FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCKY DIETZ,

Plaintiff-Appellant,

v.

HILLARY BOULDIN,

Defendant-Appellee.

No. 13-35377

D.C. No.

2:11-cv-00036-RWA

OPINION

Appeal from the United States District Court

for the District of Montana

Richard W. Anderson, Magistrate Judge, Presiding

Argued and Submitted

February 4, 2015—Seattle, Washington

Filed July 24, 2015

Before: Raymond C. Fisher, Carlos T. Bea

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Fisher;

Concurrence by Judge Bea
2 DIETZ V. BOULDIN

SUMMARY*

Jury Trial

The panel affirmed the district court’s judgment, and held

that the district court did not abuse its discretion in reempaneling a jury shortly after dismissal where the jurors

were not exposed to any outside influence that would

compromise their ability to fairly reconsider the verdict.

The panel held that the standard of review for a district

court’s decision to re-empanel discharged jurors was abuse of

discretion. As a matter of first impression in the circuit, the

panel held that in limited circumstances, a district court may

recall a jury shortly after it has been dismissed to correct an

error in the verdict, but only after making an appropriate

inquiry to determine that the jurors were not exposed to any

outside influences that would compromise their ability to

fairly reconsider the verdict. The panel further held that the

record supported the district court’s finding that the jurors

were not exposed to prejudicial outside influences during the

brief period of the dismissal.

Concurring in the judgment, Judge Bea agreed with the

majority that the district court did not err in re-empaneling

the jury in this case. Judge Bea, however, did not agree that

the district court judge should be required to undertake “an

appropriate inquiry” into whether prejudicial influences

tainted the jury.

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

been prepared by court staff for the convenience of the reader.
DIETZ V. BOULDIN 3

COUNSEL

Geoffrey C. Angel (argued), Angel Law Firm, Bozeman,

Montana, for Plaintiff-Appellant.

John F. Bohyer and Jesse Beaudette (argued), Bohyer,

Erickson, Beaudette & Tranel PC, Missoula, Montana, for

Defendant-Appellee.

OPINION

FISHER, Circuit Judge:

We consider, as a matter of first impression in this circuit,

whether a jury can be recalled shortly after it has been

ordered discharged. Joining the majority of circuit courts to

have decided the issue, we hold a district court may reempanel a jury shortly after dismissal, but only if, during the

period of dismissal, the jurors were not exposed to any

outside influences that would compromise their ability to

fairly reconsider the verdict.

BACKGROUND

Hillary Bouldin’s vehicle collided with Rocky Dietz’s in

August 2009. Dietz subsequently filed a negligence

complaint in Montana state court against Bouldin for

“injuries including to his low back” and “physical pain,

suffering, grief, anxiety and a loss of course of life”

stemming from the accident. The case was subsequently

removed to federal court.
4 DIETZ V. BOULDIN

Before trial, Bouldin admitted he was at fault and that

Dietz was injured as a result of the accident. The parties

stipulated to $10,136 in past expenses Dietz incurred as a

result of the accident. The only disputed issue at trial was the

amount of future damages Bouldin owed Dietz. Dietz

presented evidence he would need regular physical therapy,

medication and injections to alleviate the pain he was

experiencing following the accident. Bouldin emphasized

that Dietz had a long list of medical conditions predating the

collision, that only some of his medical expenses were related

to the accident and that he was exaggerating the amount of

treatment he would actually seek.

During closing argument,Bouldin’s counsel reminded the

jury of the stipulated amount of past damages and explained

that its award additionally had to include the reasonable value

of necessary care, treatment and services received and those

reasonably probable to be required in the future. He

suggested the jury award Dietz an amount “somewhere

between ten and $20,000, depending on what you feel his

relief is, what level of pain he has, and how his condition has

been affected by this automobile accident.”

