sole discretion to resolve

these issues. See Smith v. Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J.,

concurring).

Tucker presents a concoction of speculation and conjecture based on the

purported state of mind of one Robert "Say" McIntosh, juror Johnson's uncle by

marriage whom she did not know, and of Charles Hayes, Johnson's fiancé turned

husband, a person that she apparently had little if anything to do with at times relevant

to most of Tucker's allegations. The issue is, of course, the state of mind of Johnson

and no one else. Because Tucker advanced only speculative allegations with regard to

Johnson's state of mind, the court's remand order requires it to make unsupported

factual and legal leaps of unprecedented proportions.

The court correctly observes that Tucker's motion—alleging that his Sixth

Amendment right to an impartial jury requires a new trial—raises two separate theories.

First, Tucker alleges that Johnson harbored a bias against him and that she failed to

answer honestly certain questions during voir dire that would have revealed her bias.

Next, Tucker contends that Johnson received improper communications during the trial.

The district court refused to conduct a post-trial hearing into the juror bias claim and

conducted a limited inquiry into the improper communications allegation. Because an

appellate court is generally not the proper tribunal to vacate a verdict and order a new

trial, see McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 551 n.3 (1984),
-40-

we must only decide whether the district court erred in not conducting a more extensive

investigation into Tucker's allegations. I find no error in that regard.

The mere fact that post-verdict allegations of juror bias or misconduct are made

does not automatically create a right to a hearing. See also McDonough, 464 U.S. at

556 (Blackmun, J., concurring) (stating that the decision to conduct a post-trial hearing

to determine juror bias remains within the "trial court's option"); United States v.

Moses, 15 F.3d 774, 778 (8th Cir. 1994) (same). Clearly, our limited judicial resources

prevent us from ferreting out every instance of alleged bias or otherwise guaranteeing

perfect trials. See Lutwak v. United States, 344 U.S. 604, 619 (1952). Needless posttrial interviews of jurors could result in juror harassment and cause grave danger to the

effectiveness of our jury system. See Tanner v. United States, 483 U.S. 107, 120

(1987) (observing that the jury system would likely not survive efforts at perfection).

Thus, before ordering a post-trial hearing, the district court must determine

whether an allegation of concealed juror bias or misconduct even warrants further

investigation. See United States v. Caldwell, 83 F.3d 954, 957 (8th Cir. 1996). We

give broad deference to the district court in this determination because it is better

positioned to consider the relevance and materiality of supporting facts and the

possibility of bias. Id. The district court's duty to investigate is primarily determined

by the nature of the losing litigant's allegations supporting the claim of bias or

misconduct and the severity of the allegations. See United States v. Caldwell, 776 F.2d

989, 998 (11th Cir. 1985). In the absence of substantiated, non-speculative allegations

of material, pre-existing bias or misconduct, we need not permit convicted defendants

"to waste the time of a district judge or inconvenience jurors merely to conduct a

fishing expedition." United States v. Moten, 582 F.2d 654, 667 (2d Cir. 1978); see

also Moses, 15 F.3d at 778 (holding that a convicted defendant is not entitled to a posttrial hearing on the issue of juror misconduct based on a vague and uncertain affidavit

of a juror that "never explains the basis of his suspicion"). I disagree with the court's

conclusions that Tucker's allegations provide reasonable grounds for a post-trial hearing
These answers respond to the court's concerns, ante at 20, that Tucker's counsel 14

was not permitted to question Johnson at the post-trial hearing on whether she

considered herself a "part of a family with Hayes" at the time of voir dire. Obviously

she did not because she considered herself single. She did respond that she had a child

of "3 months." If her relationships were actually unknown to him or as important as he

now contends, nothing prohibited Tucker from making further inquiry at voir dire as to

the identity of the father of Johnson's child and her association with him. Tucker failed

to do so.

-41-

into the allegations of concealed juror bias and that Tucker's allegation of improper

communications warrants any more searching a hearing than that conducted. Most

important, however, I believe that the district court acted within its discretion. 

A. Juror Bias

In support of his theory of concealed juror bias, Tucker relies upon the fact that,

during his trial, Johnson married Charles Hayes, a former prisoner who had been denied

executive clemency by Tucker. Tucker also alleges that Hayes is the nephew of a local

activist, Say McIntosh, who frequently spoke out against Tucker before and during the

criminal trial. Tucker argues that Johnson improperly failed to reveal these

relationships during voir dire questioning, preventing him from discovering her alleged

bias.

