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 district court granted defendants' motion for a new trial based

on the jury foreperson's one-page affidavit stating that on more than one

occasion he and other jurors overheard the judge at a bench conference

discussing evidence of the defendants' involvement in other, serious,

criminal activity. We remand the case to the district court to conduct an

evidentiary hearing in accordance with this opinion. We retain

jurisdiction in this matter, however, and if further attention by this

court becomes necessary, the clerk of court will provide the parties with

an accelerated briefing schedule.
 Although the 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 trial, the court severed two counts in the indictment 2

against Everett Hall and Randall Hall for being felons in

possession of a firearm in violation of 18 U.S.C. § 922(g); those

charges apparently are still pending.

2

I. BACKGROUND

Three defendants, Everett Kyle Hall, Roy Lee Hall, and Randall Joe

Hall, were tried by a jury and convicted of conspiracy to distribute

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 and 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 for possession 1

of an unregistered silencer in violation of 26 U.S.C. §§ 5841; 5861(c), (d)

and (i); and 5871.2

 

The parties appeared for sentencing on November 29, 1995. At that

time, the defense presented the court with an affidavit from the jury

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 of

chop shop, prostitution and murder admitted at the trial.

From these statements, I felt that the Defendant[s]

were involved in more than they were on trial for. I am

also aware that the jury was apprehensive and fearful of

retaliation from the Defendants or the Defendant[s']

family, so much so that some jurors took 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 jury

and were 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 one

of the court's pre-trial orders. Prior to trial, counsel for the

defendants indicated that they might attempt to impeach one of the

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 evidence

relating to the alleged prior crimes would be admitted. During crossexamination of a government witness, counsel for one of the defendants

appeared to tread on the court's pre-trial ruling 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 Monday morning that you were not to go into the

prostitution claims . . . . We're not going into any of

those, only the issue involved in this case . . . .

Well, I'm telling you you're not to go into the

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 offer

evidence relative to a murder, relative to the chop shop,

relative to the prostitution, relative to the motorcycle

club, it's not 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 court nor any lawyer intended

the jury to overhear the substance of these conversations. In fact, until

the affidavit came to light, no party was aware that any juror had

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 significant judicial resources, and involved an investment

of substantial time by the lawyers on all sides. At the same time, few

rights of an accused person are more fundamental or more sacred than the

Sixth Amendment right to an impartial jury. Because each of the competing

interests 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 affidavit does not provide sufficient evidence on which to

reach a fully informed decision. Thus, it was an abuse of discretion for

the court to grant the defendants' motion for a new trial absent an

evidentiary hearing.

Faced with similar situations, this and other courts have

consistently had the benefit of in-depth evidentiary hearings regarding the

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 States 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, 740

F.2d 1352, 1357 (6th Cir. 1984) (remanding for the limited purpose of an

evidentiary hearing to determine whether jurors overheard judge's comments

relating to defendant's guilt spoken during bench conference), cert.

denied, 472 U.S. 1029 (1995). 
5

What concerns us most is the court's failure to explore the nature

of the jury's exposure to extraneous, prejudicial information beyond what

the single affidavit recounts. Therefore, we remand the matter to the

district court to make a full factual inquiry. Once the court has a

complete picture of what events transpired, it may, of course, grant a new

trial based on the taint of even a single juror. United States v. Delaney,

732 F.2d 639, 643 (8th Cir. 1984) (holding that if a single juror is

improperly influenced, a verdict is as unfair as if all jurors were

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 into the validity of a verdict or indictment,

a juror may not testify as to any matter or statement

occurring during the course of the jury's deliberations

or to the effect of anything upon that or any other

juror's mind or emotions as influencing the juror to

assent or dissent from the verdict or indictment or

concerning the juror's mental processes in connection

therewith, except that a juror may 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 on any

juror. Nor may a juror's affidavit or evidence of any

statement by the juror concerning a matter about which

the juror would be precluded from testifying be received

for those purposes.
6

Fed. R. Evid. 606(b) (emphasis added). The advisory committee notes to the

1972 proposed rule give some insight into competing values the Rule 606(b)

seeks to protect:

The familiar rubric that a juror may not impeach his own

verdict, dating from Lord Mansfield's time is a gross

oversimplification. The values sought to be promoted by

excluding the evidence include freedom of deliberation,

stability and finality of verdicts, and protection of

jurors against annoyance and embarrassment. McDonald v.

