1The Honorable George Howard, Jr., United States District Judge for the

Western District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1832

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

Jim Guy Tucker, *

*

Defendant - Appellant. *

___________

Submitted: September 13, 1999

Filed: February 27, 2001

___________

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

___________

JOHN R. GIBSON, Circuit Judge.

Jim Guy Tucker appeals from an order of the district court1 on remand from our

earlier decision in United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998). In that case,

we ordered an evidentiary hearing on allegations that juror Renee Johnson had

concealed material information during voir dire and had engaged in improper
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communications during trial. The district court held the required hearing and found that

Johnson was not dishonest in her answers to voir dire questions concerning her familial

relationships and possible bias against Tucker. United States v. Tucker, 36 F. Supp.

2d 1110, 1115 (E.D. Ark. 1999). On the improper communications issue, the court

found that there was no evidence that Johnson was subjected to outside influence

during trial. Id. at 1117-18. Accordingly, the district court denied Tucker's motion for

a new trial. Tucker argues that the district court's findings are erroneous because

Johnson's explanation of why she did not reveal her relationship with her soon-to-be

husband contradicts her other testimony; because the district court believed bias could

only be proved by the juror's admission; and because two witnesses testified that

Johnson had talked to her husband about Tucker's case during the trial. While the facts

of this case are unusual and of understandable concern to Tucker, we hold that the

district court's findings are not clearly erroneous, and therefore we must affirm.

When this case was tried, Jim Guy Tucker was the governor of Arkansas. After

he was convicted for conspiracy and mail fraud, Tucker learned that during the trial one

of the jurors, Renee Johnson, had married Charles Hayes. Hayes is a former state

prisoner whom Tucker had denied clemency, both directly and by blocking an acting

governor's attempt to commute his sentence. Hayes is also the nephew of a political

activist, Say McIntosh, who had attacked Tucker in leaflets and demonstrated against

him outside the courthouse during trial. Tucker moved for a new trial based on his

allegations that Johnson had concealed her relationship with Hayes at voir dire, that she

had concealed bias against Tucker, and that she had engaged in improper discussions

with Hayes during trial. Tucker, 137 F.3d at 1023. Tucker supported the factual

allegations of his motion with an affidavit from William L. Walker, Jr., who said he had

asked Tucker to grant Hayes clemency and who recounted the circumstances under

which an acting governor's attempt to grant clemency was blocked. Walker's affidavit

also stated that Hayes had expressed anger over the denial of clemency. Walker

claimed to have knowledge from Hayes's cousin, Tommy McIntosh, that Hayes had
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discussed the trial with juror Johnson during the trial. Id. at 1023-24. Tucker also filed

his own affidavit describing his role in denying Hayes clemency. Id. at 1024. 

In a jury questionnaire submitted about two weeks before voir dire, Johnson

stated that she was single, that questions concerning a spouse were not applicable, and

that she had a three-month-old child. Id. at 1021. In response to a question asking

whether "any member[s] of your family [have] ever been charged with a crime," "what

. . . charge," and "how did the case end?" Johnson wrote, "Yes. Drug Conviction.

Guilty (serving 4 years)." During the voir dire itself, held on March 4-7, 1996, Johnson

stated that she had not formed an opinion regarding the guilt or innocence of any of the

defendants. Id. at 1021-22. The judge repeatedly stressed the need for venire members

to reveal possible sources of bias and gave the venire members multiple opportunities

to disclose anything that could have any bearing on their partiality. Id. at 1022. When

asked directly, Johnson said there was nothing that would affect her ability to serve

fairly and impartially in the case. Id. Trial began on March 11, 1996, and on the fourth

day of trial, Johnson married Charles Hayes over the lunch break. Id. at 1023 n.4,

1025. 

