F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

S H I U L U N G L E U N G , AKA Steve L e ung , Chao-L

ung L iang

, Defendant-Appellant

. N o. 13-10242

D.C. No. 3:09-cr-00110- SI -6

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Susan I llston, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 11, 2015—San F rancisco, California

F iled Aug ust 6, 2015

B efore: Sidney

R. Thomas. Chief J udg e, M. Marg aret McKeown, Circuit J udg e and Virg inia M. Kendall, * District J udg e.

Opinion by

J udg e McKeown

* T h e Ho n o rab le Virg in i a M. Ken d all, D istrict J u d g e f o r th e U.S. District Co u rt f o r th e No rth ern District o f Illin ois, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. L E U N G 2

SUMMARY * *

Crim inal Law

Affirming the d istrict c ourt’s denial of a motion f or new trial and request for an e videntiary hearing

, the pane l h eld that the defendant was not entitled to a new trial o r evidentia r y h earing based on a juror’s post-verdict affidavit alleg ing that other jurors discussed the e vidence ag a inst him and made up th e i r m i n ds about his g uilt before the start o f deliberations.

The panel declined to embrace the defendant’s theory that F ed. R. Evid. 606(b), which shields ag ainst the e fforts o f litig ants to overturn v e r d i c ts b ased on the real or p erceived flaws of the j u r i es that decided their cases, provides leeway for a court to delve into the internal affairs of the jury simply because the discussions took place b efore deliber ations commenced.

COUNSEL

Dennis P. Riordan ( arg ued) and Donald M. Horg an, Riordan & Horg an, San F rancisco, California, for D efendantAppellant.

Adam D. Chandler (arg

ued), J ames J

. F redericks, and K risten C. L imarz i

, A ttorney s; B r ent Sny der, Deputy Assistant Attorney General; W illiam B aer, Assistant Attorney General;

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. L E U N G 3

P e ter K. H uston and Micah L

. Wy att, Attorney s, Unit e d States Department of J ustice, W ashing ton, D.C., for PlaintiffAppellee.

OP INION

McKEOW

N, Circuit J udg e:

The prohibition on a dmitting juror testimony to challeng e the validity

of a verdict is long standing

. W arger v. Shauers

, 135 S. Ct. 521, 526 (2014). I t has its roots in an eig hteenthcent u r y Eng lish case “in w hich L ord Mansfield h eld inadmissible an affidavit from two jurors claiming that the jury had decided the c ase throug h a g ame of chance.” Id. I n modern jurisprudence, this principle is found in F ederal Rule of Evidence 606(b), which is a powerful shield ag ainst the efforts o f litig a n ts to overturn verdicts based on the real o r perceived f

laws of the juries that decided their c ases. I ndeed, the Supreme Court has interpreted the Rule to bar testimony
reg arding jurors’ drug use, “ insanity

, inability to u nderstand Eng lish, and hearing impairments.” Id. at 530.

I n k eeping with these precedents, w e hold that Shiu L ung L eung was not entitled t o a n e w trial or evidentiary h earing based o n a juror’s affidavit a l l e g ing that other jurors discussed the evidence ag ainst him and made up their minds about his g u ilt before the start of deliberations. W e d e cl ine
to e mbrace L eung ’s theory that Rule 6 0 6(b) p rovides leeway for a court to delve into the internal affairs of the jury simply because the discussions took place b efore deliberation s commenced.U N I T E D S T A T E S V

. L E U N G 4

B A C K G R O U N D

Shiu L ung L eung , an ex ecutive at the Taiwanese company AU Optronics Corporation, was charg ed in 2010 with violating the Sherman Ant i t r u st Act, 15 U.S.C. § 1
, for his role in fix ing the prices o f Thin-F ilm Transistor, L iquid Cry stal Display panels. L eung faced trial a s one o f seven individual and corporate co-defendants. The jury convicted four a nd acquitted two of L eung ’s c o-defendants, but could
not reac h a verdict on the charg e ag ainst him. The
g overnment e lected to re-try him, and he was convicted at the second trial.

