                     REVISED - JUNE 29, 1998

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT
                         _______________

                           No. 96-60796
                         _______________



                    UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                              VERSUS


       MARK SYLVESTER, LEON BROWN, and WILLIE EARL CULLEY,

                                           Defendants-Appellants.

                    _________________________

          Appeal from the United States District Court
            for the Southern District of Mississippi
                    _________________________

                          June 11, 1998




Before GARWOOD, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:



     Mark Sylvester, Leon Brown, and Willie Culley appeal their

convictions and, in Brown’s case, the sentence, for assorted drug-

related crimes.   We remand for a hearing on their jury tampering

claim and reject the remainder of their challenges.



                                 I.

                                 A.
     Culley    ran   an   automotive       shop   in   Jackson,   Mississippi.

Following a lengthy investigation, the government concluded that he

also presided over a cocaine distribution network that bought the

drug in Houston and sold it in Jackson.                Brown, the government

charged, was one of Culley's couriers who often accompanied Culley

on his trips to Houston to purchase cocaine.             Sylvester worked at

Culley Automotive and allegedly supplemented his income by dealing

cocaine on the side.



                                       B.

     The three appellants and eleven others were charged in a

thirty-eight-count indictment with sundry drug-related offenses.1

Count 1 charged all three with conspiracy to possess with intent to

distribute, conspiracy to distribute, and conspiracy to use a

communications facility (the telephone) in furtherance of a drug

trafficking crime, in violation of 21 U.S.C. § 846.2                  Count 2

charged Culley with engaging in a continuing criminal enterprise

under 21 U.S.C. § 848.      Counts 3 through 38 alleged specific dates

and times that the appellants used a telephone to facilitate the

conspiracy to possess with intent to distribute, in violation of

21 U.S.C. § 843(b).



      1
        The eleven other defendants were never tried. Some entered into plea
bargain agreements with the government; the charges against the others were
dismissed.
      2
        The special verdict form asked the jury to find whether each defendant
conspired to possess with intent to distribute cocaine and/or crack, conspired
to distribute cocaine and/or crack, and conspired to use a communications
facility in furtherance of a drug trafficking crime.

                                       2
     Culley,     Brown    and    Sylvester      were   tried    together.             The

government's evidence fell into two main categories. First was the

testimony of six fact witnesses, some of whom were plea-bargaining

co-conspirators.       Second was a series of taped phone conversations

intercepted from the phone at Culley Automotive and from Culley's

personal cellular phone; in all, the government taped nearly two

hundred calls over a month-long period.                     During the recorded

conversations, the appellants never used the words “cocaine” or

“crack,”   but   spoke,        the   government    claimed,        in   code.         The

appellants    did   not    testify,      and    only   Culley      chose   to        call

witnesses.

     The jury found Culley guilty of conspiracy to distribute

cocaine and to use a communications facility in furtherance of a

drug trafficking crime (count 1); of participating in a continuing

criminal enterprise (count 2); and of seventeen of the remaining

thirty-six    counts     for    using    the   phone   in   furtherance         of    the

conspiracy.      The     jury    found    Brown    guilty     of    conspiracy         to

distribute crack cocaine (count 1) and Sylvester guilty of two uses

of the phone in furtherance of the conspiracy.



                                         II.

     Five issues are before us.           First, all three appellants claim

that the district court erred in issuing supplemental instructions

to the jury during deliberations.              Second, Culley and Brown argue

that a witness's remark constituted an impermissible comment on

their failure to testify.            Third, Culley and Brown contend that


                                          3
their convictions were not supported by the evidence.                       Fourth,

Brown claims that the district court erred in sentencing him.                     And

fifth, Culley and Brown argue that the district court erred in

meeting ex parte with individual jurors to discuss possible jury

tampering.



                                         A.

      The appellants claim that the district court erred in issuing

supplemental instructions to the jury.                They lodge two specific

complaints:       that the court should have, but did not, notify and

consult    with    them     in   advance;     and   that   the    content   of    the

instructions       was    faulty.     “When     evaluating       the   adequacy   of

supplemental jury instructions, we ask whether the court's answer

was reasonably responsive to the jury's question and whether the

original and supplemental instructions as a whole allowed the jury

to understand the issue presented to it.”                        United States v.

Stevens, 38 F.3d 167, 170 (5th Cir. 1994).

