                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2308

JESSE W EBSTER,
                                                Petitioner-Appellant,
                                  v.

U NITED S TATES OF A MERICA,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 99 C 6510—James B. Zagel, Judge.



  A RGUED S EPTEMBER 21, 2010—D ECIDED D ECEMBER 19, 2011




 Before B AUER, S YKES, and H AMILTON, Circuit Judges.
  S YKES, Circuit Judge. In 1995 a federal jury convicted
Jesse Webster on cocaine-trafficking and tax-fraud
charges, and his direct appeals were unsuccessful. Some-
time after his trial, Webster discovered that a member
of the jury had called in sick one day in the middle of
deliberations. Webster filed a habeas petition under 28
U.S.C. § 2255 alleging that deliberations proceeded that
day in the juror’s absence, violating his right to trial by
2                                               No. 09-2308

a jury of twelve. The government did not dispute that a
juror was absent for a day but maintained that the
rest of the jury was sent home and did not deliberate
that day.
  In response to the habeas petition, the district judge
sent an investigator to interview all the jurors except
the one who called in sick. The investigator later testified
about the results of the interviews. After weighing this
and other evidence, the judge denied § 2255 relief. The
judge began by noting that if deliberations proceeded
with only eleven jurors present, Webster’s convictions
would have to be vacated under this court’s decision
in United States v. Araujo, 62 F.3d 930 (7th Cir. 1995). But
the judge held that Webster procedurally defaulted his
twelve-person jury claim by failing to raise it in his
direct appeal or in his § 2255 petition. Ultimately, how-
ever, the judge reached the issue by a different route.
Webster had argued in the alternative that the bailiff
never told the court about the missing juror and instead
instructed the jurors to continue deliberating in his ab-
sence. This, Webster contended, was a fraud on the
court, justifying § 2255 relief. The judge rejected this
argument, finding insufficient proof of improper delib-
erations.
  We affirm, though we note several errors in the way
the § 2255 petition was handled. First, Webster did not
procedurally default his twelve-person jury claim. He
could not have raised it on direct appeal because he did
not know of the juror’s absence, and he adequately
raised it in his § 2255 petition by noting the fact of the
No. 09-2308                                               3

juror’s absence and generally alleging a violation of his
right to a jury of twelve. On the merits, however, the
claim is deficient. In rejecting Webster’s alternative ar-
gument, the judge found that the evidence did not estab-
lish that the jury deliberated in the absence of the twelfth
juror. This factual finding is not clearly erroneous, and
it resolves Webster’s appeal.
  Although we are affirming the judgment, we have
two cautionary comments regarding the district court’s
approach to the § 2255 petition: (1) For reasons
we will explain, the judge read Araujo too broadly;
and (2) under Rule 606(b) of the Federal Rules of
Evidence, the investigator’s testimony about the inter-
views with the jurors was inadmissible.


                      I. Background
  In 1995 Webster was indicted on five counts:
conspiracy to possess with intent to distribute kilo-
gram quantities of cocaine; possession with intent to
distribute 15 kilograms of cocaine; attempt to possess
with intent to distribute 25 kilograms of cocaine; and
two counts of filing false tax returns. He pleaded not
guilty and proceeded to trial on Wednesday, November 15.
  The jury was selected on November 15, and counsel
presented opening statements the next day. The eviden-
tiary phase of the trial immediately followed and contin-
ued through Monday, November 20. Counsel delivered
closing arguments on Tuesday, November 21, and the
case went to the jury late that day. The jury deliberated
4                                             No. 09-2308

