PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

SCOTT EDWARD LAWSON,

Defendant-Appellant.

 No. 10-4831

THE UNITED GAMEFOWL BREEDERS

ASSOCIATION,

Amicus Supporting Appellant,

THE HUMANE SOCIETY OF THE

UNITED STATES,

Amicus Supporting Appellee. 
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

SHERI M. HUTTO,

Defendant-Appellant.

 No. 10-4841

THE UNITED GAMEFOWL BREEDERS

ASSOCIATION,

Amicus Supporting Appellant,

THE HUMANE SOCIETY OF THE

UNITED STATES,

Amicus Supporting Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

WAYNE HUGH HUTTO,

Defendant-Appellant.

 No. 10-4845

THE UNITED GAMEFOWL BREEDERS

ASSOCIATION,

Amicus Supporting Appellant,

THE HUMANE SOCIETY OF THE

UNITED STATES,

Amicus Supporting Appellee. 

2 UNITED STATES v. LAWSON
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

LESLIE WAYNE PEELER,

Defendant-Appellant.

 No. 10-4846

THE UNITED GAMEFOWL BREEDERS

ASSOCIATION,

Amicus Supporting Appellant,

THE HUMANE SOCIETY OF THE

UNITED STATES,

Amicus Supporting Appellee. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

NANCY ELIZABETH DYAL,

Defendant-Appellant.

 No. 10-4870

THE UNITED GAMEFOWL BREEDERS

ASSOCIATION,

Amicus Supporting Appellant,

THE HUMANE SOCIETY OF THE

UNITED STATES,

Amicus Supporting Appellee. 

UNITED STATES v. LAWSON 3
UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

JAMES MORROW COLLINS, JR.,

Defendant-Appellant.

 No. 10-4882

THE UNITED GAMEFOWL BREEDERS

ASSOCIATION,

Amicus Supporting Appellant,

THE HUMANE SOCIETY OF THE

UNITED STATES,

Amicus Supporting Appellee. 

Appeals from the United States District Court

for the District of South Carolina, at Columbia.

Cameron McGowan Currie, District Judge.

(3:09-cr-01174-CMC-9; 3:09-cr-01169-CMC-2;

3:09-cr-01169-CMC-3; 3:09-cr-01174-CMC-3;

3:09-cr-01169-CMC-1; 3:09-cr-01295-CMC-2)

Argued: January 24, 2012

Decided: April 20, 2012

Before GREGORY and KEENAN, Circuit Judges, and

Liam O’GRADY, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published

opinion. Judge Keenan wrote the opinion, in which Judge

Gregory and Judge O’Grady joined. 

4 UNITED STATES v. LAWSON
COUNSEL

ARGUED: Clarence Rauch Wise, Greenwood, South Carolina; Jonathan McKey Milling, MILLING LAW FIRM, LLC,

Columbia, South Carolina; Douglas Neal Truslow, Columbia,

South Carolina, for Appellants. Nathan S. Williams, OFFICE

OF THE UNITED STATES ATTORNEY, Charleston, South

Carolina, for Appellee. ON BRIEF: John Dennis Delgado,

BLUESTEIN, NICHOLS, THOMPSON & DELGADO,

LLC, Columbia, South Carolina, for Appellant Sheri M.

Hutto; Swepson Harrison Saunders, VI, Columbia, South Carolina, for Appellant Leslie Wayne Peeler; Henry Wesley

Kirkland, Jr., KIRKLAND & RUSH, Columbia, South Carolina, for Appellant Nancy Elizabeth Dyal. William N. Nettles,

United States Attorney, Columbia, South Carolina, for Appellee. Mark L. Pollot, Boise, Idaho, for The United Gamefowl

Breeders Association, Amicus Supporting Appellants. Jonathan R. Lovvorn, Kimberly D. Ockene, Aaron D. Green, THE

HUMANE SOCIETY OF THE UNITED STATES, Washington, D.C.; Emily L. Aldrich, HUNTON & WILLIAMS LLP,

Los Angeles, California; Gregory N. Stillman, HUNTON &

WILLIAMS LLP, Norfolk, Virginia; Joseph P. Esposito, William E. Potts, Jr., Andrew E. Walsh, HUNTON & WILLIAMS LLP, Washington, D.C., for The Humane Society of

the United States, Amicus Supporting Appellee.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

Scott Lawson and certain other defendants (collectively,

Lawson) were convicted by a jury of violating, and conspiring

to violate, the animal fighting prohibition of the Animal Welfare Act, 7 U.S.C. § 2156(a) (the animal fighting statute),

resulting from their participation in "gamefowl derbies," otherwise known as "cockfighting." The animal fighting statute

UNITED STATES v. LAWSON 5
prohibits, among other things, "sponsor[ing] or exhibit[ing] an

animal in an animal fighting venture." Id. The term "animal

fighting venture" is defined in the statute, in relevant part, as

"any event, in or affecting interstate or foreign commerce, that

involves a fight conducted or to be conducted between at least

2 animals for purposes of sport, wagering, or entertainment."

7 U.S.C. § 2156(g)(1). Several of the defendants in this case

also were convicted of participating in, and conspiring to participate in, an illegal gambling business in violation of 18

U.S.C. § 1955 (the illegal gambling statute), with relation to

activities that occurred during the "derbies."

Lawson raises numerous challenges to his convictions,

arguing that: (1) the convictions for violating the animal fighting statute should be vacated because Congress lacks power

under the Commerce Clause to prohibit the fighting of gamefowl; (2) the animal fighting statute is unconstitutional

because the statute provides for different elements of proof in

jurisdictions where animal fighting is legal; (3) the district

court abused its discretion in consolidating Scott Lawson’s

trial with the trials of his co-defendants; and (4) a juror’s misconduct in performing unauthorized research of the definition

of an element of the offense on Wikipedia.org (Wikipedia), an

"open access" internet encyclopedia, deprived him of his

Sixth Amendment right to a fair trial. Additionally, the defendants convicted of violating the illegal gambling statute raise

several challenges to those convictions.1

Upon our review of the parties’ arguments, we hold that the

animal fighting statute is a constitutional exercise of Congress’ power under the Commerce Clause; that the provision

1Lawson further argues that the district court erred in its rulings with

respect to certain evidentiary matters and the instructions given to the jury

on the animal fighting statute charges. In light of our holding, we do not

reach those issues. We also do not reach the argument made by James Collins, Jr., that the district court erred in its application of the sentencing

guidelines. 

6 UNITED STATES v. LAWSON
of different elements of the crime in jurisdictions permitting

animal fighting does not violate Lawson’s equal protection

rights; and that the district court did not err in conducting

Scott Lawson’s trial jointly with the trials of his codefendants. However, we hold that the juror’s misconduct

violated Lawson’s right to a fair trial, and we therefore vacate

the convictions for violating the animal fighting statute. For

this reason, we also vacate the conspiracy convictions with

respect to those defendants for which the conspiracy alleged

related solely to the animal fighting activities. Additionally,

we reject the challenges made by several of the defendants to

the illegal gambling convictions, and we affirm the convictions relating to those offenses as well as the conspiracy convictions for which illegal gambling was one of the objects of

the conspiracy alleged.

I.

In November 2009, a federal grand jury returned an indictment against Lawson and Leslie Wayne Peeler (the Lawson

indictment),2 alleging one count of participating in a conspiracy to violate the Animal Welfare Act, in violation of 18

U.S.C. § 371, and one count of participating in, and/or aiding

and abetting, an unlawful animal fighting venture, in violation

of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2. With respect to

2The indictment named as Lawson’s and Peeler’s co-defendants Jeffrey

Brian Gibert, Michael Monroe Grooms, Gerald Benfield, John Carlton

Thurman Hoover, Michael T. Rodgers, Johnny Junior Harrison, Coy Dale

Robinson, Jimmie Jesse Hicks, and George William Kelly, alleging that

they committed various acts in connections with the derbies held in Swansea in July 2008 and April 2009. Peeler is a co-party to Lawson’s appeal,

and, like Lawson, proceeded to a trial by jury. Gibert, Grooms, Benfield,

and Hoover (collectively Gibert) entered conditional guilty pleas and have

appealed their convictions in a companion case, United States v. Gibert,

No. 10-4848, ___ F.3d ___ (4th Cir. Apr. 20, 2012). Lawson’s appeal and

Gibert’s appeal proceeded on separate briefing schedules, but this Court

consolidated the two cases for purposes of oral argument. Because the two

cases raise certain distinct legal issues, we are concurrently issuing separate opinions for the two cases. 

UNITED STATES v. LAWSON 7
the conspiracy charge, the Lawson indictment alleged that

Lawson offered gaffs for sale and sharpened gaffs for individuals who entered birds into a cockfighting event held in

Swansea, South Carolina in July 2008, and that Peeler served

as a referee for a cockfighting event held in Swansea in April

2009. With respect to the violations of the animal fighting

statute that did not involve an alleged conspiracy, the indictment alleged generally that Lawson and Peeler sponsored and

exhibited an animal, or aided and abetted individuals who

sponsored an animal, in an animal fighting venture that

occurred in July 2008, and April 2009, respectively.

The grand jury returned a separate indictment in November

2009 against Nancy Elizabeth Dyal, Sheri M. Hutto, and

Wayne Hugh Hutto (the Dyal indictment), alleging one count

of participating in a conspiracy to violate the Animal Welfare

Act and to engage in an illegal gambling business, in violation

of 18 U.S.C. § 371, two counts of participating in, and/or aiding and abetting, an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2, and two

counts of participating in, and/or aiding and abetting, an illegal gambling business, in violation of 18 U.S.C. § 1955 and

18 U.S.C. § 2. A similar indictment was returned against

James Morrow Collins, Jr. in December 2009,3 alleging the

same five counts as alleged in the Dyal indictment, based on

Collins’ alleged role in the Swansea derbies held in July 2008

and April 2009.

