No. 96-1386

United States of America; * * Appellant; * * Appeal from the United States v. * District Court for the * Western District of Missouri. Everett Kyle Hall, also known * as Eric, also known as Shorty; * Roy Lee Hall; Randall Joe Hall; * * Appellees. *

Submitted: May 15, 1996 Filed: June 4, 1996
Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HEANEY, Circuit Judge.

The distr ict court granted defendants' motion for a new trial based on the jury foreperso n's one-page affidavit stating that on more than one
occas ion he and other jurors overheard the judge at a bench conferenc e discuss ing evidence of the defendants' involvement in other, serious , criminal activity. We remand the case to the di strict court to conduct an eviden tiaryhearing in accordance with this opinion. We retai n jurisdiction in this matter, however, and if further attention by thi s court becomes necessa ry, the clerk of court will provide the parties with an accelerated briefing schedule.

### Although th e defendants were convicted under the "use" prong 1 

### of 924(c), the court set aside those convictions in light of Bailey v. United States , 114 S. Ct. 501 (1995). The government does not appeal that decision. Before tria l, the court severed two counts in the indictment 2 

### agains t Everett Hall and Randall Hall for being felons i n possession of a firearm in violation of 18 U.S.C. § 922(g); those charges apparently are still pending.
2 I. BACKGROUND

Three de fendants, Everett Kyle Hall, Roy Lee Hall, and Randall Jo e Hall , were tried by a jury and convicted of conspiracy to distribut e methamphetamine and to possess methamphetamine with intent to distribute in violation of 21 U. S.C. § 846. Everett Hall and Randall Hall were also tried an d convicted of the use of a firearm during the commission of a drug-related felony in violation of 18 U.S.C. § 924(c), and fo r possession 1 of an unregistered silencer in violation of 26 U.S.C. §§ 5841; 5861(c), (d ) and (i); and 5871. 2

The par ties appeared for sentencing on November 29, 1995. At tha t time, the defense presented the court with an affidavit from the jur y foreperson and made a motion for a new trial based on the affidavit. The affidavit stated in full:

During the course of the trial I heard the Judge' s comments concerning whether there would be evidence o f chop shop, prostitution and murder admi tted at the trial.
From these statements, I felt that the Defendant[s ] were involve d in more than they were on trial for. I am also aware t hat the jury was apprehensive and fearful of retaliation from the Defendants or the Defendant[s' ] family, so much so that some jurors too k different routes to and from the courthouse during the trial.
The comments relating to evidence of a chop shop , prostitution, and murder were heard on several occasions. These comments were heard by other members of the jur y and w ere discussed by the jury panel during recesses

. Discussion of the comments occurred at times when all the

### 3 jurors were present and on other occasions by fewer than all jurors.
At trial, the court had made references to chop shop, prostitution, and murder in two bench conferences. Both bench conferences related to on e of the c ourt's pre-trial orders. Prior to trial, counsel for th e defendan ts indicated that they might attempt to impeach one of th e government's primary witnesses by introducing evidence that she made prior , false accusations that the defendants were involved in other crimes , including a murder. The court determined that none of the evidenc e relat ing to the alleged prior crimes would be admitted. During cross

examination of a government witness, counsel for one of the defendant s appeared to tread on the court's pre-trial rulin g by asking the witness if she had ever engaged in prostitution. When the government objected, the court called all counsel to the bench and warned:

I said Mo nday morning that you were not to go into th e prostitutionclaims . . . . We're not going into any of th ose, only the issue involved in this case . . .

. Well, I'm telling you you're not to go into th e prostitution [or] . . . the murder or the chop shop.

Tr. at 629-30. Shortly thereafter, during another bench conference, the court told counsel:
Well, if you're getting--if you are wanting to offe r evidence relative to a murder, relative to the chop shop, relative to the prostitution, relative to the motorcycle club, it's n ot to be gone into . . . . Well, that would be evidence of a murder and I'm saying that you cannot go into that, so your offer will be refused.
Tr. at 664-65. By all accounts, neither the cou rt nor any lawyer intended the jury to overhear the substance of these conv ersations. In fact, until the affidavit came to light, no party was aware that any juror ha d overheard any portion of the bench conferences.

The court granted a new trial to each defendant based on the single juror affidavit without gathering any other evidence or

### 4

making a further investigation. The government now appeals the district court's order.

II. DISCUSSION
A. Evidentiary Hearing

We review

the court's decision to grant a new trial with particular caution. Affirmance would nullify a jury trial that lasted more than a week, consumed signif icant judicial resources, and involved an investment of su bstantial time by the lawyers on all sides. At the same time, fe w rights of an accused person are more fundamental or more sacred than the Sixth Amendment right to an impartial jury. Bec ause each of the competing inte rests is strong, we hesitate to reach a final decision without a complete picture of what extraneous information came before the jury. In this case, one affida vit does not provide sufficient evidence on which to reach a fully informe d decision. Thus, it was an abuse of discretion for the court to grant the defendants' motion for a new trial absent a n evidentiary hearing.