Pless, 238 U.S. 264 (1915). On the other hand, simply

putting verdicts beyond effective reach can only promote

irregularity and injustice. The rule is 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 was

improperly brought before the jury's attention. In substance, the

affidavit reveals that at least one juror heard prejudicial information not

in evidence and that the information was discussed among the jurors. As

the district court specifically stated, "the comments made by the Court

during various bench conferences that related to murder, chop shops, and

prostitution were not intended to be heard . . . or considered by the

jury." Order, No. 95-03020-10/03-CR-S-4, filed 1/16/96 (hereinafter

"Order") at 4. Thus, under the rule's exception, the district court

properly considered this portion of the affidavit and on remand may

consider other evidence that is similarly restricted to the question of

what, if any, extraneous information the jury heard.

The second paragraph of the affidavit, however, contains

impermissible testimony. In the first sentence, the foreperson reveals

what impact the extraneous information had on him 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 the

other jurors: "I am also aware
7

that the jury was apprehensive and fearful of retaliation from the

Defendants or the Defendant[s'] family, so much that some jurors took

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 information relating to "chop

shop, prostitution and murder," Rule 606(b) prohibits its consideration in

either case. Therefore, the district court should not have considered

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 is

sufficient to overturn the jury verdict. Certain jury contaminations are

so prejudicial that they create a rebuttable presumption of prejudice.

United States v. Remmer, 347 U.S. 227, 229 (1954) (presumption created by

any private communication, contact, or tampering with 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 has held, however, that the

presumption of prejudice does not apply unless the extrinsic contact

relates to "factual evidence not developed at trial." Cheyenne, 855 F.2d

at 568 (holding no abuse of discretion for district court to deny new trial

motion where jurors consulted dictionary for definitions of "callous" and

"wanton"). Therefore, we do not apply the presumption of prejudice if the

extraneous contact pertains to purely legal issues. Blumeyer, 62 F.3d at

1016.

In this case, the district court held that the presumption of

prejudice applied. Order at 5-6. The government argues that the overheard

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 any

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 hindered the jury from

following the court's instructions. There is no

indication that the jury did anything other than

follow the Court's instructions and consider the

evidence that was admissible. That affidavit

doesn't challenge that whatsoever. In truth, all

it says is that the jury was able to hear the Court

make evidentiary rulings, which it heard, of

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 to

sentencing.

Hr'g Tr. at 6.

8

judge's ruling on the admissibility of evidence. We disagree. The

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 turned

almost entirely on whose version of events the jury found more credible.

The jury's duty to resolve 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'

connection to other crimes including murder, that one or more of those

jurors transmitted the information to the full jury panel, and that jurors

discussed it with each other during trial recesses. Such conduct would

certainly trigger a presumption of prejudice to the defendants.

Once the presumption is established, the burden will rest heavily

with the government to establish that the extraneous juror contact was

harmless to the defendants. Remmer, 347 U.S. at 229. Thus, the

presumption of prejudice applies, and it will be incumbent on the

government 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 not

4

establish that the overheard comments were harmless. Order at 7.

We simply note that connection to the crime of murder carries as

much inherent danger as almost any imaginable reference.

9

1017. We employ an "objective test . . . to assess whether the extraneous

information would likely affect a typical juror." Id. The relevant

considerations include: (1) whether the extrinsic evidence was received

by the jury and the manner in which it was received; (2) whether it was

available to the jury for a lengthy period of time; (3) whether it was

discussed and considered extensively by the jury; (4) whether it was

introduced before a jury verdict was reached and, if so, at what point

during the deliberations; and (5) whether it was reasonably likely to

affect the verdict, considering the strength of the government's case and

whether the government's case outweighed any possible prejudice caused by

the extrinsic evidence. 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 inquiry

consistent with this opinion to fully determine the extent to which the

jury was exposed to extraneous, prejudicial information. If that factual

inquiry reveals jury taint sufficient to trigger the presumption of

prejudice, a new trial is warranted unless the government can demonstrate

harmlessness beyond a reasonable doubt.

A true copy.

Attest:

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