                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                            No. 13-10242
                 Plaintiff-Appellee,
                                                        D.C. No.
                       v.                            3:09-cr-00110-
                                                          SI-6
 SHIU LUNG LEUNG, AKA Steve
 Leung, Chao-Lung Liang,
               Defendant-Appellant.                     OPINION


        Appeal from the United States District Court
           for the Northern District of California
        Susan Illston, Senior District Judge, Presiding

                   Argued and Submitted
        February 11, 2015—San Francisco, California

                        Filed August 6, 2015

  Before: Sidney R. Thomas. Chief Judge, M. Margaret
McKeown, Circuit Judge and Virginia M. Kendall,* District
                        Judge.

                   Opinion by Judge McKeown




 *
   The Honorable Virginia M. Kendall, District Judge for the U.S. District
Court for the Northern District of Illinois, sitting by designation.
2                   UNITED STATES V. LEUNG

                           SUMMARY**


                           Criminal Law

     Affirming the district court’s denial of a motion for new
trial and request for an evidentiary hearing, the panel held
that the defendant was not entitled to a new trial or
evidentiary hearing based on a juror’s post-verdict affidavit
alleging that other jurors discussed the evidence against him
and made up their minds about his guilt before the start of
deliberations.

     The panel declined to embrace the defendant’s theory that
Fed. R. Evid. 606(b), which shields against the efforts of
litigants to overturn verdicts based on the real or perceived
flaws of the juries that decided their cases, provides leeway
for a court to delve into the internal affairs of the jury simply
because the discussions took place before deliberations
commenced.


                             COUNSEL

Dennis P. Riordan (argued) and Donald M. Horgan, Riordan
& Horgan, San Francisco, California, for Defendant-
Appellant.

Adam D. Chandler (argued), James J. Fredericks, and Kristen
C. Limarzi, Attorneys; Brent Snyder, Deputy Assistant
Attorney General; William Baer, Assistant Attorney General;

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. LEUNG                       3

Peter K. Huston and Micah L. Wyatt, Attorneys, United
States Department of Justice, Washington, D.C., for Plaintiff-
Appellee.


                          OPINION

McKEOWN, Circuit Judge:

    The prohibition on admitting juror testimony to challenge
the validity of a verdict is longstanding. Warger v. Shauers,
135 S. Ct. 521, 526 (2014). It has its roots in an eighteenth-
century English case “in which Lord Mansfield held
inadmissible an affidavit from two jurors claiming that the
jury had decided the case through a game of chance.” Id. In
modern jurisprudence, this principle is found in Federal Rule
of Evidence 606(b), which is a powerful shield against the
efforts of litigants to overturn verdicts based on the real or
perceived flaws of the juries that decided their cases. Indeed,
the Supreme Court has interpreted the Rule to bar testimony
regarding jurors’ drug use, “insanity, inability to understand
English, and hearing impairments.” Id. at 530.

    In keeping with these precedents, we hold that Shiu Lung
Leung was not entitled to a new trial or evidentiary hearing
based on a juror’s affidavit alleging that other jurors
discussed the evidence against him and made up their minds
about his guilt before the start of deliberations. We decline
to embrace Leung’s theory that Rule 606(b) provides leeway
for a court to delve into the internal affairs of the jury simply
because the discussions took place before deliberations
commenced.
4                 UNITED STATES V. LEUNG

                        BACKGROUND

    Shiu Lung Leung, an executive at the Taiwanese company
AU Optronics Corporation, was charged in 2010 with
violating the Sherman Antitrust Act, 15 U.S.C. § 1, for his
role in fixing the prices of Thin-Film Transistor, Liquid
Crystal Display panels. Leung faced trial as one of seven
individual and corporate co-defendants. The jury convicted
four and acquitted two of Leung’s co-defendants, but could
not reach a verdict on the charge against him. The
government elected to re-try him, and he was convicted at the
second trial.

    Shortly before his sentencing, Leung filed a motion for a
new trial and a request for an evidentiary hearing. The
portion of the motion relevant here rested solely on an
affidavit from one juror. According to the affidavit, several
jurors violated the court’s instructions not to discuss the case
before final deliberations by regularly talking about the
evidence during breaks in the trial. The juror also opined
that, before the jury began deliberations, at least three other
jurors “had already made up their minds that the defendant
was guilty.”

     The district court ruled that the affidavit was inadmissible
under Rule 606(b). The court denied the motion for a new
trial without an evidentiary hearing. Leung was sentenced to
twenty-four months’ imprisonment.