The district court conducted a hearing on Tucker's new trial motion, but even

though Tucker alleged both concealment of facts at voir dire and outside influence over

a juror, the court announced that the scope of the hearing would be limited to the

question of whether the jury had been exposed to extraneous evidence during

deliberations. Id. at 1024. At the hearing, Johnson testified that she did not know at

the time she served as a juror that her husband had ever applied for clemency and

consequently she did not know that Tucker had denied him clemency. Id. at 1024. She

testified that she had been engaged to marry Hayes since 1994 and that she had lived

with him, but counsel was not permitted to ask for further details or to explore her

knowledge about Say McIntosh. Id. at 1024-25. Johnson stated that she did not tell

about her husband's conviction when she filled out her jury questionnaire. Id. at 1025.

(Her answer to the question about family members charged with crimes referred to her
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sister's husband, who, it turns out, is also Charles Hayes's brother.) The court did not

allow Tucker to question Johnson about whether she considered herself part of a family

with Hayes and her daughter at the time of the voir dire. See 137 F.3d at 1025. Tucker

was not allowed to examine Hayes. Id. at 1027. The government called the other

jurors and asked them whether there had been discussion of Hayes's clemency

proceedings during the trial or deliberations. All answered no. Id. at 1025. 

Although the scope of the hearing was narrowly circumscribed, Tucker made an

extensive proffer. He offered to prove that he had denied Hayes's clemency request.

On another occasion when Governor Tucker was out of the state, Acting Governor

Jerry Jewell had tried to grant Hayes clemency, but Tucker's staff had frustrated

Jewell's attempt by refusing access to Hayes's file. Id. at 1025. Hayes's cousin, Tommy

McIntosh, was convicted in connection with the same crime as Hayes, and Jerry Jewell

successfully commuted Tommy McIntosh's sentence. Tucker offered to prove that the

Hayes-McIntosh family knew that his staff prevented Jewell from granting Hayes

clemency and that Hayes had expressed anger over the denial of clemency. Tucker's

proffer also detailed the anti-Tucker activities of Say McIntosh, Tommy McIntosh's

father, including his distribution of fliers accusing Tucker of racism in denying

clemency to a black prisoner and juxtaposing the prisoner's supposed innocence with

Tucker's supposed guilt. Tucker offered to prove that McIntosh demonstrated in front

of the courthouse during Tucker's trial. The court denied Tucker's new trial motion

because the court was not persuaded that the jury had access to extraneous evidence

during deliberations. Id. at 1026.

On appeal, we concluded that Tucker was entitled to a fuller hearing than he had

received. Tucker's claim of concealed juror bias was based on McDonough Power

Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984), which required him to prove

three things about the voir dire: (1) that Johnson had answered voir dire questions

dishonestly; (2) that she was motivated by partiality; and (3) that the true facts, if

known, would have supported striking her for cause. Tucker alleged that Johnson
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deceived the court by not including information about Hayes when she answered the

question about whether a member of her family had been charged with a crime. He

also alleged that Johnson had dishonestly concealed her relationship to an anti-Tucker

activist and her marriage to someone who had a grudge against Tucker, even though

the court repeatedly urged the venire members to come forward with such information.

The district court foreclosed Tucker from presenting evidence on his McDonough

allegations at the 1996 hearing and focused only on the allegations that extraneous

evidence had come before the jury. 

Despite the narrow parameters of the 1996 hearing, Tucker had adduced

evidence raising substantial questions about whether Johnson had tried at voir dire to

conceal her relation to Hayes. 

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. 

Id. at 1028. Tucker had also raised fact questions about whether Johnson harbored

bias against Tucker that she should have revealed during voir dire. His proffer of

evidence suggested Johnson might have known about her husband's clemency

proceedings and have been prejudiced against Tucker because of his role in denying

Hayes clemency. 

We held that Tucker had "raised enough question about what Johnson knew at

the time of voir dire to entitle him to a full hearing on [the McDonough] issue, including

crucial credibility determinations." Id. at 1027. We remanded with instructions that

Tucker be allowed to adduce evidence relevant to the key questions of whether
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Johnson concealed her relation with Hayes and the story of his clemency petition;

whether Johnson concealed these circumstances out of partiality; and whether there

were grounds to strike Johnson for cause. Id. at 1029.

We also held that Tucker's allegations of improper communications between

Hayes and Johnson during the trial suggested the sort of "private communication,

contact, or tampering," which gave rise to a presumption of prejudice in Remmer v.

