                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4312


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

GERALD THOMAS JOHNSON, a/k/a Geezy, a/k/a Gzy Tha Prince,

                    Defendant - Appellant.


                                      No. 18-4333


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

KENNETH JONES, a/k/a K-Slay, a/k/a Slay,

                    Defendant - Appellant.


Appeals from the United States District Court for the District of Maryland, at Baltimore.
James K. Bredar, Chief District Judge. (1:16-cr-00363-JKB-1; 1:16-cr-00363-JKB-5)


Argued: December 10, 2019                                      Decided: March 25, 2020


Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion,
in which Senior Judge Traxler joined. Judge Motz wrote a dissenting opinion.


ARGUED: Paul Francis Enzinna, ELLERMAN ENZINNA PLLC, Washington, D.C., for
Appellants. Peter Jeffrey Martinez, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Michael D. Montemarano, MICHAEL
D. MONTEMARANO, PA, Ellicott City, Maryland, for Appellant Kenneth Jones. Robert
K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.




                                        2
BARBARA MILANO KEENAN, Circuit Judge:

       Gerald Johnson and Kenneth Jones were convicted by a jury of several charges

related to their participation in the Black Guerilla Family’s (BGF) Greenmount Regime, a

violent street and prison gang in Baltimore. During the trial, the district court received

multiple reports that members of the jury were concerned about their personal safety. Most

notably, one juror reported that family members or friends of the defendants (the

defendants’ associates) had used cellular telephones to take photographs of the jurors in a

public area of the courthouse. Despite the jury’s concerns, the court did not conduct an

evidentiary hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954) (Remmer

hearing), to assess the jurors’ continuing ability to consider the evidence impartially.

       Upon our review, we conclude that the district court abused its discretion in failing

to hold a Remmer hearing to determine whether the reported incident prejudiced the jurors

and affected their ability to impartially consider the evidence. We therefore vacate the

district court’s judgment and remand the case for the court to conduct an evidentiary

hearing in accordance with Remmer.


                                              I.

       Johnson, Jones, and seven co-defendants 1 were indicted on numerous charges

arising from unlawful activities committed by members of the BGF, of which Johnson was

a high-level leader. Johnson and Jones (collectively, the defendants) were both charged



       1
        Six of the co-defendants pleaded guilty before trial. The conviction of the seventh
co-defendant, Marquise McCants, is not at issue in this appeal.
                                              3
with conspiracy to participate in a racketeering enterprise, in violation of the Racketeer

Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, as well as conspiracy to

distribute and possess with intent to distribute heroin, cocaine, and other controlled

substances, in violation of 21 U.S.C. § 841. Johnson also was charged with conspiracy to

commit murder in aid of racketeering and murder in aid of racketeering, in violation of 18

U.S.C. § 1959(a), and additional drug and ammunition offenses.

         The government introduced evidence at trial showing that for more than a decade,

the defendants committed numerous crimes on behalf of the BGF. Johnson acted as a

leader of the gang, overseeing an extensive drug distribution operation and attendant acts

of violence. The jury heard evidence that Jones was involved in the murders and shootings

of several people, which were directed by Johnson and other BGF members.

         The government recounted the gang’s many efforts to shield the gang’s illegal

activities “by terrorizing those who dared to cooperate with the police.” Multiple witnesses

detailed the gang’s strict rule against “snitching,” which the gang treated as punishable by

death.     According to government witnesses, Johnson ordered the murders of two

individuals whom the gang believed were cooperating with law enforcement. Jones

committed one of these murders.

         The murder of Moses Malone, a government cooperator, was the “heart of the

[government’s] case,” and formed the basis for Johnson’s charges of conspiracy to commit

murder in aid of racketeering and murder in aid of racketeering. Malone had been the

victim of a robbery and a non-lethal shooting allegedly committed by a BGF member.

Following that incident, Malone identified the perpetrator of the robbery in a photo array

                                             4
compiled by law enforcement. Malone also identified Johnson as the person who likely

ordered the crime.

       When the gang members learned that Malone had cooperated with the authorities,

Johnson ordered that Malone be killed. The Baltimore City Police Department took

Malone into protective custody, but Malone later was evicted from the witness-protection

program because of a rules infraction and was killed shortly thereafter. Notably, Malone’s

police department contact had received a tip that Malone was in imminent danger on the

night of his death, but the authorities were unable to intercept him in time to save his life.