      The supplemental instructions were issued after the district

court received a note from the jury, which began deliberating at

4:45 p.m.     At 7:23 p.m., it sent the following note:                 “We cannot

agree SS Some members will never vote guilty because there is no

physical evidence and the word cocaine is never used in the

conversations.”          The court called the jury back to the courtroom

but did not notify either side that he had received the note, nor

did   he    warn    them     that   he      would   be     issuing     supplemental

instructions.      He re-read portions of the prior charges concerning


                                         4
the elements of each offense and the definitions of key terms, then

added this supplemental instruction:

     Now, none of the charges, neither Count 1, nor Count 2,
     nor Count 3 requires the Government to provide physical
     evidence, although it may be helpful to you in weighing
     the Government's case. If you are satisfied by proof
     beyond a reasonable doubt that the alleged conversations,
     that the alleged conduct of the defendants amount to a
     conspiracy, that is, an unlawful agreement as charged in
     Count 1, thenSSor excuse meSSor if you are persuaded by
     proof beyond a reasonable doubt that the alleged
     conversations, the alleged conduct of the defendants
     amount to the violation of the use of a communication
     facility as charged in Counts 3 through 38, or if you are
     persuaded by proof beyond a reasonable doubt that the
     alleged communications and alleged conduct of Defendant
     Culley of Count 2 persuades you by reasonable doubt that
     he violated Count 2, then if you are so persuaded by
     proof beyond a reasonable doubt with respect to the
     conversations and conduct, then the Government has proved
     its case. And then you will find the defendants guilty.
     If you are not persuaded, then you will find the
     defendants not guilty.

     Finally, the Government's evidence need not show that any
     defendant ever used the word cocaine if you are satisfied
     by proof beyond a reasonable doubt that the defendants
     engaged in coded conversations using substitute words for
     cocaine instead of the expressed word itself.        Your
     inquiry lies further than determining only what the
     defendants said. You must determine what they meant by
     using the words they did.

     Now, remember, as the triers of the facts, you, the jury,
     are tasked with determining the facts here. Whether the
     Government has proved any of the defendants guilty by
     proof beyond a reasonable doubt. You may now retire and
     continue your deliberations. All rise.

     The jury returned its mixed verdict at 12:15 a.m.         Although

defense   attorneys   were   present   when   the   court   issued   the

supplemental instructions, they argue that the court should have

notified themSSand allowed them inputSSbefore speaking to the jury.



                                  1.

                                  5
     The    appellants     argue    that      the     supplemental     instruction

constituted an Allen charge.          We note at the outset that if the

instruction was in fact an Allen charge, the court was under no

duty to notify counsel of its intention to issue it; ensuring

defense counsel's presence when the charge is read is enough.                   In

United States v. Bright, 588 F.2d 504, 510 (5th Cir. 1979), we held

that “a trial judge is not required to notify defense counsel of

his plan to use [an Allen charge].              If a defendant's attorney is

present when the instructions are actually read to the jury and is

afforded the opportunity to object, that is sufficient.”

     Emphasizing the first three words of the jury's noteSS”we

cannot agree”SSthe appellants claim that the judge's response to

this supposed deadlock was error because it did not include the

content required of Allen charges, namely an instruction that each

juror should adhere to his own honest opinion.                Allen charges are

creatures    of   nuance    that     we       have    approved   under    limited

circumstances.    In United States v. Bass, 490 F.2d 846, 854 (5th

Cir. 1974), overruled on other grounds, United States v. Lyons, 731

F.2d 243 (5th Cir. 1984) (en banc), we observed that “[t]his court

has tolerated Allen charges so long as the charge makes plain to

the jury that each member of the jury has a duty conscientiously to

adhere to his own honest opinion and so long as the charge avoids

creating    the   impression       that       there    is   anything     improper,

questionable, or contrary to good conscience for a juror to cause

a mistrial.”

     While we agree with the appellants that the supplemental


                                          6
instruction was deficient as an Allen charge, we do not agree that

it was an Allen charge.      Although the jury's note opened with “[w]e

cannot agree,” the instruction focused on the legal issues raised

in the second half of the note rather than on the possible

deadlock. Allen charges concern the jury's duty to make good faith

efforts to reach a verdict; while the note could have been answered

by    an   Allen   charge,   the   court      instead   responded       through   a

supplemental instruction aimed at dispelling the legal confusion

implicit in the jury's message.             In sum, the jury's note invited

two    possible    responses:      an       Allen   charge   or    a    clarifying

instruction on the law.       The court chose the latter.



                                        2.

       Our refusal to characterize the supplemental instruction as an

Allen charge does not sink the appellants' argument.                   In fact, it

strengthens their claim in one important respect:                 Whereas we have

been unwilling to require notification of defense counsel before an

Allen charge is issued, we are less forgiving with regard to the

court's answering legal questions submitted by a deliberating jury.

