     Case: 19-40499   Document: 00515401789      Page: 1   Date Filed: 05/01/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                 No. 19-40499                         May 1, 2020
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff – Appellant,

v.

LAURA JORDAN, also known as Laura Maczka; MARK JORDAN,

             Defendants – Appellees.



                Appeal from the United States District Court
                     for the Eastern District of Texas




Before ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      In this criminal case, a court employee told the district judge’s law clerks
that he had spoken to one or more jurors about the case during deliberations.
The district court thereafter granted the defendants’ motion for a new trial on
the basis of prejudicial outside influence on the jury.         On appeal, the
Government argues that the district court abused its discretion by granting
the motion without holding an evidentiary hearing. We conclude otherwise
and AFFIRM.
                                        I.
      The Government charged Laura and Mark Jordan with conspiracy,
honest services wire fraud, and bribery involving a federal program. The
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                                     No. 19-40499
charges concerned Laura Jordan’s 2013–2015 tenure as mayor of Richardson,
Texas. During that time, according to the Government, she accepted gifts and
favors from real estate developer Mark Jordan in exchange for favorable votes
on city rezoning measures. The two eventually married. 1
      The charges were filed in 2018, and trial began in February 2019. Soon
after deliberations started, the jury sent the district court the following note:
“[Juror] No. 11 is very upset and feels they can’t continue. What can we do?
She’s asking to be excused and can’t vote.” The district court suggested that it
conduct an ex parte interview with Juror #11 to discover what the issue was,
and the parties agreed. In the interview, Juror #11 stated that she wanted to
be excused because “[i]t [wa]s making [her] sick to [her] stomach to convict
them and [she] just can’t.” She also stated that sticking to her guns would
produce “a hung jury.” The district court responded with the following:

      That’s a vote, so that—so what I’m saying is I’m not encouraging
      you one way or another, because what would happen is—well, you
      can’t worry about the consequences. Every juror should re-
      examine their own views is what I say in the charge, and if you
      have a firmly held conviction, whatever that conviction is, that’s
      up to you to decide. You have to make your own decision.

      After the meeting was over, the district court relayed its essence to the
parties in general terms. The Government asked that Juror #11 be excused,
but the district court—in a second ex parte meeting—informed Juror #11 that
it had decided not to excuse her. It reiterated to Juror #11 that “whatever your
convictions are, those are your convictions, and each juror makes their own
decision about what the evidence is and what the verdict should be, and so
that’s up to you. Every juror is entitled to their opinion about the evidence and



      1   Prior to the marriage, Laura Jordan was known as Laura Maczka.
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                                       No. 19-40499
the result.” A few hours later, the jury reached a verdict of guilty on almost
every count. 2
      The next day, at a detention hearing, the district judge had some
troubling news for the parties. He told them that he had learned about a
conversation that had taken place the previous afternoon—shortly after the
verdict was rendered—between his law clerks and a Court Security Officer
(CSO). According to the law clerks, the CSO had stated that he had spoken to
a juror regarding the case about “30 to 45 minutes” before the verdict was
rendered. During a teleconference held the following week, the district judge
also relayed that he had learned from his law clerks that the juror the CSO
had spoken to was Juror #11. The Government asked whether the district
court was intending to “hold any kind of hearing or get testimony from the
juror,” to which the district court responded that “that is fine in terms of the
[CSO]” but that it was “not going to subject [jurors] to examination on the
witness stand.” The district judge also noted that his law clerks had prepared
a written memo detailing their recollections of the conversation.
      A few days after the teleconference, the Government emailed the district
court to “propose[ that] the Court instruct the CSO to answer targeted
interrogatories about what precisely . . . the CSO said to any juror.” The same
day, the district court filed the law clerk memo under seal. Law Clerk #1
reported that
      [The CSO] indicated that while the jurors were on a break from
      deliberations, he observed [Juror #11] was particularly upset and
      even crying. He relayed to me and my fellow law clerks that he
      told her to put her emotions aside and to determine the outcome of
      the case without regard to emotions or the possible sentence in the
      case reminding her that her job was to determine whether the
      defendants were guilty or not guilty. He then indicated that the

      2   Laura Jordan was found not guilty of one count of honest services wire fraud.
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                                       No. 19-40499
      jury reached a verdict in this case within about 30-45 minutes of
      this conversation.