With respect to the conspiracy charge, these indictments

alleged that Dyal, Sheri Hutto, Wayne Hutto, and Collins each

helped organize the derbies held in Swansea in July 2008 and

April 2009. These indictments were based on Sheri Hutto’s

alleged acts of announcing the scheduled fighters; Dyal’s

alleged acts of collecting admission fees, checking identifica3This indictment named Gene Audry Jeffcoat as Collins’ co-defendant.

Jeffcoat entered a guilty plea to the charges, and is a party in the Gibert

companion case. 

8 UNITED STATES v. LAWSON
tions for membership in the South Carolina Gamefowl Breeders Association, and selling such memberships during the

derbies; Wayne Hutto’s alleged acts of serving as a referee for

the fights; and Collins’ alleged acts of handling money and

ensuring that the rules were followed. With respect to violations of the animal fighting statute that did not involve a conspiracy, these indictments alleged generally that Dyal, Sheri

Hutto, and Wayne Hutto sponsored and exhibited an animal,

or aided and abetted individuals who sponsored an animal, in

an animal fighting venture that occurred in July 2008 and

April 2009, respectively. With respect to the illegal gambling

statute charges, these indictments alleged that the nature of

the derby, in which owners of fighting birds paid an entry fee

to enter the birds in the derby and were eligible to win a

"purse" if their birds won the most fights, constituted an illegal gambling operation in violation of South Carolina Code

sections 16-19-10 and 16-19-130.

The indictments stemmed from an undercover investigation

conducted by the South Carolina Department of Natural

Resources of a cockfighting organization based in Swansea.

Undercover officers attended and made video recordings of

two cockfighting derbies, held in July 2008 and April 2009.

During these derbies, several individuals, including individuals alleged to be part of the conspiracy at issue, entered birds

into cockfighting matches. In these matches, the birds were

"equipped" with gaffs or other sharp, metal objects attached

to their legs. The birds fought their opponent to the death or

at least until one of the birds was physically incapable of continuing to fight. After paying an entry fee to enter a bird in the

derby, an owner was eligible to win the "purse," the collective

money put up by the entrants minus any amount retained by

the organizers, if the owner’s bird won the most fights. 

The district court consolidated the indictments for these

defendants and conducted a single trial, over Scott Lawson’s

objection. During the course of the five-day trial, the parties

called twenty-four witnesses, a majority of whom were repreUNITED STATES v. LAWSON 9
sentatives of companies outside South Carolina that manufactured items used in the cockfights. The government presented

this testimony to help establish a nexus between the cockfighting activities at issue and interstate commerce, as

required by the elements of 7 U.S.C. § 2156.4See 7 U.S.C.

§ 2156(g) (defining "animal fighting venture" as "any event,

in or affecting interstate or foreign commerce . . . .").

After about nine hours of deliberations conducted over two

days, the jury returned a verdict finding all defendants guilty

on all counts. As discussed in greater detail in this opinion,

the district court was informed several days after the verdict

that one of the jurors had conducted unauthorized research on

the internet during an overnight recess in the jury deliberations. The district court ordered a hearing, in which it was

determined that a juror researched on Wikipedia the definition

of "sponsor," one of the elements of the offense under the animal fighting statute. After the hearing, the district court

entered a written order, finding that the juror had committed

misconduct but that the defendants were not prejudiced by the

juror’s actions.5 Accordingly, the district court denied the

defendants’ motion for a new trial.

The district court sentenced Scott Lawson and Peeler to a

term of three years’ probation and a monetary fine. The district court sentenced Dyal, Sheri Hutto, and Wayne Hutto

each to a term of imprisonment of 12 months and one day.

The district court determined that Collins was a leader or

organizer of the conspiracy, adjusted his guidelines range

accordingly, denied his motion to reduce his guidelines range

4The government introduced other categories of evidence to establish an

interstate commerce nexus, including bank records showing that money

collected at the event was deposited into a bank account, and that checks

drawing on those funds were processed outside South Carolina. 

5

In this order, the district court also rejected the defendants’ motion for

judgment of acquittal, in which they argued that the evidence was insufficient to sustain their convictions. 

10 UNITED STATES v. LAWSON
for acceptance of responsibility, and sentenced him to a term

of imprisonment of 21 months, in addition to a monetary fine.

All defendants filed timely notices of appeal.

II.

Lawson first argues that his convictions for violating the

animal fighting statute should be vacated because Congress

lacks power under the Commerce Clause to prohibit the fighting of gamefowl. We addressed this identical argument in

United States v. Gibert, No. 10-4848, ___ F.3d ___ (4th Cir.

Apr. 20, 2012), a companion case that we consolidated with

Lawson’s appeal, for which we are issuing an opinion concurrently with our decision in this case.6

 In Gibert, we hold that

the activity of animal fighting substantially affects interstate

commerce and, thus, is a subject that Congress has the power

to regulate under the Commerce Clause. For the reasons

stated in our opinion in Gibert, we reject Lawson’s argument

that 7 U.S.C. § 2156 is an unconstitutional exercise of Congress’ powers under the Commerce Clause.

III.

Lawson next argues that the animal fighting statute is

unconstitutional because the statute provides for different elements of proof in different jurisdictions. We review this issue

of law de novo. United States v. Cheek, 94 F.3d 136, 140 (4th

Cir. 1996).

As Lawson correctly observes, under the animal fighting

statute, if a defendant lives in a jurisdiction where gamefowl

fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense

that the defendant knew that at least one bird in the fighting

6Gibert involves the same animal fighting venture at issue in this case.

The defendants in Gibert each entered guilty pleas, whereas the defendants in this case proceeded to trial and were convicted by a jury. 

UNITED STATES v. LAWSON 11
venture traveled in interstate or foreign commerce. See 7

U.S.C. § 2156(a)(2). In contrast, if a defendant lives in a jurisdiction that prohibits gamefowl fighting, the government need

only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the

bird traveled in interstate or foreign commerce. See 7 U.S.C.

§ 2156(a)(1). Lawson contends that this variation in the elements of the crime constitutes a violation of his equal protection rights under the Fifth Amendment’s Due Process Clause.7

We disagree with Lawson’s argument.

In analyzing whether a statute’s classification violates an

individual’s equal protection rights, we first analyze the

nature of the classification and the type of activity regulated.

If a statute classifies a person or group by race, alienage, or

national origin, or if the activity impinges upon a fundamental

right protected by the Constitution, the statute is subject to

strict scrutiny review, and will be sustained only if the statute

is narrowly tailored to serve a compelling governmental interest. City of Cleburne v. Cleburne Living Center, 473 U.S. 432,

440 (1985); Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001). However, if the statute’s classification is unrelated

to race, alienage, or national origin, and does not affect a fundamental right, the statute generally is subject to rational basis

7Although the Fifth Amendment does not contain an explicit equal protection clause as is provided in the Fourteenth Amendment, the Supreme

Court has interpreted the Fifth Amendment’s due process clause as incorporating an equal protection aspect. See Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 217, 224 (1995) (discussing equal protection aspect

of the Fifth Amendment’s due process clause). The Supreme Court has

held that the method of analyzing equal protection claims brought under

the Fifth Amendment is no different than the analysis of such claims under

the Fourteenth Amendment. See Buckley v. Valeo, 424 U.S. 1, 93 (1976)

("Equal protection analysis in the Fifth Amendment area is the same as

that under the Fourteenth Amendment."); see also United States v. Jones,

735 F.2d 785, 792 n.8 (4th Cir. 1984) (same). 

12 UNITED STATES v. LAWSON
review and will be upheld if the statute is rationally related to

a legitimate governmental interest.8Id.

In this case, the statute relates to animal fighting, which is

not a fundamental right. The statute classifies people on the

basis of the location where they conduct their animal fighting

activities, which is not a suspect classification. Accordingly,

as Lawson concedes, if the statute’s classification is rationally

related to a legitimate governmental interest, his equal protection challenge fails.

We conclude that the challenged classification is rationally

related to a legitimate government purpose. The increased

evidentiary burden on the government arises only if gamefowl

fighting is legal under the laws of the "State" in which the

gamefowl fighting occurred. The term "State" in the statute

includes not only the 50 states of the United States but also

"the District of Columbia, the Commonwealth of Puerto Rico,

and any territory or possession of the United States." 7 U.S.C.

§ 2156(g)(3). Currently, although cockfighting is illegal in all

50 States and the District of Columbia, cockfighting remains

legal in several United States territories such as Guam and

Puerto Rico.9

It is readily apparent that the statute’s additional evidentiary burden, which requires the government to prove actual

knowledge of interstate transportation of birds in cases in

which the animal fighting occurred in a "state" where animal

fighting remains legal, merely reflects the fact that certain

8Statutes that classify on the basis of gender are subject to "intermediate

scrutiny," and will be upheld if the statutory classification "serves important governmental objectives and that the discriminatory means employed

are substantially related to the achievement of those objectives." H.B.

Rowe Co., Inc. v. Tippett, 615 F.3d 233, 242 (4th Cir. 2010) (quoting Miss.

Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). 

9

See Humane Society, Cockfighting: State Laws Fact Sheet, available

at http://www.humanesociety.org/assets/pdfs/cockfighting_chart_2011.pdf

(updated June 2010). 