During deliberations, a juror sent the following question

to the judge: “Has the $10,136 medical expenses been paid;

and if so, by whom?” The court responded that the

information was not germane to the jury’s verdict. Speaking

to the parties’ counsel, the court then observed:

What I’m wondering – [l]et’s just do a little

speculating on our own. If we end up with a

verdict in less than that amount, and I can’t

believe that would happen, but if this is what

we’re heading toward, that would be grounds
DIETZ V. BOULDIN 5

for a mistrial and I don’t want a mistrial. Do

you think they understand clearly, after the

argument and the instructions, that their

verdict may not be less than that amount?

Bouldin’s counsel said he had made the point “crystal clear,”

and the court agreed. Accordingly, the court took no further

action to instruct the jury to award at least $10,136 in

damages. The jury returned with a verdict, finding for Dietz

but awarding him damages in the amount of $0. The court

asked counsel if they would like the jury polled, and both

declined. The court then thanked the jurors for their time,

told them they were “free to go,” discharged them and

recessed. Realizing the verdict was a legal impossibility

given the stipulated damages exceeded $10,000, the court

quickly called back the jurors, noting for the record it was

doing so “moments after having dismissed them.” It told the

jurors their verdict violated the stipulation, inquired whether

any of them had experienced undue outside influence in the

period following dismissal and, when they collectively

responded they had not, ordered them to reconvene the

following morning to issue a new verdict consistent with the

stipulation. Dietz objected to this procedure and moved for

a mistrial, arguing recall was not appropriate because the jury

had been dismissed. The jury again found for Dietz and

awarded him damages in the sum of $15,000. Dietz timely

appealed.

DISCUSSION

Dietz argues the district court erred by recalling the jury

after it had already been dismissed. Given the circumstances

here, where the court promptly recalled the jurors, questioned

them and found they were not exposed to prejudicial
6 DIETZ V. BOULDIN

influence during the brief duration of their dismissal, we

conclude the recall was not an abuse of discretion. We thus

affirm the judgment.1

I. Standard of review

We first address the correct standard of review for a

district court’s decision to re-empanel discharged jurors. 

Dietz argues “the judgment is void because the district court

acted in a manner inconsistent with due process of law,” so

we must review de novo the district court’s decision to reempanel the jurors. Bouldin counters that the correct

standard should be abuse of discretion because Dietz requests

a new trial based on an alleged error committed by the district

court.

Federal Rule of Civil Procedure 60(b)(4) provides relief

from a final judgment if it is void as a matter of law. The list

of such judgments is “exceedingly short,” and “Rule 60(b)(4)

applies only in the rare instance where a judgment is

premised either on a certain type of jurisdictional error or on

a violation of due process that deprives a party of notice or

the opportunity to be heard.” United Student Aid Funds, Inc.

v. Espinosa, 559 U.S. 260, 271 (2010).

Here, Dietz does not allege that the court lacked

jurisdiction to enter the judgment or that he was deprived of

notice or an opportunity to be heard. Instead, he argues the

court should have granted his motion for a mistrial because

the verdict did not comply with the stipulated damages. 

Denials of motions for mistrial are reviewed for abuse of

1 We address Dietz’s remaining arguments in a concurrently filed

memorandum disposition.
DIETZ V. BOULDIN 7

discretion. See United States v. Hagege, 437 F.3d 943,

958–59 (9th Cir. 2006). Therefore, that is the standard of

review we apply here.

II. Legal standard

Our circuit has not yet addressed when a district court

abuses its discretion by recalling jurors after dismissing

them.2 Therefore, we must decide what legal standard

governs our analysis.

Typically, a jury is no longer an entity after the court

discharges it, and its duties “are presumed to be at an end

when its verdict has been rendered, received, and published.” 

Summers v. United States, 11 F.2d 583, 586 (4th Cir. 1926). 