The jury was shown graphic photographs depicting Malone’s body after he was murdered.

       On December 7, 2017, immediately after hearing testimony recounting the police

department’s frantic efforts to prevent Malone’s murder, members of the jury contacted the

courtroom deputy clerk. The jurors expressed concern that the defendants had been

exchanging notes with their attorneys and paralegal, and then had “looked up” at the jury.

The court observed that the jurors’ apprehension was the “potential [e]ffect on a reasonable

person of the sort of evidence” that had been presented.

       Later the same day, “one or more” jurors approached the courtroom clerk with

concerns that the defendants had received access to the jurors’ personal information during

the voir dire process. After court adjourned for the day, the jurors gave a note to the

courtroom clerk, stating that they were “concerned about info the defendants may have

about us from a personal safety perspective.” The court concluded that the jurors’ concerns

were “of a generalized nature, not of such a level of severity and specificity as to warrant

individual voir dire to try to assess the depths of the jurors’ feelings.”

                                               5
       With respect to the three concerns raised by the jurors on December 7, 2017, the

district court denied the defendants’ requests for a mistrial or to conduct a voir dire of the

jury members. Instead, the court provided certain written assurances to the jurors regarding

the court’s standard practices and procedures.

       On January 9, 2018, the nineteenth day of trial, a court security officer advised the

court that a juror had told him “in front of all the rest of the jurors” that some of the

defendants’ associates had attempted to take photographs of the jurors as they entered the

public hallway from the jury room. The court immediately asked the government whether

“there may be an effort afoot to tamper with or intimidate a juror,” because “[w]hy else

does somebody snap pictures of jurors going in and out of a jury room?” Government

counsel confirmed that the group of people who had congregated in the area in question

were family members of, or witnesses for, the defendants.

       The defendants moved for a mistrial, arguing that the jury could not fairly evaluate

the testimony of these defense witnesses after the jurors had expressed concern that the

witnesses were dangerous. As a “preliminary” and “investigative” measure, the court

directed the courtroom deputy and law clerk (collectively, court staff) to interview each

juror individually, “off-the-record,” and outside the presence of the judge or counsel. The

court instructed the court staff to address each juror as follows:

       [A] court security officer indicated that something might have happened as
       one or more of you were leaving the jury room. Did something happen?

The court staff did not ask whether the jurors felt intimidated by anything they observed,

or whether they could remain impartial in evaluating the case.


                                              6
       After conducting these interviews, the court staff informed the court and counsel

that a single juror, Juror #4, had reported seeing two women use their cell phones to take

photographs of the jurors. Juror #4 described the women as holding the phones chest-high

and pointing them outward, while looking at the jurors instead of at the phones. After

making this observation, Juror #4 reported her suspicion to some other jurors. Three jurors

reported seeing people holding phones in the hallway, but these jurors did not think that

those individuals were taking pictures. Another three jurors stated that Juror #4 reported

to them that someone, possibly the mother of one of the defendants, had been taking

pictures surreptitiously. According to one of these jurors, Juror #4 stated, “[G]uys, this is

really serious, they’re taking pictures of us.”

       After considering these reports from the court staff, the district court determined

that there was no “corroboration for [Juror #4’s] concerns or observations in the statements

of any other jurors, any court security officers, or any other information that has been

brought to the [c]ourt’s attention. So my conclusion is that there is not evidence before the

[c]ourt at this point, [that] any actual photographing or image taking, was going on.” The

court nevertheless was “concerned” that Juror #4 “may well believe” that “something was

going on . . . that could influence [the juror’s] experience here and consequently [the

juror’s] judgment with respect to the case.” The court therefore dismissed Juror #4 from

service on the jury, but did not explain that juror’s absence to the remaining members of

the jury. The court declined the defendants’ request to conduct a voir dire of the other

jurors, concluding that there was “not a sufficient basis for concern.”