Shortly before his sentencing

, L eung filed a motion for a

new trial and a request for a n evidentiary hearing

. The portion of the motion relev an t here rested solely on an affidavit from one j u r o r

. According to the affidavit, several jurors violated the court’s instructions not to discuss the case before final deliberations by reg ularl y talking a bout the evidence during breaks in the trial. T h e j u r o r also opined that, before the jury b eg a n deliberations, at least t hree other jurors “ had already made u p their mi n ds that the defendant
was g u ilty .”

The district court ruled that the affidavit was inadmissible under Rule 6 06(b). The court denied the moti o n for a new trial without an evidentiary hearing

. L eung was sentenced to twenty -four months’ imprisonment.

A N A L Y S I S

The central issue in this appeal is the admissibility of the juror affidavit o ffered in support of L eung ’s motion for a newU N I T E D S T A T E S V

. L E U N G 5

t r ial. 1 L eung c ontends that the a ffidavit is a dmissible under Rule 606(b) because juror testimony about discussion of the evidence before charg i n g does not intrude o n the internal affairs of the jury , but instead demonstrates juror dishonesty

a n d bias during voir dire. The g overnment responds t h at L eung ’s motion for a n e w trial should have been rejected a s untimely and that its contents were inadmissible in any event. Althoug h we r eje c t t

h e g o v e r n ment’s timeliness a

rg ument, we affirm the d istrict court because Rul e 606(b) bars consideration of the affidavit.

As a threshold matter, F ederal Rule of C r i m inal Procedure 3 3 (b)(2) provides that “[ a] ny motion for a new trial
g rounded on a n y reason other than newly discovered evidence must be filed within 14 day s after t h e v erdict o r finding of g uilty .” T he g o vernment co n t ends that L eung ’s motion was time-barred because i t wa s filed nearly four months after the jury ’s verdict.

The g overnment’s position, however, d o e s not square with the Supreme Court’s clarification in Eberhart v. United States that Rule 33 is “nonjuris dictional.” 5 46 U.S. 12, 19 (2005). This means that the 14-day d e adline is subject to

ex tension under F edera l R ule of Criminal Procedure 45(b)(2). Id. F ollowing trial, the district court told defense counsel to “g o ahead and file y o ur [ new trial] motions w henever y ou want to,” sug g esting that they be filed “subst a n t i ally in

1 L eu n g ’ s co

- def

en d an ts f ro m th e f irst trial ap p ealed

, raisin g su b s tan tiv e ch allen g es t o th e ap p licatio n o f th e Sh erm an A ct to th e i r co n d u ct. In Un ited S ta tes v. Hsiu n g , 7 7 8 F.3 d 7 3 8 (9 th Cir.), cert. d en i ed 1 3 5 S. Ct. 2 8 3 7 (2 0 1 5 ), w e rej ected th ese arg u m e n t s a n d af f irm ed th e co n v ictio n s. L eu n g ’ s id en tical ch allen g es raised in co n n ectio n w ith h is seco n d trial are

co n tro lled b y

o u r o p in io n

in Hsiu n g , an d w e af

f i rm o n th e sam e g ro u n d s

w ith o u t th e n eed f

o r f u rth er d i scu ssio n

.U N I T E D S T A T E S V

. L E U N G 6

advance” of the sentencing hearing

. Althoug h the judg e later referred to the motions as “late,” she declined to f ind the motions untimely and considered the merits of each. I n view of the chronolog y and the record, we conclude that the district

cou r t g ranted an ex tension to file the motion for a new trial, albeit open-ended, and that the motion was timely filed.

