                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-2001

USA v. Lloyd
Precedential or Non-Precedential:

Docket 00-2409




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Filed October 12, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2409

UNITED STATES OF AMERICA,
       Appellant

v.

TIMOTHY LLOYD

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 98-cr-00061)
District Judge: Hon. William H. Walls

Argued April 19, 2001

Before: SLOVITER, RENDELL, and FUENTES,
Circuit Judges

(Filed October 12, 2001)

       Robert J. Cleary
        United States Attorney
       George S. Leone
        Chief, Appeals Division
       Shawna H. Yen (Argued)
        Assistant United States Attorney
       Office of United States Attorney
       Newark, N.J. 07102

        Attorneys for Appellant
       Edward J. Crisonino (Argued)
       Law Offices of Edward J. Crisonino
       Westmont, N.J. 08108

        Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

A jury convicted Timothy Lloyd on one count of computer
sabotage, a violation of federal law. After one of the jurors
advised the court that she had learned from the media
during the course of deliberations about off-site computer
sabotage, the District Court granted Lloyd's motion for a
new trial. The government appeals.

I.

BACKGROUND

Omega Engineering Corp. ("Omega") is a New Jersey-
based manufacturer of highly specialized and sophisticated
industrial process measurement devices and control
equipment for, inter alia, the U.S. Navy and NASA. On July
31, 1996, all its design and production computer programs
were permanently deleted. About 1,200 computer programs
were deleted and purged, crippling Omega's manufacturing
capabilities and resulting in a loss of millions of dollars in
sales and contracts.

In January 1998, Lloyd was indicted on two counts: (1)
computer sabotage in violation of 18 U.S.C. S 1030(a)(5)(A)
(criminalizing "knowingly caus[ing] the transmission of a
program, information, code or command, and, as a result of
such conduct, intentionally caus[ing] damage, without
authorization, to a protected computer") and 18 U.S.C. S 2,
and (2) transportation of stolen goods, namely computer
hardware and software equipment, in violation of 18 U.S.C.
SS 2314 and 2. Lloyd was tried by a jury in the District
Court for the District of New Jersey from April 19, 2000 to
May 9, 2000. The government's theory of the case was that

                                2
Lloyd, an Omega employee, planted a computer "time
bomb" in the central file server of Omega's computer
network while employed there, and that the "time bomb"
detonated after he was fired from the company. The
defense's theory was that the massive deletion of files could
have resulted from an accident or could have been caused
by another employee, either intentionally or
unintentionally. The defense contended that Lloyd could
not have committed the act of sabotage because he did not
have direct access to the system after he was fired and
because he had no motive before he was fired, as his firing
was without warning.

During the course of the trial, the government presented
10 witnesses and the defense presented 10 witnesses. The
testimony showed that from 1985 to July 10, 1996, Lloyd
worked at Omega as its only computer system
administrator. In September 1995, Lloyd received Novell
training, obtained Novell certification, and installed the
Novell computer network onto Omega's computer system.
With Novell, Omega was able to place all of its information
on a central file server, which acted as a central storage
device and allowed all the information on the server to be
shared with other computers on the network. Government
witnesses testified at trial that Lloyd was the only person
who maintained the Novell computer network and had top-
level supervisory access to it. One of the government's
computer experts explained that supervisory access"means
that . . . [an] account has full access to everything on the
server." App. at 552. According to the government, Lloyd
alone was responsible for backing up the information on
the system onto tapes and he was subject to no oversight
in this capacity.

The government argued to the jury that beginning in
1994 or 1995, Lloyd became a difficult employee. Witnesses
testified that he repeatedly elbowed, shoved, and bumped
colleagues in the hallways, and that he became verbally
abusive. Apparently he was counseled on several occasions
about these problems, but never improved his behavior. In
May 1995, because of Lloyd's continuing interpersonal
problems, he was transferred from supervisor of Omega's
CNC Department (the manufacturing side of Omega's plant,

                                3
where machines actually created the thousands of products
that comprised Omega's inventory) to a position as a
manufacturing engineering support person. Lloyd's
supervisor, James Ferguson, testified for the government
that, even though he told Lloyd this change in positions
was only a "lateral move," in fact it constituted a
"demotion," as it took supervisory capabilities away from
Lloyd. App. at 62. Courtney Walsh, a former subordinate
and close friend of Lloyd who had since become estranged
from him, replaced Lloyd as supervisor of the CNC
Department.