       The court's duty to consult with counsel upon receiving

questions from the jury was recognized in Gomila v. United States,

146 F.2d 372 (5th Cir. 1944), in which the court answered the

jury's questions without sharing them with, or consulting with,

defense attorneys.      We held that “[d]efendants were entitled to be

apprised of the nature of these questions and were entitled to an

opportunity to be heard in connection therewith.”                 Id. at 373.


                                        7
     The Supreme Court bolstered this conclusion in Rogers v.

United States, 422 U.S. 35 (1975), in which the trial judge

received and answered a legal question from the jury without

notifying counsel.          The Court concluded that this was error,

relying on FED. R. CRIM. P. 43, which guarantees defendants the right

to be present at every stage of the trial.                  The Court interpreted

this right as including not only the right to be physically

present, but also the right to be notified:

     Cases interpreting the Rule make it clear, if our
     decisions prior to the promulgation of the Rule left any
     doubt, that the jury's message should have been answered
     in open court and that petitioner's counsel should have
     been given an opportunity to be heard before the trial
     judge responded.

Id. at 39.

     We relied, as well, on Rogers in United States v. McDuffie,

542 F.2d 236 (5th Cir. 1976), in which the court did not disclose

the jury's question to counsel before answering it.                       Labeling the

procedure        “well   established,”       we    explained       that     “[w]hen    a

communication is received from the jury, counsel should be informed

of its substance and afforded an opportunity to be heard before a

supplemental charge is given.”           Id. at 241.           The purpose of this

procedure     is    to   enable   counsel         to    make     informed    decisions

concerning whether to object or propose additional instructions.

Granting    counsel      the   opportunity         to    object     only    after     the

supplemental instruction has been delivered is too little, too

late.   Id.

     Accordingly, we conclude that the district court erred by

failing     to     notify   counsel   before           issuing    the     supplemental

                                         8
instruction.      Upon receiving the note from the jury, the court

should have notified counsel of the message, shared its contents,

and granted each side the opportunity to be heard.



                                        3.

     We    must    now    determine    whether       this   failure   to   notify

constitutes reversible or merely harmless error.               In McDuffie, we

said that failure to notify was harmless when “the supplemental

charge was distinctly responsive to the question and correctly

stated the law.”      542 F.2d at 241.        Similarly, in United States v.

Breedlove, 576 F.2d 57, 60 (5th Cir. 1978), we deemed such a

mistake harmless, concluding that while “[w]e by no means approve

this unjustified         jury-court   communication,”       when   “the    Judge's

answer to the jury's inquiry was distinctly responsive to the

question, it clearly stated the law, and no prejudice is shown, the

error is harmless.”

     Here, the appellants do not claim that the court failed to

respond to the jury's question or misstated the law.               Instead, they

argue that prejudice arose from the failure to re-read other

portions of the initial instructions that were more favorable to

the defense.      Because the court did not “balance” the supplemental

instructions in this way, the appellants claim, their theory of the

case was torpedoed and the jury coerced into returning a guilty

verdict.

     We do not agree that the appellants were prejudiced by the

supplemental      instruction.        The    court   simply   answeredSSby    all


                                        9
accounts, accuratelySSthe question presented by the jury's note:

whether the government was required to introduce physical evidence

or   show   that    the    defendants   used   the    word   “cocaine.”    The

appellants do not cite any authority suggesting a duty to diluteSSa

duty to temper instructions defense counsel deems unfavorable by

issuing supplemental instructions to questions that were not even

raised.

      Moreover,      the    court   explained        that    the   supplemental

instructions were just thatSSsupplementalSSand should be considered

in tandem with the original instructions.             The court instructed as

follows:    “You should consider what I just read to you along with

what I read to you earlier.             This is essentially part of the

earlier group of instructions.          And you should apply all of them

during your deliberations.” The court thus made sufficiently plain

that the initial instructions remained valid; it was not obliged,

as the appellants suggest, to repeat them to the jury.              Finally, we

note that the jury did not return a verdict until 12:15 a.m.SSover

four hours later. This lag further undercuts the appellants' claim

that the jury was coerced by the supplemental instructions.

      In sum, the appellants have not shown prejudice or coercion or

that the instructions misstated the law or were unresponsive to the

jury's note.       Accordingly, any error was harmless.3



                                        B.


      3
         In so deciding, we reiterate, however, that the proper course is to
ensure all counsel’s participation in the proceedings.