UNITED STATES v. LAWSON 13
jurisdictions have not proscribed cockfighting within their

borders. Thus, we conclude that the disparate treatment complained of by Lawson was occasioned by the decision of Congress to accommodate principles of federalism, a concern that

unquestionably is a legitimate governmental interest. See

United States v. Bagheri, 999 F.2d 80, 86 (4th Cir. 1993)

(conducting rational basis review and holding that

"[p]rinciples of federalism justify following the distinction

drawn under Maryland law between sentences actually

expunged and those unexpunged but expungeable"); see also

Benjamin v. Jacobson, 172 F.3d 144, 165 (2d Cir. 1999)

(applying rational basis review and concluding that principles

of federalism and judicial restraint underlying congressional

statute are legitimate purposes); Gavin v. Branstad, 122 F.3d

1081, 1090 (8th Cir. 1997) (principle of federalism is a legitimate governmental interest for purposes of rational basis

review); United States v. Cohen, 733 F.2d 128, 137 (D.C. Cir.

1984) (en banc) ("It would be enough, for purposes of ‘rational basis’ analysis, merely that [the substantial concern of federalism] could have underlain the congressional reluctance to

legislate more broadly.") (emphasis in original); Eskra v.

Morton, 524 F.2d 9, 18 (7th Cir. 1975) ("there are several

possible rational bases for the congressional scheme of incorporation of state law, including congressional considerations

of federalism"). Accordingly, we reject Lawson’s equal protection challenge to the animal fighting statute.

IV.

We next consider the district court’s decision joining Scott

Lawson’s trial with the trials of his co-defendants. Scott Lawson maintains that the district court erred in refusing to grant

him a separate trial under Rule 14 of the Federal Rules of

Criminal Procedure, which provides that a district court may

grant a severance if it appears that a defendant may be "prejudice[d]" by a joinder of offenses or of defendants. We disagree with Scott Lawson’s argument.

14 UNITED STATES v. LAWSON
A district court "may order that separate cases be tried

together as though brought in a single indictment or information if all offenses and all defendants could have been joined

in a single indictment or information." Fed. R. Crim. P. 13. A

group of defendants "could have been joined in a single

indictment" if they "are alleged to have participated in the

same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Fed. R. Crim. P.

8(b). 

Such is the case here, because the indictments against Scott

Lawson and his co-defendants allege that they were all

involved in the same acts and transactions with respect to the

same animal fighting venture and conspiracy.10 Accordingly,

the district court was permitted to exercise its discretion to

join Scott Lawson’s trial with the trials of his co-defendants.

Joint trials promote efficiency and "play a vital role in the

criminal justice system." Richardson v. Marsh, 481 U.S. 200,

209 (1987). Joinder is highly favored in conspiracy trials,

such as the present case. United States v. Chorman, 910 F.2d

102, 114 (4th Cir. 1990); see also United States v. Ford, 88

F.3d 1350, 1361 (4th Cir. 1996) ("For reasons of efficiency

and judicial economy, courts prefer to try joint-conspirators

together."). 

A district court’s decision to deny a motion for separate trials will be overturned only for a "clear abuse of discretion."

Chorman, 910 F.2d at 114. We will find a "clear abuse" of the

district court’s discretion only in cases in which the district

court’s denial of such a motion "deprives the defendant of a

fair trial and results in a miscarriage of justice." Id. (citations

and internal quotation marks omitted). Upon our review of the

10We observe that Scott Lawson was not charged with any gamblingrelated offenses, whereas his co-defendants other than Peeler faced such

charges. Scott Lawson does not rely in his argument on the fact that his

co-defendants faced the additional charges relating to gambling. 

UNITED STATES v. LAWSON 15
record, we conclude that Scott Lawson cannot show that he

was deprived of a fair trial or that a miscarriage of justice

occurred. Accordingly, we hold that the district court did not

abuse its discretion in joining the charges against Scott Lawson for trial with his co-defendants.

V.

We next consider Lawson’s argument that he is entitled to

a new trial because a juror committed misconduct by

researching on Wikipedia the term "sponsor," an element of

the crimes charged under the animal fighting statute. According to Lawson, the juror’s misconduct violated Lawson’s

Sixth Amendment right to a fair trial. We review the district

court’s decision denying Lawson’s motion for a new trial pursuant to a "somewhat narrowed, modified abuse of discretion

standard," under which we have "more latitude to review the

trial court’s conclusion in this context than in other situations." Cheek, 94 F.3d at 140 (citation and internal quotation

marks omitted). However, we review any issues of law relevant to this question de novo. Id.

A.

Six days after the jury returned its verdict finding Lawson

guilty on all charges, one of the jurors, Juror 1, informed a

courtroom security officer of potential juror misconduct. Juror

1 stated that another juror, Juror 177, had consulted certain

internet sources the morning before the jury reached its verdict. As later found by the district court, this information

included the definition of the term "sponsor" that appeared on

Wikipedia.11

11Juror 177 also researched the definition of the term "exhibit," an alternative element of the offense, on Merriam-Webster.com, the internet version of the Merriam-Webster dictionary. While several members of the

jury were aware that Juror 177 had researched the term "sponsor," none

of the jurors was aware that Juror 177 also had engaged in research of the

term "exhibit." Because the juror’s use of Wikipedia for the term "sponsor," standing alone, is determinative of the result we reach on the issue

of juror misconduct, we focus our analysis only on the juror’s use of

Wikipedia. 

16 UNITED STATES v. LAWSON
Juror 177 used a computer printer at his home to reproduce

the Wikipedia entry for the term "sponsor," and later brought

the printout to the jury room when the deliberations resumed.

Juror 177 shared the printout with the jury foreperson, Juror

185, and also attempted to show the material to other jurors,

but was stopped when some of them told him it would be

inappropriate to view the material. These actions violated the

explicit instructions of the district court, which had admonished the jurors not to conduct any outside research about the

case, including research on the internet.12

After being informed about Juror 177’s conduct, the district

court held a hearing to determine whether the verdict had

been tainted by Juror 177’s actions. The district court questioned each of the twelve jurors who had served on the panel

for Lawson’s trial. During his testimony,13 Juror 177 admitted

that he had conducted internet research, and had brought

material obtained on the internet into the jury room during the

jury deliberations.

At the time of the hearing, which occurred nineteen days

after the jury reached its verdict, Juror 177 no longer was in

possession of his original printout of the Wikipedia entry.

Nevertheless, Juror 177 provided the district court with documents obtained from Wikipedia a few days before the hearing,

12The court’s careful oral and written instructions admonished the jury

as follows: "I remind you that during your deliberations, you must not

communicate with or provide any information to anyone by any means

about this case. You may not use any electronic device or media, such as

a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the

internet, any internet device, or any text or instant messaging service; or

any internet chat room, blog, or website such as Facebook, MySpace,

LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I

accept your verdict." (Emphasis added.) 

13In light of the potential for contempt sanctions, the district court

appointed counsel to advise Juror 177 whether he should testify at the

hearing. 

UNITED STATES v. LAWSON 17
purportedly after using the same method he had employed in

obtaining the original printout brought to the jury room.14

Despite Juror 177’s efforts to "retrace" his steps, the district

court observed that the material Juror 177 brought to the hearing was somewhat different than the material he produced

during the jury deliberations:

Because the documents provided to the court were

"recreated" after trial, the court cannot determine

with certainty that the documents shown in Court

Ex. 1 are in precisely the same form and contain precisely the same content as the documents which

Juror 177 brought to the deliberations. The court is,

nonetheless, persuaded that the definitions found on

Court Ex. 1 are in essentially the same form as those

brought in by Juror 177, although there has been at

least some change to the Wikipedia definition of "sponsor."15

(Emphasis added.)

During his testimony, Juror 177 admitted discussing his

research with Juror 185, but denied that he had shared the

information with any of the other jurors. Additionally, Juror

177 testified that he did not recall any of the other jurors stating that it would be improper to consider outside materials.

Juror 177 further testified that the definitions he obtained did

not influence him in deciding the case.

14The printed material consisted of two items: a one-page document

from the "Free [Merriam] Webster Dictionary" defining the word "exhibit," and a three-page document from Wikipedia that included a definition and explanation of "Sponsor (Commercial)". 

15The district court provided no explanation for its conclusion that the

definitions brought to the hearing were "in essentially the same form" as

the definitions obtained during jury deliberations. 

18 UNITED STATES v. LAWSON
Although Juror 177 stated that he shared the information

only with Juror 185, at least one other juror testified that Juror

177 also had shared the information with different jurors.

Three jurors testified that they saw Juror 177 produce, or

attempt to produce, the printed definitions to share with the

jury before he was told by the group that using the material

would be inappropriate. Additionally, six jurors heard Juror

177 discuss that he had conducted research on the internet

about a term at issue in the case.

The district court found that Juror 177 "may have orally

shared some portion of the definition with the other jurors."

Additionally, the district court found that portions of Juror

177’s testimony were discredited by the testimony of other

jurors. The district court concluded that Juror 177’s actions

amounted to misconduct.16

Nevertheless, the district court denied Lawson’s motion for

a new trial. The district court employed the five-factor test

announced by the Tenth Circuit in Mayhue v. St. Francis Hospital of Wichita, Inc., 969 F.2d 919 (10th Cir. 1992), which

this Court also has applied, to assess whether Juror 177’s misconduct prejudiced Lawson. In applying these factors, the district court did not address Lawson’s argument that he was

entitled to a presumption of prejudice. The district court concluded that there was "no reasonable possibility that the external influence caused actual prejudice," and thus denied

Lawson’s motion. 

B.

Lawson argues that Juror 177’s unauthorized use of

Wikipedia entitled him to a rebuttable presumption of prejudice under United States v. Remmer, 347 U.S. 227 (1954), and

16The district court later found Juror 177 in contempt of court, and

ordered him to pay a monetary fine and to complete fifty hours of community service. 