                          ANALYSIS

    The central issue in this appeal is the admissibility of the
juror affidavit offered in support of Leung’s motion for a new
                     UNITED STATES V. LEUNG                              5

trial.1 Leung contends that the affidavit is admissible under
Rule 606(b) because juror testimony about discussion of the
evidence before charging does not intrude on the internal
affairs of the jury, but instead demonstrates juror dishonesty
and bias during voir dire. The government responds that
Leung’s motion for a new trial should have been rejected as
untimely and that its contents were inadmissible in any event.
Although we reject the government’s timeliness argument, we
affirm the district court because Rule 606(b) bars
consideration of the affidavit.

    As a threshold matter, Federal Rule of Criminal
Procedure 33(b)(2) provides that “[a]ny motion for a new trial
grounded on any reason other than newly discovered
evidence must be filed within 14 days after the verdict or
finding of guilty.” The government contends that Leung’s
motion was time-barred because it was filed nearly four
months after the jury’s verdict.

    The government’s position, however, does not square
with the Supreme Court’s clarification in Eberhart v. United
States that Rule 33 is “nonjurisdictional.” 546 U.S. 12, 19
(2005). This means that the 14-day deadline is subject to
extension under Federal Rule of Criminal Procedure 45(b)(2).
Id. Following trial, the district court told defense counsel to
“go ahead and file your [new trial] motions whenever you
want to,” suggesting that they be filed “substantially in

 1
  Leung’s co-defendants from the first trial appealed, raising substantive
challenges to the application of the Sherman Act to their conduct. In
United States v. Hsiung, 778 F.3d 738 (9th Cir.), cert. denied 135 S. Ct.
2837 (2015), we rejected these arguments and affirmed the convictions.
Leung’s identical challenges raised in connection with his second trial are
controlled by our opinion in Hsiung, and we affirm on the same grounds
without the need for further discussion.
6                   UNITED STATES V. LEUNG

advance” of the sentencing hearing. Although the judge later
referred to the motions as “late,” she declined to find the
motions untimely and considered the merits of each. In view
of the chronology and the record, we conclude that the district
court granted an extension to file the motion for a new trial,
albeit open-ended, and that the motion was timely filed.

    We now turn to the question of whether the juror affidavit
entitled Leung to a new trial or an evidentiary hearing. This
question hinges on Federal Rule of Evidence 606(b). Subject
to various exceptions not applicable here,2 Rule 606(b)
provides:

         During an inquiry into the validity of a verdict
         or indictment, a juror may not testify about
         any statement made or incident that occurred
         during the jury’s deliberations; the effect of
         anything on that juror’s or another juror’s
         vote; or any juror’s mental processes
         concerning the verdict or indictment.

    Our analysis of Rule 606(b) is guided by two Supreme
Court cases: Tanner v. United States, 483 U.S. 107 (1987),
and Warger v. Shauers, 135 S. Ct. 521 (2014). In Tanner, the
Court addressed the admissibility of a juror affidavit asserting
that jurors drank alcohol, smoked marijuana, ingested
cocaine, conducted drug deals, and periodically slept
throughout a complex criminal trial. 483 U.S. at 115–16.


    2
     The Rule expressly permits juror testimony regarding “whether:
(A) extraneous prejudicial information was improperly brought to the
jury’s attention; (B) an outside influence was improperly brought to bear
on any juror; or (C) a mistake was made in entering the verdict on the
verdict form.” Fed. R. Evid. 606(b)(2).
                    UNITED STATES V. LEUNG                              7

The Court began its analysis by noting that “the
near-universal and firmly established common-law rule in the
United States flatly prohibited the admission of juror
testimony to impeach a jury verdict.” Id. at 117. Rule 606(b)
was not an innovation, but was instead “grounded in the
common-law rule against admission of juror testimony to
impeach a verdict.” Id. at 121.

    Although an exception to Rule 606(b) permits inquiry into
whether “extraneous influences” tainted the verdict, juror
testimony regarding the jury’s “internal processes” is
categorically barred. Id. at 120–21. The Court emphasized
that the internal/external distinction is “not based on whether
the juror was literally inside or outside the jury room when
the alleged irregularity took place.” Id. at 117. Rather, the
salient inquiry is the “nature of the allegation.” Id.

    In Warger, the Court considered a juror’s allegations that,
during deliberations, another juror admitted to harboring bias
against one of the parties. The Court rejected the argument
that Rule 606(b) did not apply to the juror’s proffered
testimony because ferreting out juror bias and dishonesty
“[does] not involve an ‘inquiry into the validity of the
verdict.’” 135 S. Ct. at 528. To the contrary, Rule 606(b)
“simply applies” in any proceeding in which a party seeks to
set aside a jury verdict. Id. The Court then held that Rule
606(b)’s bar on jury deliberations evidence does not permit
an exception for testimony about juror bias or dishonesty
during voir dire, abrogating our decision in Hard v.
Burlington Northern Railroad, 812 F.2d 482 (9th Cir. 1987).3


 3
   Hard held that “statements” made during deliberations “which tend to
show deceit during voir dire are not barred by [Rule 606(b)].” 812 F.2d at
485.
8                    UNITED STATES V. LEUNG

The Court noted that while jurors can (and should) report
such information to the court during trial, the plain text and
history of Rule 606(b) dictate that a party seeking to impeach
a verdict cannot resort to juror testimony about any statement
made or incident that occurred “during deliberations.”
Warger, 135 S. Ct. at 530.