                                        10
      Culley and Brown argue that a witness's remark constituted an

impermissible comment on their election not to testify.                 They aver

that their motion for a mistrial on this basis was improperly

denied.      The   denial    of    mistrial      is   reviewed   for    abuse    of

discretion.    United States v. Thomas, 120 F.3d 564, 573-74 (5th

Cir. 1997), cert. denied, 118 S. Ct. 721 (1998).

      Jessie   Stewart      was    a     government   witness    who    had     been

implicated in the drug conspiracy and had struck a plea bargain

under which she agreed to testify against the appellants.                  During

cross-examination by Culley's attorney, the following exchange

occurred:

      Q:    But you wouldn't disagree with me that anybody
            faced with as many charges [as] you have would get
            in here and try to work out something the best they
            could which you've obviously done and then get in
            here and testify to something that would help them;
            isn't that true?

      A:    Under the advise [sic] of my lawyer my telling the
            truth would help me more than me sitting on that
            row over there and not telling the truth.

Culley and Brown claim that Stewart's remark was aimed at them and

prejudiced the jury by castigating their failure to take the stand.

      As an initial matter, it is far from evident how the jury

could interpret the remark as referring to the appellants' choice

not   to   testify,   given       that    the   remark   occurred      during   the

government's case-in-chiefSSwell before the appellants had the

opportunity to take the stand.            But even assuming that the comment

stuck in the jury's collective craw until the appellants' failure

to testify became apparent, we do not see how this remark warrants

a mistrial.

                                          11
      The Fifth Amendment prohibits a witness from commenting on a

defendant's failure to testify in a criminal trial.                        Griffin v.

California, 380 U.S. 609 (1965).               We have set a high threshold for

reversible error, however.          “Comment on a defendant's silence is

reason for reversal only if the speaker's manifest intention is to

focus on that silence or the remark was such that a juror would

naturally and necessarily take it as a comment on the defendant's

failure to testify.”         United States v. Garcia, 655 F.2d 59, 64 (5th

Cir. Unit B Sept. 1981).         Moreover, the comment must have a “clear

effect” on the jury before reversal is warranted. United States v.

Rocha, 916 F.2d 219, 232 (5th Cir. 1990).

      Here, neither prong of Garcia is fulfilled.                 Stewart did not

demonstrate a “manifest intention” to “focus on the silence” of the

appellants.      To the contrary, as the court concluded, her remark

was   meant    to   defend    her   integrity      in   the    face   of    questions

suggesting that she was fabricating her testimony.                         Even if we

agreed that her opaque remark could be construed as referring to

the appellants' failure to take the stand, there is no evidence

that her intention was to focus on their silence, nor would a juror

“naturally and necessarily” interpret her statement that way.

      In      short,   we      do   not        agree    that     this       enigmatic

exchangeSSoccurring before the jury knew the appellants would not

testifySShad the “clear effect” of prejudicing the jury.                          The

district court did not abuse its discretion in denying a mistrial.



                                          C.


                                          12
     Culley and Brown claim the evidence was insufficient to

support their convictions.           When reviewing a challenge to the

sufficiency of the evidence, we must determine whether a rational

trier of fact could have found guilt beyond a reasonable doubt.

United States v. Ivey, 949 F.2d 759, 766 (5th Cir. 1991).                 In so

doing, we view all evidence, including any inferences that may be

drawn from it, in the light most favorable to the government.               Id.



                                       1.

     Culley was convicted of conspiracy under count 1, with a

special finding that he conspired to distribute powder cocaine and

conspired to use a communications facility in furtherance of a drug

trafficking    crime;    he   also   was    convicted   of   engaging     in   a

continuing criminal enterprise (“CCE”) under count 2.           Pursuant to

Rutledge v. United States, 517 U.S. 292 (1996), the government

agreed to dismissal of the count 1 conviction at sentencing.

     Culley challenges the CCE conviction by arguing that he was

convicted of a conspiracy to distribute cocaine powder, whereas

Brown was convicted of a conspiracy to distribute crack cocaine.

Therefore,    Culley    says,   this   could   not   have    been   the    same

conspiracy, and in the absence of a co-conspirator, his conviction

must be reversed.

     Even if we accept Culley's dubious distinction, his conviction

is valid under United States v. Zuniga-Salinas, 952 F.2d 876, 878

(5th Cir. 1992) (en banc), holding that an inconsistent verdict is

not a bar to conviction even where all other co-conspirators are


                                       13
acquitted. Accordingly, Brown's acquittal on charges of conspiring

to distribute cocaine powder does not automatically vacate Culley's

conviction on the same charge.