      Law Clerk #2 reported that the CSO “stated that he told this juror that
she should vote based on her conscience without regard to the punishment that
may be imposed on the Defendants.” Law Clerk #2 added that
      The next morning, Officer Collins told me that, when asked to
      confirm her decision before the Court, a juror had intended to state
      that her decision was made “with reservation.” Officer Collins
      stated that the juror could not say that her decision was made
      “with reservation” because her response would not be believed. I
      do not know if this was Officer Collins’ commentary to me on the
      matter or whether he told the juror this. He did tell the juror,
      however, that she should vote her conscience and that if she did
      not believe the defendants were guilty, she should vote not guilty.
      He also told her that she should not be concerned about any
      punishment the defendants may receive.

The identity of this latter juror is unknown.
      Law clerk #3 reported that
      Officer Collins stated . . . that he told the juror(s) they needed to
      set their emotion aside and determine whether the Defendants
      committed the crimes or not. Officer Collins continued, stating he
      told the juror(s) that if they thought the Defendants committed the
      crimes, they should find the Defendants guilty, and if they thought
      the Defendants did not commit the crimes, they should find the
      Defendants not guilty. 3

      The next day, the Jordans filed a motion for new trial under Federal Rule
of Criminal Procedure 33.           They argued that a new trial was warranted
because (1) the CSO’s comments improperly influenced the jury, (2) the district
court gave an improper ex parte instruction to Juror #11, and (3) Juror #11’s



      3   The fourth and final law clerk was not involved in the conversation with the CSO.
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                                      No. 19-40499
decision-making was influenced by poor physical and emotional health. The
Government argued that “[alt]hough the Court can deny the motion for new
trial at this stage based on the lack of competent evidence, it cannot grant the
motion, at least without holding an evidentiary hearing.”
       About six weeks after the motion for new trial was filed, the district court
granted it without holding an evidentiary hearing. The district court rejected
the Jordans’ arguments relating to its ex parte meetings and Juror #11’s
health, but accepted their argument that the CSO improperly influenced the
jury. Relying on the law clerk memo for the substance of the CSO’s comments,
the district court ruled that those comments contaminated jury deliberations
to the point that the Jordans were denied their Sixth Amendment right to a
fair trial.
       The Government appeals.
                                            II.
       “We review only for abuse of discretion a court’s handling of complaints
of outside influence on the jury.” United States v. Mix, 791 F.3d 603, 608 (5th
Cir. 2015) (quoting United States v. Smith, 354 F.3d 390, 394 (5th Cir. 2003)).
“We review a district court’s grant of a new trial under Federal Rule of
Criminal Procedure 33 using the same abuse-of-discretion standard.” Id.
       “To be entitled to a new trial based on an extrinsic influence on the jury,
a defendant must first show that the extrinsic influence likely caused
prejudice.” Id. “The government then bears the burden of proving the lack of
prejudice.” 4 Id. “The government can do so by showing there is ‘no reasonable
possibility that the jury’s verdict was influenced by the extrinsic evidence.’” Id.
(quoting United States v. Davis, 393 F.3d 540, 549 (5th Cir. 2004)).


