In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2308

JESSE WEBSTER,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 6510—James B. Zagel, Judge.

ARGUED SEPTEMBER 21, 2010—DECIDED DECEMBER 19, 2011

Before BAUER, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. In 1995 a federal jury convicted

Jesse Webster on cocaine-trafficking and tax-fraud

charges, and his direct appeals were unsuccessful. Sometime after his trial, Webster discovered that a member

of the jury had called in sick one day in the middle of

deliberations. Webster filed a habeas petition under 28

U.S.C. § 2255 alleging that deliberations proceeded that

day in the juror’s absence, violating his right to trial by
2 No. 09-2308

a jury of twelve. The government did not dispute that a

juror was absent for a day but maintained that the

rest of the jury was sent home and did not deliberate

that day.

In response to the habeas petition, the district judge

sent an investigator to interview all the jurors except

the one who called in sick. The investigator later testified

about the results of the interviews. After weighing this

and other evidence, the judge denied § 2255 relief. The

judge began by noting that if deliberations proceeded

with only eleven jurors present, Webster’s convictions

would have to be vacated under this court’s decision

in United States v. Araujo, 62 F.3d 930 (7th Cir. 1995). But

the judge held that Webster procedurally defaulted his

twelve-person jury claim by failing to raise it in his

direct appeal or in his § 2255 petition. Ultimately, however, the judge reached the issue by a different route.

Webster had argued in the alternative that the bailiff

never told the court about the missing juror and instead

instructed the jurors to continue deliberating in his absence. This, Webster contended, was a fraud on the

court, justifying § 2255 relief. The judge rejected this

argument, finding insufficient proof of improper deliberations.

We affirm, though we note several errors in the way

the § 2255 petition was handled. First, Webster did not

procedurally default his twelve-person jury claim. He

could not have raised it on direct appeal because he did

not know of the juror’s absence, and he adequately

raised it in his § 2255 petition by noting the fact of the
No. 09-2308 3

juror’s absence and generally alleging a violation of his

right to a jury of twelve. On the merits, however, the

claim is deficient. In rejecting Webster’s alternative argument, the judge found that the evidence did not establish that the jury deliberated in the absence of the twelfth

juror. This factual finding is not clearly erroneous, and

it resolves Webster’s appeal.

Although we are affirming the judgment, we have

two cautionary comments regarding the district court’s

approach to the § 2255 petition: (1) For reasons

we will explain, the judge read Araujo too broadly;

and (2) under Rule 606(b) of the Federal Rules of

Evidence, the investigator’s testimony about the interviews with the jurors was inadmissible.

I. Background

In 1995 Webster was indicted on five counts:

conspiracy to possess with intent to distribute kilogram quantities of cocaine; possession with intent to

distribute 15 kilograms of cocaine; attempt to possess

with intent to distribute 25 kilograms of cocaine; and

two counts of filing false tax returns. He pleaded not

guilty and proceeded to trial on Wednesday, November 15.

The jury was selected on November 15, and counsel

presented opening statements the next day. The evidentiary phase of the trial immediately followed and continued through Monday, November 20. Counsel delivered

closing arguments on Tuesday, November 21, and the

case went to the jury late that day. The jury deliberated
4 No. 09-2308

on November 22 but did not reach a verdict. The next

day was Thanksgiving, so the district court suspended

deliberations through the following Tuesday. On Wednesday, November 29, a juror whom we will refer to as

“M.J.” called in sick. The jury attendance sheet for that

day hows that only eleven jurors signed in and includes

a handwritten note by the courtroom deputy clerk

stating “M[.] J[.] absent.” The jury administrator’s diary

page for that day also indicates that one juror called in

sick. However, the trial court’s docket entry for November 29 states “[j]ury trial held,” as it had for every

other day the court was in session since November 16.