On a written jury questionnaire, which she answered prior to her courthouse

marriage, Johnson indicated that she was single (as opposed to married, divorced,

widowed or separated as set forth in the inquiry) and responded "n/a" (not applicable)

to family information inquiries concerning a spouse. Johnson was also asked, "Have 14

you or any member of your family ever been charged with a crime?" She answered,

yes. Next, the questionnaire stated, "If yes, what was the charge?" Johnson answered,

"Drug [c]onviction." The questionnaire then asked, "How did the case end?" Johnson

answered, "guilty (serving 4 years)." Tucker contends that Johnson's affirmative
-42-

answer referred to her brother-in-law and his drug conviction and not to Charles Hayes.

This is probably a correct contention because Johnson's sister was, at the time of trial,

married to Hayes's brother, Brian, who was apparently then serving a four-year

sentence on a drug conviction. Charles Hayes, on the other hand, had been released

from prison in April of 1993, which, according to the record, occurred prior to

commencement of the Johnson/Charles Hayes relationship. In any event, Tucker

asked no further questions about this answer during the voir dire examination.

Johnson's answers to the questions posed were honest, complete, and correct

because "family" does not include one's fiancé. See United States v. Rushing, No. 93-

3745, 1994 WL 131757 (8th Cir. Apr. 15, 1994) (holding that "family" does not

include a girlfriend's son). The court mistakenly breathes new life into this relatively

narrow question. As the record reveals, Johnson and Charles Hayes were merely

engaged and had not even set a wedding date at the time of voir dire. We have

previously rejected similarly broad post-trial interpretations of voir dire questions. See

id.; United States v. Wright, 119 F.3d 630, 636 (8th Cir. 1997); United States v.

Williams, 77 F.3d 1098, 1100-01, cert. denied, 117 S. Ct. 392 (1996); Bolin v. Black,

875 F.2d 1343, 1350 (8th Cir. 1989). Here, Johnson did not deliberately conceal any

bias or even answer incorrectly—she merely answered the questions posed.

Consequently, the district court reasonably concluded that no further inquiry into the

questionnaire was warranted. 

Furthermore, Tucker waived any bias claim based on Johnson's questionnaire

answer. If Johnson had interpreted "family" to include her fiancé, her answer would

have been substantially similar to that given. Thus, if Tucker was really interested in

the subject, he had an obligation to ask more probing questions during voir dire about

her family member's drug conviction. See United States v. Humphreys, 982 F.2d 254,

261 (8th Cir. 1992) (holding that a defendant may waive post-trial claim of juror bias

if the defendant does not "diligently and timely discover the relevant information").

Tucker failed to do so, possibly in a gamble that Johnson would be more sympathetic
-43-

to the defense. The court posits that the alleged inaccuracy in Johnson's answer to the

question precludes a waiver analysis. See ante at 23. However, as earlier noted,

Johnson's "family" member with a drug conviction was Charles Hayes's brother, who

was, at the time of voir dire, married to Johnson's sister and in prison. Therefore, if

Tucker had pursued the issue, as he should have, he would have at least discovered

Johnson's general association with the Hayes family, regardless of the allegedly

inaccurate questionnaire answer. His failure to do so waived the concealed juror bias

claim. 

The court also finds that Johnson's failure to respond to general questions

regarding any potential sources of bias entitles Tucker to a post-trial hearing. However,

Tucker failed to support his motion for a new trial with anything remotely approaching

what is required—substantiated, non-speculative allegations of material, pre-existing

bias on the part of Johnson. See Moses, 15 F.3d at 778; Moten, 582 F.2d at 667. The

test focuses on whether Tucker raised reasonable grounds demonstrating concealed

bias on the part of Johnson, not on the part of her husband or members of her husband's

extended family. Considering the speculative and vague nature of the allegations that

Tucker offered, the district court properly refused to conduct a post-trial hearing into

those allegations. 

The serious mistake the court makes in this regard is its apparent acceptance of

Tucker's claim that Hayes was a part of Johnson's family at the time of the

questionnaire and voir dire. This allegation, of course, does not accurately depict their

relationship. Hayes was not a member of her family at the time of voir dire and was

correctly not considered a family member by Johnson. Her answers were therefore

fully responsive, correct, and truthful, and they serve to establish no pre-existing bias

whatsoever. 

Even if we were to accept the rationale that Johnson did, or should have,

considered Charles Hayes a part of her family, a proposition supported only by
-44-

speculation, inference, and an overreaching search for a definition of the term "family,"

Tucker has advanced no support for his allegation that Johnson was biased. See

McDonough, 464 U.S. at 556; id. (Blackmun, J., concurring) (stating that the "proper

inquiry" is on the juror's impartiality); id. at 557-58 (Brennan, J., concurring) (stating

that a litigant should be required to show that the juror was biased). Tucker has only

raised support for the allegation that Johnson's husband and extended family harbored

a bias against Tucker, which is, of course, irrelevant to the issue of Johnson's partiality.