United States, 347 U.S. 227 (1954). 137 F.3d at 1030. Tucker had presented the

affidavit of William Walker saying that Walker had knowledge that Hayes and Johnson

had talked about the case. We said:

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.

Id. at 1031. Such allegations entitled Tucker to a hearing to determine whether outside

influence affected Johnson's ability to serve impartially on Tucker's jury. Id. at 1033.

However, the court had limited the scope of the 1996 hearing to investigation of

whether the jury as a whole had been exposed to extraneous evidence, which was not

the nature of Tucker's contention. Therefore, we remanded for the district court to

conduct a hearing that would address Tucker's actual claim, probing whether Hayes and

Johnson had talked about the case, what was said, and what effect such

communications had on Johnson. Id. at 1033. 

On remand, the district court conducted a three-day hearing in which Renee

Johnson Hayes, Charles Hayes, William Walker, Tommy McIntosh, Tucker and others

testified. 
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Johnson testified that she became involved with Hayes about six months or a

year after he was released from prison, that she had lived with him about a year and a

half before January 1996, and that at the time of voir dire she lived with him and their

daughter "as a family." By February 1996, she said, they were contemplating getting

married. She had bought a wedding ring and had looked into reserving a bed and

breakfast for a wedding or wedding reception. She said that the reason she did not

identify Hayes as a family member on her juror questionnaire was that she was not

married to Hayes when she filled it out (in February 1996) and she did not believe the

questionnaire asked anything that called for her to identify him. She later agreed with

Tucker's lawyer that she and Hayes "bought a house as a family," "lived in it as a

family," "paid utility bills as a family," and "paid the mortgage as a family." However,

she also answered yes to the special prosecutor's leading question asking whether it

took a marriage to make a family, and she agreed with another leading question that

this was why she had not identified Hayes on the questionnaire. 

Johnson said she had "known of" Hayes all her life, but she had not become

personally involved with him, in the sense of being engaged, until 1993 or 1994. She

said she had known of him when he was in jail, because his brother was married to her

sister at the time. However, Johnson denied that she ever talked to Hayes about the

circumstances surrounding his attempts to get out of prison.

Johnson said that Tommy McIntosh had visited Hayes at their house once or

twice in the six months before the Tucker trial. McIntosh would visit with Hayes

outside the house while she was inside. Johnson's only contact with Tommy McIntosh

would have been to exchange pleasantries with him, and she explicitly denied that he

ever expressed to her any hostility toward Tucker. 

Johnson said that during the trial she did not discuss what went on in the

courtroom with anyone and that no one tried to influence her thoughts about the trial.
-8-

Hayes also took the stand. He testified that before he and Johnson were married

on March 14, 1996, they had been engaged a year and a half. He said she had wanted

to get married "several times before then," but that he was "holding out." 

Hayes said he first learned from Tommy McIntosh before Tucker's trial that

Hayes's file had been intentionally concealed from Jerry Jewell, but that he did not

associate the incident in any way with Tucker. He said he was not even aware that it

was Tucker who had denied his request for clemency. He said he had not placed much

hope in the idea that he would receive clemency but instead had concentrated on getting

relief from the federal court (which in fact granted his habeas corpus petition). Hayes

said that he and Johnson "really didn't get into" discussing his conviction. Hayes said,

to his knowledge, Johnson never broke her word as a juror not to discuss the trial. He

also said he never told Tommy McIntosh or William Walker that he and Johnson had

discussed the trial while it was going on.

Tommy McIntosh testified that he had dated Johnson a couple of times after he

got out of jail and that she knew his father, Say McIntosh, at that time. He found out

through family members that Johnson was on the Tucker jury. Tommy testified that he

and Hayes talked about the Tucker case and that Tommy expressed his opinion to

Hayes that Tucker was going to be convicted. However, Tommy said, he never talked

to Johnson about the trial, nor did he do anything to encourage Hayes to influence her.

