                                   No. 96-1386



United States of America;     *
                                       *
                     Appellant;        *
                                       *   Appeal from the United States
         v.                            *   District Court for the
                                       *   Western District of Missouri.
Everett Kyle Hall, also known          *
as Eric, also known as Shorty;         *
Roy Lee Hall; Randall Joe Hall;        *
                                       *
                     Appellees.        *



                          Submitted:    May 15, 1996

                          Filed:    June 4, 1996


Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.



HEANEY, Circuit Judge.


     The district court granted defendants' motion for a new trial based
on the jury foreperson's one-page affidavit stating that on more than one
occasion he and other jurors overheard the judge at a bench conference
discussing evidence of the defendants' involvement in other, serious,
criminal activity.   We remand the case to the district court to conduct an
evidentiary   hearing    in   accordance   with    this   opinion.   We   retain
jurisdiction in this matter, however, and if further attention by this
court becomes necessary, the clerk of court will provide the parties with
an accelerated briefing schedule.
                              I.   BACKGROUND


     Three defendants, Everett Kyle Hall, Roy Lee Hall, and Randall Joe
Hall, were tried by a jury and convicted of conspiracy to distribute
methamphetamine and to possess methamphetamine with intent to distribute
in violation of 21 U.S.C. § 846.   Everett Hall and Randall Hall were also
tried and convicted of the use of a firearm during the commission of a
drug-related felony in violation of 18 U.S.C. § 924(c),1 and for possession
of an unregistered silencer in violation of 26 U.S.C. §§ 5841; 5861(c), (d)
and (i); and 5871.2


     The parties appeared for sentencing on November 29, 1995.     At that
time, the defense presented the court with an affidavit from the jury
foreperson and made a motion for a new trial based on the affidavit.   The
affidavit stated in full:

        During the course of the trial I heard the Judge's
     comments concerning whether there would be evidence of
     chop shop, prostitution and murder admitted at the trial.

        From these statements, I felt that the Defendant[s]
     were involved in more than they were on trial for. I am
     also aware that the jury was apprehensive and fearful of
     retaliation from the Defendants or the Defendant[s']
     family, so much so that some jurors took different routes
     to and from the courthouse during the trial.

        The comments relating to evidence of a chop shop,
     prostitution, and murder were heard on several occasions.
     These comments were heard by other members of the jury
     and were discussed by the jury panel during recesses.
     Discussion of the comments occurred at times when all the




     1
      Although the defendants were convicted under the "use" prong
of 924(c), the court set aside those convictions in light of Bailey
v. United States, 114 S. Ct. 501 (1995). The government does not
appeal that decision.
     2
     Before trial, the court severed two counts in the indictment
against Everett Hall and Randall Hall for being felons in
possession of a firearm in violation of 18 U.S.C. § 922(g); those
charges apparently are still pending.

                                     2
      jurors were present and on other occasions by fewer than
      all jurors.

      At trial, the court had made references to chop shop, prostitution,
and murder in two bench conferences.   Both bench conferences related to one
of   the   court's pre-trial orders.       Prior to trial, counsel for the
defendants indicated that they might attempt to impeach one of the
government's primary witnesses by introducing evidence that she made prior,
false accusations that the defendants were involved in other crimes,
including a murder.     The court determined that none of the evidence
relating to the alleged prior crimes would be admitted.        During cross-
examination of a government witness, counsel for one of the defendants
appeared to tread on the court's pre-trial ruling by asking the witness if
she had ever engaged in prostitution.       When the government objected, the
court called all counsel to the bench and warned:

      I said Monday morning that you were not to go into the
      prostitution claims . . . . We're not going into any of
      those, only the issue involved in this case . . . .
      Well, I'm telling you you're not to go into the
      prostitution [or] . . . the murder or the chop shop.

Tr. at 629-30.    Shortly thereafter, during another bench conference, the
court told counsel:

      Well, if you're getting--if you are wanting to offer
      evidence relative to a murder, relative to the chop shop,
      relative to the prostitution, relative to the motorcycle
      club, it's not to be gone into . . . . Well, that would
      be evidence of a murder and I'm saying that you cannot go
      into that, so your offer will be refused.

Tr. at 664-65.   By all accounts, neither the court nor any lawyer intended
the jury to overhear the substance of these conversations.    In fact, until
the affidavit came to light, no party was aware that any juror had
overheard any portion of the bench conferences.


      The court granted a new trial to each defendant based on the single
juror affidavit without gathering any other evidence or




                                       3
making a further investigation.     The government now appeals the district
court's order.