                                              7
       The United States Marshal’s Service, together with the United States Attorney’s

Office, conducted a further investigation of the reported photographing incident after the

court adjourned for the day. The deputy marshals searched the cell phone of one of the

individuals observed by Juror #4, but did not discover any photo images. When the deputy

marshals reported to the court the next morning the results of their inquiry, the court noted

that this information “further supports the [c]ourt’s conclusion” that the incident reported

by Juror #4 had been handled properly “with a minimum of fanfare,” and that neither

individual voir dire nor a mistrial was warranted. The court orally informed the jurors that

the reported incident had been investigated, and that no photographs had been found.

       The jury returned verdicts of guilty on all charges. The defendants moved for a new

trial under Federal Rule of Criminal Procedure 33, arguing that their Sixth Amendment

right to a fair trial was violated because the court failed to conduct a Remmer hearing on

the question of juror bias. The district court denied the motions, and sentenced the

defendants to terms of life imprisonment without the possibility of parole. This appeal

followed.



                                             II.

       The defendants argue that the district court abused its discretion when it failed to

conduct a Remmer hearing to evaluate whether the jurors could remain impartial after the

reported cell phone incident.     The defendants emphasize that this reported incident

occurred after the jurors already had expressed their fear of the defendants on more than

one occasion. According to the defendants, the jurors’ multiple reports regarding their fear

                                             8
of the defendants, including the one juror’s concern that the defendants’ associates had

taken photographs of the jury, were “external influences” that under Remmer entitled them

to a presumption of prejudice and an evidentiary hearing.

       In response, the government contends that although the district court declined to

conduct a Remmer hearing, the court nonetheless took adequate steps to ensure juror

impartiality. In the government’s view, the court acted within its discretion by dismissing

the single juror who had reported the alleged photographing, and by informing the

remaining jurors that, in fact, no photographs had been taken.

       We review the district court’s decision declining to conduct a Remmer hearing under

a “somewhat narrowed modified abuse of discretion standard,” which “grants us more

latitude to review the trial court’s conclusion” in the context of all the evidence presented.

United States v. Basham, 561 F.3d 302, 319 (4th Cir. 2009) (citation and internal quotation

marks omitted). A defendant’s Sixth Amendment right to trial by an impartial jury is

violated if an influence outside the jury’s deliberative process, a so-called “external

influence,” affects the jury’s decision-making. Barnes v. Joyner, 751 F.3d 229, 240 (4th

Cir. 2014). “[I]f even a single juror’s impartiality is overcome” by such an external

influence, the defendant’s right to an impartial jury has been compromised. United States

v. Lawson, 677 F.3d 629, 648-49 (4th Cir. 2012) (citation omitted).

        In Remmer v. United States, the Supreme Court established the procedures that a

district court must follow when there has been a direct or indirect “private communication,

contact, or tampering . . . with a juror during a trial about the matter pending before the

jury.” Remmer, 347 U.S. at 229. A defendant seeking a Remmer hearing must present a

                                              9
“credible allegation” that “an unauthorized contact was made,” and that the contact “was

of such a character as to reasonably draw into question the integrity” of the trial

proceedings, constituting “more than an innocuous intervention.” Barnes, 751 F.3d at 242-

45 (citations and internal quotation marks omitted).

       If the defendant makes this threshold showing, he is entitled under Remmer: (1) to

a rebuttable presumption that the external influence prejudiced the jury’s ability to remain

impartial; and (2) to an evidentiary hearing to determine “what actually transpired” and

whether the challenged contact was harmless. Remmer, 347 U.S. at 229; Barnes, 751 F.3d

at 242-44. At such evidentiary hearing, the government bears the burden of rebutting the

presumption of prejudice by showing that there was “no reasonable possibility” that the

jury “was influenced by an improper communication.” 2 Basham, 561 F.3d at 319 (citation

and internal quotation marks omitted); see also United States v. Small, 944 F.3d 490, 504

(4th Cir. 2019).

       Applying these principles, we consider whether the district court received a

“credible allegation” of a non-innocuous external influence requiring that the court hold an

evidentiary hearing under Remmer. Barnes, 751 F.3d at 242, 244; Basham, 561 F.3d at

319. In conducting our analysis, we focus on the alleged photographing incident reported

by Juror #4, the most serious claim regarding the jurors’ ability to remain impartial.


