FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHIU LUNG LEUNG, AKA Steve

Leung, Chao-Lung Liang,

Defendant-Appellant.

No. 13-10242

D.C. No.

3:09-cr-00110-

SI-6

OPINION

Appeal from the United States District Court

for the Northern District of California

Susan Illston, Senior District Judge, Presiding

Argued and Submitted

February 11, 2015—San Francisco, California

Filed August 6, 2015

Before: Sidney R. Thomas. Chief Judge, M. Margaret

McKeown, Circuit Judge and Virginia M. Kendall,* District

Judge.

Opinion by Judge McKeown

* The Honorable Virginia M. Kendall, District Judge for the U.S. District

Court for the Northern District of Illinois, sitting by designation.
2 UNITED STATES V. LEUNG

SUMMARY**

Criminal Law

Affirming the district court’s denial of a motion for new

trial and request for an evidentiary hearing, the panel held

that the defendant was not entitled to a new trial or

evidentiary hearing based on a juror’s post-verdict affidavit

alleging that other jurors discussed the evidence against him

and made up their minds about his guilt before the start of

deliberations.

The panel declined to embrace the defendant’s theory that

Fed. R. Evid. 606(b), which shields against the efforts of

litigants to overturn verdicts based on the real or perceived

flaws of the juries that decided their cases, provides leeway

for a court to delve into the internal affairs of the jury simply

because the discussions took place before deliberations

commenced.

COUNSEL

Dennis P. Riordan (argued) and Donald M. Horgan, Riordan

& Horgan, San Francisco, California, for DefendantAppellant.

Adam D. Chandler (argued), James J. Fredericks, and Kristen

C. Limarzi, Attorneys; Brent Snyder, Deputy Assistant

AttorneyGeneral; William Baer, Assistant AttorneyGeneral;

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. LEUNG 3

Peter K. Huston and Micah L. Wyatt, Attorneys, United

States Department of Justice, Washington, D.C., for PlaintiffAppellee.

OPINION

McKEOWN, Circuit Judge:

The prohibition on admitting juror testimony to challenge

the validity of a verdict is longstanding. Warger v. Shauers,

135 S. Ct. 521, 526 (2014). It has its roots in an eighteenthcentury English case “in which Lord Mansfield held

inadmissible an affidavit from two jurors claiming that the

jury had decided the case through a game of chance.” Id. In

modern jurisprudence, this principle is found in Federal Rule

of Evidence 606(b), which is a powerful shield against the

efforts of litigants to overturn verdicts based on the real or

perceived flaws of the juries that decided their cases. Indeed,

the Supreme Court has interpreted the Rule to bar testimony

regarding jurors’ drug use, “insanity, inability to understand

English, and hearing impairments.” Id. at 530.

In keeping with these precedents, we hold that Shiu Lung

Leung was not entitled to a new trial or evidentiary hearing

based on a juror’s affidavit alleging that other jurors

discussed the evidence against him and made up their minds

about his guilt before the start of deliberations. We decline

to embrace Leung’s theory that Rule 606(b) provides leeway

for a court to delve into the internal affairs of the jury simply

because the discussions took place before deliberations

commenced.
4 UNITED STATES V. LEUNG

BACKGROUND

Shiu LungLeung, an executive at the Taiwanese company

AU Optronics Corporation, was charged in 2010 with

violating the Sherman Antitrust Act, 15 U.S.C. § 1, for his

role in fixing the prices of Thin-Film Transistor, Liquid

Crystal Display panels. Leung faced trial as one of seven

individual and corporate co-defendants. The jury convicted

four and acquitted two of Leung’s co-defendants, but could

not reach a verdict on the charge against him. The

government elected to re-try him, and he was convicted at the

second trial.

Shortly before his sentencing, Leung filed a motion for a

new trial and a request for an evidentiary hearing. The

portion of the motion relevant here rested solely on an

affidavit from one juror. According to the affidavit, several

jurors violated the court’s instructions not to discuss the case

before final deliberations by regularly talking about the

evidence during breaks in the trial. The juror also opined

that, before the jury began deliberations, at least three other 

jurors “had already made up their minds that the defendant

was guilty.”

The district court ruled that the affidavit was inadmissible

under Rule 606(b). The court denied the motion for a new

trial without an evidentiary hearing. Leung was sentenced to

twenty-four months’ imprisonment.