    Several key principles emerge from the Court’s
interpretation of Rule 606(b) in these two cases:

        # The Rule applies in any proceeding that involves an
          inquiry into “the validity of the verdict,” however that
          inquiry is framed by the litigants.

        # The Rule bars juror testimony about the jury’s
          “internal processes,” whether the claimed irregularity
          took place inside or outside the jury room.

        # The Rule imposes a nearly categorical bar on juror
          testimony about statements or events “during the
          jury’s deliberations.”4

    In both Warger and Tanner, the Court recognized that
Rule 606(b) prevents courts from considering some conduct
that does not reflect the solemn duty undertaken by jurors.
For example, the Rule prohibits testimony as dramatic as
jurors’ drug abuse, “insanity, inability to understand English,


    4
    In Warger, the Court noted the possibility that, in some circumstances,
it might be unconstitutional to prohibit the introduction of juror testimony
revealing “juror bias so extreme that, almost by definition, the jury trial
right has been abridged.” 135 S. Ct. at 529 n.3. As in Warger, “[w]e need
not consider the question, however, for those facts are not presented here.”
Id.
                  UNITED STATES V. LEUNG                        9

and hearing impairments . . . .” Warger, 135 S. Ct. at 530.
Juror testimony cannot be used to impeach a verdict even
when a feckless jury decides the parties’ fates through a coin
flip or roll of the dice. See id. at 526 (citing Vaise v. Delaval,
(1785) 99 Eng. Rep. 944 (K.B.)).

    The notion that egregious juror conduct will not
necessarily result in relief from the verdict may seem
antithetical to our system of due process. The Rule, however,
exists for good reason—it protects jurors from harassment
and maintains the integrity and finality of jury verdicts.
While persistent inquiry into internal jury processes could “in
some instances lead to the invalidation of verdicts reached
after irresponsible or improper juror behavior,” our very
system of trial by jury might not “survive such efforts to
perfect it.” Tanner, 483 U.S. at 120.

     The affidavit in issue represents precisely such an effort.
Like the proffered testimony in Tanner, the testimony
attempts to shed light on the internal affairs of the jury. In
seeking a new trial on the grounds that jurors made up their
minds prematurely and discussed the evidence before the start
of deliberations, Leung requests a declaration that the jury
that decided his case failed to review the evidence with an
open mind prior to being charged. But parsing how jurors
considered the evidence or their mental states while hearing
testimony is exactly what Tanner and the plain text of Rule
606(b) seek to prevent. We cannot countenance this effort to
intrude upon jurors’ “mental processes concerning the
verdict.” See United States v. Davis, 960 F.2d 820, 828 (9th
Cir. 1992) (describing as “meritless” a motion for a new trial
based on a juror’s statement in an interview that “[f]rom the
first day I knew [the defendant] was guilty” (first alteration in
original)).
10                   UNITED STATES V. LEUNG

    Leung argues, however, that we should consider the
Simms affidavit not as evidence of the internal affairs of the
jury, but as evidence of juror bias and dishonesty during voir
dire. Not only is this a revival of the sentiment in our now-
abrogated Hard case, the argument is not borne out by the
affidavit.5 Leung posits that the affidavit supports the
inference that jurors made false representations during voir
dire. He points out that no juror responded when, during voir
dire, the district court asked: “Is there anybody here who
couldn’t promise not to communicate about the case until it’s
over?” Leung reasons that because some jurors did in fact
discuss the evidence before the case ended, they must have
concealed their intent to “br[eak] their promise and def[y] the
court’s directive” during voir dire. Taking this logic a step
further, Leung contends that he was denied a fair and
impartial jury because the jurors’ alleged deception denied
him the opportunity to exercise a “valid . . . challenge for