UNITED STATES v. LAWSON 19
that the district court erred in not affording him such a presumption.17 The issue whether the juror’s use of Wikipedia created

a rebuttable presumption of prejudice is a question of law that

we review de novo. See Cheek, 94 F.3d at 140.

In Remmer, the Supreme Court held that a rebuttable presumption of prejudice arose from a third party’s unauthorized

communication with a juror during the trial.18 347 U.S. at 229.

In announcing this rule, the Court stated that "any private

communication, contact, or tampering, directly or indirectly,

with a juror during a trial about the matter pending before the

jury is, for obvious reasons, deemed presumptively prejudicial." Id. at 229 (emphasis added). However, the Court cautioned that this "presumption of prejudice" did not establish

a per se requirement of a new trial. Id. The Court stated that

"[t]he presumption is not conclusive, but the burden rests

heavily upon the Government to establish, after notice to and

hearing of the defendant, that such contact with the juror was

harmless to the defendant." Id.

i.

Before we address the question whether the Remmer rebuttable presumption is applicable to a juror’s unauthorized reference to a Wikipedia entry, we first must consider whether

that presumption has been altered by more recent Supreme

Court decisions. While the Supreme Court has not departed

explicitly from its holding in Remmer, there is a split among

the circuits regarding the issue whether the Remmer presump17We observe that the government failed to address in its brief Lawson’s

"presumption of prejudice" argument, despite the fact that Lawson

devoted eight pages in his briefs to that argument. 

18In Remmer, a juror reported to the judge that an unknown individual

attempted to bribe him. 347 U.S. at 228. The Federal Bureau of Investigation conducted an investigation and concluded that the contact was made

in jest. Id. The judge consulted with the prosecutors, who agreed that the

contact was harmless, but defense counsel apparently was not included in

these discussions. Id.

20 UNITED STATES v. LAWSON
tion has survived intact following certain later Court decisions. 

At issue in this debate are the Supreme Court’s decisions

in Smith v. Phillips, 455 U.S. 209 (1982), and United States

v. Olano, 507 U.S. 725 (1993). In Phillips, a habeas corpus

appeal presenting questions of bias concerning a juror who

had applied for a job in the prosecutor’s office, the Supreme

Court held that due process required that the trial court hold

a hearing during which "the defendant has the opportunity to

prove actual bias." 455 U.S. at 215 (emphasis added). In

Olano, a direct appeal involving a trial court’s decision to

allow alternate jurors to be present during jury deliberations,

the Supreme Court cited Remmer while observing that

"[t]here may be cases where an intrusion should be presumed

prejudicial, but a presumption of prejudice as opposed to a

specific analysis does not change the ultimate inquiry: Did the

intrusion affect the jury’s deliberations and thereby its verdict?" 507 U.S. at 739 (internal citations omitted). 

Because Olano was a case decided on direct appeal, we

take particular note of that decision here. From our reading of

Olano, we conclude that the Supreme Court’s discussion, of

the "ultimate inquiry" to be performed in cases involving "intrusions" into a jury’s deliberations, suggests that this inquiry

may be framed either as a rebuttable presumption or as a specific analysis of the intrusion’s effect on the verdict. See id.

This Court’s decisions addressing such external influences

on a jury’s deliberations reflect that the Remmer rebuttable

presumption remains live and well in the Fourth Circuit. In

Stockton v. Virginia, 852 F.2d 740, 742-43 (4th Cir. 1988), we

cited Remmer and applied the rebuttable presumption in a

case involving a restaurant owner’s comments to a few members of the jury, eating at the restaurant during a break in sentencing deliberations, that "they ought to fry the son of a

bitch." 

UNITED STATES v. LAWSON 21
In applying the Remmer analysis, and in granting the defendant a new sentencing hearing because the government failed

to rebut the presumption, we expressly held in Stockton that

the Supreme Court’s decision in Phillips did not overturn the

holding in Remmer. We distinguished the facts presented in

Phillips, and concluded that in cases in which "the danger is

not one of juror impairment or predisposition, but rather the

effect of an extraneous communication upon the deliberative

process of the jury," the Remmer presumption is applicable.

Stockton, 852 F.2d at 744.

Similarly, in Cheek, we applied the Remmer presumption

after the Supreme Court’s decision in Olano and awarded the

defendant a new trial in a case involving a bribe attempt on

one of the jurors. 94 F.3d at 138. We stated that once a defendant introduces evidence that there was an extrajudicial communication that was "more than innocuous," the Remmer

presumption is "triggered automatically," and "[t]he burden

then shifts to the [government] to prove that there exists no

‘reasonable possibility that the jury’s verdict was influenced

by an improper communication.’" Cheek, 94 F.3d at 141

(quoting Stephens v. S. Atl. Canners, Inc., 848 F.2d 484, 488-

89 (4th Cir. 1988)).

We most recently discussed and applied the Remmer presumption in United States v. Basham, 561 F.3d 302 (4th Cir.

2009). The decision in Basham involved a juror who had contacted several news media outlets during the penalty phase of

the trial. Id. at 316. In holding that Basham was not entitled

to a new trial as a result of the juror’s misconduct, we applied

the Remmer presumption using the analysis set forth in Cheek,

and concluded that the district court did not err in holding that

the government had rebutted the presumption. Id. at 319-21;

see also United States v. Blauvelt, 638 F.3d 281, 294-95 (4th

Cir. 2011) (discussing the Remmer presumption of prejudice

but holding it inapplicable to a juror’s "innocuous" email

exchange, concerning a wholly unrelated subject, with an

22 UNITED STATES v. LAWSON
assistant federal prosecutor who was not involved in defendant’s trial).

We have been joined by several of our sister circuits,

including the Second, Seventh, Ninth, Tenth, and Eleventh

Circuits, in continuing to apply the Remmer presumption in

cases involving external influences on jurors. See United

States v. Greer, 285 F.3d 158, 173 (2d Cir. 2002) (citing Remmer for proposition that "[i]t is well-settled that any extrarecord information of which a juror becomes aware is presumed prejudicial" and that "[a] government showing that the

information is harmless will overcome this presumption");

United States v. Moore, 641 F.3d 812, 828 (7th Cir. 2011)

(same); United States v. Dutkel, 192 F.3d 893, 895-96 (9th

Cir. 1999) (applying Remmer presumption in jury tampering

case and disagreeing that the presumption has been abrogated); Mayhue, 969 F.2d at 922 (10th Cir.) ("The law in the

Tenth Circuit is clear. A rebuttable presumption of prejudice

arises whenever a jury is exposed to external information in

contravention of a district court’s instructions."); United

States v. Ronda, 455 F.3d 1273, 1299 (11th Cir. 2006) (if

defendant establishes that jury has been exposed to extrinsic

evidence or contacts, "prejudice is presumed and the burden

shifts to the government to rebut the presumption"); see also

United States v. Bradshaw, 281 F.3d 278, 287-88 (1st Cir.

2002) (observing that the Remmer presumption is still applicable in First Circuit "only where there is an egregious tampering or third party communication which directly injects

itself into the jury process") (citation omitted); United States

v. Lloyd, 269 F.3d 228, 238 (3d Cir. 2001) (applying presumption of prejudice when a jury is exposed to extraneous

information "of a considerably serious nature").

We note, however, that in contrast to these decisions applying the Remmer presumption, the Fifth, Sixth, Eighth, and

District of Columbia Circuits have departed from use of the

presumption. These circuits have taken this contrary position

based on their view of Phillips and Olano. See United States

UNITED STATES v. LAWSON 23
v. Sylvester, 143 F.3d 923, 933-35 (5th Cir. 1998) (holding

that Phillips and Olano effectively rejected Remmer’s rebuttable presumption, and that "only when the [trial] court determines that prejudice is likely should the government be

required to prove its absence"); United States v. WilliamsDavis, 90 F.3d 490, 495-97 (D.C. Cir. 1996), (holding that

Phillips and Olano narrowed the Remmer presumption, and

that trial court must determine whether particular intrusion

showed "likelihood of prejudice," which would place on the

government the burden of proving harmlessness); United

States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (holding

that Phillips altered law such that Remmer rebuttable presumption is no longer applicable, and that burden to establish

prejudice rests with defendant); see also United States v.

Blumeyer, 62 F.3d 1013, 1017 (8th Cir. 1995) (citing Olano

for proposition that defendant has burden to prove actual prejudice in cases involving extrinsic juror contact pertaining to

issues of law, but not to issues of fact).

ii.

a.

The continued vitality of Remmer in this Circuit, however,

does not resolve the question whether the presumption is

applicable in cases involving a juror’s unauthorized use of

Wikipedia. Initially, we observe that an allegation of jury

tampering or of a juror’s contact with a third party, such as

the incidents that occurred in Remmer, Stockton, Cheek, and

Basham, is of a much different character than a juror’s unauthorized use of a dictionary during jury deliberations.

Although we previously have considered incidents in which

a juror committed misconduct by consulting a dictionary, as

described below, the question whether a rebuttable presumption of prejudice arises in such a situation is an issue of first

impression in this Court in a case presented on direct appeal.

We first encountered a situation involving a juror’s unauthorized use of a dictionary in United States v. Duncan, 598

24 UNITED STATES v. LAWSON
F.2d 839 (4th Cir. 1979), a direct appeal involving a juror’s

reference during jury deliberations to dictionary definitions of

the terms "motive" and "intent". Id. at 866. In our abbreviated

discussion in which we rejected Duncan’s argument that he

was entitled to a new trial on that basis, we observed that

"[w]hile reference to the dictionary was misconduct, it was

not prejudicial per se," as Duncan had argued. Id. (emphasis

added). The question whether such misconduct raised a rebuttable presumption of prejudice was not at issue in Duncan.