W e now turn to the question of whether the juror affidavit entitled L eung to a new trial or an evidentiary hearing . This question hing es on F e deral Rule of Evidence 606(b). Subject
to various ex ceptions not appl i cable here, 2 Rule 606(b) provides:

During an inquiry into the validity of a verdict

or indictment, a juror may not testify about
any statement made or incident that occurred d u ring the jury ’s deliberations; the effect o f
any thing on that juror’s or anot h er juror’s vote; or a

n y juror’s mental process e s concerning

the verdict or indictment.

Our a naly sis of Rule 606(b) is g uided by two Supreme Court cases: Tanner v. United State s , 483 U.S. 107 (1987), and W arger v. Shauers

, 135 S. Ct. 521 (2014). I n Tanner
, the Court addressed the admissibility of a juror affidavit asserting that jurors drank alcohol, smoked marijuana, ing ested cocaine, conducted d r u g deals, and periodically slept throug hout a complex criminal trial. 483 U.S. a t 1 15–16.

2 T h e Ru l e ex p ressly p erm its j u ro r testim o n y reg ard in g “ w h eth er: (A ) ex tran eo u s p rej u d icial in f o rm ati o n w as im

p ro p erly b ro u g h t to th e j u ry ’ s atten t io n ; (B ) an o u tsid e in f lu en ce w as im

p ro p erly b ro u g h t to bear

o n an y j u ro r; o r ( C ) a m istak e w as m ad e i n en t erin g th e v erd ict o n th e

v erd ict f o rm .” Fed . R. Ev id . 6 0 6 (b )(2 ).U N I T E D S T A T E S V

. L E U N G 7

The Court b eg an i t s a n aly sis by noting that “the near-universal and firmly established common-law r ule in the United States flatly prohibited the admissi o n of juror testimony to impeach a jury verdict.” Id. at 117. Rule 606(b)

was not a

n innovation, but w a s i nstead “g rounded in the common-law rule ag ainst admissio n of juror testimony to impeach a verdict.” I

d. at 121.

Althoug h an ex ception to Rul e 6 0 6 (b) permits inquiry into whether “ex traneous influences” tainted the verdict, juror testimony reg arding the jury ’s “internal proc e sses” is
cate go r i c a lly b arred. Id. at 120–21. The Court emphasiz ed that the internal/ex ternal distinction is “not based on whether the juror wa s literally inside or outside the jury r oom when the alleg ed irreg ularity took place.” Id. at 117. Rat h er, the salient inquiry

is the “nature of the alleg ation.” Id.

I n W arger , the Court considered a juror’s alleg ations that, during deliberations, another juror admitted to harboring bias
ag ainst one o f the parties. T he Court rej e cted the arg ument t h a t Rule 606(b) did not apply to the juror’s p roffe r e d testimony because ferreting out juror bia s a n d dishonesty “[ does] not involve a

n ‘inquiry into the validity o f the verdict.’” 1 35 S. Ct. at 52 8

. T o the contrary , Rule 606(b) “simply a pplies” in any proceeding in which a party seeks to set as i de a jury verdict. Id. The Court then held that Rule 606(b)’s b ar o n ju r y deliberations evidence does not p ermit

an ex c eption f

or testimony about juror bias or d i s h onesty during voir d ire, ab ro g ating our decision in Hard v

. Burlington Northern Railroad

, 812 F .2d 482 (9th Cir. 1987). 3

3 Ha rd h eld th at “ statem en ts” m ad e d u rin g d elib eratio n s “ w

h ich ten d to sh o w deceit d u rin g v o ir d ire are n o t barred by [Ru le 6 0 6 (b )].” 81 2 F.2 d at 4 8 5

.U N I T E D S T A T E S V

. L E U N G 8

The Court noted that w h ile jurors can (and should) report such information to the court d u r i n g trial, the plain tex t a nd history of Rule 606(b) d ictate that a party seeking to impeach

a verdict cannot resort to juror testimony about any statement mad e or incident that occurred “during deliberations.” W arger , 135 S. Ct. at 530.