Tommy said he did not know about Tucker's staff hiding files from Jewell until after

Tucker was convicted. He did not recall that Hayes ever said he discussed the case

with Johnson during trial, but Tommy believed they did discuss it because, "[I]t's

obvious. People on juries talk to their husbands." Tommy characterized his relation

to Hayes as "best buddies, best cousins" and said that they were "like brothers." He

said he wanted Tucker to be convicted so Tucker would "see what it felt like to be

convicted on something you think you didn't do." Tommy telephoned William Walker

during the trial. Knowing that Walker was a Tucker ally, Tommy said something like,
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"Yeah, your boy going to jail. We got him. He's going to be convicted." He said he

may have bragged to Walker about Johnson being on the jury. 

William Walker stated that after Jewell had failed in his attempt to commute

Hayes's sentence, Walker contacted Hayes and explained to him that Hayes's file had

not been made available so that Jewell could act on it. Walker said that Hayes's

disappointment and anger were apparent. Walker testified that Tommy McIntosh

called him late one night during trial and told him, "We've got somebody on the jury."

Walker didn't know at the time what Tommy was talking about, but when he found out

after the trial that Hayes's wife had been on the jury, he concluded that Tommy had

been talking about Hayes's wife. He called Hayes, who confirmed that his wife was on

the jury. Walker asked Hayes whether he and his wife had any conversation about the

trial, and Hayes responded, "Sure, that's my wife. We sleep together every night." On

cross examination about this conversation, Walker was unsure whether Hayes had said

he talked to his wife about the trial during trial: "I don't know whether he said 'during

the trial.' I think at that point, I think he may have, he may not have." Furthermore,

though he thought Hayes said that he talked with Johnson about "the trial," he had not

asked Hayes for any further detail about what was said. Walker admitted that he was

a Tucker political ally, that he had done approximately $13,000 worth of consulting

work for Tucker some twenty years before, and that he had received a political

campaign contribution from him and from a company in which Tucker held an interest.

Tucker himself testified about the Hayes-McIntosh clemency proceedings and

about Say McIntosh's anti-Tucker campaigns. Tucker said that Say McIntosh turned

against him after the denial of clemency to Charles Hayes. Tucker identified McIntosh

fliers calling Tucker a liar, murderer, and thief, saying Tucker had a witness killed, and

alleging that Tucker had stolen "all that good money that was meant for blacks to go

into business for themselves." 
-10-

There was also evidence about the timing of Johnson's arrangements at the Hotze

House, the bed and breakfast where Johnson and Hayes had a reception after their

marriage. Johnson had made arrangements in January 1996 with the Hotze House for

a wedding and reception on March 9, 1996, but during the trial she changed the

reservation to March 29, which was when the reception actually occurred (after the

March 14 wedding).

After the 1998 hearing, the district court found that Johnson was not dishonest

in failing to identify Hayes in response to the question about family members charged

with crime: 

Johnson did not believe that living as a "family" constituted a family. As

Johnson stated, it takes a marriage to make a family. Johnson testified

credibly, in the Court's opinion, that Question 39 concerned only family

members and that Charles Hayes did not fall into that category because

they were not married. 

36 F. Supp. 2d at 1115. The court also found that "Johnson was not being dishonest

or intentionally deceiving the litigants or the Court when she did not respond to the

Court's requests that the jurors disclose anything that could have any bearing on their

partiality." Id. Furthermore, the court found that Tucker had failed to show Johnson

had actual bias against him. Id. at 1116. The court found that there was no evidence

that Johnson harbored negative feelings toward Tucker, and Hayes testified that he

harbored none. Id. at 1115-16. Even assuming that Hayes did have a grudge against

Tucker, the court found there was no evidence that he conveyed those feelings to

Johnson. Id. at 1116. The court rejected Tucker's legal argument that the facts gave

rise to implied bias, whether or not Johnson was actually biased against Tucker; the

court held that implied or presumed bias was not a legal basis for relief. Id. at 1116.

