           Case: 15-12676    Date Filed: 09/21/2016    Page: 1 of 8


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12676
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:14-cr-00024-LJA-CHW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JAMES MARCUS LLOYD, III,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                            (September 21, 2016)

Before ED CARNES, Chief Judge, JORDAN, and JULIE CARNES, Circuit
Judges.

PER CURIAM:
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      After a jury trial, James Marcus Lloyd, III was convicted of possessing a

firearm as a convicted felon. Lloyd appeals his conviction, contending that the

district court should have granted his request to question all of the jurors or should

have ordered a mistrial.

      On the second day of Lloyd’s trial, the courtroom deputy informed the court

that a juror, L.A., had concerns about Lloyd’s access to jury questionnaires, which

included a special interrogatory about gun ownership. L.A. was afraid that Lloyd

might know how many guns she owned and, presumably, that he might steal them

“[b]ecause . . . they [were] worth money.” The court questioned L.A. about her

concerns and assured her that the information on the jury questionnaires would

remain confidential. After L.A. told the court that she could presume Lloyd’s

innocence, the court allowed both parties to question her. Concerned about L.A.’s

ability to remain impartial, both parties agreed that she should be excused from the

jury, and the court excused her.

      During a bench conference, the court asked the courtroom deputy whether

L.A. had talked to other jurors about why she had been excused from the jury. The

deputy explained that L.A. had an “outburst” and had made some comments as she

left the jury room. The court then called L.A. into chambers to question her about

those comments. She stated that other jurors, including prospective jurors on the

previous day, had also wondered whether Lloyd had access to their jury



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questionnaires. She explained: “A couple of other people said things like I

wondered that too. I wondered if I should put down how many guns we owned. I

wondered where it would go. Who would see it. How anonymous it was.” Both

parties declined the court’s invitation to question L.A. further, and the court

dismissed her.

      Lloyd asked the court to question the other jurors, speculating that they

might have drawn the same inference as L.A. — namely, that Lloyd “may be able

to connect them to the guns and the place where they live” and steal them. The

court stated that it would bring the panel in for a “strong instruction,” but it was

“not inclined to question the entire panel extensively on this.” Lloyd then moved

for a mistrial. Finding no evidence that the jury had been tainted, the court denied

the motion.

      When the remaining jurors returned to the courtroom, the court assured them

that the information in the jury questionnaires was confidential. It also instructed

them not to talk about anything related to the case, not to consider anything other

than the testimony and evidence from trial, and to presume that Lloyd was

innocent unless and until they found that the government had carried its burden of

proving him guilty. Finally, the court asked the jurors twice whether they had any

concerns about following the court’s instructions. No jurors indicated that they

did. The trial continued, and the jurors returned a verdict finding Lloyd guilty.



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      Lloyd appeals his conviction, contending that the district court abused its

discretion by denying his motion to question the jurors about any conversation they

might have had regarding his access to their information, and by denying his

motion for a mistrial. He argues that because L.A. shared with other jurors her

concerns about his access to their jury questionnaires, the district court had a duty

to question other jurors about that conversation. Lloyd also argues that, even if the

jurors did not discuss extraneous information, they did prematurely discuss issues

in the case. He asserts that the verdict may have been compromised because the

remaining jurors were likely concerned that Lloyd was a threat to their property

and safety.

      We review for abuse of discretion a district court’s denial of a motion for a

mistrial based on alleged juror misconduct. United States v. Alexander, 782 F.3d

1251, 1256 (11th Cir. 2015). We also review for abuse of discretion the

procedures used to address alleged juror misconduct. United States v. Sammour,

816 F.3d 1328, 1336 (11th Cir. 2016).

      The Sixth Amendment guarantees criminal defendants the right to trial by an

impartial jury. U.S. Const. Amend. VI. Courts presume a jury has been impartial,

but a defendant may rebut this presumption by making a “colorable showing” that

the jury was exposed to extraneous information. United States v. Siegelman, 640

F.3d 1159, 1182 (11th Cir. 2011). Information is “extraneous” if it is from a



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source external to the jury. United States v. Cavallo, 790 F.3d 1202, 1226 (11th

Cir. 2015). “‘External’ matters include publicity and information related

specifically to the case the jurors are meant to decide . . . .” Id. (citing Warger v.