S e veral key principles emerg e from the Court ’s interpretation of Rule 606(b) in these two cases:

# The Rule applies in a n y proceeding that involves an inquiry into “the validity o f the verdict,” however that inquiry is framed by the litig a

n ts.

# The Rule bars j u r o r testimony about the jury ’s “internal processes,” whether the claimed irreg ularity took place inside or outside the jury room.

# The Rule imposes a nearly categ orical bar on juror testimony about statements or events “during the jury ’s deliberations.” 4

I n b o t h W

arger and Tanner
, the Court recog niz ed that Rule 606(b) prevents courts from considering some conduct that does not reflect th e s olemn duty undertaken by jurors. F or e x a mple, the Rule prohibits testimony a s dramatic a s jurors’ drug a

buse, “insanity

, inability to understand Eng lish,

4 In W a rg er , t h e Co u rt n o t ed th e po ssib i lity th at, in so m e circu m stan ces, it m ig h t b e u n co n stitu

tio n al to p ro h ib it th e i n tro d u ctio n o f j u ro r testim o n y

r e v e alin g “

j u ro r bias so ex t

rem e th at, alm o s t b y d ef

in itio n , th e j u

ry t r i a l rig h t h as been ab rid g ed .” 1 3 5 S. Ct. at 52 9 n .3

. A s in W a rg er , “ [w ]e n eed

n o t co n sid er th e q u estio n , h o w ev er, f o r th o se f acts are n o t p resen ted h ere.” Id

.U N I T E D S T A T E S V

. L E U N G 9

and hearing impai r m e n t s

. . . .” W arger , 135 S. Ct. at 530. J uror testimony cannot be used to impeach a verdict even when a feckless jury decides the parties’ fates throug h a c oin flip or r o ll of the dice. See id. at 526 (citing Vaise v. Delaval

, (1785) 99 Eng . Rep. 944 (K.B

. )).

The notion that eg reg ious juror con d u c t will not necessarily result in re l i ef from the verdict may seem antithetical to our sy stem of due process. The Rule, however,

ex ists f o r g ood reason—it pro t e cts jurors from harassment and maintains the integ rity and finality of jur y v e r dicts. W h ile p ersistent inquiry into internal jury processes could “in

s o m e i n stances lead to the invalidation of v erdicts reached after irresponsible or improper j u r o r behavior,” our very sy stem of trial by jury mig ht not “survive s u c h efforts to perfect it.” Tanner
, 483 U.S. at 120.

The affidavit in issue represents precisely such an effort. L i ke the proffered testimony in Tanner
, the testimony

a t t e m p ts to shed lig ht on the internal affairs of the jury

. I n seeking a new trial on the g rounds th a t jurors made up their minds prematurely and discussed the evidence before the start of deliberations, L e ung requests a declaration that the jury that d ecided his case faile d t o r e view the evidence with an open mind prior to being c harg ed. B ut parsi n g h o w jurors considered t h e evidence o r their mental states while h earing testimony is ex act l y what Tanner and the p lain tex t of Rule 606(b) seek to prevent. W e cannot countenance this effort to intrude upon jurors’ “mental processes c o n cerning the verdict.” See United States v. D avis
, 960 F .2d 820, 828 (9th Cir. 1992) (describing as “meritless” a motion for a new trial based on a juror’s statement in an interview that “[ f] r om the first day I knew [ the defendant] was g uilty ” (first alteration in orig inal)).U N I T E D S T A T E S V

. L E U N G 10

L eung arg ues, how ev er, that w e should consider the Simms affidavit not as evidence of the internal affairs of the jury