Having found no dishonesty and no actual bias, the court rejected Tucker's McDonough

claim. Id. at 1115-17.
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The court rejected the claim of improper communication with a juror because

there was no evidence that any such communication occurred. Though Walker had

signed an affidavit saying that Hayes and Johnson had discussed the trial "during the

trial," Walker's testimony at the hearing negated the crucial time allegation: "At the

hearing, Walker could not recall whether Hayes said that the communications occurred

during the trial." Id. at 1117. Walker's testimony also fell short of establishing that

there had been communication of an improper nature: "Furthermore, Walker admitted

that he did not know the content of any conversations between Hayes and Johnson and

Hayes did not tell Walker that he had said anything improper to his wife during the

trial." Id. Moreover, there was evidence that Johnson had not been subjected to any

improper influence: "Johnson testified credibly, in the Court's opinion, that she did not

have any conversations with Hayes, or any McIntosh family member, about the trial

during the trial. The Court is persuaded that Johnson heeded the Court's regular

admonition not to discuss the case with anyone." Id. at 1117-18. 

I.

Tucker argues that the district court erred in rejecting his McDonough claim

because the court's decision was based on erroneous findings of fact and because the

court mistakenly thought it could only find bias if Johnson admitted bias against

Tucker. 

Findings of fact on a McDonough hearing are reviewed under the "clearly

erroneous" standard of review. See United States v. Rouse, 111 F.3d 561, 573 (8th

Cir. 1997). Honesty of the juror and actual bias are factual issues. See id.; Mack v.

Caspari, 92 F.3d 637, 642 (8th Cir. 1996) (juror bias). The ultimate determination of

whether a new trial is required is reviewed for abuse of discretion. United States v.

Williams, 77 F.3d 1098, 1100 (8th Cir. 1996).
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The Supreme Court discussed the meaning of the "clear error" standard of review

in Anderson v. City of Bessemer City, 470 U.S. 564 (1985), our pole star on this

question. Under Anderson, review for clear error requires not just deference to the fact

finder's views, but a very specific level of deference: 

If the district court's account of the evidence is plausible in light of the

record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it would have

weighed the evidence differently. Where there are two permissible views

of the evidence, the factfinder's choice between them cannot be clearly

erroneous.

Id. at 573-74. We may reject the fact finder's choice between conflicting evidence only

where there is something wrong with the choice. See id. at 574-75. Furthermore, when

findings are based on determinations regarding the credibility of witnesses, the level of

deference is even higher than the standard already described. Id. at 575. "[W]hen a

trial judge's finding is based on his decision to credit the testimony of one of two or

more witnesses, each of whom has told a coherent and facially plausible story that is

not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can

virtually never be clear error." Id. This reasoning, though it certainly counsels a high

level of deference, suggests three specific ways in which a finding based on credibility

could be erroneous. First, the accepted testimony could be incoherent or facially

implausible. See Taylor v. Howe, 225 F.3d 993, 1004, 1006, 1008 (8th Cir. 2000)

(finding of no discrimination clearly erroneous in relying on testimony that was

implausible). Second, the testimony could be contradicted by extrinsic evidence.

Third, the finding itself could be internally inconsistent. 

Tucker's attack on the district court's findings is primarily an attack on the district

court's judgment that Johnson was credible. Therefore, the level of deference owed to

the district court's findings is particularly high. However, Tucker argues that Johnson's
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testimony is self-contradictory and too implausible to be credited and that some of her

testimony is contradicted by extrinsic evidence. 

Tucker argues that Johnson minimized the extent of her relationship with Hayes

in order to defend her failure to identify him in response to the question about family

members charged with crime. First, Tucker contends that Johnson's testimony about

the status of her wedding plans at the time of voir dire was contrary to fact. In the 1996

hearing, she said that she and Hayes became engaged in 1994 but had never set a date

for their wedding. Tucker put on evidence in the 1998 hearing that Johnson had made

a reservation at the Hotze House in January 1996 for a March 9 wedding and reception.

Johnson also admitted that at the time of voir dire, she had bought a ring for the

wedding. However, the Hotze House reservation lapsed in February, for nonpayment

of the deposit, and was eventually rescheduled as a reception for March 29. The

district court found that Johnson's plans for marriage "were not definite." 36 F. Supp.