On November 30 all twelve jurors were in attendance

for deliberations, and on that day the jury returned its

verdict convicting Webster on all charges except for

the possession count. The judge imposed a sentence of

life in prison, and we affirmed the convictions and sentence on direct appeal. United States v. Webster, 151

F.3d 1034 (7th Cir. 1998).

At some point after the trial, Webster learned of M.J.’s

absence on November 29. On October 5, 1998, the

Supreme Court denied certiorari in Webster’s direct

appeal. On October 4, 1999, Webster filed a § 2255

habeas petition asserting multiple grounds for relief.

The petition included an allegation that Webster was

“denied the right to a jury of 12 peers” based on the

absence of a juror during deliberations, but was not

more specific about the legal basis for this claim. The

petition did not, for example, invoke Rule 23(b) of the

Federal Rules of Criminal Procedure or allege a violation

of the Sixth Amendment or any other constitutional
No. 09-2308 5

guarantee. Webster later amended his petition to make

two additional claims related to the juror’s absence: (1) his

trial and appellate counsel were ineffective for failing

to object to the absence of the juror and (2) the bailiff

committed a fraud on the court by instructing the jury

to deliberate with only eleven members.

In response to the petition and its amendments, the

district court first attempted to locate the bailiff—a court

security officer—who had been responsible for the safekeeping of Webster’s jury. Six years had elapsed (it

was now July 2001), so the judge asked the U.S. Marshal’s

office to assist in locating the officer. The court eventually determined that the officer was deceased. The

judge then decided to send an investigator to track

down and interview the jurors. Without input from the

parties, the judge appointed an investigator employed

by the U.S. Attorney’s Office for the Northern District of

Illinois. The judge chose this particular investigator

because he had worked for the judge in a previous

position and the judge had “great confidence” in “his

capacity to do exactly what he was told to do, nothing

more and nothing less.” The judge instructed the investigator to interview all the jurors except M.J. The investigator used a list of questions that the parties jointly

drafted.

The investigator apparently encountered some difficulty locating the jurors; the interviews were not completed until 2006. The results were a mixed bag, to say

the least. The first question was: “The court records

show that on one day one of the jurors did not appear.
6 No. 09-2308

Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror

being absent; four jurors said they did. Of the four

who did remember a juror’s absence, three recalled that

an alternate juror replaced the absent juror, a claim

wholly unsubstantiated by court records. One of the

four thought the juror was absent on the day before

Thanksgiving; another claimed the juror was absent on

the first two days of deliberations. Two correctly recalled

that the absent juror was male; one said the absent juror

was female. The second question was: “Do you recall

being sent home early because of this juror’s absence?”

The jurors answered either “no” or that they did not recall.

The investigator testified about the results of the juror

interviews at an evidentiary hearing held in September 2008. In lieu of live testimony from the courtroom

deputy clerk who had worked on Webster’s trial, the

parties stipulated that the clerk would testify as follows:

(1) he “ha[d] a general independent recollection of the

Webster case because, among other reasons, the defendant received a life imprisonment term”; (2) he

recalled being notified of M.J.’s absence; and (3) based

on the judge’s custom and practice, he believed the jury

was sent home that day because of the juror’s absence,

although he did not personally witness this happening.

Webster’s trial and appellate counsel also testified at

the hearing. Trial counsel testified that based on his

experience appearing before the trial court, the judge

would have made a record and notified counsel before

sending the jury home early. The attorney did not, however, have an independent recollection of whether this
No. 09-2308 7

actually occurred. Webster’s appellate attorney testified

that he was unaware of the juror’s absence until after

the conclusion of Webster’s direct appeal. Finally,

Webster testified that he was never informed that a

juror was absent for a day during deliberations until

some time long after he was sentenced.

On March 20, 2009, the district court issued a written

decision rejecting all of Webster’s grounds for habeas

relief. Regarding the absent-juror claim, the judge began

by noting that “[t]here is no question that it is improper

for eleven jurors to deliberate in the absence of the

twelfth juror whether or not prejudice can be shown,” citing

generally to Araujo, 62 F.3d 930. United States v. Webster,

No. 99-C-6510, 2009 WL 779806, at *3 (N.D. Ill. Mar. 20,

2009) (emphasis added). But the judge held that because

Webster had not raised his twelve-person jury claim

on direct appeal and did not list it as a ground for relief

in his original § 2255 petition, the claim was procedurally defaulted or untimely.