When the jury has “been discharged altogether and relieved,

by the instructions of the judge, of any duty to return . . . . it

has ceased to be a jury, and, if its members happen to come

together again, they are there as individuals, and no longer as

2 We have upheld the district court’s decision to reconvene a jury five

weeks after trial to clarify an ambiguous verdict. See E.F. Hutton & Co.

v. Arnebergh, 775 F.2d 1061, 1063–64 (9th Cir. 1985). In that case,

however, we did not need to reach the issue of whether such a recall was

permissible because the parties had stipulated to the procedure. See id. at

1064.

We have also encountered the question of jury reassembly in other

contexts. See, e.g., Harrison v. Gillespie, 596 F.3d 551, 574–75 (9th Cir.

2010) (refusing to allow jury to be reconvened three years after death

penalty trial), rev’d on other grounds en banc, 640 F.3d 888 (9th Cir.

2011); United States v. Boone, 951 F.2d 1526, 1532 (9th Cir. 1991)

(rejecting proposal to reconvene a jury for polling over two years after the

trial had ended); United States v. Washington, 819 F.2d 221, 224–25 (9th

Cir. 1987) (refusing to recall jury two years after trial to question

individual jurors about potential prejudice).
8 DIETZ V. BOULDIN

an organized group, an arm or agency of the law.” Porret v.

City of New York, 169 N.E. 280, 280 (N.Y. 1929) (opinion of

Cardozo, C.J.). Correspondingly, the “protective shield”

imposed by the district court, which prevents jurors from

being subjected to prejudicial outside influences, is removed

upon dismissal. United States v. Figueroa, 683 F.3d 69, 73

(3d Cir. 2012); see also United States v. Marinari, 32 F.3d

1209, 1214 (7th Cir. 1994) (observing that “after discharge,

the jurors are quite properly free to discuss the case with

whomever they choose”).

Nevertheless, several courts have recognized that in

certain limited circumstances, a district court may recall a

jury immediately after dismissal to correct an error in its

verdict. See Figueroa, 683 F.3d at 73; United States v. Rojas,

617 F.3d 669, 677 (2d Cir. 2010); Marinari, 32 F.3d at 1215. 

These courts look at the totality of circumstances to

determine whether the jurors were exposed to prejudicial

outside influence before the recall. See Wagner v. Jones,

758 F.3d 1030, 1034 (8th Cir. 2014), cert. denied, 135 S. Ct.

1529 (2015) (“One line of authority . . . requires a casespecific analysis of ‘whether the jurors became susceptible to

outside influences and [were] beyond the control of the court

once discharged.’” (quoting Figueroa, 683 F.3d at 73)). This

line of cases appears to originate from Summers v. United

States, 11 F.2d 583.

In Summers, immediately after the district court

pronounced the jury discharged but before the jurors

dispersed, the court realized it had read one of the charges to

the jury outside the presence of the defendant. See 11 F.2d at

586. Because the jurors had not yet left their seats, the court

set aside the verdict, reread the charge in the presence of the

defendant and sent the jurors to deliberate anew. See id. The
DIETZ V. BOULDIN 9

defendant objected, contending this process was improper

because the jury had been discharged. See id. The court

observed it would be “guilty of a very technical ruling” if it

held the jury was dismissed before it had even left the box. 

See id. The Fourth Circuit sustained the court’s actions,

holding that a jury

may remain undischarged and retain its

functions, though discharge may have been

spoken by the court, if, after such

announcement, itremains an undispersed unit,

within control of the court, with no

opportunity to mingle with or discuss the case

with others, and particularly where, as here,

the very case upon which it has been

impaneled is still under discussion by the

court, without the intervention of any other

business.

Id. 