ANALYSIS

The central issue in this appeal is the admissibility of the

juror affidavit offered in support of Leung’s motion for a new
UNITED STATES V. LEUNG 5

trial.1 Leung contends that the affidavit is admissible under

Rule 606(b) because juror testimony about discussion of the

evidence before charging does not intrude on the internal

affairs of the jury, but instead demonstrates juror dishonesty

and bias during voir dire. The government responds that

Leung’s motion for a new trial should have been rejected as

untimely and that its contents were inadmissible in any event. 

Although we reject the government’s timeliness argument, we

affirm the district court because Rule 606(b) bars

consideration of the affidavit.

As a threshold matter, Federal Rule of Criminal

Procedure 33(b)(2) provides that “[a]nymotion for a new trial

grounded on any reason other than newly discovered

evidence must be filed within 14 days after the verdict or

finding of guilty.” The government contends that Leung’s

motion was time-barred because it was filed nearly four

months after the jury’s verdict.

The government’s position, however, does not square

with the Supreme Court’s clarification in Eberhart v. United

States that Rule 33 is “nonjurisdictional.” 546 U.S. 12, 19

(2005). This means that the 14-day deadline is subject to

extension under FederalRule of Criminal Procedure 45(b)(2). 

Id. Following trial, the district court told defense counsel to

“go ahead and file your [new trial] motions whenever you

want to,” suggesting that they be filed “substantially in

1 Leung’s co-defendants from the first trial appealed, raising substantive

challenges to the application of the Sherman Act to their conduct. In

United States v. Hsiung, 778 F.3d 738 (9th Cir.), cert. denied 135 S. Ct.

2837 (2015), we rejected these arguments and affirmed the convictions. 

Leung’s identical challenges raised in connection with his second trial are

controlled by our opinion in Hsiung, and we affirm on the same grounds

without the need for further discussion.
6 UNITED STATES V. LEUNG

advance” of the sentencing hearing. Although the judge later

referred to the motions as “late,” she declined to find the

motions untimely and considered the merits of each. In view

of the chronology and the record, we conclude that the district

court granted an extension to file the motion for a new trial,

albeit open-ended, and that the motion was timely filed.

We now turn to the question of whether the juror affidavit

entitled Leung to a new trial or an evidentiary hearing. This

question hinges on Federal Rule of Evidence 606(b). Subject

to various exceptions not applicable 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

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.

Our analysis of Rule 606(b) is guided by two Supreme

Court cases: Tanner v. United States, 483 U.S. 107 (1987),

and Warger v. Shauers, 135 S. Ct. 521 (2014). In Tanner, the

Court addressed the admissibility of a juror affidavit asserting

that jurors drank alcohol, smoked marijuana, ingested

cocaine, conducted drug deals, and periodically slept

throughout a complex criminal trial. 483 U.S. at 115–16. 

2 The Rule expressly permits juror testimony regarding “whether:

(A) extraneous prejudicial information was improperly brought to the

jury’s attention; (B) an outside influence was improperly brought to bear

on any juror; or (C) a mistake was made in entering the verdict on the

verdict form.” Fed. R. Evid. 606(b)(2).
UNITED STATES V. LEUNG 7

The Court began its analysis by noting that “the

near-universal and firmly established common-law rule in the

United States flatly prohibited the admission of juror

testimony to impeach a jury verdict.” Id. at 117. Rule 606(b)

was not an innovation, but was instead “grounded in the

common-law rule against admission of juror testimony to

impeach a verdict.” Id. at 121.

Although an exception to Rule 606(b) permits inquiryinto

whether “extraneous influences” tainted the verdict, juror

testimony regarding the jury’s “internal processes” is

categorically barred. Id. at 120–21. The Court emphasized

that the internal/external distinction is “not based on whether

the juror was literally inside or outside the jury room when

the alleged irregularity took place.” Id. at 117. Rather, the

salient inquiry is the “nature of the allegation.” Id.

In Warger, the Court considered a juror’s allegations that,

during deliberations, another juror admitted to harboring bias

against one of the parties. The Court rejected the argument

that Rule 606(b) did not apply to the juror’s proffered

testimony because ferreting out juror bias and dishonesty

“[does] not involve an ‘inquiry into the validity of the

verdict.’” 135 S. Ct. at 528. To the contrary, Rule 606(b)

“simply applies” in any proceeding in which a party seeks to

set aside a jury verdict. Id. The Court then held that Rule

606(b)’s bar on jury deliberations evidence does not permit

an exception for testimony about juror bias or dishonesty

during voir dire, abrogating our decision in Hard v.