       2
         “When a serious, non-speculative question of juror impartiality arises” based on a
factor internal to the jury’s deliberative process, the district court must evaluate “whether
the affected jurors remain fair and impartial.” United States v. Smith, 919 F.3d 825, 834
(4th Cir. 2019). In such circumstances, however, the presumption of prejudice dictated by
Remmer is inapplicable. See Barnes, 751 F.3d at 245-46 (explaining that the requirements
of Remmer apply only to external influences).
                                             10
       We think it is beyond dispute that a juror’s report of jury members being

photographed by the defendants’ associates during a trial involving murdered witnesses,

and that juror’s act of conveying this information to other jurors, were “more than

innocuous interventions,” and constituted conduct “of such a character as to reasonably

draw into question” the ability of the jurors to remain impartial. Barnes, 751 F.3d at 244-

45 (citations omitted). The district court immediately recognized the seriousness of Juror

#4’s allegations. As noted above, after receiving Juror #4’s report of photographs being

taken, the court questioned whether “there may be an effort afoot to tamper with or

intimidate a juror,” because “[w]hy else does somebody snap pictures of jurors going in

and out of a jury room?” Given the plainly prejudicial nature of Juror #4’s allegation and

the court’s response reflecting its assessment that the report was credible, the criteria for a

Remmer hearing were met.

       The district court’s management of this incident was flawed both procedurally and

substantively and, thus, failed to comply with the requirements of Remmer. Procedurally,

the district court erred in delegating to its staff members the responsibility of questioning

the jurors. A court confronted with a credible allegation of an improper external contact

may not rely on ex parte, third-party information. Instead, a judge must “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.” Remmer, 347 U.S. at 229-

30 (emphasis added); Barnes, 751 F.3d at 242. Thus, the procedure employed by the

district court disregarded the fact-finding purpose of a Remmer hearing, which is based on

considerations of due process. See Barnes, 751 F.3d at 243-44, 251. As we emphasized

                                              11
in Barnes, “without a hearing, a criminal defendant is deprived of the opportunity to

uncover facts that could prove a Sixth Amendment violation.” Id. at 250. This procedure

also deprived the defendants of the presumption of prejudice to which they were entitled

under Remmer. Remmer, 347 U.S. at 229; Barnes, 751 F.3d at 242-43.

       The investigation directed by the district court also was substantively deficient. The

court engaged in an abbreviated consideration of Juror #4’s allegation and took an unduly

narrow view of the types of external contacts that would mandate a Remmer hearing.

Although Juror #4 had alleged that two persons had used their cell phones to take

photographs of the jurors, only one of those phones was examined to determine whether

such photographs were taken.

       Moreover, by focusing on the question whether photographs, in fact, had been taken,

and in failing to consider whether the defendants’ associates had in any way intimidated

the jurors by displaying their cell phones, the district court failed to consider the effect on

the jurors of the perceived external contact. A third party’s threat or perceived attempt to

take a photograph of a juror may be no less intimidating to that juror than the actual taking

of such a photograph. Thus, the question whether a photograph was taken was not

dispositive of the prejudice inquiry, as one or more jurors may have felt intimidated

regardless. By limiting its inquiry to the actual existence of photographs, the district court

left key substantive matters unresolved, namely, whether anyone had attempted or

threatened to take photographs of the jurors, the identity of the alleged actors and their

relationship to the case, and the impact of Juror #4’s statement on other members of the



                                              12
jury. Thus, the court’s attention to the question whether the reported incident, in fact, had

occurred was only the beginning of the inquiry. 3

       We find no merit in the government’s contention that the dismissal of Juror #4, the

only juror who witnessed the alleged photographing, sufficiently addressed the reported

incident. The district court concluded that Juror #4 “may well believe that, in fact,

something was going on . . . and that that could influence [the juror’s] experience here and

consequently [the juror’s] judgment with respect to the case.” This problem could apply

equally to any jurors who heard Juror #4’s statement, regardless whether they witnessed

any photographing personally. The court security officer initially related that Juror #4 had

stated “in front of all the rest of the jurors” concerns about photographs being taken. Three

jurors later reported that Juror #4 had expressed suspicion regarding the alleged acts of

photographing. Under these circumstances, we cannot presume a prejudicial impact on

Juror #4 alone. Other jurors had the same information as Juror #4 and reasonably could

have reacted to it the same way. Without questioning each juror individually, the district

court could not know whether any remaining jurors were prejudiced by Juror #4’s stated

concerns, even if those jurors had not witnessed any of the alleged activity. See United

States v. Blitch, 622 F.3d 658, 665 (7th Cir. 2010) (the “widespread nature of the

discussions among the jurors” counseled in favor of individual voir dire of the entire panel).