Other circuits have extended the Summers rule to

situations where the jurors have been released but effectively

remained under control of the court.3 For example, the Third

 

3

 In Summers, the jurors had not yet left the jury box and therefore had

no “‘opportunity’ to encounter an outside influence.” Wagner, 758 F.3d

at 1035 n.9 (quoting Summers, 11 F.2d at 586). As the Eighth Circuit

explained, “[i]n any meaningful sense, once a juror leaves direct judicial

supervision in the courtroom, he or she virtually always has the

‘opportunity’ to encounter outside influences.” Id. Summers did not

address whether jurors who had briefly left the courtroom could validly be

recalled. Later cases have relied on Summers for the more basic

proposition that a jury may be recalled shortly after it has been discharged

if it was not exposed to prejudicial outside influences during dismissal,
10 DIETZ V. BOULDIN

Circuit upheld a district court’s decision to re-empanel a jury

where the court “immediately sent a court employee to hold

the jury” after initially releasing it. Figueroa, 683 F.3d at 72. 

The court considered the “pivotal inquiry” to be whether the

jury “became susceptible to outside influences” during the

dismissal. Id. at 73 (noting “[t]he jurors did not disperse and

interact with any outside individuals, ideas, or coverage of the

proceedings”).

Similarly, the Second Circuit upheld a district court’s

decision to reconvene a dismissed jury to clarify a technical

error in the verdict. See Rojas, 617 F.3d at 677. The court

was informed of the error six minutes after the jurors had

been discharged, at which point they had returned to the

deliberation room. See id. at 673, 678 n.3. The circuit court

noted the jurors had not been “exposed to outside factors”

during the brief discharge, so recall was proper. See id. at

678 (internal quotation marks omitted).

The Seventh Circuit has also recognized that “[u]ntil the

jury is actually discharged by separating or dispersing (not

merely [by] being declared discharged), the verdict remains

subject to review.” Marinari, 32 F.3d at 1214. In that case,

defense counsel requested a poll of the jury after the jurors

had left the courtroom, but while they remained sequestered

in the jury room awaiting a security escort to the parking lot. 

See id. at 1215. The court concluded that, although the jurors

had been declared dismissed, they “had not dispersed and

they remained untainted by any outside contact.” Id. Thus,

they were available to be recalled and polled. See id.

even where jurors have left the courtroom. See, e.g., Figueroa, 683 F.3d

at 73.
DIETZ V. BOULDIN 11

By contrast, a handful of state courts and, most recently,

the Eighth Circuit, have eschewed this case-specific analysis

and instead adopted a restrictive bright-line rule prohibiting

recall once the jurors have left the confines of the courtroom. 

See Wagner, 758 F.3d at 1035 (“[W]here a court declares a

mistrial and discharges the jurywhich then disperses from the

confines of the courtroom, the jury can no longer render,

reconsider, amend, or clarify a verdict on the mistried

counts.”); see, e.g., Spears v. Mills, 69 S.W.3d 407, 413 (Ark.

2002) (noting the “strict” and “absolute” rule that a jury may

not be recalled once it has “left the presence and control of

the court”).

In Wagner, the Eighth Circuit case, the jurors, who were

deliberating on two counts, told the court they were

deadlocked after two and a half days of deliberations. See

758 F.3d at 1032. The court declared a mistrial and thanked

the jurors for their service. See id. at 1033. Two minutes

later, the court reassembled the jurors because it had failed to

ask whether they were deadlocked on one or both counts. See

id. The foreperson said the jury had reached a verdict for the

defendant on Count I, and the court accordingly amended the

previous mistrial ruling over the plaintiff’s objection. See id.

The Eighth Circuit reversed, holding the error in the verdict

was “beyond correction after the jury left the courtroom.” Id.

at 1036.4

4 The facts in Wagner were much more suggestive of prejudicial

influence than the facts here. There, the court had declared a mistrial on

the very charges the jury was then recalled to deliberate. As the Eighth

Circuit noted, “nothing indicate[d] that the jury understood that the case

was being placed back in their hands, and that they were being re-polled

essentially to rescind the mistrial.” 758 F.3d at 1036. Furthermore, the

judge had provided the jurors with “letters” to complete and send back to

the court as a post-trial assessment as to which the judge specifically told
12 DIETZ V. BOULDIN