2d at 1115. This finding is supported by Hayes's testimony Johnson had wanted to get

married "several times" before they finally did so, but that he was "holding out." The

extrinsic evidence does not so contradict Johnson's statements that the district court

was obliged to find Johnson had been dishonest. 

Even assuming Johnson's testimony about the status of her wedding plans was

disingenuous, the whole question about the wedding plans is really subsidiary to the

question of whether she was "virtually married" or part of a "family" with Hayes at the

time of voir dire so that she knew her failure to identify him was misleading. On this

question, the court considered Tucker's evidence that Johnson and Hayes lived together

as a family, that they had a daughter together, and that they had bought a house

together. 36 F. Supp. 2d at 1115. Tucker points out on appeal that Johnson agreed that

at the time of voir dire she and Hayes were living in their home "as a family," they

bought the house "as a family," and paid their bills "as a family." Despite this evidence,

the court concluded that Johnson had satisfactorily explained her failure to include

Hayes in her response to the question about family: "Johnson did not believe that living
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as a 'family' constituted a family. As Johnson stated, it takes a marriage to make a

family. Johnson testified credibly, in the Court's opinion, that Question 39 concerned

only family members and that Charles Hayes did not fall into that category because

they were not married." Id. Again, Johnson's reconciliation of her various statements

is not so implausible that the district court was obliged to find she was dishonest. 

Tucker also attacks the district court's finding that "Johnson was not being

dishonest or intentionally deceiving the litigants or the Court when she did not respond

to the Court's requests that the jurors disclose anything that could have any bearing on

their partiality." Id. First, Tucker points out that Johnson had testified at the 1996

hearing that she did not know Hayes when he was in jail. At the 1998 hearing,

Tucker's counsel introduced Johnson's testimony from her 1998 divorce proceedings

in which she said she had known Hayes all her life. Moreover, Hayes testified that he

met Johnson when she came with her sister to visit his brother and him in prison. The

district court concluded that these contradictions did not show that Johnson was lying,

but rather that she was using the word "know" in two different senses: "She 'knew of

Hayes' but did not know him, in the sense of being friends or having conversations,

until after he was released from prison. Her distinction is rational, not farfetched." 36

F. Supp. 2d at 1116. Neither Johnson's reasoning, nor the court's acceptance of it, is

too implausible to support a finding that Johnson honestly believed she had no facts

in her background of the sort the court was asking her to reveal.

Tucker points out that Johnson testified in the 1996 hearing that she "knew of"

Say McIntosh, but did not "know" him. At the 1998 hearing, Tommy McIntosh

testified that Johnson knew Say McIntosh when Tommy was dating her, before her

marriage. Tommy did not say how well Johnson knew his father, and so his testimony

is not necessarily at odds with hers. And, more to the point, Johnson said that she was

not interested in Say McIntosh's political activities, testimony which the district court

believed based on demeanor and context. See 36 F. Supp. 2d at 1117.
-15-

Tucker also infers dishonesty from Johnson's testimony at the 1996 hearing that

she could not say whether Hayes was still in touch with Tommy McIntosh. At the 1998

hearing, Johnson seemingly acceded to the statement that Tommy McIntosh and her

husband were in "constant contact." However, this testimony must be considered in

light of the fact that Tommy McIntosh was living in Nashville, not Little Rock, during

the trial. When questioned more specifically about contact between Tommy and

Hayes, Johnson said Tommy had been to her house to see Charles probably once or

twice before the trial. Neither Hayes nor Tommy told of any more extensive contacts

between the two men, and both indicated that Johnson was inside while they visited

outside the house. This evidence does not compel a finding that Johnson was

dishonest. 

Tucker also attacks the district court's finding that Johnson was not well

informed on political matters, see id. at 1117, which he points out is in some tension

with her statement that she was well informed on local news events. Johnson said that

she did not read the newspapers every day, and she watched the news "occasionally."