In spite of Tucker's failure to come forth with evidence of Johnson's alleged bias,

the court validates a fishing expedition that allows Tucker to attempt to develop the

kind of facts necessary to permit a post-trial inquiry in the first instance. The court

commands this exploratory expedition in the face of statements under oath by Johnson,

credited by the district court, that she knew nothing of Charles Hayes's or Say

McIntosh's state of mind toward Tucker. As indicated, Tucker has offered absolutely

nothing that refutes Johnson's testimony, but now wishes to attack her court-accepted

credibility in an effort to overcome the factual shortcomings inherent in his assault on

her purported state of mind. This approach is clearly contrary to McDonough, Moten,

Humphreys, and numerous other cases from this circuit. Indeed, the court does not cite

a single case in support of this result and I have found none.

B. Improper Communications Allegation

We also review for an abuse of discretion the scope of a post-trial hearing into

an allegation of improper communication with a juror. See Caldwell, 83 F.3d at 957;

Moten, 582 F.2d at 665-66. Here, considering the vague allegations made by Tucker,

I would find that the district court clearly acted within its discretion. Remanding this

matter will only result in another unnecessary fishing expedition and the improper

harassment of Johnson.
-45-

The court makes two significant errors in its analysis: first, that Tucker's

allegation of improper communications is "supported by evidentiary materials with

significant indicia of reliability;" and second, that the post-trial hearing consisted merely

of "asking the juror whether [she] committed the misconduct." Ante at 29.

The hearsay-riddled, conclusory affidavit of an Arkansas State Senator stating

that he was told by Tommy McIntosh that Tommy had talked to Charles Hayes and that

Charles had told Tommy that Charles had talked about the trial with his wife during the

trial is not evidence with any "significant indicia of reliability" that is relevant to any

proper inquiry in this case. The affidavit merely states that Hayes talked about the trial

"with his wife during the trial," and it falls short of even speculating about the substance

of the conversations between Hayes and Johnson. This is fatal to Tucker's claim. The

court again overemphasizes the purported animosity that Charles Hayes and his

extended family have exhibited toward Tucker without giving due consideration to

whether Tucker offered any substantiated, non-speculative allegations of material

improper communications. 

“Erring on the side of caution,” the district court held a post-trial hearing to

investigate the matter further. Tr. of Hr’g at 3. Tucker had the opportunity to examine

all twelve jurors, each of whom testified that no extraneous information entered the jury

room. Tucker also questioned Johnson about whether she discussed the trial with her

husband while empaneled. Johnson testified and emphatically denied that she

improperly discussed the trial with her husband. She also testified that she had no

knowledge of the activities of her husband's uncle. The district court obviously

credited Johnson's testimony and under controlling law this court has no authority to

hold that finding of fact to be erroneous.

Given this evidence, the court engages in speculation and conjecture of its own

on its way to its erroneous conclusion. The court states that "[c]ontamination of a

different kind [other than exposure of a juror to an extraneous fact] occurs when, rather
-46-

than being exposed to a fact not in evidence, a juror is subjected to psychological

pressure by an outsider trying to coopt that juror's vote." Ante at 28. Of course, there

is no evidence that such pressure existed. Indeed, the evidence given under oath by

Johnson is flatly to the contrary. She specifically testified in response to Tucker's

questions that she only knew of Say McIntosh, and that she knew of no communication

by Say McIntosh to anyone during the trial. Tr. of Hr'g at 12. She also testified that

although she knew her husband had been in prison, she knew nothing of the clemency

matter which appears to have occurred well before they became closely acquainted and

before this court granted habeas relief, releasing Charles Hayes from prison in 1993.

See id. at 10, 11 and 12; Hayes v. Lockhart, No. 92-2979, 1993 WL 91269 (8th Cir.

Mar. 31, 1993). The court simply elevates Tucker's speculative, unsupported

allegations to the status of fact in erroneously arriving at its decision to remand this

matter for further hearing.

Tucker has failed to identify the nature of the extraneous information that he

suggests was communicated to Johnson, but now claims that the district court erred in

precluding him from examining her husband, her husband's cousin, and the state senator

who spoke to her husband's cousin about the trial. Such a far-reaching hearing is not

warranted in the absence of substantiated, non-speculative allegations of material juror

misconduct. See Caldwell, 83 F.3d at 957. Tucker had his chance to present such

allegations at the post-trial hearing and on his proffer of evidence before this court, but

presented only allegations "based on speculation and conjecture." Tr. of Hr'g at 3.

Accordingly, I disagree with the court's decision to remand this case to conduct a more

expansive hearing into the allegation of improper communications.

Because I do not believe federal law or the Constitution requires the district

courts to waste scarce judicial resources by guiding post-trial fishing expeditions into

naked allegations of juror bias or misconduct, I dissent from Part I.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.