FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-10539 Plaintiff-Appellee,

D.C. No. v. 

1:06-cr-00342-

RICARDO RUIZ MONTES, OWW

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 08-10559

Plaintiff-Appellee, D.C. No.

v.  1:06-vt-00342-

OWW-1 LUKE SCARMAZZO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

August 31, 2010—San Francisco, California

Filed January 4, 2011

Before: Betty B. Fletcher, Richard C. Tallman, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tallman

299
COUNSEL

Gary L. Huss, Esq., (argued), Law Offices of Gary Huss,

Fresno, California, for defendant-appellant Ricardo Montes;

Katherine L. Hart, Esq., (argued), Law Offices of Katherine

L. Hart, Fresno, California, for defendant-appellant Luke

Scarmazzo.

Kathleen A. Servatius, Assistant U.S. Attorney, (argued),

Office of the U.S. Attorney, Fresno, California, Elana Landau,

Esq., Office of the U.S. Attorney, Fresno, California, for

plaintiff-appellee United States of America.

OPINION

TALLMAN, Circuit Judge:

Upon a post-verdict allegation of juror misconduct, a district court should ordinarily hold an evidentiary hearing to

302 UNITED STATES v. MONTES
determine the nature of the misconduct and whether or not

there was a reasonable possibility that it could have affected

the jury’s verdict. However, an evidentiary hearing is not

mandated every time there is an allegation of juror misconduct. Because this is one of the cases where a district court

could adequately make its determination without the benefit

of an evidentiary hearing, we affirm the judgment of the district court.

I

In 2006, Defendants-Appellants Ricardo Montes and Luke

Scarmazzo (“Appellants”) were charged with conducting a

continuing criminal enterprise, 21 U.S.C. § 848, manufacturing marijuana, 21 U.S.C. § 841(a)(1), aiding and abetting, 18

U.S.C. § 2, and possessing marijuana with intent to distribute,

21 U.S.C. § 841(a)(1). At trial, the prosecution presented

overwhelming evidence that Appellants co-founded and

openly ran a marijuana dispensary in Modesto, California, and

that they made $9.2 million in sales over a two-year period.

Overwhelming evidence also indicated that during those two

years Appellants supervised and employed between eight and

fourteen individuals specifically to manufacture, package,

guard, and distribute marijuana. During the investigation, law

enforcement officials made ten controlled buys and seized

more than fifty pounds of marijuana and more than 1,100

marijuana plants. Many times during their two years in business, Appellants openly admitted to law enforcement officials

that they ran a marijuana dispensary. At trial, Appellants

repeated these admissions on the witness stand. 

Not surprisingly, the jury found Appellants guilty of violating 21 U.S.C. § 848, which requires the commission of a continuing series of at least three federal felony narcotic offenses

undertaken in concert with five or more other persons with

respect to whom the defendant occupies a position of organizer, supervisor, or any other type of management, and from

which the defendant obtains substantial income or resources.

UNITED STATES v. MONTES 303
The jury also found Appellants guilty of manufacturing marijuana, 21 U.S.C. § 841(a)(1), aiding and abetting, 18 U.S.C.

§ 2, and possessing marijuana with intent to distribute, 21

U.S.C. § 841(a)(1). 

After the verdict, Appellants filed a motion for a new trial

on the basis of juror misconduct. Appellants later amended

their motion and submitted declarations from two jurors.

Appellants alleged that Juror No. 3 had read an online “summary” of an article in the May 12, 2008, edition of the San

Francisco Chronicle entitled “Next President Might Be Gentler on Pot Clubs,” published shortly before deliberations

began. The juror declarations suggested that Juror No. 3 discussed the summary with Juror No. 5 during deliberations. It

is clear that Juror No. 3 had not read the entire article, only

the summary appearing on the San Francisco Chronicle’s

online front page, www.sfgate.com. Neither the summary nor

the article itself was introduced into the jury room.

The district court held a hearing at which it considered the

juror declarations in detail, eliciting argument from both

Appellants and the prosecution regarding the potentially injurious impact of the purported misconduct. The court declined

to call Juror No. 3 as a witness, invoking Federal Rule of Evidence 606(b), which prohibits inquiry into a juror’s subjective

thought processes in connection with the verdict. 