She said she had not been politically active in 1996 or before. Even if there is a

discrepancy between the testimony and finding, it is necessarily minor and tangential,

because the primary questions were what Johnson knew about her husband's dealings

with Tucker and whether, with such knowledge as she had, she was obliged to inform

the court about those dealings. Her direct testimony on this issue was that she had no

knowledge whatsoever of the circumstances under which Hayes regained his freedom

and she never became aware of her husband's request for clemency until Tucker's new

trial motion was filed. Her general interest in the news is not particularly relevant in

assessing her relation with Say McIntosh, because she testified she was aware of his

political activities, but not interested in them. 

In sum, under the rigorous standard of Anderson v. City of Bessemer City for

review of findings of fact, we must affirm the district court's finding that Johnson's
-16-

answers at voir dire were honest. Thus, Tucker's McDonough claim fails at the first

step. 

Tucker argues on this appeal that he could be entitled to a new trial without a

finding of juror dishonesty, by simply proving bias. To divine the law on this question

in our circuit requires careful study. Compare Cannon v. Lockhart, 850 F.2d 437, 440

(8th Cir. 1988) (concluding, after counting votes in the various opinions in

McDonough, "It would thus appear that a juror's dishonesty is not a predicate to

obtaining a new trial. The focus is on bias.") with United States v. Wright, 119 F.3d

630, 636 (8th Cir. 1997) (after court concludes juror answered question truthfully,

McDonough inquiry is over); and United States v. Williams, 77 F.3d 1098, 1100-01

(8th Cir. 1996) (without misleading answer, new trial not warranted). Cf. Skaggs v.

Otis Elevator Co., 164 F.3d 511, 516 (10th Cir. 1998) ("The advent of the

[McDonough] test did not eliminate a litigant's broader historic right to prove actual or

implied juror bias."), cert. denied, 528 U.S. 811 (1999); Fitzgerald v. Greene, 150 F.3d

357, 362-64 & n.3 (4th Cir. 1998) (holding Sixth Amendment claim can rest on bias

alone, but reserving question of whether McDonough plurality allows grant of new trial

for inaccurate answer, concealing bias, regardless of dishonesty); Dyer v. Calderon,

151 F.3d 970, 979 n.12 (9th Cir. 1998) (en banc) ("Because we conclude that Freeland

lied, we need not decide whether dishonesty is a necessary predicate to a finding of

juror bias.") However, this case does not require us to settle the question of whether

actual bias alone would warrant a new trial, because the district court found that Tucker

"failed to show actual bias on the part of Johnson." 36 F. Supp. 2d at 1116. The

finding that Johnson had no duty to respond differently to the voir dire question about

bias also tends to establish that she had no bias in fact. Since we have already upheld

the finding that she did not conceal bias, Tucker's argument that she actually was biased

was substantially decided before we arrived at it; no nuance between the two questions

convinces us that the district court erred in finding that Tucker did not show actual bias.
-17-

Tucker argues that the district court made a legal error in supposing that Johnson

would have had to agree that she was biased before the court could have found that she

was. The district court's opinion betrays no such misconception. 

Although Tucker's brief does not develop a detailed argument, he at least alludes

to the idea of presumed or implied bias--that a juror may have such a close relation to

a case that he or she should be deemed biased without regard to subjective state of

mind or "actual bias." See generally McDonough, 464 U.S. at 556-57 (Blackmun, J.,

concurring) and 558 (Brennan, J., concurring in judgment). In the context of jurors

sitting on consecutive related cases, we have held that only actual bias of a juror

violates the Sixth Amendment. See Johnson v. Armontrout, 961 F.2d 748, 751-53 (8th

Cir. 1992) (citing Smith v. Phillips, 455 U.S. 209, 215 (1982)); see also Goeders v.

Hundley, 59 F.3d 73, 75-77 (8th Cir. 1995) (failure to strike juror not ineffective

assistance where juror not actually biased; court rejects claim that habeas petitioner

was harmed by presence of juror whose bias could be presumed). However, in a recent

habeas case, we stated that bias could be established "by proof of specific facts which

show such a close connection to the facts at trial that bias is presumed." Fuller v.

Bowersox, 202 F.3d 1053, 1056 (8th Cir.)(internal quotations omitted), cert. denied,

121 S. Ct. 489 (2000). Here, relying on habeas cases, the district court held as a matter

of law that implied or presumed bias could not entitle Tucker to a new trial. 36 F.