Government witnesses testified at trial that they hoped
this change in positions would cause Lloyd to improve his
behavior, but it had the opposite effect and his
interpersonal problems increased. In February 1996, Lloyd
received a performance review and raise. His performance
was rated a `7' on a scale of 1 to 10, which meant "often
exceeds expectations." App. at 66. He also received a 4%
raise, which was lower than his 7.2% raise in 1993, 4.6%
raise in 1994, and 4.92% raise in 1995. App. at 67. The
government argued at trial that the demotion, along with
the substandard performance review and raise, indicated to
Lloyd that he would soon be fired, thus providing him with
the motive to sabotage Omega's computer system.

Government witnesses also testified that Lloyd had
instituted a policy at Omega in late June 1996 to"clean up"
all individual computers in Omega's CNC Department. The
intention was to delete all unnecessary information from
the individual computers. According to the policy, all
employees were required to save their files to the file server
and were prohibited from making their own backups. In
accordance with this policy, Lloyd moved those portions of
computer programs that ask end-users questions about
safety precautions from the individual computers to the file
server. Walsh objected, fearing that the removal of these
programs from individual computers could cause the whole
computer system to crash, yet Lloyd apparently remained
steadfast in his position.

According to the government, Lloyd's behavior raised
concerns with a number of Omega's managers, in
particular Ferguson, who decided in late June 1996 that it

                                4
was time to fire Lloyd. Concerned that Lloyd had too much
control over Omega's network and that his termination
would leave no one at Omega with access to the network,
Ferguson testified that he asked Lloyd to give access to the
file server to himself, Al DiFrancesco in Human Resources,
and another employee, William Wall. Lloyd never did so.

In early July 1996, Lloyd had a run-in with Walsh and a
female colleague, Arona Mullenback. Lloyd met with
DiFrancesco and Wall to discuss the matter, after which
DiFrancesco realized it was time to fire Lloyd. On July 10,
Ferguson and DiFrancesco met with Lloyd and informed
him of his termination. They stated it was due to his
longstanding interpersonal problems and the repeated
incidents of physical intimidation. The firing was effective
immediately and Lloyd was quickly escorted from the
premises.

On July 31, 1996, Ferguson learned that the file server
on Omega's computer system would not boot up. That same
day Lloyd told representatives of W.L. Gore in response to
the job application of Lloyd's friend Raymond Nabb,
another Omega employee, that "everybody's job at Omega is
in jeopardy." App. at 601-602. Days later, Ferguson realized
that all of Omega's CNC programs on the file server, which
contained instructions for operating the machines, had
been lost and could not be recovered. Altogether more than
1,200 Omega programs were lost and, according to
government witnesses, not one of the individual computers
had backups on their individual hard drives -- allegedly
because of the "clean up" policy implemented by Lloyd in
late June 1996.

In response, Omega tried to hire locally-based
programmers to recover the lost programs but these efforts
proved futile. Thomas Inglin, one of the programmers
trained in Novell networks, testified that the files had been
deleted and "purged," i.e., rendered unusable and
unrecoverable. App. at 425. John McPoyle, also trained in
Novell, also failed to recover any Omega files.

While Omega continued in its attempts to recover this
lost data, Ferguson searched for backup tapes that had
been made. He contacted Lloyd and repeatedly asked Lloyd

                               5
for any tapes that he had but Lloyd answered that he had
none. Ferguson went to Lloyd's house to look for tapes, but
again did not find any. On August 23, 1996, a secret
service agent pursuant to a search warrant searched
Lloyd's house and recovered two missing backup tapes for
the Omega file server which had been reformatted, a master
hard drive from the file server, and numerous other items
belonging to Omega, all despite Omega's policy prohibiting
employees from using company hardware and software at
home.