on November 22 but did not reach a verdict. The next
day was Thanksgiving, so the district court suspended
deliberations through the following Tuesday. On Wed-
nesday, November 29, a juror whom we will refer to as
“M.J.” called in sick. The jury attendance sheet for that
day hows that only eleven jurors signed in and includes
a handwritten note by the courtroom deputy clerk
stating “M[.] J[.] absent.” The jury administrator’s diary
page for that day also indicates that one juror called in
sick. However, the trial court’s docket entry for Novem-
ber 29 states “[j]ury trial held,” as it had for every
other day the court was in session since November 16.
On November 30 all twelve jurors were in attendance
for deliberations, and on that day the jury returned its
verdict convicting Webster on all charges except for
the possession count. The judge imposed a sentence of
life in prison, and we affirmed the convictions and sen-
tence on direct appeal. United States v. Webster, 151
F.3d 1034 (7th Cir. 1998).
  At some point after the trial, Webster learned of M.J.’s
absence on November 29. On October 5, 1998, the
Supreme Court denied certiorari in Webster’s direct
appeal. On October 4, 1999, Webster filed a § 2255
habeas petition asserting multiple grounds for relief.
The petition included an allegation that Webster was
“denied the right to a jury of 12 peers” based on the
absence of a juror during deliberations, but was not
more specific about the legal basis for this claim. The
petition did not, for example, invoke Rule 23(b) of the
Federal Rules of Criminal Procedure or allege a violation
of the Sixth Amendment or any other constitutional
No. 09-2308                                                5

guarantee. Webster later amended his petition to make
two additional claims related to the juror’s absence: (1) his
trial and appellate counsel were ineffective for failing
to object to the absence of the juror and (2) the bailiff
committed a fraud on the court by instructing the jury
to deliberate with only eleven members.
   In response to the petition and its amendments, the
district court first attempted to locate the bailiff—a court
security officer—who had been responsible for the safe-
keeping of Webster’s jury. Six years had elapsed (it
was now July 2001), so the judge asked the U.S. Marshal’s
office to assist in locating the officer. The court even-
tually determined that the officer was deceased. The
judge then decided to send an investigator to track
down and interview the jurors. Without input from the
parties, the judge appointed an investigator employed
by the U.S. Attorney’s Office for the Northern District of
Illinois. The judge chose this particular investigator
because he had worked for the judge in a previous
position and the judge had “great confidence” in “his
capacity to do exactly what he was told to do, nothing
more and nothing less.” The judge instructed the inves-
tigator to interview all the jurors except M.J. The inves-
tigator used a list of questions that the parties jointly
drafted.
   The investigator apparently encountered some dif-
ficulty locating the jurors; the interviews were not com-
pleted until 2006. The results were a mixed bag, to say
the least. The first question was: “The court records
show that on one day one of the jurors did not appear.
6                                               No. 09-2308

Do you recall any such time when that might have oc-
curred?” Seven jurors said they did not recall a juror
being absent; four jurors said they did. Of the four
who did remember a juror’s absence, three recalled that
an alternate juror replaced the absent juror, a claim
wholly unsubstantiated by court records. One of the
four thought the juror was absent on the day before
Thanksgiving; another claimed the juror was absent on
the first two days of deliberations. Two correctly recalled
that the absent juror was male; one said the absent juror
was female. The second question was: “Do you recall
being sent home early because of this juror’s absence?”
The jurors answered either “no” or that they did not recall.
  The investigator testified about the results of the juror
interviews at an evidentiary hearing held in Septem-
ber 2008. In lieu of live testimony from the courtroom
deputy clerk who had worked on Webster’s trial, the
parties stipulated that the clerk would testify as follows:
(1) he “ha[d] a general independent recollection of the
Webster case because, among other reasons, the de-
fendant received a life imprisonment term”; (2) he
recalled being notified of M.J.’s absence; and (3) based
on the judge’s custom and practice, he believed the jury
was sent home that day because of the juror’s absence,
although he did not personally witness this happening.
  Webster’s trial and appellate counsel also testified at
the hearing. Trial counsel testified that based on his
experience appearing before the trial court, the judge
would have made a record and notified counsel before
sending the jury home early. The attorney did not, how-
ever, have an independent recollection of whether this
No. 09-2308                                               7