Supp. 2d at 1116. The habeas cases examine whether circumstances led to a violation

of the petitioner's constitutional right, not whether those circumstances would have

supported a grant of a new trial. But without resolving whether or not presumed bias

can support a grant of a new trial in our circuit, we observe that the idea of presumed

bias is reserved for extreme cases, such as when a juror is a close relative of a party or

victim in the case. See United States v. Greer, 223 F.3d 41, 53 (2d Cir. 2000). In her

concurrence in Smith v. Phillips, 455 U.S. 209, 222 (1982), Justice O'Connor listed

extreme situations that would warrant a finding of implied bias: "Some examples might

include a revelation that a juror is an actual employee of the prosecuting agency, that

the juror is a close relative of one of the participants in the trial or the criminal
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transaction, or that the juror was a witness or somehow involved in the criminal

transaction." Johnson is not related to the facts or parties of this case in a manner that

approaches such an extreme situation. Therefore, the district court did not err in

denying Tucker's new trial motion.

We must affirm the district court's holding that Tucker failed to establish his right

to a new trial based on juror misconduct at voir dire.

 

II.

Tucker also attacks the district court's assessment that there was no evidence of

improper outside influence over Johnson. We review a district court's decision on

whether to grant a new trial because of outside juror contacts for abuse of discretion.

See United States v. Pennington, 168 F.3d 1060, 1067 (8th Cir. 1999); United States

v. Cunningham, 133 F.3d 1070, 1075 (8th Cir. 1998). The questions of whether there

was improper outside contact and whether such contact was prejudicial are fact

questions reviewed for clear error. See United States v. Thomas, 946 F.2d 73, 75-76

(8th Cir. 1991). But cf. Wolff v. Brown, 128 F.3d 682, 686 n.4 (8th Cir. 1997) (noting

discrepancy in our cases as to whether we review finding of prejudice under clear error

standard or merely give it "substantial weight").

Tucker suggests that Johnson may have been subjected to outside influence by

overhearing Tommy McIntosh's statements to Hayes outside her house while she was

indoors. There is no direct evidence of this. A new trial order entered on the basis of

this theory would be questionable, at the least. But here, Tucker asks us to reverse a

district court for not making this imaginative leap. Clearly, the district court acted

within its discretion. 

Nor is there other, more satisfactory evidence of misconduct. Tommy

McIntosh's statement that he believed Johnson and Hayes must have talked because
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"[p]eople on juries talk to their husbands" is not a "reasonable inference," as Tucker

would have it, but rather an unfounded opinion by someone with no personal

knowledge of the facts. To credit Tommy McIntosh's sweeping opinion of juror

conduct, we would have to repudiate the usual presumption that jurors follow the

instructions of the court. See Francis v. Franklin, 471 U.S. 307, 324 n.9 (1989); United

States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000). 

William Walker's testimony was conclusory to begin with, to the effect that

Hayes said he had some discussion with Johnson about the case. On crossexamination, it became clear that Walker did not have any knowledge about two crucial

facts: when the putative discussion took place and what was said. Without these facts,

there is simply no way to tell whether the discussion Walker was describing was

improper or not. Moreover, Walker's credibility as a witness might be affected by his

position as a Tucker political ally and business associate.

On the other hand, the only direct evidence on this subject is the testimony of

Johnson and Hayes that they did not discuss the case during the trial, except perhaps

immaterial statements about scheduling. Johnson testified, "I didn't discuss what went

on in the courtroom." Hayes said to his knowledge, Johnson never broke her word not

to talk about the trial. 

The district court concluded on this record: "The Court is persuaded that

Johnson heeded the Court's regular admonition not to discuss the case with anyone."

36 F. Supp. 2d at 1118. This finding is not clearly erroneous. We therefore need not

progress further to examine whether any outside contacts were prejudicial. The district

court did not abuse its discretion in denying Tucker's motion for a new trial based on

outside juror contacts.

***
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We affirm the district court's denial of Tucker's new trial motion, and it follows

that we must affirm the conviction.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.