     The indictment named a group of conspirators (not all of whom

were indicted), and the evidence supported the existence of a

conspiracy.    The government introduced eyewitness testimony in

addition to the hours of taped conversations between Culley and his

dealers, runners, and assorted henchmen.         Viewed in the light most

favorable to the government, the evidence established Culley's

guilt beyond a reasonable doubt.         Even if he is deemed not to have

conspired with Brown, the evidence supported a finding that he

conspired with other individuals named in the indictment.



                                    2.

     Brown challenges the sufficiency of the evidence supporting

his conviction for conspiracy to distribute crack cocaine. He says

that the main witness linking him to the crack-dealing conspiracy

was one Edward Bennett, whom Brown attacks as not credible because

he is a convicted felon and drug addict.         Brown adds that even if

we find Bennett's testimony credible, it failed to establish the

existence of a conspiracy.

     Bennett's credibilitySSlike that of any witnessSSis properly

a question for the jury.      The real issue is whether his testimony,

coupled with any other evidence, sufficed to support Brown's

conviction    when   viewed   in   the   light   most   favorable   to   the

government.


                                    14
     The evidence was sufficient. Bennett testified that he cooked

powder cocaine into crack for Brown; Sylvester Jobe testified that

he bought crack from Brown.       Such testimony, viewed in the light

most favorable to the government, supports a jury finding that

Brown conspired to distribute crack cocaine.



                                      D.

     Brown challenges his sentence, arguing that the district court

relied on two erroneous factual findings in applying the sentencing

guidelines.      Specifically,   he    claims   that    the    court   wrongly

concluded he was a manager or supervisor of the drug conspiracy and

wrongly found him responsible for 1.48 kilograms of crack cocaine.

We review factual findings for clear error, and the application of

the guidelines de novo.    United States v. Claiborne, 132 F.3d 253,

254 (5th Cir.), cert. denied, 66 U.S.L.W. 3758 (U.S. May 26, 1998)

(No. 97-8827).

     Brown received a three-point increase in his offense level

pursuant   to   U.S.S.G.   §   3B1.1(b)    because     the    district   court

concluded that he was a manager or supervisor.          The court relied on

Bennett's testimony that he cooked crack for Brown; the court also

noted the testimony of “Handy” Moore, who testified to Brown's role

in the distribution scheme.

     Brown attempts to discount this evidence by pointing out that

Bennett, although he admitted cooking crack for Brown, never

directly said that Brown “managed” him; in this sense, Brown was

merely a bystander or at worst a sous-chef, but not a manager or


                                      15
supervisor.        This claim fails for the same reason as Brown's

challenge to the sufficiency of the evidence:                    Given Bennett's

testimony that he cooked crack at Brown's request, coupled with

“Handy” Moore's testimony about Brown's role, the                conclusion that

Brown   was    a   manager    or     supervisor    cannot   be   deemed    clearly

erroneous.

     Brown asserts that the court erred in finding him responsible

for 1.48 kilograms of crack cocaine.               The court calculated this

figure by including a one-kilogram purchase of what Brown and his

friends believed was cocaine.             (Unhappily, it turned out to be

wax.)   Brown complains that the court wrongly measured the wax as

cocaine base instead of cocaine powder, resulting in a more severe

sentence.      He says that because Culley usually bought cocaine in

powder form, the court erred in concluding that the appellants

thought they were purchasing cocaine in base form.

     The    court     premised     its   finding    on   testimony      that    Brown

believed he was buying cocaine in base form.                Even Brown, in his

brief, concedes that the precise nature of the anticipated purchase

was ambiguous.        In light of Brown's history as established at

trialSShe sold crack cocaine and had it cooked for himSSthe district

court's conclusion, bolstered by testimony illuminating Brown's

intent, cannot be characterized as clearly erroneous.



                                         E.

     The      appellants'     most    persuasive    contention     is    that    the

district      court   erred   by     conducting    ex    parte   voir    dire    with


                                         16
individual jurors during its investigation of jury tampering.           We

review for abuse of discretion a district court's handling of

complaints of outside influence on the jury.              United States v.

Sotelo, 97 F.3d 782, 794 (5th Cir. 1996).



                                    1.

     There     were   three   separate   instances   of    potential   jury

tampering.    The first involved juror Glen Mallett, who received a

call at home around 9:00 p.m. from an unknown man who said, “I've

got to talk to you about tomorrow.”         Mallett said he could not

discuss the trial and hung up.

     Caller ID revealed that the call was placed from a pay phone

less than a mile away.        Fearful for his safety, Mallett and his

wife left his house and spent the night at the home of his mother-

in-law.    He later learned that a second call was placed to his home

that night at 2:30 a.m. from the same number.