We recognize there are some advantages to the Eighth

Circuit’s rule. As that court observed, it “offers better

guidance than an amorphous rule,” id. at 1035, and it is more

straightforward to apply than the totality-of-circumstances

approach. In addition, by foreclosing the possibility of recall

after jurors have left the courtroom, it is theoretically more

protective of litigants’ right to a jury untainted by improper

external influence. See id. at 1036 n.10 (observing that “even

in civil cases, both the litigants and the public must have the

utmost confidence that verdicts remain untainted”); see also

Lahaina Fashions, Inc. v. Bank of Hawaii, 297 P.3d 1106,

1118 (Haw. Ct. App. 2013) (opining that forbidding recall

once jurors have left the courtroom “offers the greatest

protection against the erosion of public confidence in

juridical impartiality”). The Eighth Circuit emphasized that,

“[i]n this age of instant individualized electronic

communication and widespread personal control and

management of pocket-sized wireless devices,” such a

restrictive rule better protects against improper external

influence. Wagner, 758 F.3d at 1035.

Precisely because we live in an age of instant electronic

communication, however, there is nothing talismanic about

the courtroom door. For that reason, we should not adopt

such a rigid rule. Jurors can easily send messages and

communicate with outside parties before stepping out of the

jury box, let alone the courtroom. Once a court has

discharged the jurors, thus lifting the “protective shield” and

them: “If there’s something about this case that we need to know about,

this is your opportunity to tell us.” Id. (alteration omitted). At this point,

the admonition not to discuss the case with others had been lifted, and

there was no information in the record about the jurors’ conduct once they

had dispersed from the courtroom. See id.
DIETZ V. BOULDIN 13

enabling them to discuss the case with others, it triggers the

potential for prejudicial influence.

But at the same time, just because jurors may potentially

engage in improper outside contacts the moment they are

dismissed does not mean they actually do. Regardless of

whether the dismissed jurors have remained in the courtroom

or left, before deciding to recall them, district judges must

conduct a proper inquiry into the circumstances to ensure

jurors were not exposed to prejudicial influences during the

brief period of dismissal. The court – and, if permitted by the

court, counsel – can specifically question the jurors about

what they did during the moments they were dismissed, and

through its evaluation of their responses and observations of

the courtroom, determine whether recall is appropriate.

Such a rule strikes a sensible balance between

considerations of fairness and economy and allows for a costeffective alternative to an expensive new trial. In the

somewhat analogous context of resubmission of special

verdict questions, we explained that “[a]llowing the jury to

correct its own mistakes conserves judicial resources and the

time and convenience of citizen jurors, as well as those of the

parties” and “best comports with the fair and efficient

administration of justice.” Duk v. MGM Grand Hotel, Inc.,

320 F.3d 1052, 1058 (9th Cir. 2003).

5 We give weight to

those same principles by adopting the totality-ofcircumstances approach here. That said, recall should be the

 

5

 An important factual difference between Duk and this case is that the

jury in Duk had not been declared discharged, nor had it dispersed. See

id. at 1058. Nevertheless, the policy considerations underlying Duk are

relevant here, where the jury was dismissed for a matter of moments and

was still available to be recalled.
14 DIETZ V. BOULDIN

exception rather than the convenient rule, lest the sanctity of

untainted jury deliberations be compromised.

In sum, we hold that, in limited circumstances, a court

may recall a jury shortly after it has been dismissed to correct

an error in the verdict, but only after making an appropriate

inquiry to determine that the jurors were not exposed to any

outside influences that would compromise their ability to

fairly reconsider the verdict.6, 7

See Figueroa, 683 F.3d at 73

(holding the “pivotal inquiry is whether the jurors became

susceptible to outside influences”). In deciding whether

recall is proper, the district court “must evaluate the specific

scenario presented in order to determine whether recalling the

jury would result in prejudice to the [parties] or undermine

the confidence of the court – or of the public – in the verdict.” 

Rojas, 617 F.3d at 677.