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

3 Hard held that “statements” made during deliberations “which tend to

show deceit during voir dire are not barred by [Rule 606(b)].” 812 F.2d at

485.
8 UNITED STATES V. LEUNG

The Court noted that while jurors can (and should) report

such information to the court during trial, the plain text and

history of Rule 606(b) dictate that a party seeking to impeach

a verdict cannot resort to juror testimony about any statement

made or incident that occurred “during deliberations.” 

Warger, 135 S. Ct. at 530.

Several key principles emerge from the Court’s

interpretation of Rule 606(b) in these two cases:

# The Rule applies in any proceeding that involves an

inquiry into “the validity of the verdict,” however that

inquiry is framed by the litigants.

# The Rule bars juror testimony about the jury’s

“internal processes,” whether the claimed irregularity

took place inside or outside the jury room.

# The Rule imposes a nearly categorical bar on juror

testimony about statements or events “during the

jury’s deliberations.”4

In both Warger and Tanner, the Court recognized that

Rule 606(b) prevents courts from considering some conduct

that does not reflect the solemn duty undertaken by jurors. 

For example, the Rule prohibits testimony as dramatic as

jurors’ drug abuse, “insanity, inability to understand English,

4

In Warger, the Court noted the possibility that, in some circumstances,

it might be unconstitutional to prohibit the introduction of juror testimony

revealing “juror bias so extreme that, almost by definition, the jury trial

right has been abridged.” 135 S. Ct. at 529 n.3. As in Warger, “[w]e need

not consider the question, however, for those facts are not presented here.” 

Id.
UNITED STATES V. LEUNG 9

and hearing impairments . . . .” Warger, 135 S. Ct. at 530. 

Juror testimony cannot be used to impeach a verdict even

when a feckless jury decides the parties’ fates through a coin

flip or roll of the dice. See id. at 526 (citing Vaise v. Delaval,

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

The notion that egregious juror conduct will not

necessarily result in relief from the verdict may seem

antithetical to our system of due process. The Rule, however,

exists for good reason—it protects jurors from harassment

and maintains the integrity and finality of jury verdicts. 

While persistent inquiry into internal jury processes could “in

some instances lead to the invalidation of verdicts reached

after irresponsible or improper juror behavior,” our very

system of trial by jury might not “survive such efforts to

perfect it.” Tanner, 483 U.S. at 120.

The affidavit in issue represents precisely such an effort. 

Like the proffered testimony in Tanner, the testimony

attempts to shed light on the internal affairs of the jury. In

seeking a new trial on the grounds that jurors made up their

minds prematurelyand discussed the evidence before the start

of deliberations, Leung requests a declaration that the jury

that decided his case failed to review the evidence with an

open mind prior to being charged. But parsing how jurors

considered the evidence or their mental states while hearing

testimony is exactly what Tanner and the plain text of Rule

606(b) seek to prevent. We cannot countenance this effort to

intrude upon jurors’ “mental processes concerning the

verdict.” See United States v. Davis, 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]rom the

first day I knew [the defendant] was guilty” (first alteration in

original)).
10 UNITED STATES V. LEUNG

Leung argues, however, that we should consider the

Simms affidavit not as evidence of the internal affairs of the

jury, but as evidence of juror bias and dishonesty during voir

dire. Not only is this a revival of the sentiment in our nowabrogated Hard case, the argument is not borne out by the

affidavit.5 Leung posits that the affidavit supports the

inference that jurors made false representations during voir

dire. He points out that no juror responded when, during voir

dire, the district court asked: “Is there anybody here who

couldn’t promise not to communicate about the case until it’s

over?” Leung reasons that because some jurors did in fact

discuss the evidence before the case ended, they must have

concealed their intent to “br[eak] their promise and def[y] the

court’s directive” during voir dire. Taking this logic a step

further, Leung contends that he was denied a fair and

impartial jury because the jurors’ alleged deception denied

him the opportunity to exercise a “valid . . . challenge for

5 Rule 606(b)’s categorical bar on juror testimony regarding any

“statement made or incident that occurred during the jury’s deliberations”