The district court considered the entirety of the article—

even though the jury never saw it—and concluded that it was

not prejudicial because, by suggesting that a new presidential

administration would be more accepting of marijuana use, it

had the effect of supporting the Appellants’ position. The

court then denied Appellants’ motion for a new trial. Appellants timely appealed, arguing that (1) the district court erred

by failing to hold an “evidentiary hearing,” and (2) the district

court erred by denying the motion for a new trial.1

1We resolve Appellants’ other challenges in an unpublished memorandum disposition filed concurrently with this opinion. 

304 UNITED STATES v. MONTES
II

Whether or not extraneous information could have affected

the jury’s verdict bears on the propriety of the district court’s

decision not to hold an evidentiary hearing. See United States

v. Duktel, 192 F.3d 893, 899 (9th Cir. 1999). We review the

district court’s decision not to hold an evidentiary hearing and

its denial of a motion for a new trial for abuse of discretion.

United States v. Bussell, 414 F.3d 1048, 1054 (9th Cir. 2005).

A district court abuses its discretion if it reaches a result that

is “illogical, implausible, or without support in inferences that

may be drawn from facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

III

Fundamental to our judicial system’s administration of justice is a fair and impartial jury. United States v. Bagnariol,

665 F.2d 877, 884 (9th Cir. 1981). A jury should reach a verdict that is based solely upon the evidence admitted at trial.

Id. A juror’s communication of extraneous information implicates the Confrontation Clause. Sassounian v. Roe, 230 F.3d

1097, 1108 (9th Cir. 2000). “The juror in effect becomes an

unsworn witness, not subject to confrontation or cross examination.” Id. If a court determines that a juror has improperly

brought extraneous information to the jury’s attention, the

inquiry must then focus on whether “there is a reasonable possibility that the extraneous information could have affected

the verdict.” United States v. Keating, 147 F.3d 895, 900

(1998). This inquiry is an objective one: “we need not ascertain whether the extraneous information actually influenced

any specific juror.” Id. at 901-02.

A

[1] Allegations of juror misconduct implicate grave interests. The Supreme Court has stressed that the remedy for such

allegations is a hearing at which “the trial court determines

UNITED STATES v. MONTES 305
the circumstances of what transpired, the impact on the jurors,

and whether or not it was prejudicial.” Dutkel, 192 F.3d at

899 (internal quotation marks omitted). Upon an allegation of

juror misconduct in this circuit, trial courts should ordinarily

hold an evidentiary hearing at which the court hears admissible juror testimony and determines “the precise nature of the

extraneous information.” Bagnariol, 665 F.2d at 885. While

such a hearing is preferable, “[a]n evidentiary hearing is not

mandated every time there is an allegation of jury misconduct

or bias.” United States v. Angulo, 4 F.3d 843, 847 (9th Cir.

1993). “Rather, in determining whether [an evidentiary] hearing must be held, the court must consider the content of the

allegations, the seriousness of the alleged misconduct or bias,

and the credibility of the source.” Id. Based on the record

before us, we conclude an evidentiary hearing was unnecessary in this case.

[2] “There is no bright line test for determining whether a

defendant has suffered prejudice from an instance of juror

misconduct.” Sassounian, 230 F.3d at 1109. However, we

have identified five factors that are relevant to our inquiry:

(1) whether the extrinsic material was actually

received, and if so, how; (2) the length of time it was

available to the jury; (3) the extent to which the jury

discussed and considered it; (4) whether the extrinsic

material was introduced before a verdict was

reached, and if so, at what point in the deliberations

it was introduced; and (5) any other matters which

may bear on the issue of the reasonable possibility of

whether the introduction of extrinsic material

affected the verdict.

Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986).

While these factors guide our analysis, “no one of these factors is dispositive,” Dickson v. Sullivan, 849 F.2d 403, 406

(9th Cir. 1988), and the “ultimate question is whether it can

be concluded beyond a reasonable doubt that extrinsic evi306 UNITED STATES v. MONTES
dence did not contribute to the verdict,” Bayramoglu, 806

F.2d at 887 (internal quotation marks omitted). We have also

pointed to several factors that can “suggest that the potential

prejudice of the extrinsic information was diminished in a

particular case.” Jeffries v. Wood, 114 F.3d 1484, 1491 (9th

Cir. 1997) (en banc), overruled on other grounds by Lindh v.