Ultimately, however, the judge addressed the absentjuror issue in connection with Webster’s fraud-on-thecourt claim. Webster’s theory was that the bailiff

instructed the jurors to deliberate in M.J.’s absence without informing the trial judge and this amounted to a

fraud on the court. The judge found the evidence insufficient to establish that improper deliberations had

actually occurred. Referring to the results of the juror

interviews, the judge noted that “[n]one of the jurors

recalled deliberating with less than all of the jurors.” Id.

at *4. The judge also cited his normal practice of sending
8 No. 09-2308

The habeas proceedings were conducted by the same judge 1

who presided over Webster’s trial. See Rule 4 of the Rules

Governing Habeas Corpus Cases (requiring habeas motions

to be presented to the judge who conducted the trial and

imposed the sentence).

the jury home when a juror is absent. The judge 1

thought it unlikely that the jurors would have

deliberated with fewer than twelve members present

because they were accustomed to “waiting for a late

juror in the morning or after lunch or while a juror or two

attends to personal needs.” Id. at *4 n.4. Because there

was no evidence that the bailiff instructed the jury to

deliberate without M.J. and insufficient evidence

to establish that the jury actually did so, the judge

rejected Webster’s claim that his convictions were

procured by a fraud on the court. The judge did not

address Webster’s related claim of ineffective assistance

of counsel. The district court granted a certificate of

appealability on the absent-juror claim in its various

iterations.

II. Discussion 

On appeal Webster concentrates on his twelve-person

jury claim and the related claim that trial counsel was

ineffective for failing to object to the continuation of

deliberations in the absence of the twelfth juror. He

has dropped his fraud-on-the-court theory. We review

the district court’s denial of § 2255 relief under a dual
No. 09-2308 9

standard of review; we accept the district court’s

findings of fact unless they are clearly erroneous and

review legal questions de novo. Sandoval v. United States,

574 F.3d 847, 850 (7th Cir. 2009). A factual finding is

clearly erroneous when “the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States

v. McGraw, 571 F.3d 624, 629 (7th Cir. 2009) (internal

quotation marks omitted).

As an initial matter, Webster contends that the district

court was wrong to conclude that his twelve-person

jury claim was procedurally defaulted or untimely. We

agree. The judge held that Webster could have raised

this claim on direct appeal because the trial docket

“clearly showed the absence of the juror and clearly stated

that the jury deliberated.” Webster, 2009 WL 779806, at

*3. This overstates the clarity of the docket entries. On

November 29, the day the juror was absent, the docket

states only “[j]ury trial held,” the same generic docket

entry that appears for the four days of the trial preceding

deliberations. The phrase “[j]ury trial held” appears to

be a routine docket entry; it does not capture specific or

unexpected trial events, and it was used on all court

days during the trial from opening statements through

the verdict. The actual evidence of M.J.’s absence

appeared only on the jury attendance sheet and in the

jury administrator’s diary, neither of which were part of

the trial record. Accordingly, we cannot fault Webster

for failing to raise this claim on direct appeal. See

United States v. Rosario, 234 F.3d 347, 352 (7th Cir. 2000)
10 No. 09-2308

(claims requiring “development of facts outside the

record . . . are more properly presented in a § 2255 petition”).

The district court also found that Webster had not

presented his twelve-person jury claim as a ground

for habeas relief in his original § 2255 petition and raised

it only later when he filed an amendment to the petition. The court held that the claim was new, did not relate back to any issue in the original petition, and therefore was either procedurally defaulted or untimely. This

ruling overlooks the fifth claim for relief in Webster’s

original § 2255 petition, which asserted that Webster

“was denied the right to a jury of 12 peers” and further

explained that “one of the jurors was absent during an

entire day of deliberations.” This is sufficient to preserve

the twelve-person jury argument. Accordingly, the claim

was neither procedurally defaulted nor untimely.