We also addressed jurors’ unauthorized use of a dictionary

in two habeas corpus appeals, McNeill v. Polk, 476 F.3d 206

(4th Cir. 2007), and Bauberger v. Haynes, 632 F.3d 100 (4th

Cir. 2011). Because those cases involved petitions for habeas

corpus relief, the analysis we employed was restricted by the

provisions of 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).19 See

Vigil v. Zavaras, 298 F.3d 935, 941 n.6 (10th Cir. 2002)

(explaining that although on direct appeal, rebuttable presumption of prejudice arises when jury is exposed to unauthorized external information, this presumption is inapplicable in

habeas context). Although our standard of review in McNeill

and Bauberger was different from the standard we use in the

present direct appeal, one particular aspect of those cases is

particularly helpful here. 

In McNeill, separate opinions authored by two of the

panel’s judges analyzed the issue of prejudice under factors

identified by the Tenth Circuit in Mayhue, 969 F.2d 919, in

considering the effect of a juror’s unauthorized reference to a

19We routinely resolve petitions for a writ of habeas corpus by analyzing the petitioner’s claims for "harmless error" under the demanding standard for such cases announced in Brecht v. Abrahamson, 507 U.S. 619,

637 (1993). Under the Brecht standard, a habeas petitioner may secure a

writ only if he demonstrates that the error "actual[ly] prejudice[d]" him,

which requires a showing that the error had a "substantial and injurious

effect or influence in determining the jury’s verdict." Id. (citing Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). 

UNITED STATES v. LAWSON 25
dictionary. McNeill, 476 F.3d at 226 (King, J., concurring in

judgment); id. at 229 (Gregory, J., dissenting in judgment)

(same). Similarly, in Bauberger, although our opinion did not

refer directly to Mayhue, we cited portions of the opinions in

McNeill that employed the Mayhue factors. See Bauberger,

632 F.3d at 106 (discussing factor used in Judge King’s and

Judge Gregory’s separate opinions in McNeill that originated

in Mayhue); id. at 108 (same); id. at 108-09 (same). We will

discuss these Mayhue factors, on which the district court

relied, later in this opinion.

b.

In resolving the question whether the Remmer presumption

applies to a juror’s use of a dictionary definition during deliberations, we note that our sister circuits also are divided on

this question. In examining their holdings, a clear and predictable pattern is evident. Unsurprisingly, the courts that have

applied a rebuttable presumption of prejudice in "dictionary"

cases, or alternatively have held that the government bears the

burden of establishing that no prejudice occurred, are among

the courts that have rejected the view that Remmer has been

abrogated. See e.g., Marino v. Vasquez, 812 F.2d 499, 505

(9th Cir. 1987) (holding that unauthorized use of dictionary

definitions is reversible error and that government must establish that error is harmless beyond reasonable doubt); United

States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir. 1997) (citing Mayhue for proposition that "jury’s exposure to extrinsic

information [such as a dictionary definition] gives rise to a

rebuttable presumption of prejudice"); United States v. Martinez, 14 F.3d 543, 550 (11th Cir. 1994) (in case involving several categories of extrinsic evidence, including unauthorized

use of dictionary to define terms discussed during deliberations, holding that "we assume prejudice and thus, we must

consider whether the government rebutted that presumption");

see also United States v. Console, 13 F.3d 641, 665-66 (3d

Cir. 1993) (applying presumption of prejudice in case in

which juror discussed definition of RICO with her sister, an

26 UNITED STATES v. LAWSON
attorney, and shared the attorney’s definition with other jurors

during deliberations).

In contrast, the courts that have declined to apply a presumption of prejudice in these "dictionary" cases are some of

the same courts that have held that the Remmer rebuttable presumption of prejudice is no longer applicable.20 See e.g.,

United States v. Gillespie, 61 F.3d 457, 460 (6th Cir. 1995)

("if members of the jury in fact used the dictionary definition

[to reach their verdict], the defendant must prove that he was

prejudiced thereby; prejudice is not presumed"); United States

v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988) (if the jury

"simply supplements the [trial] court’s instructions of law

with definitions culled from a dictionary, it remains within the

province of the judge to determine" whether the defendant

was prejudiced); Williams-Davis, 90 F.3d at 502-03 (D.C.

Cir.) (holding presumption of prejudice inapplicable to juror’s

reading of a dictionary definition during deliberations). 

Relying on our prior application of the Remmer presumption, see Basham, 561 F.3d at 319-21; Cheek, 94 F.3d at 141;

Stockton, 852 F.2d at 744, we conclude this presumption likewise is applicable when a juror uses a dictionary or similar

resource to research the definition of a material word or term

at issue in a pending case. In reaching this conclusion, we

observe that many of the concerns that arise when a juror discusses a case with a third party, such as the incident that

occurred in Basham, are likewise concerns inherent in a

juror’s unauthorized use of a dictionary during jury deliberations. In both instances, a defendant’s Sixth Amendment right

to a fair trial is at issue, and the sanctity of the jury and its

20Additionally, the First Circuit examined a juror’s use of a dictionary

without mentioning Remmer or otherwise opining who bears the burden

of establishing prejudice. See United States v. Rogers, 121 F.3d 12, 17 (1st

Cir. 1997) (in case involving jurors use of a dictionary definition, for a

term on which the district court issued a subsequent legal instruction,

holding that "the district court must determine whether any misconduct

has occurred and if so, whether it was prejudicial"). 

UNITED STATES v. LAWSON 27
deliberations have been threatened. In both instances, an

extrinsic influence has been injected into the trial, the content

of which is beyond the trial court’s ability to control. And, in

both instances, the procedural and substantive protections that

the law affords to the judicial process are limited.21

In the present case, the content of the extrinsic influence is

of particularly great concern, because the Wikipedia definition of the term "sponsor" addressed an element of the animal

fighting offenses for which the defendants were on trial. Thus,

Juror 177’s use of a dictionary definition concerning this contested element of the offense was inherently "more than [an]

innocuous" incident. See Basham, 561 F.3d at 319. Accordingly, we apply the Remmer presumption here, and turn now

to consider whether the government has rebutted the presumption of prejudice that has arisen in this case. 

C.

In determining whether the government has rebutted this

presumption of prejudice, we agree with the district court’s

analysis that the Mayhue factors, employed in McNeill, provide the proper framework for our consideration of the parties’ arguments.22 These factors include:

(1) The importance of the word or phrase being

defined to the resolution of the case. 

21We note that these concerns are greater here because the district court

only became aware of the juror misconduct after the verdicts and, thus, did

not have an opportunity to take remedial action, such as giving a curative

instruction to the jury. Accordingly, our analysis in the present case does

not purport to be applicable to other situations in which misconduct is discovered before a verdict is reached, and the district court appropriately

acts to alleviate the potential for prejudice. 

22The parties each cite Mayhue and rely on the Mayhue factors in support of their respective arguments. 

28 UNITED STATES v. LAWSON
(2) The extent to which the dictionary definition differs from the jury instructions or from the proper

legal definition. 

(3) The extent to which the jury discussed and

emphasized the definition. 

(4) The strength of the evidence and whether the jury

had difficulty reaching a verdict prior to introduction

of the dictionary definition. 

(5) Any other factors that relate to a determination of

prejudice.

Mayhue, 969 F.2d at 924. 

In applying these factors, our consideration of the jurors’

testimony is constrained by Rule 606(b) of the Federal Rules

of Evidence. This Rule generally prohibits the consideration

of post-verdict juror testimony concerning "any statement

made or incident that occurred during the jury’s deliberations;

the effect of anything on that juror’s or another juror’s vote;

or any juror’s mental processes concerning the verdict or

indictment." Fed. R. Evid. 606(b)(1). 

The Rule provides a very limited exception, which allows

a juror to testify regarding whether "extraneous prejudicial

information was improperly brought to the jury’s attention;"

or whether "an outside influence was improperly brought to

bear on any juror."23 Fed. R. Evid. 606(b)(2). Thus, "although

a juror can testify that she consulted an extraneous influence

and related her findings to the panel, neither she nor any other

juror can testify about any effect the extraneous influence

may have had on the verdict or on the jury deliberations."

23The Rule provides a third exception for juror testimony concerning

whether "a mistake was made in entering the verdict on the verdict form."

Fed. R. Evid. 606(b)(2)(C). 

UNITED STATES v. LAWSON 29
McNeill, 476 F.3d at 226 (King, J., concurring in judgment)

(citing Fed. R. Evid. 606(b), and Mayhue, 969 F.2d at 921).

i.

The first Mayhue factor, the importance of the word or term

at issue to the resolution of the case, weighs heavily in Lawson’s favor. Juror 177 used Wikipedia to research the term

"sponsor," which is an element of the animal fighting offenses

for which Lawson was on trial. See 7 U.S.C. § 2156 ("it shall

be unlawful for any person to knowingly sponsor or exhibit

an animal in an animal fighting venture"). Indeed, the district

court agreed that the term "sponsor" was important to the case

for this reason.

The government’s argument with respect to this factor is

especially weak. The government concedes that the term

"sponsor" "may be crucial to 7 U.S.C. § 2156," but argues that

the term was not crucial to the verdict in this case. In essence,

despite the absence of a special verdict form with respect to

this issue, the government argues that the jury necessarily

convicted Lawson under an "aiding and abetting" theory of

liability rather than under a theory of principal liability. In

advancing this argument, the government relies on the testimony of Juror 185, who stated that any words researched by

Juror 177 became "null and void" because the jury "ended up

. . . using a different section of the jury instruction . . . for the

section that we were deliberating on. . . . [We] didn’t need

that word."