       3
         We likewise disagree with the government’s assertion that any prejudice was cured
when the district court informed the jury, after Juror #4’s dismissal, that no photos had
been taken. As discussed above, an attempt or threat to take a photo could prejudice the
jury, regardless whether an actual photo was taken.

                                             13
This potentially widespread taint of the jury compelled the district court to conduct a

Remmer hearing. 4

       Our decision in United States v. Hines, 717 F.2d 1481 (4th Cir. 1983), further

illustrates the need for holding a Remmer hearing when a district court is presented with a

credible allegation involving an external contact with jurors. There, a juror had observed

a law enforcement agent taking photographs of persons leaving the courthouse. Id. at 1491.

Although the court informed the juror that “the photographs were not being made of jurors,

that there was no cause for concern, and that the matter should be disregarded,” the court

nevertheless conducted a Remmer hearing to determine whether the juror’s impartiality had

been compromised. Id. We agreed with the district court that the defendants were entitled

to a Remmer hearing under such circumstances. Id.; see also United States v. Hall, 877

F.3d 800, 805-07 (8th Cir. 2017) (district court conducted Remmer hearing when a juror

thought that a defense witness had followed her home after trial, though the court ultimately

determined that the incident was a coincidence and that the juror could remain impartial).

By conducting a Remmer hearing, the district court in Hines effectively eliminated any

concerns that the juror’s ability to remain impartial may have been compromised by his




       4
        We respectfully disagree with our dissenting colleague’s assertion that we would
require a Remmer hearing based only on the “commonplace action[]” of holding a cell
phone. Dissent Op. at 3. Our colleague does not address the reasonable possibility that
Juror #4’s expression of concern to the other jurors itself impacted the jury’s impartiality,
regardless whether anyone else witnessed the alleged photographing. Nor does our
colleague suggest why a threat to take a photograph, in a case involving retaliation against
witnesses, should not be evaluated as a standalone external influence on the jury.
                                             14
perceptions and conclusions regarding the activity observed. We have no basis for

reaching a similar conclusion here that the jurors remained impartial.

       Our decision is not altered by our recent holding in United States v. Small, 944 F.3d

490 (4th Cir. 2019). There, two jurors had reported to a courtroom deputy that they were

concerned that certain individuals had been “watching” them as the jurors left the jury room

after the first day of trial. Id. at 497. The two jurors also reported that one of the individuals

was carrying a cell phone, but the jurors did not know whether that person was using the

phone to take a photograph or video recording.            Id.   The district court denied the

defendant’s motion to question the two jurors who had reported their concerns. Id. at 505.

       We concluded that “a vague report of ‘watching,’ without more,” was not evidence

of an extrajudicial “communication” or “contact” sufficient to invoke the protections of

Remmer. Id. Further explaining, we stated that the terms “communication” and “contact”

“imply an active exchange of information of some sort,” an exchange that does not

encompass the act of “watching,” which “may be done passively and, unless context

indicates otherwise, conveys little information.” Id. And, notably, we observed that

“[t]here was no reason for the jurors to associate the unknown individuals with [the

defendant].” Id. In clear contrast, the case before us involves a report of actions taken by

the defendants’ associates, creating a direct concern of potential or actual juror intimidation

and resulting bias.

       We do not “casually invoke[]” the requirements of Remmer. Stockton v. Virginia,

852 F.2d 740, 745 (4th Cir. 1988). And we acknowledge that the district court was required

to manage a challenging and lengthy trial with jurors who understandably were unsettled

                                               15
by the violent acts allegedly committed by the defendants and others. Nevertheless, we

reach the firm conclusion that the defendants were entitled to an evidentiary hearing under

Remmer to determine whether all the jurors remained impartial throughout the case, as

guaranteed by the Sixth Amendment.