Faced with similar situations, this and other courts hav e consistently had the benefit of in-depth evidentiary hearings regarding th e nature and effect of extraneous jury contact. See , e.g. , United States v. Blumeyer , 62 F.3d 1013, 1015 (8th Cir. 1995) (in response to allegation that a juror had consulted an outside lawyer, district court interviewed all jurors); United S tates v. Cheyenne , 855 F.2d 566, 567 (8th Cir. 1988) (district court conducted evidentiary hearing to question jurors about the
use of a dictionary during deliberations); United States v. Martin , 74 0 F.2d 1352, 1357 (6th Cir. 1984) (remanding for the limited purpose of an evidentiary hearing to determine whether jurors overheard judge's comments
re lating to defendant's guilt spoken during bench conference), cert
. denied , 472 U.S. 1029 (1995).

### 5 What co ncerns us most is the court's failure to explore the natur e of the jury's exposur e to extraneous, prejudicial information beyond what the s ingle affidavit recounts. Therefore, we remand the matter to th e district c ourt to make a full factual inquiry. Once the court has a complete picture of what events transpired, it m ay, of course, grant a new trial based on the taint of even a single juror. United States v. Delaney , 732 F.2d 6 39, 643 (8th Cir. 1984) (holding that if a single juror i s improperl yinfluenced, a verdict is as unfair as if all jurors wer e improperly influenced).

B. Rule 606(b)

Generally, to impeach a jury verdict, "the [defendants] must (1 ) produce evidence which is not barred by the rule of juror incompetency and (2) produce evidence sufficient to prove grounds recognized as adequate to overturn the verdict." United States v. Krall , 834 F.2d 711, 715 (8th Cir

. 1987) (citing United States v. Eagle , 539 F.2d 1166, 1169-70 (8th Cir

. 1976), cert. denied , 429 U.S. 1110 (1977)). The court's first inquiry , therefore, is whether the affidavit constitutes admissible evidence under the Federal Rule of Evidence 606(b), which governs jurors' competency to testify with respect to their deliberations. The rule provides:

Inquiry into validity of verdict or indictment. Upon an inquiry i nto the validity of a verdict or indictment, a juror m ay not testify as to any matter or statemen t occurring during the course of the jury's deliberation s or to the effect of anything upon that or any othe r juror's mind or emotions as influencing the juror t o ass ent or dissent from the verdict or indictment o r con cerning the juror's mental processes in connectio n therewith, except that a juror may testify on th e question whether extraneous prejudicial information wa s improperly brought to the jury's attent ion or whether any outside influence was improperly brought to bear on an y ju ror. Nor may a juror's affidavit or evidence of an y st atement by the juror concerning a matter about whic h the juror wo uld be precluded from testifying be received for those purposes.

### 6

Fed. R. Evid. 606(b) (emphasis added). The advisory committee notes to th e 1972 proposed rule give some insight into compet ing values the Rule 606(b) seeks to protect:
The familiar rubric that a juror may not impeach his own verdi ct, dating from Lord Mansfield's time is a gros s oversimplifi cation. The values sought to be promoted by exc luding the evidence include freedom of deliberation , stabil ityand finality of verdicts, and protection o f jurors again st annoyance and embarrassment. McDonald v. Pl ess , 238 U.S. 264 (1915). On the other hand, simpl y putting verd icts beyond effective reach can only promote irregularity and injustice. The rule i s an accommodation between these competing considerations.
All but the second paragraph of the juror's affidavit falls squarely within the exception of Rule 606(b), that is, it constitutes testimony on the narrow question whether extraneous, prejudicial information wa s improp erlybrought before the jury's attention. In substance, th e affidavit reveals that at least one juror heard prejudicial information no t in evidence and that the information was discussed among the jurors. As the district court specifically stated, "the comments made by the Cour t during various bench conferences that related to murder, chop shops, and prostitut ion were not intended to be heard . . . or considered by th e ju ry." Order, No. 95-03020-10/03-CR-S-4, filed 1/16/96 (hereinafte r "Ord er") at 4. Thus, under the rule's exception, the district cour t properly considered this portion of the affidavit and on remand ma y
con sider other evidence that is similarly restricted to the question o f what, if any, extraneous information the jury heard.