       4 The test used to be different: “any outside influence on the jury was presumptively
prejudicial; the burden fell on the government to rebut this presumption.” United States v.
Sylvester, 143 F.3d 923, 933 (5th Cir. 1998).
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                                  No. 19-40499
                                       III.
      The Government argues that the district court abused its discretion by
granting the motion for new trial without holding an evidentiary hearing. We
conclude that the district court’s decision falls within its broad discretion in
these matters.
                                       A.
      The Government’s first argument is that our precedent creates a “bright-
line rule” that, when a district court is confronted with credible allegations of
outside influence on a jury, it must hold an evidentiary hearing. It quotes a
quartet of cases to support that proposition: United States v. Sylvester, 143
F.3d 923, 932 (5th Cir. 1998) (stating that our precedent “require[s] a district
judge, when confronted with credible allegations of jury tampering, to . . . hold
a hearing with all parties participating”); United States v. Denman, 100 F.3d
399, 405 (5th Cir. 1996) (“The trial court is required to conduct a hearing to
determine the circumstances of the communication, its impact on the juror,
and whether prejudice resulted.”); United States v. Webster, 750 F.2d 307, 338
(5th Cir. 1984) (“The failure to hold a hearing in such a situation constitutes
an abuse of discretion and is reversible error.”); and United States v. Chiantese,
582 F.2d 974, 979 (5th Cir. 1978) (“[I]n instances where the jury misconduct
involves influences from outside sources, the failure of the trial judge to hold a
hearing constitutes an abuse of discretion and is therefore reversible error.”).
      Notwithstanding the Government’s cherry-picked quotations, such a
bright-line rule does not exist. As we explained in Sylvester itself, “[w]e 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 raised.” 143
F.3d at 932 n.5. Instead, “[o]ur precedents allow the trial judge the flexibility,
within broadly defined parameters, to handle such situations in the least
disruptive manner possible.” United States v. Ramos, 71 F.3d 1150, 1153 (5th
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                                        No. 19-40499
Cir. 1995); see also United States v. Smith, 354 F.3d 390, 395 (5th Cir. 2003)
(noting “our longstanding rule that a district court is entitled to discretion in
investigating and resolving charges of jury tampering”). This broad grant of
discretion makes sense: to “underscore the obvious, . . . the trial judge is in the
best position to evaluate accurately the potential impact of the complained-of
outside influence.” Ramos, 71 F.3d at 1153–54; see also Fed. R. Crim. P. 33(a)
(permitting district courts to grant a new trial whenever “the interest of justice
so requires”).
       To the extent the line of cases the Government cites abrogates this
discretion at all, it does so in the context of ensuring that district courts do not
deny a motion for new trial without sufficient investigation where the court is
“confronted with credible allegations” of prejudicial outside influence on the
jury. Sylvester, 143 F.3d at 932. Courts must take allegations of outside
influence seriously, as the whole “theory of our system is that the conclusions
to be reached in a case will be induced only by evidence and argument in open
court, and not by any outside influence, whether of private talk or public print.”
Patterson v. Colorado, 205 U.S. 454, 462 (1907).
       The Government cannot cite a single case in which we vacated a district
court’s grant of new trial for failure to hold a hearing. The quartet of cases it
does cite for its alleged “bright-line rule”—in only one of which we actually
remanded for a hearing at all—were cases in which the district court declined
to grant a new trial. 5 See Sylvester, 143 F.3d at 932; Denman, 100 F.3d at 406;
Webster, 750 F.2d at 337–39; Chiantese, 582 F.2d at 980. Indeed, we have
previously ordered new trials on the basis of the trial record without requiring


