Opinion
Cr. No. 98-0070-E-BLW
January 6, 2000
MEMORANDUM DECISION
INTRODUCTION
The Court held a hearing with all counsel on January 6, 2000, to discuss the procedures the Court would follow at the hearing set for tomorrow. The Court began by advising counsel of its new analysis of the case, and then listened to comments from counsel on that analysis. This decision is an attempt to put down in writing the analysis that the Court discussed verbally with counsel. In addition, the Court will advise counsel of its leanings on certain issues raised by counsel.
ANALYSIS
This case has elements of jury tampering, juror misconduct, and juror bias. The Court's prior opinion focused on the tampering issue, without fully recognizing and addressing the other two issues. The three issues arise sequentially, with the tampering issue leading off.
The Court set forth the factual background in its earlier Memorandum Decision filed December 9, 1999. The Court will not repeat that discussion here, but will assume that the reader is familiar with that discussion.
Tampering is defined in United States v. Dutkel, 192 F.3d 893, 895 (9th Cir. 1999) as "an effort to influence the jury's verdict by threatening or offering inducements to one or more of the jurors." When a prima facie showing is made that tampering occurred, a rebuttable presumption arises that the defendant was prejudiced thereby. Id. Not much is required to meet the prima facie threshold. Dutkel held that even a juror's suspicion that the defendant tampered with a juror was enough to raise a prima facie case. Id. at 897. Foreperson Greenlee's testimony at the July 2, 1999, hearing that juror Scott told him that Elias had approached her in the parking lot and asked her what it would take to "win" or "turn" her vote satisfies the low threshold of a prima facie case, and triggers the requirement that a hearing be held.
At that hearing, the Court must answer two questions regarding the tampering issue: (1) Did the tampering occur?; (2) If tampering occurred, has the Government rebutted the presumption of prejudice that attaches? Jurors are competent witnesses to testify about tampering under Rule of Evidence 606(b) because tampering constitutes an "outside influence," an express exception to the Rule's general proscription against inquiring into the jury's deliberative process.
If the Court finds that no tampering took place, the second of the three main issues arises: juror misconduct. More specifically, the issue is whether juror Scott accused Elias of tampering. If she made that accusation, she interjected extraneous information into the jury room. "Once a juror has . . . infect[ed] the deliberations with extrinsic material, a new trial is warranted if there is a "reasonable possibility' that it could have affected the verdict." Bayramoglu v. Estelle, 880, 887 (9th Cir. 1986). The government bears the burden of rebutting the presumption of prejudice which attaches when it has been shown that the jury was exposed to extrinsic evidence. See United States v. Bollinger, 837 F.2d 436 (9th Cir. 1988). Jurors are competent witnesses to testify about inter-juror accusations made against the defendant because Rule 606(b) contains an exception for "extraneous prejudicial information."
If the Court concludes that no tampering took place, and that no accusation was made, the third issue arises: juror bias. Greenlee appears to believe that Scott accused Elias of tampering. This raises a question whether Greenlee developed a bias against Elias since "jurors will no doubt resent a defendant they believe has made an improper approach to them." Dutkel, 192 F.3d at 897.
The existence of juror bias violates a defendant's Sixth Amendment right to a fair and impartial jury if it results in the denial of a fair trial. See Bayramoglu, 806 F.2d at 888. "The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice." Dyer v. Calderon, 151 F.3d 970, 973, n. 2 (9th Cir. 1998) (en banc). The defendant has the burden of showing actual or implied bias. See United States v. Hanley, 190 F.3d 1017, 1030 (9th Cir. 1999). Implied bias is reserved for the "extraordinary" or "rare" case. Dyer, 151 F.3d at 981, 984.
It appears that the defense is also claiming that Greenlee failed to answer properly questions posed during voir dire. Under Dyer v. Claderon, 151 F.3d 970 (9th Cir. 1998) (en banc), this issue falls under the juror bias category. The Court will give the defense the opportunity at the hearing to raise this issue.