actually occurred. Webster’s appellate attorney testified
that he was unaware of the juror’s absence until after
the conclusion of Webster’s direct appeal. Finally,
Webster testified that he was never informed that a
juror was absent for a day during deliberations until
some time long after he was sentenced.
  On March 20, 2009, the district court issued a written
decision rejecting all of Webster’s grounds for habeas
relief. Regarding the absent-juror claim, the judge began
by noting that “[t]here is no question that it is improper
for eleven jurors to deliberate in the absence of the
twelfth juror whether or not prejudice can be shown,” citing
generally to Araujo, 62 F.3d 930. United States v. Webster,
No. 99-C-6510, 2009 WL 779806, at *3 (N.D. Ill. Mar. 20,
2009) (emphasis added). But the judge held that because
Webster had not raised his twelve-person jury claim
on direct appeal and did not list it as a ground for relief
in his original § 2255 petition, the claim was pro-
cedurally defaulted or untimely.
  Ultimately, however, the judge addressed the absent-
juror issue in connection with Webster’s fraud-on-the-
court claim. Webster’s theory was that the bailiff
instructed the jurors to deliberate in M.J.’s absence with-
out informing the trial judge and this amounted to a
fraud on the court. The judge found the evidence insuf-
ficient to establish that improper deliberations had
actually occurred. Referring to the results of the juror
interviews, the judge noted that “[n]one of the jurors
recalled deliberating with less than all of the jurors.” Id.
at *4. The judge also cited his normal practice of sending
8                                              No. 09-2308

the jury home when a juror is absent.1 The judge
thought it unlikely that the jurors would have
deliberated with fewer than twelve members present
because they were accustomed to “waiting for a late
juror in the morning or after lunch or while a juror or two
attends to personal needs.” Id. at *4 n.4. Because there
was no evidence that the bailiff instructed the jury to
deliberate without M.J. and insufficient evidence
to establish that the jury actually did so, the judge
rejected Webster’s claim that his convictions were
procured by a fraud on the court. The judge did not
address Webster’s related claim of ineffective assistance
of counsel. The district court granted a certificate of
appealability on the absent-juror claim in its various
iterations.


                     II. Discussion
  On appeal Webster concentrates on his twelve-person
jury claim and the related claim that trial counsel was
ineffective for failing to object to the continuation of
deliberations in the absence of the twelfth juror. He
has dropped his fraud-on-the-court theory. We review
the district court’s denial of § 2255 relief under a dual



1
  The habeas proceedings were conducted by the same judge
who presided over Webster’s trial. See Rule 4 of the Rules
Governing Habeas Corpus Cases (requiring habeas motions
to be presented to the judge who conducted the trial and
imposed the sentence).
No. 09-2308                                              9

standard of review; we accept the district court’s
findings of fact unless they are clearly erroneous and
review legal questions de novo. Sandoval v. United States,
574 F.3d 847, 850 (7th Cir. 2009). A factual finding is
clearly erroneous when “the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.” United States
v. McGraw, 571 F.3d 624, 629 (7th Cir. 2009) (internal
quotation marks omitted).
  As an initial matter, Webster contends that the district
court was wrong to conclude that his twelve-person
jury claim was procedurally defaulted or untimely. We
agree. The judge held that Webster could have raised
this claim on direct appeal because the trial docket
“clearly showed the absence of the juror and clearly stated
that the jury deliberated.” Webster, 2009 WL 779806, at
*3. This overstates the clarity of the docket entries. On
November 29, the day the juror was absent, the docket
states only “[j]ury trial held,” the same generic docket
entry that appears for the four days of the trial preceding
deliberations. The phrase “[j]ury trial held” appears to
be a routine docket entry; it does not capture specific or
unexpected trial events, and it was used on all court
days during the trial from opening statements through
the verdict. The actual evidence of M.J.’s absence
appeared only on the jury attendance sheet and in the
jury administrator’s diary, neither of which were part of
the trial record. Accordingly, we cannot fault Webster
for failing to raise this claim on direct appeal. See
United States v. Rosario, 234 F.3d 347, 352 (7th Cir. 2000)
10                                              No. 09-2308