     The second instance of potential tampering involved juror

Rodney Caston, an employee of United Parcel Service (“UPS”).

Caston received a call at home from a man identifying himself as

“Ervin,” who told Caston that he knew who he was and that he worked

for UPS.     Ervin tried unsuccessfully to get Caston to discuss the

case.     Later that night, Caston received another call from a man

claiming to be a relative of Ervin's.

     At 9:30 that night, a stranger bearing a mysterious package

appeared at Caston's home. Caston was away; the visitor asked Mrs.

Caston to deliver the package to her husband, but she refused to do


                                    17
so, and the man left.       Caston told the district court that he

believed the man worked at Culley Automotive.4

     After    hearing   Caston's   storySSand   learning   that   he   had

repeated the tale to other jurorsSSthe district judge met ex parte

with each member of the jury and questioned them about what they

had heard and whether they could remain impartial.             Two other

jurors mentioned that they had heard about the Caston incident.

During the meeting with juror Maria Thompson, she raised a third

instance of potential tampering, reporting that a concession stand

vendor at the courthouse had implored juror Mallett to “take it

easy on the brothers.”

     Neither defense counsel nor the government was present during

these meetings or had been notified of the alleged tampering or the

voir dire.    After finishing his questioning, the judge determined

that the improper contacts had not resulted in prejudice and

allowed all jurors to continue to serve.        The judge then notified

the parties, summarizing the tampering incidents and explaining

that he had conducted voir dire in chambers.            He told defense

counsel that he would make available transcripts of the voir dire

after the trial.

     The defendants' motion for a mistrial was denied, and they

were not permitted to submit supplemental questions to the jurors.

The judge explained that “these are matters which solely concern

the Court.”


       4
          The saga of the Ervins resulted in a federal conviction for jury
tampering.

                                   18
                                           2.

      The Supreme Court explained the proper procedure for handling

investigations of jury tampering in Remmer v. United States, 347

U.S. 227 (1954).       There, a juror was approached by a third party

offering a bribe in exchange for a favorable verdict.                        The juror

declined the offer, met ex parte with the trial judge, and was

later interviewed by the F.B.I. The judge concluded that the juror

was unbiased, and the defendant was convicted.                    The Court vacated

the conviction, holding that a trial court should not take final

action ex parte, but “should determine the circumstances, the

impact    thereof    upon     the    juror,      and    whether      or   not    it    was

prejudicial, in a hearing with all interested parties permitted to

participate.”       Id. at 229-30 (emphasis added).

      We have consistently required the inclusion of all parties in

jury tampering hearings. For example, in United States v. Webster,

750   F.2d   307,    338    (5th    Cir.   1984),       we   noted    that      when   the

possibility of outside influence on the jury arises, “[t]he failure

to hold a hearing in such a situation constitutes an abuse of

discretion and is reversible error.”                    Accord United States v.

Denman, 100 F.3d 399, 405 (5th Cir. 1996).                           Remmer and its

applications in this Circuit thus require a district judge, when

confronted with credible allegations of jury tampering, to notify

counsel   for   both       sides    and   hold   a     hearing    with    all    parties

participating.5

      5
        We do not mean to suggest that a district court is obligated to conduct
a full-blown evidentiary hearing every time an allegation of jury tampering is
                                                                      (continued...)

                                           19
      The government deploys two arguments, neither of which is

persuasive, in hopes of justifying the ex parte nature of the

hearings.     First, it contends that the court was not required to

notify or include the defense under Webster.              There, we held that

the   judge did not err when he excluded counsel from a hearing to

investigate juror misconduct.

      The government's argument is suspect, because the Webster

court explicitly distinguished between juror misconduct cases and

jury tampering cases, remarking that “[w]e are not convinced that

the premature expression of an opinion about the merits of a case

[i.e.,    juror   misconduct]    rises      to   the   level   of   .   .   .   jury

tampering.” 750 F.2d at 338-39. Accordingly, the court concluded,

an ex parte hearing may be appropriate in juror misconduct cases,

but not in jury tampering cases.             The court thus maintained the

very distinction the government argues it erased, concludingSSin

language      that       directly      contradicts        the        government's

positionSS”Counsel should be present at any hearing held to assess

outside influence on the jury.”          Id. at 338.