Without regard to Rule 606(b), Greenlee's bias would be examined by (1) asking him to recount what was said in the conversation with juror Scott, and, (2) if Greenlee recalled that Scott had accused Elias of tampering, asking how that affected his deliberations, i.e., how much weight he gave to the accusation, whether he thought Scott was serious or joking, etc.
However, under Rule 606(b), a juror is incompetent to testify about the deliberative process with two exceptions. Testimony is permitted on the questions of "whether extraneous prejudicial information was improperly brought to the jury's attention" and "whether any outside influence was improperly brought to bear on any juror." Jurors "may not testify as to how they or other jurors were affected by the extraneous prejudicial information or outside influence; they may only testify as to its existence." Hard v. Burlington Northern R.R. Co., 870 F.2d 1454, 1461 (9th Cir. 1989).
Rule 606(b) focuses on the deliberative process. Thus, while Greenlee could not testify about how his deliberations were affected by Scott's accusation, he could testify about how the accusation affected him when he heard it, a time period some days prior to the jury's deliberations. It was just this type of testimony — that is, testimony concerning the effect of an improper contact on the juror at the time the juror heard it — that the Supreme Court considered crucial in resolving a challenge to a verdict in Remmer v. United States, 350 U.S. 377 (1956). While Remmer was decided before Rule 606(b) was in effect, the common law proscriptions against a juror's testimony, in effect during Remmer, were very similar to Rule 606(b). See 27 Wright Gold, Federal Practice and Procedure, § 6071 (1990). And the Ninth Circuit has also considered important the testimony of jurors regarding the impact of the contact upon them at the time the contact was made. See United States v. Angulo, 4 F.3d 843, 848 (9th Cir. 1993) (finding "particularly instructive" a case requiring a new trial because some jurors testified they were "frightened" by an improper contact, and citing with approval another case denying a new trial where jurors viewed the contact as a "harmless prank."). While Angulo is not directly on point because it never discussed Rule 606(b), it is of some assistance because it discussed the "essential facts" the Court needs to "properly evaluate a defendant's motion for mistrial." Id. at 848.
By allowing testimony on the impact of the contact on the juror, the Court means that the juror may testify regarding how he viewed or characterized the contact at the time the contact was made. Was the juror frightened or did he view the contact as a joke or harmless prank? The Court will not allow the juror to testify about how the contact affected his ability to be fair and impartial, even if the testimony is limited to the time of the contact. Such testimony intrudes into the domain proscribed by Rule 606(b).
The Court finds it unnecessary at this time to go any further into the Rule 606(b) issue. The Court may well decide, upon later reflection, to disregard testimony that is allowed at the hearing tomorrow. This decision will serve as a guide to counsel as to how the Court is viewing the evidentiary issues, and is subject to change depending on the context of the hearing.
At the hearing, the Government stated it intended to call an Assistant United States Attorney (AUSA) and another AUSA who was, at the time of the trial, a law clerk for the Court and a bailiff at the trial. The Court is inclined to deny any testimony from these two witnesses but will await the hearing to make any final ruling.
The Court's opinion of December 9. 1999, may have been confusing because it appeared to put all of the burden of proof on the Government. There may be, however, a scenario where the defendant bears the burden of proof. If the Court finds that no tampering occurred, and that Scott did not make the accusation about Elias to Greenlee, all that remains is the juror bias issue, and Elias has the burden of proving juror bias.
The Court does not mean to imply, however, that this analysis is set in concrete. The Court finds persuasive defense counsel's argument that the analysis has an Alice in Wonderland quality: A defendant who tampers with a jury has an easier road to a new trial than a defendant who did nothing but is faced with a juror who thought the defendant tampered. It is also difficult to understand how a trial could pass muster under the Sixth Amendment when one juror perceived that the defendant tampered with the jury. These are the difficult issues the Court is still struggling with.