(claims requiring “development of facts outside the
record . . . are more properly presented in a § 2255 peti-
tion”).
  The district court also found that Webster had not
presented his twelve-person jury claim as a ground
for habeas relief in his original § 2255 petition and raised
it only later when he filed an amendment to the peti-
tion. The court held that the claim was new, did not re-
late back to any issue in the original petition, and there-
fore was either procedurally defaulted or untimely. This
ruling overlooks the fifth claim for relief in Webster’s
original § 2255 petition, which asserted that Webster
“was denied the right to a jury of 12 peers” and further
explained that “one of the jurors was absent during an
entire day of deliberations.” This is sufficient to preserve
the twelve-person jury argument. Accordingly, the claim
was neither procedurally defaulted nor untimely.
  So we proceed to the merits. The Sixth Amendment’s
guarantee of trial by jury in criminal prosecutions does
not include the right to a jury of twelve. Williams v.
Florida, 399 U.S. 78, 98-100 (1970); Araujo, 62 F.3d at 933.
However, Rule 23(b) of the Federal Rules of Criminal
Procedure “incorporates that venerable common law
tradition as a requirement,” with limited exceptions for
contingencies arising after trial has begun. Araujo, 62
F.3d at 933. The rule provides, in pertinent part:
     (b) Jury Size
      (1) In General. A jury consists of 12 persons
     unless this rule provides otherwise.
No. 09-2308                                               11

      (2) Stipulation for a Smaller Jury. At any time
    before the verdict, the parties may, with the court’s
    approval, stipulate in writing that:
           (A) the jury may consist of fewer than
         12 persons; or
           (B) a jury of fewer than 12 persons may return
         a verdict if the court finds it necessary to excuse
         a juror for good cause after trial begins.
      (3) Court Order for a Jury of 11. After the jury
    has retired to deliberate, the court may permit a jury
    of 11 persons to return a verdict, even without a
    stipulation by the parties, if the court finds good
    cause to excuse a juror.
F ED. R. C RIM. P. 23.
   Webster’s claim for § 2255 relief is based primarily on
Rule 23(b), though he also contends that the claim has
“constitutional dimensions” because it implicates his
Sixth Amendment right to a unanimous verdict. See
Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana,
406 U.S. 356 (1972); id., 406 U.S. 366, 369-70 (Powell, J.,
concurring); Andres v. United States, 333 U.S. 740, 748
(1948). The constitutional argument is not well-developed;
and of course, the verdict here was unanimous, so there
is no unanimity problem.
  Webster’s Rule 23(b) argument suffers from a similar
lack of factual foundation. Rule 23 generally requires a
twelve-person jury but permits the parties to stipulate
“[a]t any time before the verdict” that “the jury may
consist of fewer than 12 persons,” or that “a jury of fewer
12                                              No. 09-2308

than 12 persons may return a verdict” if the court finds
it necessary to “excuse a juror for good cause after trial
begins.” FED. R. C RIM . P. 23(b)(2). The rule also provides
that “even without a stipulation by the parties,” the
court may, “[a]fter the jury has retired to deliberate,”
permit “a jury of 11 persons to return a verdict . . . if the
court finds good cause to excuse a juror.” Id. 23(b)(3)
(emphasis added). Here, no juror was excused. And in
rejecting Webster’s fraud-on-the-court argument, the
district court found insufficient proof that the jury
actually deliberated on November 29, the day M.J. called
in sick. Unless this finding is clearly erroneous, Rule 23(b)
is not implicated because Webster’s jury never had
fewer than twelve members.
  The district court’s factual finding was not clearly
erroneous. The evidence at the § 2255 hearing was at best
ambiguous. As we have noted, although the docket
entry for November 29 states “[j]ury trial held,” this
routine entry is uninformative; it does not tend to prove
or disprove that the jury actually deliberated that day.
The juror interviews do not add much. Webster cor-
rectly observes that in some respects the judge appears
to have misinterpreted the results of the interview. The
judge determined that “[n]one of the jurors recalled
deliberating with less than all of the jurors.” Webster,
2009 WL 779806, at *4. But the investigator did not ask
this precise question. Instead, after explaining to each
juror that court records showed that one juror had been
absent during deliberations, the investigator asked: “Do
you recall being sent home early because of this juror’s
absence?” (Emphasis added.) The jurors answered “no” or
No. 09-2308                                                   13