In August and September 1996, Omega continued to seek
a solution, hiring a variety of programmers in hopes of
recovering the lost data. Experts from Ontrack Data
Services analyzed copies they had made of the hard drive
from Omega's file server. Although they failed to recover the
programs, the Ontrack experts concluded that the
programs had been not only deleted but also "purged." App.
at 500. Robert Hackett, Ontrack's Remote Data Recovery
Operations Supervisor, testified at trial that "issu[ing a]
`delete' . . . would be similar to someone just taking a piece
of paper and putting it into the trash bin, [but] issuing a
`purge,' that is going to take what's in the trash bin, . . .
shred it into very small pieces, . . . and throw[ ] them all up
in the air." App. at 500. Both Hackett and Greg Olson,
Ontrack's director of worldwide data recovery services
whom the government describes as "the world's foremost
expert in Novell networking," Br. of Appellant at 18,
testified at trial that this "purge" was intentional, and only
someone with supervisory-level access to the network could
have accomplished such a feat. App. at 502, 548.
Government witnesses testified that normally with Novell
networks only one person has supervisory-level access and
that that one person at Omega was Lloyd.

Olson further testified that he had reason to believe July
30, 1996 was the trigger date that set off the actual
deletion of files. Olson characterized a string of commands
entitled "FUSE.EXE" as a "time bomb" because anyone who
attempted to log on to the server on any date after July 30,
1996 would detonate the program and cause a massive
deletion of data. He found that the program that deleted
files was similar to a Microsoft program called"DELTREE,"

                               6
but only reconfigured for Novell. Olson ruled out the
possibility of accidental deletion because of the specificity of
the commands. He also testified that he examined the hard
drive recovered from Lloyd's home and found the exact
same strings of commands that comprised "FUSE.EXE."
App. at 571-572.

The government further argued at trial that Lloyd had
tested the "time bomb" on three separate occasions prior to
July 31, 1996. Olson testified that the "time bomb" had
been tested on February 21, 1996, on April 21, 1996, and
on May 30, 1996. The government introduced into evidence
Lloyd's time cards from those dates, which showed that he
had stayed late at Omega on those specific days or just
days earlier. App. at 569-571. Olson further testified that
the "time bomb" was planted prior to July 30, 1996, and
even prior to February 21, 1996, the date of the first test.
App. at 585.

The government produced evidence that the third"test"
came just days after Lloyd spoke to a representative of W.L.
Gore & Associates at a job fair about a possible job
opening. Lloyd then interviewed with W.L. Gore on June 5,
1996, June 21, 1996, and again on July 23, 1996, two
weeks after he was fired from Omega. An employee in the
human resources department at W.L. Gore testified that, in
the interviews, Lloyd acknowledged that he was willing to
accept a salary of $45,000, less than the $57,000 he was
receiving from Omega. The W.L. Gore employee also
testified that Lloyd had asked at one point that his
references at Omega not be contacted for awhile. Sometime
between July 23 and July 31, Lloyd was offered a position
at W.L. Gore paying $49,000 per year, and he accepted.
Prior to Lloyd's firing, Omega did not know he had been
interviewing with W.L. Gore.

The government describes Olson's testimony as
suggesting that "only an individual with system
administrative skills, programming skills, Microsoft
Windows experience, and independent knowledge of how to
change the deleting program's message could have"
committed the act of computer sabotage. Br. of Appellant at
22. It further contends that only Lloyd had each of these

                               7
necessary skills and the necessary access to commit this
crime.

In response, the defense argued to the jury that the
government's case was based on a series of assumptions
that could not be proven. First, the defense tried to refute
the government's evidence that Lloyd was a belligerent and
uncooperative employee. Nine former Omega employees
testified that they never had any problems with Lloyd and
that Lloyd was always very professional. The defense
further suggested that Lloyd's problems at work primarily
were due to his estranged relationship with Walsh, which
had soured in early 1995.