      Next, the government contends that the court “conducted the

necessary inquiry with such skill that it deflected all possible

prejudice from the defendants.”          The government does not cite any

caselaw     for   this   novel    proposition.          Having      reviewed     the


(...continued)
raised. As we said in United States v. Chiantese, 582 F.2d 974, 980 (5th Cir.
1978), “the court must balance the probable harm resulting from the emphasis [a
hearing] would place upon the misconduct and the disruption involved in
conducting a hearing against the likely extent and gravity of the prejudice
generated by the misconduct.” Here we think it indisputable that the outside
contacts with the jurors were of a serious enough magnitude to warrant a hearing.

                                       20
transcripts of the voir dire, we agree that the court conducted a

thorough investigation of the tampering incidents.              Even the most

diligent ex parte inquiry is insufficient, however, under Remmer,

which requires that counsel for both sides have the opportunity to

examine jurors.       The government has cited no authority suggesting

that we should read Remmer any differently.6



                                         3.

      We do not, however, agree with appellants' claim that the

government is automatically required to prove the absence of

prejudice.      The   Remmer Court held that any outside influence on

the jury was presumptively prejudicial; the burden fell on the

government to rebut this presumption.7           Yet, in recent years the

     6
        The government adds that defense counsel could not have been invited to
a hearing, because their clients were suspects in the tampering, and the court's
investigation would have been impeded by alerting the lawyers.       Again, the
government cites no authority.

      Although we are troubled by the possibility that, if the contacts were in
fact instigated by the appellants, they are profiting from their own wrongdoing,
this argument is expressly foreclosed by our caselaw. See United States v.
Forrest, 620 F.2d 446, 458 (5th Cir. 1980) (“It makes no difference in this case
that it was [the defendant] himself who initiated the contact that may have
poisoned the jury. We reject the suggestion that [the defendant] may not be
heard here to complain of the results of his own misconduct.”). This rule, while
called into question as applied to civil cases, remains valid in the criminal
context. Cf. Abell v. Potomac Ins. Co., 858 F.2d 1104, 1147 (5th Cir. 1988),
vacated on other grounds, 492 U.S. 914 (1989) (“Even if we were not convinced
that the district court correctly found an absence of jury prejudice here, we
would not permit the perpetrator of jury tampering, in a civil proceeding, to
reap the rewards of his misdeed by enjoying a new trial.”). In any event, in the
instant case, the government does not allege that the contacts were initiated by
any of the appellants.
      7
          See Remmer, 347 U.S. at 229:

      In a criminal case, any private communication, contact, or
      tampering, directly or indirectly, with a juror during a trial about
      the matter pending before the jury is, for obvious reasons, deemed
      presumptively prejudicial . . . .         The presumption is not
      conclusive, but the burden rests heavily upon the Government to
                                                              (continued...)

                                         21
Supreme CourtSSand at least two of our sister circuitsSShave backed

away   from    this     position,    indicating        that   the   presumption      of

prejudice and the assignment of the burden of proof are not

triggered automatically but are imposed at the discretion of the

district court.

       The    first    modification        of   Remmer     occurred    in    Smith    v.

Phillips, 455 U.S. 209 (1982).             There, both the district court and

the court      of     appeals   concluded       that   a   habeas   petitioner       was

entitled to a new trial based on the alleged partiality of a juror

who had applied for a job in the prosecutor's office.                     Although the

trial court had conducted a hearing and determined that the juror

was not prejudiced, the federal courts concluded that the trial

court should have conclusively presumed prejudice, given the facts.

455 U.S. at 214.         The Supreme Court, citing Remmer as authority,

reversed, holding that due process requires only that the trial

court hold a hearing to determine the existence of prejudice.                        It

concluded:          “This    Court   has    long   held     that    the    remedy    for

allegations of juror partiality is a hearing in which the defendant

has the opportunity to prove actual bias.”                         455 U.S. at 215

(emphasis added).           This language is difficult to reconcile with a

presumption of prejudice warranting rebuttal by the government.8


(...continued)
       establish, after notice to and hearing of the defendant, that such
       contact with the juror was harmless to the defendant.
     8
       The court in United States v. Pennell, 737 F.2d 521 (6th Cir. 1984), read
Phillips as abolishing Remmer's presumption of prejudice and shifting the burden
of proof from the government to the defendant. The court construed Remmer as
speaking only to the proper procedure a court should follow when confronted with
                                                                      (continued...)

                                           22
      In Abell, we recognized that Phillips “cast a foreboding

shadow”    on    the       Remmer    presumption,     but   left   the    question

unresolved, noting only that “we have not yet explicitly determined

how   Smith     v.   Phillips       has   affected   Remmer.”      Id.   at   1146.9

Similarly, in Young v. Herring, 938 F.2d 543, 558 n.7 (5th Cir.