did not recall. The “no” answers would tend to support
Webster’s position, and the “do not recall” answers are
a wash.2
   Regardless of this misunderstanding, however, we are
skeptical that the juror interviews can be considered at
all. In the first place, under Rule 606(b) of the Federal
Rules of Evidence, the jurors’ responses to the investiga-
tor’s questions were inadmissible (more about this in a
moment). Moreover, the jurors’ responses were riddled
with inconsistencies and imaginary occurrences, hardly
surprising given the passage of time. That the inter-
views occurred more than a decade after Webster’s
trial and so obviously contradicted the record makes
it unsafe to rely on them at all (putting aside the ques-
tion of their admissibility).
  Webster also bases his claim on the absence of con-
crete evidence about what the court did in response to
M.J.’s phone call on November 29. Webster argues that


2
  To be sure, the next question was: “If yes [you recall being
sent home], do you recall if, prior to the time the jury was sent
home early, there were deliberations with respect to the ver-
dict?” The notes for this question state “N/A” or “DNA”
(presumably, “Did Not Ask”) for every juror. This makes sense
because the question assumes an affirmative answer to the
previous question, but none of the jurors responded accordingly.
  In addition, juror “E.G.” told the investigator that an absent
juror “was present for the deliberations . . . . [N]o one
was missing for those deliberations.” Later, however, E.G.
contradicted himself by stating that he “[d]oes not remember”
being sent home early because of the absent juror.
14                                                No. 09-2308

because the court record does not confirm that the
judge sent the jury home after M.J. called in sick, we
should infer that it did not happen. He notes that 28
U.S.C. § 753(b) requires the court to keep a record of “all
proceedings in criminal cases had in open court” and
also points to his trial counsel’s testimony that the
judge would have made a record before sending the jury
home after one of its members called in sick. Although
the lack of a record is unsettling, it does not provide a
sufficient basis to upset the district court’s factual finding.
  In the end, the judge’s finding rested heavily on the
court’s normal practice of dismissing the jury for the
day when a juror is absent. The judge noted that the
“undisputed . . . practice in my courtroom, and those of
all others in this courthouse, is to send jurors home
when the jury is incomplete in a criminal case.” Id. In
addition, the parties stipulated that the courtroom
deputy clerk, who had worked for the judge since 1987,
would confirm the court’s practice if called to testify.
Because no evidence suggested that the customary
practice was not followed, the judge found that
Webster had “not proved” that the jury deliberated on
November 29 without the twelfth juror.
  The most that can be said about this evidence is that
it is inconclusive. “Where there are two permissible
views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” McGraw, 571 F.3d at
629 (quotation marks omitted). In this situation, it was
entirely reasonable for the trial judge to give decisive
weight to his regular courtroom practice. The jurors’
No. 09-2308                                               15

spotty recollections of the decade-old events of the
trial—even assuming their admissibility—are too unreli-
able and hardly sufficient to displace the reasonable
inference arising from the court’s normal practice. The
absence of a formal record is troubling, but not enough
to convince us that the judge’s “not proven” finding
was clearly erroneous.
  Before concluding, we have a few words of caution
about the district court’s treatment of our decision in
Araujo. The judge read Araujo as holding that “[t]here
is no question that it is improper for eleven jurors to
deliberate in the absence of the twelfth juror whether or not
prejudice can be shown,” and further that “[i]f it is shown
that eleven members of the jury deliberated, then the
judgment has to be vacated.” Webster, 2009 WL 779806,
at *3 (emphasis added). Araujo did not establish such
a broad rule. In that case, the trial court perma-
nently dismissed a juror during deliberations, and an
eleven-member jury returned a guilty verdict against
the defendant. Araujo, 62 F.3d at 932. Because the trial
judge had failed to articulate good cause for excusing
the juror as required by Rule 23(b)(3), we vacated
the conviction and remanded for a new trial without ex-
amining whether the defendant was prejudiced by the
juror’s absence. Id. at 937. In essence, without specifically
addressing the matter, we treated the Rule 23(b)(3)
error as structural.3



3
  Other circuits have also treated convictions returned by
eleven-member juries under similar circumstances as
                                              (continued...)
16                                                     No. 09-2308