We must reject the government’s argument, because a contrary conclusion would undermine the very purpose of Rule

606(b). As we have explained, Rule 606(b) prohibits testimony concerning jurors’ thought processes during deliberations. The government’s reliance on Juror 185’s testimony,

which discusses the basis on which the jury rested its decision, goes far beyond the bounds of the limited exceptions

provided in Rule 606(b). See Cheek, 94 F.3d at 143 ("Rule

30 UNITED STATES v. LAWSON
606(b) prohibits all inquiry into a juror’s mental process in

connection with the verdict."). Accordingly, we resolve the

first Mayhue factor in Lawson’s favor.

ii.

The second Mayhue factor, "the extent to which the dictionary definition differs from the jury instructions or from the

proper legal definition," presents a unique question in these circumstances.24 The district court hearing took place nineteen

days after Juror 177 conducted his internet research, and Juror

177 no longer retained the printout of his original research. As

the district court recognized, "definitions on Wikipedia are

subject to change by users, and the definition at issue (of

‘sponsor’) had, according to Court’s Ex. 1, been changed

between the time Juror 177 consulted this external source and

when he repeated the same steps to produce Court’s Ex. 1."25

Accordingly, the district court properly "assume[d] that the

definition of ‘sponsor’ shown in Court’s Ex. 1 is different in

at least some respects from what Juror 177 obtained and consulted during deliberations."

Despite these observations, the district court concluded that

"the meaning Juror 177 appears to have taken from the

lengthy definition and related discussion" in the Wikipedia

entry for "sponsor" was "consistent with the definition that the

court would have provided had it been asked for a definition."

The district court further concluded that "any meaning germane to this action which may be drawn from the definition

has remained unchanged." Upon our review of the record, and

taking into account the fact that the government bears the bur24We note that the district court did not provide a jury instruction concerning the definition of "sponsor." 

25The "date stamp" on the Wikipedia printout provided by Juror 177

indicates that he researched and printed the document on May 20, 2010,

14 days after he first researched the term, and five days before the district

court’s hearing. 

UNITED STATES v. LAWSON 31
den of rebutting the presumption under Remmer, we conclude

that the district court’s analysis of this second Mayhue factor

is highly speculative. 

We are greatly concerned about the use of Wikipedia in this

context. As an initial matter, we observe with near certainty

that the Wikipedia entry that Juror 177 researched contained

significantly more information than any traditional legal definition of the term "sponsor." The Wikipedia entry for that

term reviewed by the district court is three pages long, and

contains a thirteen-paragraph "definition" that reads more like

a narrative than a definition. This Wikipedia entry also contained a three-paragraph section titled "sponsorship controversies," as well as internal and external "weblinks." Thus, even

if some part of the Wikipedia entry is not in direct substantive

conflict with traditional legal definitions of the term "sponsor," the expansive nature of that Wikipedia entry suggests

that "[t]he extent to which the [Wikipedia] definition differs

from the proper legal definition" likely is significant. See

Mayhue, 969 F.2d at 924.

Most importantly, however, we have no indication in the

record regarding the actual content of the Wikipedia entry for

the term "sponsor" that Juror 177 obtained. The government

has not argued, nor has it provided evidence establishing, that

the Wikipedia entry for the term "sponsor" can be retraced to

its form when Juror 177 first researched the term. Moreover,

even assuming that previous Wikipedia entries can be

retrieved,26 we would be unable to consider this fact on appeal

in the absence of a firm basis in the record for concluding that

the Wikipedia archives themselves are accurate and trustworthy. Thus, it is apparent that Juror 177’s use of Wikipedia,

under the circumstances of this case, makes meaningful anal26We observe that Wikipedia claims that its software "retains a history

of all edits and changes." See http://en.wikipedia.org/wiki/

Wikipedia:About#Strengths.2C_weaknesses.2C_and_article_quality_in_

Wikipedia (accessed on April 16, 2012). 

32 UNITED STATES v. LAWSON
ysis of the second Mayhue factor impossible. Accordingly,

because the Remmer rebuttable presumption places the evidentiary burden on the government, we must conclude that

this factor weighs in favor of Lawson.

iii.

The third Mayhue factor requires us to consider "[t]he

extent to which the jury discussed and emphasized the definition." See Mayhue, 969 F.2d at 924. We agree with the district

court’s conclusion that the jurors with whom Juror 177 may

have shared his research, or who were aware that Juror 177

conducted such research, placed little emphasis on the

Wikipedia definition obtained by Juror 177.

That conclusion, however, does not end our inquiry. We

have held previously that "if even a single juror’s impartiality

is overcome by an improper extraneous influence, the accused

has been deprived of the right to an impartial jury." Fullwood

v. Lee, 290 F.3d 663, 678 (4th Cir. 2002) (citing Parker v.

Gladden, 385 U.S. 363, 366 (1966) (per curiam)). Thus, the

impact that the extrinsic information had on the juror who

obtained the information is important in and of itself. The district court noted from Juror 177’s testimony that he gave little

emphasis to the definition in deciding the case. However, the

district court did not consider this aspect of Juror 177’s testimony in the context of the government’s evidentiary burden

on this issue. 

When considered in that context, we observe that several

other material aspects of Juror 177’s testimony were contradicted by the testimony of the other members of the jury.

Therefore, in view of the government’s burden, we conclude

with regard to the third Mayhue factor that the extent to which

Juror 177 was influenced by Wikipedia remains uncertain.

iv.

We next examine the fourth Mayhue factor, namely "[t]he

strength of the evidence and whether the jury had difficulty

UNITED STATES v. LAWSON 33
reaching a verdict prior to introduction of the dictionary definition." With regard to the strength of the evidence, the district court held that "the evidence against each of the

Defendants in the consolidated trial was strong." However,

we note that the district court appeared to rely on the possibility that the jurors convicted Lawson on the alternative theory

of aiding and abetting. For instance, the district court noted

that "[a]s to the definition[ ] of ‘sponsor’ . . . , it is significant

that each of the Defendants could be convicted not only for

his or her own activities, but (depending on the charge) for

conspiring with or aiding and abetting others in exhibiting or

sponsoring an animal in an animal fighting venue." 

As we already have observed, the issue whether the jury

convicted Lawson under an aiding and abetting theory cannot

be resolved in this case without inviting improper speculation

and violating the general prohibition of Rule 606(b). Additionally, because we are not examining the sufficiency of the

evidence under a deferential standard applicable to such

inquiries, we are unable to consider that the jury may have

relied on one theory of liability over another. Cf. United

States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en banc)

(in reviewing challenges to the sufficiency of the evidence

supporting a conviction, our task is to determine, "viewing the

evidence and the reasonable inferences to be drawn therefrom

in the light most favorable to the Government, whether the

evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt.") (internal quotation marks omitted) (emphasis added). Instead, we must

examine whether the evidence was strong with regard to the

issue whether Lawson "sponsor[ed]" an animal in an animal

fighting venture. On this narrow issue, the government does

not provide meaningful argument.27 Thus, we are unable to

27The government merely argues in a conclusory manner that "[t]he evidence against all defendants was strong. Each defendant was identified on

video, and each defendant was described as either actively participating in

the events, or aiding and abetting in their own way (as organizers, referees

or gaff makers)." Gov’t Br. at 51-52. 

34 UNITED STATES v. LAWSON
state for purposes of applying the Remmer presumption that

the evidence against Lawson was strong.

We also consider under this Mayhue factor whether the jury

had difficulty reaching a verdict prior to Juror 177’s

Wikipedia research. The jury began its deliberations on

Thursday, May 6, 2010 at about 4:00 p.m. The jury was

excused for the evening after 5:30 p.m. Juror 177 researched

and printed the Wikipedia entry defining the term "sponsor"

the next morning, shortly before the jury resumed deliberations at about 9:00 a.m. The jury reached its verdict at about

4:30 p.m. that afternoon. Based on this timeline, we cannot

say that the jury had difficulty reaching a verdict prior to

Juror 177’s improper research. Accordingly, although we conclude that this inquiry is of limited import in this case, this

aspect of the fourth Mayhue factor weighs in favor of the government. When balanced, however, with the "strength of the

evidence" inquiry discussed above, the fourth Mayhue factor

either is in equipoise or weighs in favor of Lawson.

v.

Finally, we consider the fifth Mayhue factor, a "catch all"

factor that allows us to consider "[a]ny other factors that

relate to a determination of prejudice." We observe here

another aspect of Wikipedia, namely, its reliability. According

to the "Wikipedia:About" entry, at least in its form as of April

16, 2012, Wikipedia describes itself as "a multilingual, webbased, free-content encyclopedia project based on an openly

editable model." http://en.wikipedia.org/wiki/Wikipedia

:About (the "About Wikipedia" entry). Indeed, the "About

Wikipedia" entry notes that:

Wikipedia is written collaboratively by largely anonymous Internet volunteers who write without pay.

Anyone with Internet access can write and make

changes to Wikipedia articles (except in certain

cases where editing is restricted to prevent disruption

UNITED STATES v. LAWSON 35
or vandalism). Users can contribute anonymously,

under a pseudonym, or with their real identity, if

they choose.

Id. The "About Wikipedia" entry further notes that "[a]nyone

with Web access can edit Wikipedia . . . . About 91,000 editors—from expert scholars to casual readers—regularly edit

Wikipedia." Id.

Given the open-access nature of Wikipedia, the danger in

relying on a Wikipedia entry is obvious and real. As the

"About Wikipedia" material aptly observes, "[a]llowing anyone to edit Wikipedia means that it is more easily vandalized

or susceptible to unchecked information." Id. Further,

Wikipedia aptly recognizes that it "is written largely by amateurs." Id.

We observe that we are not the first federal court to be troubled by Wikipedia’s lack of reliability.28 See Bing Shun Li v.