The second paragraph of the affidavit, however, contain s imperm issible testimony. In the first sentence, the foreperson reveal s what impact the extraneous information had on hi m by stating: "From these statements, I felt that the defendant[]s were involved in more than they
were on trial for." He then goes on to expose the thought processes of th e other jurors: "I am also aware

### 7

that the jury was apprehensive and fearful of retaliation from th e Defenda nts or the Defendant[s'] family, so much that some jurors too k different routes to and from the courthouse during the trial." Although it is not clear from the affidavit whether the jurors' alleged fears were independent of or dependent on the overheard inf ormation relating to "chop shop, prostitution and murder," Rule 606(b) proh ibits its consideration in either case. Therefore, the district court should not have considere d those statements in the second paragraph of the affidavit in its ruling on the new trial motion. Moreover, the court should not consider any other evidence that bears directly on the jurors' decision-making processes.
C. Presumption of Prejudice

The court must next consider whether the admissible evidence i s sufficient to overtur n the jury verdict. Certain jury contaminations are
so pre judicial that they create a rebuttable presumption of prejudice

. United States v. Remm er , 347 U.S. 227, 229 (1954) (presumption created by any private communication, contact, or tamperingwith a juror during trial about the matter pending before the jury unless made in pursuance of known rules and directions of the court). Our court h as held, however, that the presum ption of prejudice does not apply unless the extrinsic contac t relates to "factual e vidence not developed at trial." Cheyenne , 855 F.2d at 568 (holding no abuse of discretion for district court to deny new tria l motion where jurors c onsulted dictionary for definitions of "callous" and "wanton"). Therefore, we do not apply the presumption of prejudice if the extraneous contact pe rtains to purely legal issues. Blumeyer , 62 F.3d at 1016.

In this case, the district court held that the presumption o f prejudice applied. Order at 5-6. The government argues that the overhear d comments related only to a question of law—i.e., the

### For example , in opposition to the defendants' motion for new 3 

### trial, the government argued to the court:

[T]he affidavit does not indicate that an y comments which may have been overheard by the jury at side bar affected their verdict whatsoever. It simply doesn't say that it was considered or that it somehow inhibited or h indered the jury from foll owing the court's instructions. There is n o indi cation that the jury did anything other tha n followthe Court's instructions and consider th e evidence that was admissible. That affidavi t do esn't challenge that whatsoever. In truth, al l it says is that the jury was a ble to hear the Court make evidentiary rulings, which it heard, o f course, from time to time throughout the course of the trial anyway. Therefore, I think the court can deny the motion at this point and proceed t o sentencing. Hr'g Tr. at 6.
8 judg e's ruling on the admissibility of evidence. We disagree. Th e 3 comments relate to factual questions that go to the heart of the jury' s role: to weigh the relative credibility of witnesses in a case that turne d almost entirely on whose version of events the jury found more credible. The jury's duty to re solve factual questions is severely impaired when it improperly receives information that besmirches the defendants' character. It is alleged that several jurors overheard mention of the defendants '
conne ction to other crimes including murder, that one or more of thos e jurors transmitted the information to the full j ury panel, and that jurors discussed it with each other during trial recesses. Such conduct woul d certainly trigger a presumption of prejudice to the defendants.

Once the presumption is established, the burden will rest heavil y withthe government to establish that the extraneous juror contact wa s harmle ss to the defendants. Remmer , 347 U.S. at 229. Thus, th e presu mption of prejudice applies, and it will be incumbent on th e governm ent to prove that the extraneous contact was harmless beyond a reasonable doubt. See Blumeyer , 62 F.3d at

### The district court held that the government could no t 4 

### establish that the overheard comments were harmless. Order at 7. We simpl y note that connection to the crime of murder carries a s much inherent danger as almost any imaginable reference.
9 1017. We employ an "objective test . . . to ass ess whether the extraneous info rmation would likely affect a typical juror." Id. The relevan t considerations include: (1) whether the extrinsic evidence was received by th e jury and the manner in which it was received; (2) whether it wa s availabl e to the jury for a lengthy period of time; (3) whether it wa s disc ussed and considered extensively by the jury; (4) whether it wa s introduced before a jury verdict was reached and, if so, at what poin t during the deliberations; and (5) whether it was reasonably likely t o affect the verdict, c onsidering the strength of the government's case and whether the governmen t's case outweighed any possible prejudice caused by the extrinsic evidenc e. Id. (citing Bayramoglu v. Estelle , 806 F.2d 880, 887 (9th Cir. 1986), and Osborne v. United States , 351 F.2d 111, 118 (8th Cir. 1965)). 4

CONCLUSION

We remand to the district court to conduct a factual inquir y consistent with this opinion to fully determine the extent to which th e jury was exposed to e xtraneous, prejudicial information. If that factual inquir yreveals jury taint sufficient to trigger the presumption o f prejudice, a new tria l is warranted unless the government can demonstrate harmlessness beyond a reasonable doubt.

A true copy.

Attest:

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