Shauers, 574 U.S. __, 135 S. Ct. 521, 529 (2014)). If a defendant shows that jurors

were exposed to extraneous information, prejudice is presumed, and the burden

shifts to the government to show that the exposure was harmless to the defendant.

Siegelman, 640 F.3d at 1182.

      We have, however, recognized a distinction between communications

among jurors and communications between jurors and sources outside the jury.

United States v. Bradley, 644 F.3d 1213, 1276 (11th Cir. 2011). When the alleged

misconduct involves comments made by and between jurors — instead of

information from the media or other outside influences — a court’s discretion in

deciding whether to question jurors is “at its zenith.” Id. at 1277. Because of a

district court’s familiarity with the jurors and the conduct at issue, it has broad

discretion in deciding how to address potential misconduct, including whether to

question jurors accused of improper communication. Id. at 1276–77. As a result

we must affirm the district court’s decision as long as it was not a “clear error of

judgment” — even if we would have addressed the misconduct differently. United

States v. Dominguez, 226 F.3d 1235, 1247 (11th Cir. 2000).




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      In this case, the district court did not abuse its discretion in the manner it

responded to the problem. The conduct at issue involved comments made by and

between L.A. and the other jurors — not information coming to the jury from

outside influences. The district court’s discretion, therefore, was “at its zenith”

when it decided not to question the other jurors about any related conversations.

When questioned by the court, L.A. stated that other jurors had also wondered

whether Lloyd had access to their personal information and whether the jury

questionnaires, including details about their gun ownership, were anonymous. Her

answers do not show that other jurors expressed any fear that Lloyd could be a

threat to their safety. The district court, which was familiar with the jurors and the

conduct, found that “there [was] no evidence . . . [that] the entire jury ha[d] been

tainted.” Lloyd’s allegation of misconduct is merely speculative, lessening the

district court’s burden to investigate any further. See United States v. Harris, 908

F.2d 728, 734 (11th Cir. 1990) (“The more speculative or unsubstantiated the

allegation of misconduct, the less the burden to investigate.”) (alteration omitted).

      The district court’s investigation of the alleged misconduct was adequate. It

questioned L.A. twice and gave both parties the opportunity to question her. After

careful consideration, it chose to address the remaining jurors as a group. The

court reasoned that questioning them extensively about the alleged misconduct

“might taint the panel more than anything else.” It also gave the jury a thorough



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curative instruction, explaining that their personal information was protected from

disclosure and admonishing them not to consider anything other than the testimony

and evidence presented at trial. When questioned by the court, no juror expressed

any hesitation about following its instructions, and the court resumed the trial.

Lloyd’s position fails to acknowledge the amount of discretion trial courts have in

addressing alleged juror misconduct. See Bradley, 644 F.3d at 1276–77.

      Lloyd’s argument that the jury’s conversation constituted “premature

discussion of certain issues in the case” fails for similar reasons. While L.A.’s

statements show that some jurors wondered whether Lloyd had access to the

information in their jury questionnaires, they do not show that they discussed

substantive issues in the case before deliberations. Instead, after questioning the

juror itself and providing opportunities for both sides to do so, the court found no

evidence that the jury had been tainted. “[A] defendant alleging juror bias must do

more than speculate.” Sammour, 816 F.3d at 1339 (quotation marks omitted).

Lloyd’s argument that the “jurors had a possibly prejudicial” conversation and that

there was a possibility that the jury was biased does nothing more than speculate.

      The court’s rulings do not reflect a clear error of judgment. The court

properly exercised its discretion in declining to question the jurors more

extensively and in denying Lloyd’s motion for a mistrial.

      AFFIRMED.



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JORDAN, Circuit Judge, concurring:

      Although I think the better practice would have been to question the

remaining jurors, I agree with the court that there was no abuse of discretion, and

therefore join its opinion.




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