So we proceed to the merits. The Sixth Amendment’s

guarantee of trial by jury in criminal prosecutions does

not include the right to a jury of twelve. Williams v.

Florida, 399 U.S. 78, 98-100 (1970); Araujo, 62 F.3d at 933.

However, Rule 23(b) of the Federal Rules of Criminal

Procedure “incorporates that venerable common law

tradition as a requirement,” with limited exceptions for

contingencies arising after trial has begun. Araujo, 62

F.3d at 933. The rule provides, in pertinent part:

(b) Jury Size

(1) In General. A jury consists of 12 persons

unless this rule provides otherwise.
No. 09-2308 11

(2) Stipulation for a Smaller Jury. At any time

before the verdict, the parties may, with the court’s

approval, stipulate in writing that:

(A) the jury may consist of fewer than

12 persons; or

(B) a jury of fewer than 12 persons may return

a verdict if the court finds it necessary to excuse

a juror for good cause after trial begins.

(3) Court Order for a Jury of 11. After the jury

has retired to deliberate, the court may permit a jury

of 11 persons to return a verdict, even without a

stipulation by the parties, if the court finds good

cause to excuse a juror.

FED. R. CRIM. P. 23.

Webster’s claim for § 2255 relief is based primarily on

Rule 23(b), though he also contends that the claim has

“constitutional dimensions” because it implicates his

Sixth Amendment right to a unanimous verdict. See

Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana,

406 U.S. 356 (1972); id., 406 U.S. 366, 369-70 (Powell, J.,

concurring); Andres v. United States, 333 U.S. 740, 748

(1948). The constitutional argument is not well-developed;

and of course, the verdict here was unanimous, so there

is no unanimity problem.

Webster’s Rule 23(b) argument suffers from a similar

lack of factual foundation. Rule 23 generally requires a

twelve-person jury but permits the parties to stipulate

“[a]t any time before the verdict” that “the jury may

consist of fewer than 12 persons,” or that “a jury of fewer
12 No. 09-2308

than 12 persons may return a verdict” if the court finds

it necessary to “excuse a juror for good cause after trial

begins.” FED. R. CRIM. P. 23(b)(2). The rule also provides

that “even without a stipulation by the parties,” the

court may, “[a]fter the jury has retired to deliberate,”

permit “a jury of 11 persons to return a verdict . . . if the

court finds good cause to excuse a juror.” Id. 23(b)(3)

(emphasis added). Here, no juror was excused. And in

rejecting Webster’s fraud-on-the-court argument, the

district court found insufficient proof that the jury

actually deliberated on November 29, the day M.J. called

in sick. Unless this finding is clearly erroneous, Rule 23(b)

is not implicated because Webster’s jury never had

fewer than twelve members.

The district court’s factual finding was not clearly

erroneous. The evidence at the § 2255 hearing was at best

ambiguous. As we have noted, although the docket

entry for November 29 states “[j]ury trial held,” this

routine entry is uninformative; it does not tend to prove

or disprove that the jury actually deliberated that day.

The juror interviews do not add much. Webster correctly observes that in some respects the judge appears

to have misinterpreted the results of the interview. The

judge determined that “[n]one of the jurors recalled

deliberating with less than all of the jurors.” Webster,

2009 WL 779806, at *4. But the investigator did not ask

this precise question. Instead, after explaining to each

juror that court records showed that one juror had been

absent during deliberations, the investigator asked: “Do

you recall being sent home early because of this juror’s

absence?” (Emphasis added.) The jurors answered “no” or
No. 09-2308 13

To be sure, the next question was: “If yes [you recall being 2

sent home], do you recall if, prior to the time the jury was sent

home early, there were deliberations with respect to the verdict?” The notes for this question state “N/A” or “DNA”

(presumably, “Did Not Ask”) for every juror. This makes sense

because the question assumes an affirmative answer to the

previous question, but none of the jurors responded accordingly.