1991) (on remand), although not deciding the question, we observed

that Phillips “clarified” Remmer. We suggested that Remmer did not

establish a flat rule of presumptive prejudice, but was rather a

“characteriz[ation]” made “out of deference to the seriousness of

the conduct.”        Id.

      The Supreme Court once again called into doubt the Remmer

presumption in United States v. Olano, 507 U.S. 725 (1993). There,

the defendant claimed prejudice when the trial court permitted

alternate jurors to sit in on deliberations, but instructed them

not to participate.            The Court summarized what it termed its

“intrusion jurisprudence,” quoted Phillips, and concluded:

      There may be cases where an intrusion should be presumed
      prejudicial, but a presumption of prejudice as opposed to
      a specific analysis does not change the ultimate inquiry:
      Did the intrusion affect the jury's deliberations and
      thereby its verdict?

Id. at 739 (emphasis added and internal citations omitted).

      At least one other court has understood Olano as reconfiguring



(...continued)
credible allegations of jury tampering.  737 F.2d at 532.   Pennell was not
followed by all circuits, however. See, e.g., United States v. Littlefield,
752 F.2d 1429, 1431-32 (9th Cir. 1985).
      9
        We also concluded that Webster, 750 F.2d at 336-39, did not resolve the
question because, among other things, it failed to take account of Phillips.
Abell, 858 F.2d at 1146.

                                           23
Remmer.         In United States v. Williams-Davis, 90 F.3d 490, 494-99

(D.C.          Cir.    1996),      the   court      rejected     Remmer's    automatic

presumption, concluding that the district court instead should

“inquire whether any particular intrusion showed enough of a

likelihood of prejudice to justify assigning the government a

burden of proving harmlessness.”                   Id. at 497 (internal quotations

omitted).10

      We agree that the Remmer presumption of prejudice cannot

survive Phillips and Olano.                   Accordingly, the trial court must

first assess the severity of the suspected intrusion; only when the

court determines that prejudice is likely should the government be

required to prove its absence.                      This rule comports with our

longstanding               recognition   of   the    trial     court's   considerable

discretion            in     investigating    and    resolving     charges   of   jury

tampering.11           As stated in Olano, 507 U.S. at 739, regardless of

whether the presumption arises, the court's “ultimate inquiry” must

be whether the intrusion will affect the jury's deliberations and

verdict.



                                              4.

      In sum, although we reject the Remmer presumption, we agree



          10
          Although we have addressed Remmer in several cases since Olano was
decided, see, e.g., Ramos, 71 F.3d at 1154, we have yet to determine whether the
presumption remains viable.
     11
        See, e.g., United States v. Ramos, 71 F.3d 1150, 1153-54 (5th Cir. 1995)
(“In granting a broad discretion to the trial judge, we acknowledge and underscore
the obvious, that the trial judge is in the best position to evaluate accurately the
potential impact of the complained-of outside influence.”).

                                              24
with the appellants that the district court abused its discretion

in conducting the ex parte voir dire.                Accordingly, we retain

jurisdiction and remand for the limited purpose of a hearing to

determining      whether   the   jury   was    prejudiced      by   the   outside

contacts.12      See Remmer, 347 U.S. at 230; Forrest, 620 F.2d at 459.

Counsel for both sides shall be given the opportunity to examine

the jurors on the record, under oath.           Subject to ultimate review

by this court, if the district court concludes that the contacts

did not result in prejudice, the convictions shall stand affirmed,

and   if   the    court   concludes   that    the   contacts    did   result   in

prejudice, the appellants are entitled to a new trial.

      REMANDED.




      12
         We remand Sylvester's case as well, even though he failed to raise the
jury tampering issue in his brief. See United States v. Miles, 10 F.3d 1135,
1137 n.3 (5th Cir. 1993) (quoting United States v. Gray, 626 F.2d 494, 497 (5th
Cir. 1980)):
      Ordinarily we would limit each defendant's appeal to the issues
      raised in his brief. However, we have discretion to suspend the
      Federal Rules of Appellate Procedure “for good cause shown,” FED. R.
      APP. P. 2. Believing it anomalous to reverse some convictions and
      not others when all defendants suffer from the same error, we
      consider the arguments to be adopted. . . . This adoption does not
      prejudice the government which had the opportunity to fully brief
      all issues in response to the various contentions of the
      defendants. . . . This notwithstanding, we caution counsel to state
      specifically in the opening brief the issues raised on appeal; the
      failure to do so will usually result in our not considering them.
(Internal quotations omitted.)

                                        25