Holder, 400 F. App’x 854, 857-58 (5th Cir. 2010) (expressing

"disapproval of the [immigration judge’s] reliance on

Wikipedia and [warning] against any improper reliance on it

or similarly unreliable internet sources in the future"); Badasa

v. Mukasey, 540 F.3d 909, 910–11 (8th Cir. 2008) (criticizing

immigration judge’s use of Wikipedia and observing that an

entry "could be in the middle of a large edit or it could have

been recently vandalized"); Crispin v. Christian Audigier,

Inc., 717 F. Supp. 2d 965, 977 (C.D. Cal. 2010) (criticizing

parties’ reliance on Wikipedia); Kole v. Astrue, No. CV 08-

0411, 2010 WL 1338092, at *7 n.3 (D. Idaho Mar. 31, 2010)

(admonishing counsel from using Wikipedia as an authority,

28We note, however, that this Court has cited Wikipedia as a resource

in three cases. See Brown v. Nucor Corp., 576 F.3d 149, 156 n.9 (4th Cir.

2009) (citing Wikipedia entry as a second authority for the term "standard

deviation"); United States v. Smith, 275 F. App’x 184, 185 n.1 (4th Cir.

2008) (unpublished) (quoting Wikipedia definition of a "peer-to-peer"

computer network); Ordinola v. Hackman, 478 F.3d 588, 594 n.4 (4th Cir.

2007) (citing Wikipedia entry for definition of "calcium oxide"). 

36 UNITED STATES v. LAWSON
observing that "Wikipedia is not a reliable source at this level

of discourse"); Baldanzi v. WFC Holdings Corp., No.

07–CV–9551, 2010 WL 125999, at *3 n.1 (S.D.N.Y. Jan. 13,

2010) (observing that Wikipedia "touts its own unreliability");

Campbell ex rel. Campbell v. Secretary of Health and Human

Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006) (observing dangers inherent in relying on Wikipedia entry).

vi.

In balancing the Mayhue factors discussed above, we conclude as a matter of law that the government has failed to

rebut the Remmer presumption of prejudice. The first factor,

the importance of the term at issue, weighs strongly in favor

of Lawson. The second, third, and fourth factors either present

close questions or weigh in Lawson’s favor due to the evidentiary and analytical uncertainties present in this case. The fifth

factor weighs in Lawson’s favor. 

These conclusions reflect the fact that there remain many

unresolved questions in this case due to the unreliability and

ever-changing nature of Wikipedia, to Juror 177’s failure to

retain a copy of the printout containing the entry he examined,

to the government’s failure to establish whether the entry

could be "retraced," to the differences between Juror 177’s

recollection of the events at issue and the recollections of his

fellow jurors, and to the constraints imposed by Fed. R. Evid.

606(b). We do not know what the Wikipedia entry actually

said, how it may have differed from a traditional legal definition of the term "sponsor," whether Juror 177 used the entry

in arriving at his decision, and under what theory of liability

the jury convicted the defendants. In short, there are many

uncertainties here, and, under Remmer, "it is the prosecution"

that "bears the risk of uncertainty." United States v. VasquezRuiz, 502 F.3d 700, 705 (7th Cir. 2007). Therefore, because

the government has a "heavy obligation" to rebut the presumption of prejudice by showing that "there is no reasonable

possibility that the verdict was affected by the" external influUNITED STATES v. LAWSON 37
ence, Cheek, 94 F.3d at 142, the government’s showing in this

case, as a matter of law, does not satisfy that obligation.

We do not set aside a jury’s verdict lightly. However, the

Sixth Amendment "guarantees to the criminally accused a fair

trial by a panel of impartial, ‘indifferent’ jurors." Irvin v.

Dowd, 366 U.S. 717, 722 (1961). We have held that "[n]o

right touches more the heart of fairness in a trial." Stockton,

852 F.2d at 743. In this case, we are unable to say that Juror

177’s use of Wikipedia did not violate the fundamental protections afforded by the Sixth Amendment. Accordingly, we

vacate the appellants’ convictions under the animal fighting

statute, and we award them a new trial with respect to those

charges.29

VI.

We next consider the challenges made by several of Scott

Lawson’s co-defendants, including Dyal, Sheri Hutto, Wayne

Hutto, and Collins (collectively, Dyal), to their convictions

for conspiracy to engage in an illegal gambling business, in

violation of 18 U.S.C. § 371, and for operating an illegal gambling business, in violation of 18 U.S.C. § 1955 (collectively,

the gambling convictions).30 The language of 18 U.S.C.

29We address the conspiracy convictions relating to the animal fighting

statute later in this opinion. Additionally, in light of our conclusion regarding the juror’s misconduct, we need not address Lawson’s other statutory

and evidentiary challenges to his convictions relating to the Animal Welfare Act. These additional issues that we do not address include: (1)

whether the district court erred in denying the defendants’ motion for

judgment of acquittal based on the sufficiency of the evidence pertaining

to the animal fighting venture’s connection to interstate commerce; (2)

whether the district court erred in denying the defendants’ request to

instruct the jury that the government had the burden to prove that the

defendants’ activities had a substantial effect on interstate commerce for

a conviction to obtain; and (3) whether the district court erred in admitting

certain evidence relating to Lawson’s sale of gaffs. 

30Lawson and Peeler were not charged with participating in any gambling activities relating to the animal fighting venture. 

38 UNITED STATES v. LAWSON
§ 1955 provides, in relevant part, that "[w]hoever conducts,

finances, manages, supervises, directs, or owns all or part of

an illegal gambling business shall be fined under this title or

imprisoned not more than five years, or both." The statute

defines an "illegal gambling business" in relevant part as a

"gambling business which is a violation of the law of a State

or political subdivision in which it is conducted." 18 U.S.C.

§ 1955(b)(1)(i).

Dyal raises two arguments in seeking to overturn the gambling convictions. First, Dyal contends that the district court

erred in failing to charge the jury that Dyal must have known

that her conduct constituted gambling under South Carolina

law. Second, Dyal argues that the district court erred in

instructing the jury that the South Carolina gambling statute,

S.C. Code § 16-19-130, is violated when a person pays an

entry fee to enter a contest of skill and the winnings depend

on the number of entries. Both these arguments address issues

of law, and, accordingly, we review these issues de novo.

Cheek, 94 F.3d at 140.

A.

Dyal argues that the district court erred by failing to

instruct the jury that the defendants must know that their conduct constituted illegal gambling under South Carolina law.31

According to Dyal, the district court’s construction of the statute improperly eliminated any mens rea requirement, and

allowed the government to obtain a conviction simply by

showing that the defendants conducted an enterprise that

accepted entry fees for a derby, and that the amount of winnings was dependent on the number of entries. Dyal contends

that if she concluded in "good faith" that her conduct was not

gambling, then she could not be convicted under 18 U.S.C.

31Dyal originally contended that the district court improperly struck

from the indictment the words "willfully" and "knowingly," but has abandoned that facet of her argument. 

UNITED STATES v. LAWSON 39
§ 1955, even though that statute may set forth only a general

intent crime. We disagree with Dyal’s argument. 

Initially, we observe that the plain language of 18 U.S.C.

§ 1955 does not require that a defendant know that her conduct constitutes illegal gambling under state law. Accordingly, numerous courts have rejected the precise argument

that Dyal makes here. See United States v. Ables, 167 F.3d

1021, 1031 (6th Cir. 1999) (in conviction under § 1955 for

operating a "bingo" game, upholding district court’s refusal to

grant jury instruction that defendant could not be convicted if

he had good-faith belief he was not acting in violation of state

law); United States v. Cyprian, 23 F.3d 1189, 1199 (7th Cir.

1994) (in case also involving conviction under § 1955 for

operating a bingo game, holding that because guilt under

§ 1955 is based on "conduct," defendant did not need to know

that his actions were illegal, but only that he performed the

acts in question); United States v. Hawes, 529 F.2d 472, 481

(5th Cir. 1976) (rejecting argument that government must

show accused had knowledge his conduct violated state law

in order to obtain conviction under § 1955, and noting that

"[i]t is sufficient that appellants intended to do all of the acts

prohibited by the statute and proceeded to do them"); United

States v. Thaggard, 477 F.2d 626, 632 (5th Cir. 1973) (same);

see also United States v. Cross, 113 F. Supp. 2d 1253, 1256

(S.D. Ind. 2000) (holding that inclusion of term "knowingly"

in indictment "over alleges the mens rea of the Section 1955

offense," a general intent crime, and that the inclusion of the

term was surplusage and "should and will be disregarded").32

32Although Dyal cites United States v. O’Brien, 131 F.3d 1428, 1430

(10th Cir. 1997) for the proposition that the government must show that

a defendant knew that her act was one of participation in gambling, the

court specifically stated in O’Brien that "Section 1955 is not a specific

intent statute," and that "[t]o be convicted under this provision, . . . a

defendant need not know that the gambling business . . . was violative of

state law." Id. Thus, Dyal’s reliance on O’Brien weakens her argument

rather than strengthens it. 

40 UNITED STATES v. LAWSON
We conclude that the reasoning employed in these cases is

persuasive, and we hold that Section 1955 is a general intent

crime, which does not require the government to establish that

the defendants knew that their conduct violated state law. We

also agree with the Sixth Circuit’s decision in Ables that a

good-faith instruction, such as the one that Dyal essentially

requested in this case, is unavailable under these circumstances. Accordingly, we reject Dyal’s argument that the district court erred in failing to instruct the jury that the

defendants must know their conduct constituted illegal gambling under South Carolina law.

B.