, but as evidence of juror bias a nd dishonesty during voir dire. Not o nly is this a revival of the sentiment in our nowabrog ated Hard case, the a r g ument is not borne out by the affidavit. 5 L e ung p o sits that the a ffidavit supports the inference that jurors made false representation s during voir dire. He points out that no juror r esponded when, during voir dire, the district court asked: “ I s there any body h er e w ho couldn’t promise not to communicate about the case u ntil it’s over? ” L eung reasons that because some jurors d i d i n fact discuss the evidence before the case ended, th e y must have concealed their intent to “br[ eak] their p romise and d ef[ y ] the court’s directive” d

uring voir dire. Taking t h i s l o gic a step further, L eung con t ends that he was denied a fair a nd impartial jury because the jurors’ alleg ed deceptio n d e n ied h i m t he opportunity to ex ercise a “valid

. . . challeng e f o r

5 Ru le 6 06 ( b )’ s categ o rical b ar o n j u ro r t estim o n y reg ard i n g an y

“ s tatem en t m ad e or in cid en t th at o ccu rred d u rin g th e j u ry ’ s d elib eratio n s ” d o es n o t ex

p ressly en co m

p ass th e pre- d elib eratio n tim e p erio d

. In Un ited S ta tes v. H

en ley

, w e stated th at w e “ n eed n o t d ecid e” w h eth er a j u ro r m ay testif y th at oth er j u ro rs rev ealed deceit o r bias b ef o re d elib eratio n s, b u t

n o ted th at th e R

u le’ s “ p rim ary

p u rp o se—th e in su latio n o f j u ro rs’ p riv ate d elib eratio n s f

ro m p o st- v erd ict scru tin y —w o u l d n ot b e im

p licated b y p erm i ttin g ” su ch t estim on y

. 2 38 F.3 d 1 1 1 1
, 1 1 20

– 2 1 (9 th Cir. 2 0 01 ); see

a lso W illia ms v. Price , 3 4 3 F.3 d 2 2 3
, 23 6 (3 d Cir. 2 0 0 3 ) (n o tin g th at “ if th e o th er j u ro rs’ alleg ed co m m en ts d i d n o t o ccu r d u rin g d elib eratio n s an d if [th e j u ro r’ s] t estim o n y ab o u t th o s e co m

m en ts” d em o n strated bias or d eceit du rin g v o ir d ire, “ i t co u ld b e a r g u ed t h at [th e] testim on y m

u st b e allo w ed b y Ru le 6 06 (b )”). A d m i t t i n g su ch ev id en ce, h o w ev er, m ay im p erm issib ly in tru d e u

po n j u ro rs’ “ m en tal p ro ces s e s c o n cern in g th e

v erd ict,” Fed

. R. E v id

. 6 06 (b ), an d b u tt u p ag ain st W

a rg er ’ s su g g estio n t h a t t h e tw o s af

eg u ard s ag ain st j u ro r b ias are b rin g in g it to lig h t “ b e fo r e t h e v erd ict is ren d ered ” o r seek in g a n ew trial o n th e b asis o f “ n o n j u ro r

ev id en ce.” 1 35 S

. C t

. at 5 2 7

. B ecau se th e Sim m s af f id av it co n tain s n o

ev id en ce o f

b i as o r d ecep tio n , w e n eed n ot reso l v e th at ten sio n h ere.U N I T E D S T A T E S V

. L E U N G 11

c a u s e ” before the start of the trial. See McDonough Powe r Equip., Inc. v. Greenwood

, 464 U.S. 548, 556 (1984).

L eung ’s arg ument is not a n accurate characteriz ation o f the affidavit. T he affidavit does not contain any evidence o f juror deceit o r bias; at most it sug g e sts that some jurors failed
to follow throug h on their promise to follow al l t h e c o urt’s instructions. Nothing in the affidavit indicates that any juror had dishonest intentions at the time of that commitment. That

s o m e jurors may not have complied with each instruct i o n does not support the inference that they lied o r c o ncealed bias.