The defense also contested the government's assertion
that Lloyd knew he would be fired and thus had a motive
to commit the act of sabotage. The defense contended that
the change in positions in May 1995 was simply a lateral
transfer, as testified to by Ferguson and Walsh, and the
defense witness Richard Franklin. Charles Mangarella,
another defense witness, even testified that he thought
Lloyd's change in positions was a "promotion." App. at 758.
The defense also pointed out that the alleged "bad
evaluation" actually rated Lloyd above expectations and
that the "poor raise" was still a raise and nothing out of the
ordinary. Moreover, the defense put before the jury
Ferguson's strong recommendation of Lloyd to W.L. Gore,
which Ferguson claimed at trial was nothing but lies.
Ferguson described Lloyd to W.L. Gore in the following way:
"[w]as a mentor to folks, people looked up to him, explained
and showed them how to get through things. He was able
to develop, coach, team into self manage teams [sic], self
responsibility." App. at 605. Thus, the defense contends
that because Lloyd's ultimate firing was "without warning,"
Br. of Appellee at 8, he had no motive to commit the
sabotage.

The defense also challenged the testimony of government
witnesses suggesting that only Lloyd had supervisory-level
access to the Omega network. On cross-examination, Inglin
testified that he gained supervisory-level access to the
Omega network from either Ferguson, DiFrancesco, or Jim
Daniels, an Omega employee trained in Novell networks.
According to Inglin, "[s]omebody must have" had

                                8
supervisory rights in order to log on. App. at 423. Similarly,
McPoyle acknowledged on cross-examination that at least
seven Omega employees had supervisory-level access to the
network. Olson as well testified on cross-examination that
he came across two accounts that had supervisory access
to the Omega network. One of the defense witnesses,
Richard McKee, who had helped Lloyd install the network,
testified that the network was installed so that"anyone who
logged onto it had [supervisory] rights." App. at 679.
Several defense witnesses also testified that the computer
network had virtually no security at all. Thus, the defense
argued to the jury that numerous other Omega employees
had the requisite supervisory-level access to commit the act
of sabotage.

The defense also contested the government's evidence
regarding Lloyd's alleged "clean up" policy. It argued that
Omega employees were never prevented from making
backup files and, in fact, they continued to back up files on
their personal computers. Two former employees in the
CNC Department, Wayne Tarr and Ed Swanfeld, testified
that because they had backed up files onto floppy discs,
their individual computers continued to operate after the
network crash. Swanfeld testified that nobody ever told him
that he couldn't save his files onto his individual computer.

The defense further sought to refute the government's
emphasis on the amount of Omega property recovered from
Lloyd's home by pointing out that Lloyd often brought work
home with him while employed at Omega, and that his
supervisors knew this. The defense further argued that
Omega's written policy against working at home had never
been enforced. Lloyd did not testify.

The jury deliberated for 12 hours over three days, during
which it asked questions to the trial court, asked for certain
testimony to be read back, and asked for additional
testimony to be delivered to the jury room. Ultimately, the
jury convicted Lloyd on the count of computer sabotage but
acquitted him on the count of transportation of stolen
goods. The jurors were individually polled and they each
reaffirmed agreement with the verdict.

Three days after the jury returned its verdict, on May 12,
2000, Francis Simpson, Juror No. 1, called the District

                                9
Court to express discomfort with her vote. The government
immediately pointed the court to Federal Rule of Evidence
606(b) and recommended it conduct an informal in camera
inquiry of the juror to determine whether she had been
subject to extraneous information that prejudiced her. On
May 16, 2000, the court conducted that hearing and then
repeated its questioning of the juror in front of counsel.

Simpson told the trial judge that over the weekend in the
midst of deliberations she saw a television report discussing
a computer virus called the "Love Bug." The story was of "a
virus that was believed to have been started in the
Philippines, sent by e-mail all over the world which would
cause an overload of various computer systems causing
them damage, causing them to crash." App. at 906-907.
The court then questioned as to the subjective effect of this
information, and she stated that she learned that it was
possible for the person who set off the "Love Bug" virus to
affect computers worldwide, and thought that it was
possible for Lloyd to have triggered the "time bomb" in the
Omega computer system without having direct physical
access to the computer server at the time. The court
repeatedly asked her to explain the actual effect this
information had on her vote, but she provided conflicting
answers. In no particular order, she told the court that the
information about the "Love Bug" had no effect, that she
wasn't sure what effect it had, that it changed her vote, and
that her decision to change her vote to guilty was more
likely due to her willingness to pacify the other jurors.
Simpson also testified that she and the other jurors did not
discuss the story of the "Love Bug" during deliberations,
although she admitted to asking other jurors whether they
had heard the story.