6 We presume for purposes of this holding that one party objects to the

recall procedure. Such an inquiry may not be necessary where the parties

have explicitly stipulated to the recall procedure. Cf. E.F. Hutton & Co.,

Inc. v. Arnebergh, 775 F.2d 1061, 1063–64 (9th Cir. 1985) (upholding

court’s recall of jurors five weeks after they were discharged to interview

them about the verdict because parties had stipulated to the procedure).

7 The concurrence contends such an inquiry is “inconsistent with our

system of adversarial justice.” In the context of jury management,

however, the district court regularly engages in such inquiries, as the cases

the concurrence itself cites reveal. See, e.g., United States v. Vartanian,

476 F.3d 1095, 1098–99 (9th Cir. 2007) (describing district court’s

“careful interview” of jury members before dismissing juror for good

cause); United States v. Symington, 195 F.3d 1080, 1086 (9th Cir. 1999)

(explaining the trial court’s “investigative power . . . puts it in the best

position to evaluate the jury’s ability to deliberate” (quotation marks

omitted)). Our holding here is entirely consistent with the principle that,

once a district court has been made aware of a problem relating to jury

deliberations, it must investigate the problem. Of course, the details ofthe

investigation remain within the district court’s discretion.
DIETZ V. BOULDIN 15

III. Application

Having concluded the totality of circumstances analysis

is proper, we next consider whether the jurors here were in

fact exposed to prejudicial outside influences during the brief

period of the dismissal. Because the record supports the

district court’s finding they were not, recalling them was not

an abuse of discretion.

When the court called back the jurors, it noted for the

record that it was doing so “moments after having dismissed

them.” In Figueroa, the district court had “retained control

of the jury at all times after it informed the jurors they were

released,” 683 F.3d at 73, because it had “immediately sent

a court employee to hold the jury” after initially releasing it,

id. at 72. Similarly, here, the record reflects that the court

“just stopped the jury from leaving the building when [it] told

them they were dismissed,” because “in a fairly quick second

thought,” the court realized the verdict was “not legally

permissible.” Given the court was able to recall the jurors

promptly after dismissal, it appears they had not yet

dispersed. Cf. id. at 73 (noting that, although jury had been

“momentarily released,” they had not “disperse[d]”); Rojas,

617 F.3d at 678 & n.3 (six minutes between jury discharge

and reassembly suggested jury had not “dispersed”).

Dietz argues the jury had dispersed because at least one

juror had left the floor, or possibly the building, to get his

hotel receipt and other jurors were observed talking to the

clerk of court in the courtroom.8, 9 After Dietz’s counsel

8 The record is inconsistent as to whether the juror who left exited the

building or just the floor. The clerk of court noted for the record that

“there was one [juror] that left the building to go get his hotel receipt.”
16 DIETZ V. BOULDIN

voiced this concern, the court asked the jurors whether

“anything occurr[ed] during the . . . few minutes after you

were discharged where you talked to anybody about the case

outside your immediate numbers.” The jurors responded they

had not:

JURY PANEL VOICES: No, sir. No.

THE COURT: Did we get everybody stopped

in time for that not to occur?

JURY PANEL VOICES: (Heads nod)

Uh-huh, yes.

JUROR: I didn’t. You did. Most of us were

just outside the door here. And there was only

two that went down the –

THE COURT: That’s what I tried to do. I

understand one juror had gone to the first

floor and it was maybe to get a hotel receipt.

JUROR: I did that, but I didn’t talk to

anybody.

When the court quizzed the jurors, it asked if any of them had gone to the

“first floor,” “maybe to get a hotel receipt,” and one juror responded, “I

did that, but I didn’t talk to anybody.”

9 While registering this objection, Dietz’s counsel said he had observed

certain jurors talking to the clerk of court but conceded he was “not at all”

suggesting that there was substantive discussion about the case.
DIETZ V. BOULDIN 17

THE COURT: You didn’t talk to anyone. So,

in terms of you being contaminated by any

outside information, that is not a factor.