Alternatively, Dyal argues that the district court erred in

instructing the jury on the elements of S.C. Code § 16-19-130.33

That section of the South Carolina Code provides that it is

illegal for any person to:

record[ ] or register[ ] bets or wagers . . . upon the

result of any:

(a) trial or contest of skill, speed or power

of endurance of man or beast;

. . . or 

(c) lot, chance, casualty, unknown or contingent event whatsoever.

[Or] aid[ ], assist[ ] or abet[ ] in any manner any of

the aforesaid acts.

S.C. Code § 16-19-130(3), (6). The district court instructed

the jury, in relevant part, as follows:

33As discussed, a conviction under 18 U.S.C. § 1955 requires as an element of the offense that the defendant have violated a state or local gambling law. 

UNITED STATES v. LAWSON 41
Section 16-19-130 of the South Carolina Code

makes it illegal to record or register bets or wagers,

with or without writing, upon the result of any trial

or contest of skill, speed or power of endurance of

man or beast, or aid, assist or abet in any manner in

the aforesaid acts.

For purposes of South Carolina law, a monetary

amount awarded to the winner of a contest is not a

bet or wager if it is a set amount funded by the sponsor of the event and not dependent on the number of

entrants or amounts those entrants have paid to participate in the event. Conversely, payment of a monetary prize is considered a bet or wager if the amount

to be awarded is dependent on and funded by fees

paid by other contestants or entrants in the event.

Dyal argues that the district court misconstrued the statute.

She contends that it is a "distinction without a difference" to

determine whether an activity constitutes gambling based on

the source of the prize money, and whether that prize money

is dependent on the number of entrants and the fee that they

have paid. We disagree with Dyal’s argument.

We could not locate, nor did the parties direct us to, any

South Carolina cases elaborating on the definitions of "bet" or

"wager," as those terms are used in S.C. Code § 16-19-130.

However, the government relies on a 2003 opinion letter

issued by the Office of the South Carolina Attorney General.

In that letter, the Attorney General stated that "mere participation in [a] game of skill where a contestant is required to pay

an entrance fee, such fee does not specifically make up the

purse or premium contested for, and the sponsor of such event

is not a participant for a prize, does not constitute a violation

of statutes similar to § 16-19-130." Letter from Robert D.

Cook, Ass’t Dep. Att’y Gen., to The Honorable Glenn F.

McConnell, President Pro Tempore, South Carolina Senate

(Aug. 29, 2003), available at 2003 WL 22050876, at *2

42 UNITED STATES v. LAWSON
(emphasis added). The letter opinion later states that when

"participants pay an entry fee" to enter an event, "but the entry

fee does not determine or make up the prize, purse or premium," the event would likely be held by a court not to violate S.C. Code § 16-19-130. Id. at *4 (emphasis added).

In the absence of any South Carolina law to the contrary,

we find persuasive the South Carolina Attorney General’s

interpretation of this South Carolina law. Indeed, that interpretation is supported by the view of the highest court of

Nevada, a state with a particular interest in, and familiarity

with, gambling. The Supreme Court of Nevada has held that

an event involves a wager if the prize or premium is not a

fixed amount but rather, as is the case here, depends upon the

number of entrants. Las Vegas Hacienda, Inc. v. Gibson, 359

P.2d 85, 86 (Nev. 1961) ("A prize or premium differs from a

wager in that in the former, the person offering the same has

no chance of gaining back the thing offered, but, if he abides

by his offer, he must lose; whereas in the latter, each party

interested therein has a chance of gain and takes a risk of

loss."); cf. id. at 87 ("The fact that each contestant is required

to pay an entrance where the entrance fee does not specifically make up the purse or premium contested for does not

convert the contest into a wager."); see also Nevada v. GNLV

Corp., 834 P.2d 411, 412-13 (Nev. 1992) (citing Las Vegas

Hacienda for proposition that "[a] prize differs from a wager

in that the person offering the prize must permanently relinquish the prize upon performance of a specified act[, but] [i]n

a wager, each party has a chance of gain and takes a risk of

loss") (internal quotation marks removed). Accordingly,

based on these distinctions, we conclude that the district court

did not err its instructions to the jury concerning the elements

of S.C. Code § 16-19-130. For these reasons, we affirm

Dyal’s convictions for violating the illegal gambling statute,

18 U.S.C. § 1955.

VII.

In view of our holdings vacating the convictions for violating the animal fighting statute but affirming the illegal gamUNITED STATES v. LAWSON 43
bling statute convictions, we find it necessary to determine

whether the conspiracy convictions may stand. We first consider the conspiracy convictions relating to Scott Lawson and

Peeler, who were not indicted or convicted for engaging in

illegal gambling under 18 U.S.C. § 1955. 

Scott Lawson and Peeler were charged with "Conspiracy to

Violate the Animal Welfare Act." As alleged in the Lawson

indictment, the only object of the conspiracy in which they

allegedly participated was to "sponsor and exhibit an animal

in an animal fighting venture," in violation of 7 U.S.C.

§ 2156(a)(1). Thus, the term "sponsor" was integral to the

conspiracy conviction, and for the reasons discussed above,

we are unable to conclude that "there is no reasonable possibility that the verdict was affected by" Juror 177’s misconduct

in researching the definition of "sponsor" on Wikipedia. See

Cheek, 94 F.3d at 142. Accordingly, we vacate Scott Lawson’s and Peeler’s conspiracy convictions, and award them a

new trial with respect to that charge.

The conspiracy charges and convictions for defendants

Dyal, Sheri Hutto, Wayne Hutto, and Collins (the Dyal defendants) require us to engage in a different analysis. With

respect to these defendants, the government framed its indictments as alleging a single conspiracy count for "Conspiracy

to Violate the Animal Welfare Act and to Engage in an Illegal

Gambling Business." (Emphasis added.) The indictment thus

alleges a multi-object conspiracy, and does so in the conjunctive. 

Ordinarily, when a conviction under a multi-object conspiracy indictment is supported on one ground but is legally inadequate on the other, the conviction will be reversed in

accordance with the Supreme Court’s decision in Yates v.

United States, 354 U.S. 298, 304-12 (1957). As we have

explained, under Yates, "reversal is required when a case is

submitted to a jury on two or more alternate theories, one of

which is legally (as opposed to factually) inadequate, the jury

44 UNITED STATES v. LAWSON
returns a general verdict, and it is impossible to discern the

basis on which the jury actually rested its verdict."34 United

States v. Moye, 454 F.3d 390, 400 n.10 (4th Cir. 2006) (en

banc) (citing Yates, 354 U.S. at 311-12.).

Here, however, in contrast to the general verdict rendered

in Yates, the verdict in the present case reveals that the jury

had two separate bases for convicting the Dyal defendants of

the conspiracy charges. Although the indictment alleged both

objects in a single count, the jury’s verdict forms with respect

to each of the Dyal defendants listed separate guilty verdicts

for "Count 1 – Conspiracy (Animal Welfare Act: June 18,

2008 through April 18, 2009)" and "Count 1 – Conspiracy

(illegal gambling business: May 2007 through April 18,

2009)." Thus, we are not confronted with a situation in which

we are uncertain whether a jury’s verdict was solely attributable to an underlying conviction which we have set aside on

legal grounds. Cf. Yates, 354 U.S. at 311-12. Accordingly, the

conspiracy convictions for the Dyal defendants are supported

by a valid and independent legal basis that is apparent from

the record, and we therefore affirm those convictions.35

34A different rule is applicable when the conviction concerning one of

the objects is set aside on factual, as opposed to legal, grounds. See Griffin

v. United States, 502 U.S. 46, 56 (1991) (holding that the Due Process

Clause does not require a general guilty verdict on a multi-prong conspiracy be set aside if the evidence is inadequate to support conviction as to

one of the objects); Turner v. United States, 396 U.S. 398, 420 (1970)

("when a jury returns a guilty verdict on an indictment charging several

acts in the conjunctive, as Turner’s indictment did, the verdict stands if the

evidence is sufficient with respect to any one of the acts charged") (emphasis added). 

35We observe that Collins individually challenges his sentence imposed

by the district court, arguing that the district court erred by: (1) adding

four levels to his guidelines-recommend sentence, U.S.S.G. § 3B1.1, upon

concluding that he was an organizer or leader in the cockfighting venture

and the illegal gambling business; and (2) declining to adjust Collins’ sentence on the basis that he demonstrated acceptance of responsibility,

U.S.S.G. § 3E1.1. In light of our conclusion that Collins’ convictions for

violating the animal fighting statute cannot stand and that Collins is entitled to a new trial with respect to those charges, we need not reach Collins’ arguments concerning the sentence imposed by the district court. 

UNITED STATES v. LAWSON 45
VIII.

In conclusion, we hold that the animal fighting statute is a

constitutional exercise of Congress’ power under the Commerce Clause, and that the district court did not err in holding

joint trials of Scott Lawson and his co-defendants. However,

we hold that the government has failed to demonstrate that a

juror’s misconduct did not affect the verdict with respect to

the violations of the animal fighting statute. Accordingly, we

vacate all the defendants’ convictions for violating the animal

fighting statute.

We reject the challenges made by several of the defendants

to their convictions for participating in an illegal gambling

business, and we affirm the illegal gambling statute convictions of the Dyal defendants. We affirm the conspiracy convictions of the defendants who were charged with engaging in

a conspiracy to violate both the Animal Welfare Act and to

violate the illegal gambling business statute, but we vacate the

conspiracy convictions of Scott Lawson and Peeler, whose

conspiracy charges related solely to the Animal Welfare Act.

We do not reach the merits of Collins’ arguments concerning

his sentencing, nor do we address the remaining issues raised

by the appellants. We remand this matter to the district court

for further proceedings consistent with this opinion.

AFFIRMED IN PART,

VACATED IN PART, 

AND REMANDED

46 UNITED STATES v. LAWSON