       5 We note, moreover, that each of our alleged “bright-line rule” statements arose in
the context of ensuring that criminal defendants were not denied a new trial without
investigation when they credibly alleged outside influence on the jury. After all, it is criminal
defendants who “enjoy the right” to a trial “by an impartial jury” under the Sixth
Amendment. U.S. Const. amend. VI.
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                                  No. 19-40499
the district court to hold a hearing. See, e.g., United States v. Peters, 349 F.3d
842 (5th Cir. 2003); United States v. Cowan, 819 F.2d 89 (5th Cir. 1987).
      The Government also attempts to support its “bright-line rule” with the
Seventh Circuit’s decision in United States v. Bishawi, 272 F.3d 458, 462 (7th
Cir. 2001), arguing that Bishawi stands for the proposition that district courts
are not “equipped to adequately assess the impact of” alleged outside influence
without “[t]he holding of an evidentiary hearing.”          Id. at 462–63.     The
Government’s quotation of the Bishawi rule is incomplete and thus misleading:
Bishawi states only that a hearing is required where “the record is void of any
specific information regarding the occurrence and nature of, as well as the
circumstances surrounding the” outside influence.            Id. at 462.      It is
unremarkable that, when faced with (1) credible allegations of prejudicial
outside influence on the jury and (2) a record devoid of information on which
to evaluate those allegations, “a hearing in which all interested parties are
permitted to participate is not only proper but necessary,” id; see also Remmer
v. United States, 347 U.S. 227, 229 (1954) (remanding for a hearing because it
was impossible to “know from th[e] record . . . what actually transpired”). But
that is not this case.        Here, the district court relied on the near-
contemporaneous account of the CSO’s comments provided by the three law
clerks, which it filed on the record.
      Thus, to the extent there is any “bright-line rule” applicable to
allegations of outside influence on the jury, it is not one applicable to this case.
                                        B.
      We analyze the district court’s exercise of its broad discretion not to hold
a hearing in an outside-influence case only to ensure that the district court
permissibly balanced the costs, benefits, and interests at stake. See, e.g.,
Ramos, 71 F.3d at 1153 (“In determining whether to conduct a hearing in a
case such as this, the court must balance the probable harm resulting from the
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                                    No. 19-40499
emphasis such action 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.” (quoting Chiantese, 582 F.2d at 980)).
      In the unique circumstances of this case, the district court did not abuse
its discretion by determining that the additional benefits of a hearing were too
slim to overcome the “unnecessary attention” and disruption a hearing would
inject into this “high-profile case,” given that it already had “sufficient”
documentation of outside influence to warrant a new trial. As the district court
noted, the law clerks “have no personal interest in this case” and “prepared the
[memo] shortly after the events in question,” adding to its reliability.
Moreover, the district court made the memo available on the docket for the
parties’ reference in briefing the motion for new trial.
      The Government does not persuasively explain what purpose an
evidentiary hearing would have in this case. It primarily argues that the law
clerk memo could not possibly be a standalone basis for granting a new trial
because it is hearsay and thus inadmissible. We do not here establish a general
rule governing whether or not a new trial grant should be based on admissible
evidence in a mine-run case.        Rather, in this unique context, we simply
conclude that the district court permissibly granted a new trial based on
reliable information it discovered during the regular operation of its
chambers. 6
      In sum, the district court did not abuse its discretion in exercising its
prerogative, “within broadly defined parameters, to handle [the allegation of
outside influence] in the least disruptive manner possible” in this unusual case.
Ramos, 71 F.3d at 1153.


      6The district court ruled that the law clerk memo—and the statements therein—were
admissible. Given our just-stated conclusion, we need not reach this issue.

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                                           No. 19-40499
                                                  C.
         The Government’s final argument is that, even fully crediting the law
clerk memo, the CSO’s statements did not merit a new trial because they were
“innocuous, defense-friendly, and duplicative of the district court’s own
instructions.”
         We conclude that the district court did not abuse its discretion in
granting a new trial in this case. In urging Juror #11—whose comments to the
district court evinced her great distress at the prospect of conviction—to vote
“without regard to the punishment that may be imposed,” 7 the CSO arguably
conveyed a preference for a guilty verdict. The same goes for the CSO’s similar
comment to the unidentified juror when that juror voiced an intention to vote
“with reservation.” Worse, the CSO’s statement that the jury should return a
guilty verdict “if they thought the Defendants committed the crimes” can be
reasonably understood as urging a standard for conviction that is lower than
the correct one, which “requires proof beyond a reasonable doubt.” United
States v. Fields, 932 F.3d 316, 321 (5th Cir. 2019). Finally, the CSO’s “official
character . . . as an officer of the court” gave his comments a veneer of authority
that could have “carrie[d] great weight with a jury.” Parker v. Gladden, 385
U.S. 363, 365 (1966).
         “District judges have considerable discretion with respect to Rule 33
motions.” United States v. Simmons, 714 F.2d 26, 31 (5th Cir. 1983). The
district court permissibly concluded that this evidence showed a sufficient
likelihood of prejudice to shift the burden to the Government, and further that
the Government did not (and could not) show “no reasonable possibility that




         7   Or, in another law clerk’s words, “without regard to . . . the possible sentence in the
case.”

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                                 No. 19-40499
the jury’s verdict was influenced by” the CSO’s comments. Mix, 791 F.3d at
608 (quoting Davis, 393 F.3d at 549).
                                        IV.
      For the reasons stated, the district court’s order granting a new trial is
AFFIRMED.




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