                                           III.

       For these reasons, we vacate the district court’s judgment. We remand the case for

the district court to conduct an evidentiary hearing in accordance with the requirements of

Remmer, and for such other proceedings consistent with the principles expressed in this

opinion.



                                                            VACATED AND REMANDED




                                            16
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

       With respect, I dissent. The majority provides criminal defendants the power to

demand new trials for what we ordinarily would consider innocuous conduct.

       Against the backdrop of gruesome, but certainly admissible, evidence, the jury

became concerned that the defendants “looked at the jury,” communicated with their

attorneys and a paralegal, and accessed voir dire information about the jurors in accordance

with routine procedures. None of this conduct triggers a presumption of prejudice under

Remmer v. United States, 347 U.S. 227 (1954). See United States v. Small, 944 F.3d 490,

505 (4th Cir. 2019) (watching jurors); United States v. Ford, 761 F.3d 641, 654–55, 654

n.9 (6th Cir. 2014) (access to juror’s personal information); United States v. King, 627 F.3d

641, 650–51 (7th Cir. 2010) (evidence at trial). The district court properly exercised its

“broad discretion” in managing these concerns, see United States v. Smith, 919 F.3d 825,

835 (4th Cir. 2019), and the majority does not appear to seriously contend otherwise.

       But the majority and I disagree about the consequences of a single juror’s belief that

two women holding cellphones were photographing jurors. No other juror who saw these

women interpreted their actions as photographing or attempting to photograph the jury.

       The majority apparently believes that the district court found a credible allegation

of external conduct that could affect “the ability of the jurors to remain impartial” and so

triggered the need for a Remmer hearing. Maj. Op. at 11. It seems to me that the record

does not bear that out. The district court recognized only that counsel had “concerns that

there may be an effort afoot to tamper with or intimidate a juror” (emphasis added).

Concluding that it did not have “enough information,” the court sought to explore “how
much of an investigation [was] necessary” at that “very preliminary, very early” stage. By

conducting this preliminary inquiry, the court carefully sought to determine if the threat

was credible.

       Such a preliminary exploration is entirely proper. As the majority acknowledges, a

court invokes the Remmer presumption only upon a credible allegation of jury tampering.

Maj. Op. at 9–10 (quoting Barnes v. Joyner, 751 F.3d 229, 242–45 (4th Cir. 2014)). The

Remmer “presumption is not one to be casually invoked.” Stockton v. Com. of Va., 852

F.2d 740, 745 (4th Cir. 1988). Rather, “the defendant must first establish both that an

unauthorized contact was made and that it was of such a character” as to require corrective

action. Id. at 743; accord United States v. Baptiste, 596 F.3d 214, 221 (4th Cir. 2010);

United States v. Heater, 63 F.3d 311, 321–22 (4th Cir. 1995).

       After its preliminary inquiry, the district court found that the allegation of jury

intimidation was not credible. * I would not hold that finding was clear error or that the

court abused its discretion in declining to hold a Remmer hearing, particularly given the

district court’s firsthand view of the atmosphere at trial and among the jurors. See, e.g.,

Heater, 63 F.3d at 321–22 (holding that a “bald assertion” of improper jury contact was

insufficient to require a Remmer hearing); United States v. Gravely, 840 F.2d 1156, 1159

(4th Cir. 1988) (finding no abuse of discretion in the district court’s declining to interview




       *
         The district court’s care in conducting this preliminary inquiry reflects its
understanding that it needed to avoid creating unwarranted jury fears. See Smith, 919 F.3d
at 834 (“This trial judge made reasoned judgments in walking the line between detecting
bias and creating bias.”).
                                             18
jurors where defendants failed to make “a threshold showing of improper outside

influence”).

       By watering down what constitutes a credible threat and substituting its judgment

for that of the district court, the majority’s holding unfortunately provides defendants a

valuable tool to disrupt their trials. I fear we are on a slippery slope where commonplace

actions, such as the mere holding of a cellphone, could bring significant delay in criminal

trials. In my view, an alleged threat of jury tampering must have stronger indicia of

credibility to overcome a district court’s considered contrary view and mandate a Remmer

presumption and evidentiary hearing.

       Accordingly, I respectfully dissent.




                                              19