Accepting L e u n g’ s invitation to c ast every instance o f juror misconduct as admissible evidence of dishonesty or bias would have stag g ering consequences f or the finality o f jury verdicts. Even the most trivial missteps would b e come fair
g ame for a motion for a new trial. F or ex ample, standard jury instructions in California a dmonish jurors not to “tak e t h eir notebooks o ut of the courtroom or jury r o o m , ” a nd to keep cellular phones “turned off” during trial. J udicial Council o f California Cri m inal J ury I nstructions 101–02. L eung ’s position would necessarily r equire the court to treat jurors who take their notepads home at the end of the day o r sneak

a peek at their email during trial as having lied or concealed bias during voir dire. 6 W e decline to automatically attribute such common mistakes to jurors’ hidden intent to “break their

6 T o th e ex t en t L eu

n g arg u e s t h at certain p re- d elib eratio n d iscu ssio n s p o se a p articu larly tro u

bleso m e f o rm o f m isco n d u ct b ecau se th ey h av e th e p o ten tial to calcif

y a j u ro r’ s v iew s o f th e case bef o re f o rm al d elib eratio n s b eg in

, t h is ty p e of sp ecu latio n is ex actly th e ty p e o f in q u iry in to a “

j u ro r’ s

m en tal p ro cesses co n cern in g th e v erd ict” th at Ru le 6 0 6 (b ) p ro s crib es.U N I T E D S T A T E S V

. L E U N G 12

promise a

nd defy the court’s d irective” r a t h e r than mere human fallibility

.

I ndeed, interpreting every a c t of juror misconduct a s evidence that jurors lied would also c ast serious doubt on the

s c ope of the rule announced in Tanner

. Taken to its l o gi c al conclusion, L eung ’s arg

ument means that Tanner hing e d on the fact that the district court in th at c ase d id not instruct jurors to abstain f

rom alcohol and drug s during trial. H ad the
court issued s uch a specific instruction, then the juror testimony would have been admi s s i b l e to show that a juror lied when he promised to teetotal. Nothing in Tanner
sug g e s t s that its resounding condemnation of ex amining juries’ internal affairs w as b ased on such a shaky foundation.

W e hold that during a proceedi n g t o set aside a verdict, juror testimony that other jurors eng ag ed in premature deliberations or made up their minds about the c ase before deliberations beg an is inadmissible to d em o n s t rate that the jury eng ag ed in flawed processing of the e v idence. Such testimony improperly implicates the i n t ernal affairs of the jury during an inquiry into the “ v al i d ity of the v erdict.” W arger , 133 S. Ct. at 528.

I n c l osing

, we emphasiz e that rules g overning juro r condu ct d u r i ng trials e x ist for g ood reason. The instruction
not to d i s cuss the case b efore deliberations is an important

one and is often g iven multiple times during the trial because human nature leads jurors to want to talk about w h a t they have been listening to while held capt i ve in the jury box

. A violation of those instructions may be remedied if the juror who overheard the conversations bring s the issue to the trial judg e during trial. I n other instances, b a iliffs or other court personnel may w i t n e ss and report the chatter. W ithU N I T E D S T A T E S V

. L E U N G 13

appropriate notice, the trial c ourt has b r oad discretion as to how to correct the violation, wh e t h er throug h g iving additional jury instructions, dismissing jurors, or declaring a mistrial. Even when evidence of misconduct comes to lig ht

a f t e r the trial, the p arties can attempt to produce nonju r o r testimony about the alleg ed infr a ct i ons. None of these

avenues implicates the restrictions of Rule 6 06(b). The postverdict affidavit, however, is too little, too late.

C O N C L U S I O N

Once a jury has pronounced its judg men t , Rule 606(b) helps ensure jurors’ ability to “separate and m e l t anony mous l y i nto the community f rom which they came.” United States ex rel. McCann v. Adams

, 126 F .2d 774, 776 (2d Cir.) (L

. Hand, J

. ), set aside on other grounds

, 317 U.S. 269 (1942). I n lig ht of the Rule’s prohibition on juror testimony reg arding the internal affairs of the jury

, L eung was not entitled to a new trial or evidentiary hearing on the basis of the post-verdict juror affidavit.

AF F IRMED.