                                II. DISCUSSION


A.   Evidentiary Hearing


      We review the court's decision to grant a new trial with particular
caution.   Affirmance would nullify a jury trial that lasted more than a
week, consumed significant judicial resources, and involved an investment
of substantial time by the lawyers on all sides.           At the same time, few
rights of an accused person are more fundamental or more sacred than the
Sixth Amendment right to an impartial jury.      Because each of the competing
interests is strong, we hesitate to reach a final decision without a
complete picture of what extraneous information came before the jury.          In
this case, one affidavit does not provide sufficient evidence on which to
reach a fully informed decision.    Thus, it was an abuse of discretion for
the court to grant the defendants' motion for a new trial absent an
evidentiary hearing.


      Faced   with   similar   situations,    this   and    other   courts   have
consistently had the benefit of in-depth evidentiary hearings regarding the
nature and effect of extraneous jury contact.        See, e.g.,     United States
v. Blumeyer, 62 F.3d 1013, 1015 (8th Cir. 1995) (in response to allegation
that a juror had consulted an outside lawyer, district court interviewed
all jurors); United States v. Cheyenne, 855 F.2d 566, 567 (8th Cir. 1988)
(district court conducted evidentiary hearing to question jurors about the
use of a dictionary during deliberations); United States v. Martin, 740
F.2d 1352, 1357 (6th Cir. 1984) (remanding for the limited purpose of an
evidentiary hearing to determine whether jurors overheard judge's comments
relating to defendant's guilt spoken during bench conference), cert.
denied, 472 U.S. 1029 (1995).




                                      4
      What concerns us most is the court's failure to explore the nature
of the jury's exposure to extraneous, prejudicial information beyond what
the single affidavit recounts.      Therefore, we remand the matter to the
district court to make a full factual inquiry.         Once the court has a
complete picture of what events transpired, it may, of course, grant a new
trial based on the taint of even a single juror.   United States v. Delaney,
732 F.2d 639, 643 (8th Cir. 1984) (holding that if a single juror is
improperly influenced, a verdict is as unfair as if all jurors were
improperly influenced).


B.   Rule 606(b)


      Generally, to impeach a jury verdict, "the [defendants] must (1)
produce evidence which is not barred by the rule of juror incompetency and
(2) produce evidence sufficient to prove grounds recognized as adequate to
overturn the verdict."    United States v. Krall, 834 F.2d 711, 715 (8th Cir.
1987) (citing United States v. Eagle, 539 F.2d 1166, 1169-70 (8th Cir.
1976), cert. denied, 429 U.S. 1110 (1977)).      The court's first inquiry,
therefore, is whether the affidavit constitutes admissible evidence under
the Federal Rule of Evidence 606(b), which governs jurors' competency to
testify with respect to their deliberations.     The rule provides:

         Inquiry into validity of verdict or indictment. Upon
      an inquiry into the validity of a verdict or indictment,
      a juror may not testify as to any matter or statement
      occurring during the course of the jury's deliberations
      or to the effect of anything upon that or any other
      juror's mind or emotions as influencing the juror to
      assent or dissent from the verdict or indictment or
      concerning the juror's mental processes in connection
      therewith, except that a juror may testify on the
      question whether extraneous prejudicial information was
      improperly brought to the jury's attention or whether any
      outside influence was improperly brought to bear on any
      juror. Nor may a juror's affidavit or evidence of any
      statement by the juror concerning a matter about which
      the juror would be precluded from testifying be received
      for those purposes.




                                      5
Fed. R. Evid. 606(b) (emphasis added).           The advisory committee notes to the
1972 proposed rule give some insight into competing values the Rule 606(b)
seeks to protect:

      The familiar rubric that a juror may not impeach his own
      verdict, dating from Lord Mansfield's time is a gross
      oversimplification. The values sought to be promoted by
      excluding the evidence include freedom of deliberation,
      stability and finality of verdicts, and protection of
      jurors against annoyance and embarrassment. McDonald v.
      Pless, 238 U.S. 264 (1915). On the other hand, simply
      putting verdicts beyond effective reach can only promote
      irregularity and injustice. The rule is an accommodation
      between these competing considerations.

      All but the second paragraph of the juror's affidavit falls squarely
within the exception of Rule 606(b), that is, it constitutes testimony on
the   narrow    question    whether     extraneous,    prejudicial    information   was
improperly     brought     before    the   jury's   attention.   In    substance,   the
affidavit reveals that at least one juror heard prejudicial information not
in evidence and that the information was discussed among the jurors.                 As
the district court specifically stated, "the comments made by the Court
during various bench conferences that related to murder, chop shops, and
prostitution were not intended to be heard . . . or considered by the
jury."      Order, No. 95-03020-10/03-CR-S-4, filed 1/16/96 (hereinafter
"Order") at 4.          Thus, under the rule's exception, the district court
properly considered this portion of the affidavit and on remand may
consider other evidence that is similarly restricted to the question of
what, if any, extraneous information the jury heard.