In addition, juror “E.G.” told the investigator that an absent

juror “was present for the deliberations . . . . [N]o one

was missing for those deliberations.” Later, however, E.G.

contradicted himself by stating that he “[d]oes not remember”

being sent home early because of the absent juror.

did not recall. The “no” answers would tend to support

Webster’s position, and the “do not recall” answers are

a wash.2

Regardless of this misunderstanding, however, we are

skeptical that the juror interviews can be considered at

all. In the first place, under Rule 606(b) of the Federal

Rules of Evidence, the jurors’ responses to the investigator’s questions were inadmissible (more about this in a

moment). Moreover, the jurors’ responses were riddled

with inconsistencies and imaginary occurrences, hardly

surprising given the passage of time. That the interviews occurred more than a decade after Webster’s

trial and so obviously contradicted the record makes

it unsafe to rely on them at all (putting aside the question of their admissibility).

Webster also bases his claim on the absence of concrete evidence about what the court did in response to

M.J.’s phone call on November 29. Webster argues that
14 No. 09-2308

because the court record does not confirm that the

judge sent the jury home after M.J. called in sick, we

should infer that it did not happen. He notes that 28

U.S.C. § 753(b) requires the court to keep a record of “all

proceedings in criminal cases had in open court” and

also points to his trial counsel’s testimony that the

judge would have made a record before sending the jury

home after one of its members called in sick. Although

the lack of a record is unsettling, it does not provide a

sufficient basis to upset the district court’s factual finding.

In the end, the judge’s finding rested heavily on the

court’s normal practice of dismissing the jury for the

day when a juror is absent. The judge noted that the

“undisputed . . . practice in my courtroom, and those of

all others in this courthouse, is to send jurors home

when the jury is incomplete in a criminal case.” Id. In

addition, the parties stipulated that the courtroom

deputy clerk, who had worked for the judge since 1987,

would confirm the court’s practice if called to testify.

Because no evidence suggested that the customary

practice was not followed, the judge found that

Webster had “not proved” that the jury deliberated on

November 29 without the twelfth juror.

The most that can be said about this evidence is that

it is inconclusive. “Where there are two permissible

views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” McGraw, 571 F.3d at

629 (quotation marks omitted). In this situation, it was

entirely reasonable for the trial judge to give decisive

weight to his regular courtroom practice. The jurors’
No. 09-2308 15

Other circuits have also treated convictions returned by

3

eleven-member juries under similar circumstances as

(continued...)

spotty recollections of the decade-old events of the

trial—even assuming their admissibility—are too unreliable and hardly sufficient to displace the reasonable

inference arising from the court’s normal practice. The

absence of a formal record is troubling, but not enough

to convince us that the judge’s “not proven” finding

was clearly erroneous.

Before concluding, we have a few words of caution

about the district court’s treatment of our decision in

Araujo. The judge read Araujo as holding that “[t]here

is no question that it is improper for eleven jurors to

deliberate in the absence of the twelfth juror whether or not

prejudice can be shown,” and further that “[i]f it is shown

that eleven members of the jury deliberated, then the

judgment has to be vacated.” Webster, 2009 WL 779806,

at *3 (emphasis added). Araujo did not establish such

a broad rule. In that case, the trial court permanently dismissed a juror during deliberations, and an

eleven-member jury returned a guilty verdict against

the defendant. Araujo, 62 F.3d at 932. Because the trial

judge had failed to articulate good cause for excusing

the juror as required by Rule 23(b)(3), we vacated

the conviction and remanded for a new trial without examining whether the defendant was prejudiced by the

juror’s absence. Id. at 937. In essence, without specifically

addressing the matter, we treated the Rule 23(b)(3)

error as structural.3
16 No. 09-2308

(...continued) 3

structural errors. E.g., United States v. Ginyard, 444 F.3d 648, 651-

55 (D.C. Cir. 2006); United States v. Curbelo, 343 F.3d 273, 280

(4th Cir. 2003); United States v. Spence, 163 F.3d 1280, 1284 (11th

Cir. 1998); United States v. Tabacca, 924 F.2d 906, 915 (9th Cir.