JUROR: No.

JURY PANEL: No.

This colloquy supports the conclusion the jury had not

“disperse[d] and interact[ed] with any outside individuals,

ideas, or coverage of the proceedings.” Figueroa, 683 F.3d

at 73. Importantly, the district court specifically asked the

jurors whether they had spoken to anyone about the case. It

also asked them whether they had been “contaminated by any

outside information.” The jurors responded they had not. 

The court was in the best position to evaluate the jurors’

responses, including the credibility of those responses.

Because the right to an impartial, untainted jury is of

utmost importance, we do note that an individualized

examination would be preferable to the collective questioning

employed here – whether by asking jurors to respond

individually or by questioning each juror separately.

10 During

such an inquiry, the court or counsel could ask specific

questions to discern whether any juror was susceptible to

prejudicial influence, such as what the jurors did during the

dismissal; whether they spoke to anyone, and, if so, the

content of their conversations; whether they overheard

discussions about the case; whether they used cell phones or

10 The extent of questioning required may depend on the length and

complexity of the case. Those involving longer trials or more complex

issues may require a more searching, individualized examination.
18 DIETZ V. BOULDIN

other devices to communicate; and whether they were

influenced by any discussions they had or overheard.11

That the jurors were recalled to deliberate anew upon a

substantive matter rather than simply to correct a technical

error does not change our conclusion. Cf. Rojas, 617 F.3d at

678 & n.3 (limiting holding to correction of technical errors). 

There was no evidence the jury had been tainted by improper

influence during the momentary dismissal. Cf. Figueroa,

683 F.3d at 73 (upholding district court’s decision to recall

jury after momentary dismissal to deliberate on an additional

count it had not initially considered). Furthermore, the jury’s

initial verdict appears to have resulted from a

misunderstanding regarding the effect of the legal

stipulation.12 Cf. Sierra Foods v. Williams, 816 P.2d 466, 467

11 The court, in its discretion, may also afford counsel an opportunity to

voir dire the jurors along these lines as well. Plaintiff’s counsel did not

request that opportunity here nor object to the group questioning.

12 This misunderstanding could have been avoided altogether had the

parties submitted the written stipulation into evidence and proposed a jury

instruction on the issue. During the first round of deliberations, the jury

sent a note asking the court if the stipulated $10,136 in medical expenses

had been paid and by whom. The court responded that this consideration

was irrelevant. At this juncture, the court could have instructed the jury

that it needed to award at least the stipulated damages plus some

additional amount. Unfortunately, it did not do so. However, after

realizing the error in the verdict and recalling the jurors, this is exactly

what the court did. It explained to the jurors:

There was never any dispute, it was admitted from the

beginning in this case, that the medical bills of

$10,136.75 were caused by this collision . . . . It

doesn’t matter by whom or to whom. That was the

admission in the case. So the verdict as a starting point

has to be at least $10,136.75. . . . Secondly, it was
DIETZ V. BOULDIN 19

(Nev. 1991) (upholding recall of jury to correct a damages

award that failed to account for its contributory negligence

finding).

In conclusion, the district court did not abuse its

discretion by recalling the jurors in lieu of declaring a

mistrial. First, and importantly, the recall occurred very

shortly after the dismissal. Although the court might have

conducted an individualized and more detailed inquiry, its

questioning adequately confirmed the jurors had not been

exposed to prejudicial influences during the brief period

between dismissal and recall. The court’s decision to recall

the jurors was thus not an abuse of discretion.

AFFIRMED.

admitted by the Defendant that some injury occurred in

this accident. . . . That being the case, your verdict had

to be $10,136.75 plus some other and additional

reasonable amount as compensation for the injury

which you find was inflicted.

Thus properly instructed, the jury was quickly able to come to a

verdict consistent with the legal stipulation.
20 DIETZ V. BOULDIN

BEA, Circuit Judge, concurring in the judgment:

I agree with the majority that the district court judge did

not err in re-empaneling the jury in this case. I further agree

with the majority’s conclusion that the district court judge

may re-empanel a jury only if he finds that the jury was “not

exposed to any outside influences that would compromise

their ability to fairly reconsider the verdict.” Maj. Op. at 14. 