Murphy, 521 U.S. 320 (1997). Among those factors is

“whether the statement was insufficiently prejudicial given

the issues and evidence in the case.” Id. at 1492 (footnotes

omitted).

[3] Upon an inquiry into the validity of a verdict, a trial

court and a court of appeals may consider only evidence

admissible under Federal Rule of Evidence 606(b). Under that

rule, a juror may testify as to “whether extraneous prejudicial

information was improperly brought to the jury’s attention,”

but not 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 to or dissent from the verdict . . . or concerning the juror’s mental processes in connection therewith.”

Fed. R. Evid. 606(b) (emphasis added). Jurors therefore may

not be questioned about their deliberative process or the subjective effects of extraneous information. Bagnariol, 665 F.2d

at 884. Neither the trial court nor the court of appeals may

consider such testimony. Id. at 884-85. In some cases, such as

this one, these constrictions can severely limit the utility of

holding an evidentiary hearing at which jurors may testify. 

In this case, the district court held a hearing on the motion

for a new trial. At the hearing the district court heard argument from all parties and considered the juror declarations

and the San Francisco Chronicle article in detail. This hearing, however, did not constitute a full evidentiary hearing as

contemplated by our precedent because the district court precluded live juror testimony. Nevertheless, because the district

court could conclusively find that “the seriousness of the

alleged misconduct or bias” was minimal, and because “the

UNITED STATES v. MONTES 307
content of the allegations” could not have prejudiced Appellants, we see no abuse of discretion in the district court’s decision to preclude live juror testimony. See Angulo, 4 F.3d at

847. Nor do we see an abuse of discretion in striking those

portions of the proffered declarations that violated Federal

Rule of Evidence 606(b). 

[4] The district court had any and all admissible information it needed from the declarations, the San Francisco

Chronicle article itself, and written and oral argument from

the parties. The declarations conclusively answered whether

extraneous information had been improperly brought to the

jury’s attention. See Fed. R. Evid. 606(b). The San Francisco

Chronicle article established the nature of that information.

The only question left to be answered was how the summary

of that article could have influenced the verdict, and that is a

question that cannot be answered through juror testimony. See

id. Any testimony from Juror No. 3 either would have been

cumulative of the statements in his declaration or would have

impermissibly touched upon the subjective effect of the extraneous information on his mental processes. See id.

[5] In addition, the district court could evaluate all five

Bayramoglu factors without juror testimony. From the juror

declarations, the district court knew: (1) the information—i.e.,

the headline, “Next President Might Be Gentler on Pot Clubs”

and a juror’s recollection of a short summary of the article—

was actually received by the entire jury when Juror No. 3 and

Juror No. 5 discussed it openly, but that the article itself was

never received by the jury; (2) the jury had access to the summary information for the entirety of their deliberations, but

never had access to the article; (3) the summary information

was in fact discussed during deliberations, but the article was

not; (4) the summary information was introduced before a

verdict was reached, but the article was not; and (5) the nature

of the summary information and the nature of the article itself.

Therefore, the district court did not exceed the permissible

308 UNITED STATES v. MONTES
bounds of its discretion by denying Appellants an evidentiary

hearing.

B

Turning to the merits, even though the first four Bayramoglu factors seemingly weighed in favor of granting a new

trial, the district court ruled that the extraneous information

was “insufficiently prejudicial given the issues and evidence

in the case,” Jeffries, 114 F.3d at 1492, and that there was

therefore no “reasonable possibility” that the extrinsic material affected the verdict, Dickson, 849 F.2d at 406. We agree.

[6] Our cases have stressed “the nature of the extraneous

information” when determining the possibility that the information affected the verdict. Id. at 406-07. In fact, “we place

great weight on the nature of the extraneous information that

has been introduced into deliberations.” Sassounian, 230 F.3d

at 1109. Here, while we consider all relevant factors, it is the

non-prejudicial nature of the extraneous information that tilts

the scales against granting Appellants a new trial. 