1991); United States v. Taylor, 498 F.2d 390, 391-92 (6th Cir. 1974).

This factual finding also resolves Webster’s claim of inef- 4

fective assistance of counsel. Because the jury did not deliberate

on the day M.J. was absent, Webster’s counsel cannot have

been ineffective for failing to raise the matter.

Here, in contrast, all twelve members of the jury

returned Webster’s verdict. Araujo does not speak to this

situation, and there is reason to doubt that a juror’s

temporary absence from deliberations is a structural

error immune from harmless-error review. See, e.g., United

States v. Shackelford, 777 F.2d 1141, 1144-45 (6th Cir.

1985) (affirming conviction where juror attended to a

personal matter for a few minutes during deliberations);

United States v. Camacho, 865 F. Supp. 1527, 1534, 1537 (S.D.

Fla. 1994) (affirming conviction where juror may have

been in the bathroom during deliberations). We need

not decide the matter here. The district court found as

a matter of fact that the jury did not deliberate on

the day M.J. was absent, and this finding is not clearly

erroneous.4

Finally, we return to the question of the admissibility

of the investigator’s interviews with the jurors. Rule 606(b)

of the Federal Rules of Evidence prohibits jurors from

testifying about 
No. 09-2308 17

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 indictment or concerning the juror’s

mental processes in connection therewith.

FED. R. EVID. 606(b). The rule has three limited exceptions. Jurors may testify about: “(1) whether extraneous

prejudicial information was improperly brought to the

jury’s attention, (2) whether any outside influence

was improperly brought to bear upon any juror, or

(3) whether there was a mistake in entering the verdict

onto the verdict form.” Id. Rule 606(b) codifies the

common-law prohibition against using juror testimony

to impeach a verdict, which exists to promote the

finality of verdicts, protect jurors from harassment, and

encourage full and frank discussion in the jury room.

See Tanner v. United States, 483 U.S. 107, 119-21 (1987).

Here, the investigator questioned the jurors about

“matter[s] . . . occurring during the course of the jury’s

deliberations,” so admitting the contents of the interviews plainly violated Rule 606(b). At oral argument

Webster’s counsel argued that Rule 606(b) was not implicated because the interviews were limited to “historical

objective fact”—that is, whether a juror was absent

during deliberations, not whether the absence influenced the jury’s decision. But as the district court

itself acknowledged, the questions “did not fall within

the ambit of facts to which a juror may testify under
18 No. 09-2308

The district court justified admitting the interviews based on

5

an unsupported assertion that courts are given “exceptional

procedural leeway . . . when fraud on the court is alleged.”

United States v. Webster, No. 99-C-6510, 2009 WL 779806, at *2

n.2 (N.D. Ill. Mar. 20, 2009).

12-19-11

Rule 606(b).” Webster, 2009 WL 779806, at *2 n.2. Indeed, 5

the Supreme Court noted in Tanner that Congress

enacted the Senate version of Rule 606(b), which unlike

the House version, does not permit juror testimony

about “objective matters” occurring during deliberations—including inquiries into whether a juror participated in deliberations. Tanner, 483 U.S. at 123-25

(noting specifically that the Senate Report disapproved

of inquiries into whether “jurors did not take part in

deliberations”). At least one district court has explicitly

held that questioning jurors about whether one of their

number was temporarily absent during deliberations

violates Rule 606(b). See Camacho, 865 F. Supp. at 1537. The

same is true here; admitting the contents of the juror

interviews was error.

For the foregoing reasons, and with reservations

noted, we AFFIRM the judgment of the district court.