I do not agree, however, that the district court judge should be

required to undertake “an appropriate inquiry” into whether

prejudicial influences have tainted the jury. Id. Because the

majority’s adoption ofthis duty of inquiry is inconsistent with

our adversarial system of justice, I concur only in the

judgment. I also note the majority cites no statute, case, or

regulation that imposes such a duty of inquiry on the district

court.

Our system of justice is an adversarial one. “What makes

a system adversarial rather than inquisitorial is not the

presence of counsel,” but “the presence of a judge who does

not (as an inquisitor does) conduct the factual and legal

investigation himself, but instead decides on the bases of

facts and arguments pro and con adduced by the parties.” 

McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991). 

Consistent with this principle, our court has never required

district court judges develop—by interrogation of

witnesses—the record on which they render judgments;

instead, we require district court judges to make specific

findings based on the evidence that the parties place in the

record.1

1 There is one exception to the principle I have stated: when the question

before the court is whether a party has received adequate representation,

there is reason to distrust the parties’ ability (or motive) to develop a full
DIETZ V. BOULDIN 21

Thus, for example, Federal Rule of CriminalProcedure 23

states that a district court can excuse a seated juror in a

criminal case, but only if the district court finds that “good

cause” exists. And when the record does not support a

district court’s finding that good cause existed, we do not

hesitate to tell it so. See, e.g., United States v. Symington,

195 F.3d 1080, 1088 (9th Cir. 1999) (finding district court

erred in dismissing juror when record showed reasonable

possibility that juror’s view of merits of case were basis of

removal). But we have never held that a district court has any

duty to interrogate jurors to develop that record, or that it

would be reversible error for a district court to accept the

parties’ submission that the record was sufficient for it to

rule.2

Nor should we. District court judges are “in the best

position to evaluate the jury’s ability to deliberate,” and

should be accorded the widest latitude in determining how to

record. Thus, for example, a court cannot accept a guilty plea unless it has

“determine[d] that the defendant understands” the rights he gives up by

pleading guilty, thereby ensuring that a defendant who waives his right to

trial is doing so in knowing and voluntary fashion. Fed. R. Crim. P. 11(b). 

Here, by contrast, the majority does not argue (and there is no reason to

think) that the parties are incapable or unwilling to develop the necessary

record by interrogation of the witnesses.

2 Of course, much as an appellate court judge may choose to research a

legal point not fully presented in the parties’ briefs, a trial court may

choose to participate in development of the record, by (for example)

asking questions itself of jurors accused of improper conduct. Indeed,

district court judges often question jurors accused of improper conduct to

determine whether the juror may continue to serve, in part because a

party’s lawyer may not be keen to ask hard questions of a juror about to

decide his client’s case. Salutary though this practice may be, no court has

ever made it mandatory in the manner of today’s majority opinion.
22 DIETZ V. BOULDIN

make that evaluation. United States v. Vartanian, 476 F.3d

1095, 1098 (9th Cir. 2007) (quoting United States v. Beard,

161 F.3d 1190, 1194 (9th Cir. 1998)). Indeed, this court has,

for more than three decades, considered trial courts “uniquely

qualified” to evaluate the possibility that a juror has been

biased. United States v. Bagnariol, 665 F.2d 877, 885 (9th

Cir. 1981). Despite this presumption, the majority creates a

new, unnecessary requirement that will hinder the ability of

district court judges to manage the jury as they see fit.

In sum, the majority’s rule is inconsistent with both basic

principles of adversarial procedure and well-founded

principles of appellate deference to trial court judgments. 

Because I would not mandate any sua sponte inquiry by the

district court into a matter that the parties are well-equipped

to investigate themselves, I concur only in the judgment.