[7] An article headline suggesting that the “Next President

Might Be Gentler on Pot Clubs” could have no impact on the

jury’s evaluation of Appellants’ guilt or innocence, no matter

how long the jury had access to this information. Overwhelming evidence of Appellants’ guilt was introduced at trial.

Appellants themselves openly admitted to running the marijuana dispensary in question during their testimony. The conduct to which Appellants admitted was made criminal under

federal law by the Controlled Substances Act. The possibility

that a future president might choose not to prosecute such

criminal conduct did not have any logical bearing on a determination of whether or not Appellants engaged in that criminal conduct. 

[8] When finding reversible prejudice, we have described

“a direct and rational connection between the extrinsic mateUNITED STATES v. MONTES 309
rial and a prejudicial jury conclusion, as distinguished from a

connection that arises only by irrational reasoning.” Bagnariol, 665 F.2d at 885. Here, there is simply no rational connection between the extraneous information and the jury’s

obligation to determine whether or not Appellants had operated a continuing criminal enterprise, manufactured marijuana, aided and abetted, or possessed marijuana with intent

to distribute. Appellants would have us reason that the extraneous information prejudiced them because it allowed the jury

to speculate that the sentence imposed after the verdict would

be lenient. Aside from the fact that the jury was prohibited

from considering any potential sentence at all in determining

guilt or innocence, this proposed connection is not “direct and

rational.” Id. Criminal sentencing was referenced neither in

the summary information introduced to the jury nor in the

entirety of the article itself, and there is no clear reason why

a potential future change in policy regarding which crimes to

prosecute should have any impact on the sentencing of a current defendant. 

This case is unlike those in which we have previously

found that there was a reasonable possibility that extraneous

information could have affected the jury’s verdict. See United

States v. Littlefield, 752 F.2d 1429, 1432 (9th Cir. 1985)

(holding that a new trial for tax fraud involving illegal shelters

was required where a juror brought into the jury room a Time

Magazine article highlighting fraudulent tax schemes as a

problem of national concern and deploring light sentences

imposed on participants); Gibson v. Clanon, 633 F.2d 851,

855 (9th Cir. 1980) (holding that reversal was required where

jurors obtained evidence regarding the rarity of defendant’s

blood type from a medical encyclopedia notwithstanding that

the trial court previously ruled that such evidence was inadmissible at trial).

Instead, the facts in this case are much more like the facts

underlying our decision in Bagnariol. There, we concluded

that information gathered by a juror at a public library and

310 UNITED STATES v. MONTES
communicated to other jurors was not logically connected to

material issues in the case. Bagnariol, 665 F.2d at 888. The

juror had searched several business publications for references to a nonexistent company created by government agents

as a front for a Federal Bureau of Investigation undercover

operation. Id. at 883. The juror found no such company and

told other jurors of his research finding. Id. The nonexistence

of the fictitious company was not in dispute and was irrelevant to any material issue in the case. Id. at 884. We concluded that to find a material connection between the

extraneous information and the jury’s verdict “would require

an assumption that the jury members reached an irrational

conclusion, lacking in common-sense logic.” Id. at 888.

Because the research “merely confirmed what any reasonable

juror already knew,” we held that reversal was not required,

despite the fact that the extraneous information had been communicated to several jurors. Id.

[9] The same is true here. A future president’s posture

toward marijuana prosecutions was not relevant to any material issue in the case. Presidents may choose which crimes to

prioritize in directing Executive Branch law enforcement

efforts. This fact was not in dispute at trial. The possibility

that a future president might choose not to devote federal

resources to the prosecution of a certain class of crimes would

merely confirm what any reasonable juror already knew. But

more to the point, to find a material connection between the

extraneous information in this case and the jury’s determination of guilt or innocence would require an assumption that

the jury members reached an irrational conclusion lacking in

common-sense. We are unwilling to make such an assumption. Despite the fact that the extraneous information was

introduced during deliberations, we agree with the experienced trial judge that it could not have affected the jury’s verdict.

UNITED STATES v. MONTES 311
IV

The district court did not abuse its discretion by precluding

Juror No. 3 from testifying or by denying Appellants’ motion

for a new trial.

AFFIRMED.

312 UNITED STATES v. MONTES