does not expressly encompass the pre-deliberation time period. In United

States v. Henley, we stated that we “need not decide” whether a juror may

testify that other jurors revealed deceit or bias before deliberations, but

noted that the Rule’s “primary purpose—the insulation of jurors’ private

deliberations from post-verdict scrutiny—would not be implicated by

permitting” such testimony. 238 F.3d 1111, 1120–21 (9th Cir. 2001); see

also Williams v. Price, 343 F.3d 223, 236 (3d Cir. 2003) (noting that “if

the other jurors’ alleged comments did not occur during deliberations and

if [the juror’s] testimony about those comments” demonstrated bias or

deceit during voir dire, “it could be argued that [the] testimony must be

allowed by Rule 606(b)”). Admitting such evidence, however, may

impermissibly intrude upon jurors’ “mental processes concerning the

verdict,” Fed. R. Evid. 606(b), and butt up against Warger’s suggestion

that the two safeguards against juror bias are bringing it to light “before

the verdict is rendered” or seeking a new trial on the basis of “nonjuror

evidence.” 135 S. Ct. at 527. Because the Simms affidavit contains no

evidence of bias or deception, we need not resolve that tension here.
UNITED STATES V. LEUNG 11

cause” before the start of the trial. See McDonough Power

Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

Leung’s argument is not an accurate characterization of

the affidavit. The affidavit does not contain any evidence of

juror deceit or bias; at most it suggests that some jurors failed

to follow through on their promise to follow all the court’s

instructions. Nothing in the affidavit indicates that any juror

had dishonest intentions at the time of that commitment. That

some jurors may not have complied with each instruction

does not support the inference that they lied or concealed

bias.

Accepting Leung’s invitation to cast every instance of

juror misconduct as admissible evidence of dishonesty or bias

would have staggering consequences for the finality of jury

verdicts. Even the most trivial missteps would become fair

game for a motion for a new trial. For example, standard jury

instructions in California admonish jurors not to “take their

notebooks out of the courtroom or jury room,” and to keep

cellular phones “turned off” during trial. Judicial Council of

California Criminal Jury Instructions 101–02. Leung’s

position would necessarily require the court to treat jurors

who take their notepads home at the end of the day or sneak

a peek at their email during trial as having lied or concealed

bias during voir dire.6 We decline to automatically attribute

such common mistakes to jurors’ hidden intent to “break their

6 To the extent Leung argues that certain pre-deliberation discussions

pose a particularly troublesome form ofmisconduct because they have the

potential to calcify a juror’s views of the case before formal deliberations

begin, this type of speculation is exactly the type of inquiry into a “juror’s

mental processes concerning the verdict” that Rule 606(b) proscribes.
12 UNITED STATES V. LEUNG

promise and defy the court’s directive” rather than mere

human fallibility.

Indeed, interpreting every act of juror misconduct as

evidence that jurors lied would also cast serious doubt on the

scope of the rule announced in Tanner. Taken to its logical

conclusion, Leung’s argument means that Tanner hinged on

the fact that the district court in that case did not instruct

jurors to abstain from alcohol and drugs during trial. Had the

court issued such a specific instruction, then the juror

testimony would have been admissible to show that a juror

lied when he promised to teetotal. Nothing in Tanner

suggests that its resounding condemnation of examining

juries’ internal affairs was based on such a shaky foundation.

We hold that during a proceeding to set aside a verdict,

juror testimony that other jurors engaged in premature

deliberations or made up their minds about the case before

deliberations began is inadmissible to demonstrate that the

jury engaged in flawed processing of the evidence. Such

testimony improperly implicates the internal affairs of the

jury during an inquiry into the “validity of the verdict.”

Warger, 133 S. Ct. at 528.

In closing, we emphasize that rules governing juror

conduct during trials exist for good reason. The instruction

not to discuss the case before deliberations is an important

one and is often given multiple times during the trial because

human nature leads jurors to want to talk about what they

have been listening to while held captive in the jury box. A

violation of those instructions may be remedied if the juror

who overheard the conversations brings the issue to the trial

judge during trial. In other instances, bailiffs or other court

personnel may witness and report the chatter. With
UNITED STATES V. LEUNG 13

appropriate notice, the trial court has broad discretion as to

how to correct the violation, whether through giving

additional jury instructions, dismissing jurors, or declaring a

mistrial. Even when evidence of misconduct comes to light

after the trial, the parties can attempt to produce nonjuror

testimony about the alleged infractions. None of these

avenues implicates the restrictions of Rule 606(b). The postverdict affidavit, however, is too little, too late.

CONCLUSION

Once a jury has pronounced its judgment, Rule 606(b)

helps ensure jurors’ ability to “separate and melt

anonymously into the community from 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). In light of the Rule’s prohibition on juror

testimony regarding the internal affairs of the jury, Leung was

not entitled to a new trial or evidentiary hearing on the basis

of the post-verdict juror affidavit.

AFFIRMED.