  Here, in contrast, all twelve members of the jury
returned Webster’s verdict. Araujo does not speak to this
situation, and there is reason to doubt that a juror’s
temporary absence from deliberations is a structural
error immune from harmless-error review. See, e.g., United
States v. Shackelford, 777 F.2d 1141, 1144-45 (6th Cir.
1985) (affirming conviction where juror attended to a
personal matter for a few minutes during deliberations);
United States v. Camacho, 865 F. Supp. 1527, 1534, 1537 (S.D.
Fla. 1994) (affirming conviction where juror may have
been in the bathroom during deliberations). We need
not decide the matter here. The district court found as
a matter of fact that the jury did not deliberate on
the day M.J. was absent, and this finding is not clearly
erroneous.4
  Finally, we return to the question of the admissibility
of the investigator’s interviews with the jurors. Rule 606(b)
of the Federal Rules of Evidence prohibits jurors from
testifying about



3
  (...continued)
structural errors. E.g., United States v. Ginyard, 444 F.3d 648, 651-
55 (D.C. Cir. 2006); United States v. Curbelo, 343 F.3d 273, 280
(4th Cir. 2003); United States v. Spence, 163 F.3d 1280, 1284 (11th
Cir. 1998); United States v. Tabacca, 924 F.2d 906, 915 (9th Cir.
1991); United States v. Taylor, 498 F.2d 390, 391-92 (6th Cir. 1974).
4
  This factual finding also resolves Webster’s claim of inef-
fective assistance of counsel. Because the jury did not deliberate
on the day M.J. was absent, Webster’s counsel cannot have
been ineffective for failing to raise the matter.
No. 09-2308                                             17

   any matter or statement occurring during the course
   of the jury’s deliberations or to the effect of anything
   upon that or any other juror’s mind or emotions as
   influencing the juror to assent to or dissent from
   the verdict or indictment or concerning the juror’s
   mental processes in connection therewith.
F ED. R. E VID. 606(b). The rule has three limited excep-
tions. Jurors may testify about: “(1) whether extraneous
prejudicial information was improperly brought to the
jury’s attention, (2) whether any outside influence
was improperly brought to bear upon any juror, or
(3) whether there was a mistake in entering the verdict
onto the verdict form.” Id. Rule 606(b) codifies the
common-law prohibition against using juror testimony
to impeach a verdict, which exists to promote the
finality of verdicts, protect jurors from harassment, and
encourage full and frank discussion in the jury room.
See Tanner v. United States, 483 U.S. 107, 119-21 (1987).
   Here, the investigator questioned the jurors about
“matter[s] . . . occurring during the course of the jury’s
deliberations,” so admitting the contents of the inter-
views plainly violated Rule 606(b). At oral argument
Webster’s counsel argued that Rule 606(b) was not impli-
cated because the interviews were limited to “historical
objective fact”—that is, whether a juror was absent
during deliberations, not whether the absence in-
fluenced the jury’s decision. But as the district court
itself acknowledged, the questions “did not fall within
the ambit of facts to which a juror may testify under
18                                                 No. 09-2308

Rule 606(b).” 5 Webster, 2009 WL 779806, at *2 n.2. Indeed,
the Supreme Court noted in Tanner that Congress
enacted the Senate version of Rule 606(b), which unlike
the House version, does not permit juror testimony
about “objective matters” occurring during delibera-
tions—including inquiries into whether a juror par-
ticipated in deliberations. Tanner, 483 U.S. at 123-25
(noting specifically that the Senate Report disapproved
of inquiries into whether “jurors did not take part in
deliberations”). At least one district court has explicitly
held that questioning jurors about whether one of their
number was temporarily absent during deliberations
violates Rule 606(b). See Camacho, 865 F. Supp. at 1537. The
same is true here; admitting the contents of the juror
interviews was error.
  For the foregoing reasons, and with reservations
noted, we A FFIRM the judgment of the district court.




5
  The district court justified admitting the interviews based on
an unsupported assertion that courts are given “exceptional
procedural leeway . . . when fraud on the court is alleged.”
United States v. Webster, No. 99-C-6510, 2009 WL 779806, at *2
n.2 (N.D. Ill. Mar. 20, 2009).


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