     5
      Rule 606(b)’s categorical bar on juror testimony regarding any
“statement made or incident that occurred during the jury’s deliberations”
does not expressly encompass the pre-deliberation time period. In United
States v. Henley, we stated that we “need not decide” whether a juror may
testify that other jurors revealed deceit or bias before deliberations, but
noted that the Rule’s “primary purpose—the insulation of jurors’ private
deliberations from post-verdict scrutiny—would not be implicated by
permitting” such testimony. 238 F.3d 1111, 1120–21 (9th Cir. 2001); see
also Williams v. Price, 343 F.3d 223, 236 (3d Cir. 2003) (noting that “if
the other jurors’ alleged comments did not occur during deliberations and
if [the juror’s] testimony about those comments” demonstrated bias or
deceit during voir dire, “it could be argued that [the] testimony must be
allowed by Rule 606(b)”). Admitting such evidence, however, may
impermissibly intrude upon jurors’ “mental processes concerning the
verdict,” Fed. R. Evid. 606(b), and butt up against Warger’s suggestion
that the two safeguards against juror bias are bringing it to light “before
the verdict is rendered” or seeking a new trial on the basis of “nonjuror
evidence.” 135 S. Ct. at 527. Because the Simms affidavit contains no
evidence of bias or deception, we need not resolve that tension here.
                      UNITED STATES V. LEUNG                              11

cause” before the start of the trial. See McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984).

    Leung’s argument is not an accurate characterization of
the affidavit. The affidavit does not contain any evidence of
juror deceit or bias; at most it suggests that some jurors failed
to follow through on their promise to follow all the court’s
instructions. Nothing in the affidavit indicates that any juror
had dishonest intentions at the time of that commitment. That
some jurors may not have complied with each instruction
does not support the inference that they lied or concealed
bias.

    Accepting Leung’s invitation to cast every instance of
juror misconduct as admissible evidence of dishonesty or bias
would have staggering consequences for the finality of jury
verdicts. Even the most trivial missteps would become fair
game for a motion for a new trial. For example, standard jury
instructions in California admonish jurors not to “take their
notebooks out of the courtroom or jury room,” and to keep
cellular phones “turned off” during trial. Judicial Council of
California Criminal Jury Instructions 101–02. Leung’s
position would necessarily require the court to treat jurors
who take their notepads home at the end of the day or sneak
a peek at their email during trial as having lied or concealed
bias during voir dire.6 We decline to automatically attribute
such common mistakes to jurors’ hidden intent to “break their



  6
   To the extent Leung argues that certain pre-deliberation discussions
pose a particularly troublesome form of misconduct because they have the
potential to calcify a juror’s views of the case before formal deliberations
begin, this type of speculation is exactly the type of inquiry into a “juror’s
mental processes concerning the verdict” that Rule 606(b) proscribes.
12               UNITED STATES V. LEUNG

promise and defy the court’s directive” rather than mere
human fallibility.

    Indeed, interpreting every act of juror misconduct as
evidence that jurors lied would also cast serious doubt on the
scope of the rule announced in Tanner. Taken to its logical
conclusion, Leung’s argument means that Tanner hinged on
the fact that the district court in that case did not instruct
jurors to abstain from alcohol and drugs during trial. Had the
court issued such a specific instruction, then the juror
testimony would have been admissible to show that a juror
lied when he promised to teetotal. Nothing in Tanner
suggests that its resounding condemnation of examining
juries’ internal affairs was based on such a shaky foundation.

    We hold that during a proceeding to set aside a verdict,
juror testimony that other jurors engaged in premature
deliberations or made up their minds about the case before
deliberations began is inadmissible to demonstrate that the
jury engaged in flawed processing of the evidence. Such
testimony improperly implicates the internal affairs of the
jury during an inquiry into the “validity of the verdict.”
Warger, 133 S. Ct. at 528.

    In closing, we emphasize that rules governing juror
conduct during trials exist for good reason. The instruction
not to discuss the case before deliberations is an important
one and is often given multiple times during the trial because
human nature leads jurors to want to talk about what they
have been listening to while held captive in the jury box. A
violation of those instructions may be remedied if the juror
who overheard the conversations brings the issue to the trial
judge during trial. In other instances, bailiffs or other court
personnel may witness and report the chatter. With
                 UNITED STATES V. LEUNG                     13

appropriate notice, the trial court has broad discretion as to
how to correct the violation, whether through giving
additional jury instructions, dismissing jurors, or declaring a
mistrial. Even when evidence of misconduct comes to light
after the trial, the parties can attempt to produce nonjuror
testimony about the alleged infractions. None of these
avenues implicates the restrictions of Rule 606(b). The post-
verdict affidavit, however, is too little, too late.

                        CONCLUSION

    Once a jury has pronounced its judgment, Rule 606(b)
helps ensure jurors’ ability to “separate and melt
anonymously into the community from which they came.”
United States ex rel. McCann v. Adams, 126 F.2d 774, 776
(2d Cir.) (L. Hand, J.), set aside on other grounds, 317 U.S.
269 (1942). In light of the Rule’s prohibition on juror
testimony regarding the internal affairs of the jury, Leung was
not entitled to a new trial or evidentiary hearing on the basis
of the post-verdict juror affidavit.

   AFFIRMED.