      The      second    paragraph      of   the    affidavit,   however,    contains
impermissible testimony.            In the first sentence, the foreperson reveals
what impact the extraneous information had on him by stating:             "From these
statements, I felt that the defendant[]s were involved in more than they
were on trial for."       He then goes on to expose the thought processes of the
other jurors:     "I am also aware




                                             6
that    the jury was apprehensive and fearful of retaliation from the
Defendants or the Defendant[s'] family, so much that some jurors took
different routes to and from the courthouse during the trial."      Although
it is not clear from the affidavit whether the jurors' alleged fears were
independent of or dependent on the overheard information relating to "chop
shop, prostitution and murder," Rule 606(b) prohibits its consideration in
either case.    Therefore, the district court should not have considered
those statements in the second paragraph of the affidavit in its ruling on
the new trial motion.    Moreover, the court should not consider any other
evidence that bears directly on the jurors' decision-making processes.


C.   Presumption of Prejudice


        The court must next consider whether the admissible evidence is
sufficient to overturn the jury verdict.    Certain jury contaminations are
so prejudicial that they create a rebuttable presumption of prejudice.
United States v. Remmer, 347 U.S. 227, 229 (1954) (presumption created by
any private communication, contact, or tampering with a juror during trial
about the matter pending before the jury unless made in pursuance of known
rules and directions of the court).    Our court has held, however, that the
presumption of prejudice does not apply unless the extrinsic contact
relates to "factual evidence not developed at trial."     Cheyenne, 855 F.2d
at 568 (holding no abuse of discretion for district court to deny new trial
motion where jurors consulted dictionary for definitions of "callous" and
"wanton").   Therefore, we do not apply the presumption of prejudice if the
extraneous contact pertains to purely legal issues.     Blumeyer, 62 F.3d at
1016.


        In this case, the district court held that the presumption of
prejudice applied.   Order at 5-6.   The government argues that the overheard
comments related only to a question of law—i.e., the




                                      7
judge's ruling on the admissibility of evidence.3                            We disagree.     The
comments relate to factual questions that go to the heart of the jury's
role:       to weigh the relative credibility of witnesses in a case that turned
almost entirely on whose version of events the jury found more credible.
The jury's duty to resolve factual questions is severely impaired when it
improperly receives information that besmirches the defendants' character.
It is alleged that several jurors overheard mention of the defendants'
connection to other crimes including murder, that one or more of those
jurors transmitted the information to the full jury panel, and that jurors
discussed it with each other during trial recesses.                          Such conduct would
certainly trigger a presumption of prejudice to the defendants.


        Once the presumption is established, the burden will rest heavily
with the government to establish that the extraneous juror contact was
harmless       to   the    defendants.     Remmer,         347   U.S.   at    229.   Thus,    the
presumption         of    prejudice   applies,       and   it    will   be   incumbent   on   the
government to prove that the extraneous contact was harmless beyond a
reasonable doubt.           See Blumeyer, 62 F.3d at



        3
     For example, in opposition to the defendants' motion for new
trial, the government argued to the court:

           [T]he affidavit does not indicate that any
        comments which may have been overheard by the jury
        at side bar affected their verdict whatsoever.

           It simply doesn't say that it was considered or
        that it somehow inhibited or hindered the jury from
        following the court's instructions.    There is no
        indication that the jury did anything other than
        follow the Court's instructions and consider the
        evidence that was admissible.       That affidavit
        doesn't challenge that whatsoever. In truth, all
        it says is that the jury was able to hear the Court
        make evidentiary rulings, which it heard, of
        course, from time to time throughout the course of
        the trial anyway. Therefore, I think the court can
        deny the motion at this point and proceed to
        sentencing.

Hr'g Tr. at 6.

                                                 8
1017.    We employ an "objective test . . . to assess whether the extraneous
information would likely affect a typical juror."                      Id.     The relevant
considerations include:              (1) whether the extrinsic evidence was received
by the jury and the manner in which it was received; (2) whether it was
available to the jury for a lengthy period of time; (3) whether it was
discussed and considered extensively by the jury; (4) whether it was
introduced before a jury verdict was reached and, if so, at what point
during the deliberations; and (5) whether it was reasonably likely to
affect the verdict, considering the strength of the government's case and
whether the government's case outweighed any possible prejudice caused by
the extrinsic evidence.              Id. (citing Bayramoglu v. Estelle, 806 F.2d 880,
887 (9th Cir. 1986), and Osborne v. United States, 351 F.2d 111, 118 (8th
Cir. 1965)).4


                                           CONCLUSION


        We       remand   to   the   district   court   to   conduct   a   factual   inquiry
consistent with this opinion to fully determine the extent to which the
jury was exposed to extraneous, prejudicial information.                     If that factual
inquiry reveals jury taint sufficient to trigger the presumption of
prejudice, a new trial is warranted unless the government can demonstrate
harmlessness beyond a reasonable doubt.


        A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




             4
        The district court held that the government could not
establish that the overheard comments were harmless. Order at 7.
We simply note that connection to the crime of murder carries as
much inherent danger as almost any imaginable reference.

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