After the hearing, Lloyd moved for a new trial and the
District Court granted the motion. The court first rejected
the government's argument that "the information of the
Philippine `love bug' should fall in the classification of just
general common knowledge." App. at 921. The District
Court stated:

       . . . This case was tried vigorously and it was tried on
       the theory of somehow and sometime before he was
       terminated from his employment, this defendant

                                10
       sabotaged the computer system at his employment
       place. Some weeks after he had been terminated, he
       never having been allowed to return to that
       employment, the system crashed.

        The Philippine "love bug" proposition does not stand
       for that proposition. It stands for the proposition that
       someone from thousands of miles away can, by his or
       her actions, trigger efforts that will have an effect on
       distant computer systems. That was not the theory
       that the government advanced in this case and it
       therefore, seems to me, would follow that the average
       juror, having heard about the `love bug' and using that
       information, that's the key, and using that information,
       would place his or her vote upon an actual pedestal
       that was not presented to her by the government.

App. at 921-922. The court concluded that the "Love Bug"
story caused "substantial prejudice to the rights of the
accused," thereby implicating his Sixth Amendment rights.
App. at 922. The government filed a timely notice of appeal.
We have jurisdiction pursuant to 18 U.S.C. S 3731.

II.

DISCUSSION

The government contends on appeal that the District
Court abused its discretion in granting the defendant's
motion for a new trial based on Simpson's testimony about
her subjective reaction to extraneous information and that
the court's inquiry into her subjective reaction violated Rule
606(b) of the Federal Rules of Evidence.

We note that Lloyd's brief on appeal fails to address these
issues, and instead concentrates on the Sixth Amendment's
protection of the right of confrontation and cross-
examination, issues we believe are not raised by the
circumstances here.

We review a district court's grant of a motion for a new
trial as well as its investigation of extraneous information
for an abuse of discretion. See Wilson v. Vermont Castings,
Inc., 170 F.3d 391, 394 (3d Cir. 1999). We also review for

                               11
abuse of discretion a district court's finding on whether the
extraneous information prejudiced the defendant. See
United States v. Bertoli, 40 F.3d 1384, 1392-93 (3d Cir.
1994).

As this court recently discussed in Wilson, we do not
permit jurors to impeach their own verdicts. See 170 F.3d
at 394. "The purpose of this rule is to promote finality of
verdicts, encourage free deliberations among jurors, and
maintain the integrity of the jury as a judicial decision-
making body." Id. As an opinion from the Sixth Circuit
recently stated, "[i]f . . . courts were to permit a lone juror
to attack a verdict through an open-ended narrative
concerning the thoughts, views, statements, feelings, and
biases of herself and all other jurors sharing in that verdict,
the integrity of the American jury system would suffer
irreparably." United States v. Gonzalez, 227 F.3d 520, 527
(6th Cir. 2000). Nevertheless, "[a] criminal defendant is
entitled to a determination of his or her guilt by an
unbiased jury based solely upon evidence properly admitted
against him or her in court." Virgin Islands v. Dowling, 814
F.2d 134, 138 (3d Cir. 1987). Rule 606(b) seeks to
accommodate these competing considerations by providing:

       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 to 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 upon 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 these
       purposes.

Fed. R. Evid. 606(b).

Thus, a court may inquire into the verdict if " `extraneous
prejudicial information was improperly brought to the jury's

                               12
attention or [if] any outside influence was improperly
brought to bear upon any juror.' " Wilson , 170 F.3d at 394
(quoting Fed. R. Evid. 606(b)). However, "the court may only
inquire into the existence of extraneous information," and
not "into the subjective effect of such information on the
particular jurors." Id.

It is apparent from the transcript of the District Court's
interview with Simpson that the court's questioning went
beyond the scope permitted by Rule 606(b). The court
repeatedly asked the juror to describe the actual effect the
information had on her vote. See Sealed App. at 946-949,
951-952. Such questioning clearly is impermissible under
Rule 606(b), and when the District Court issued its order
granting Lloyd's motion for a new trial it acknowledged that
it "probably should not have asked [the juror] that question
specifically." App. at 907. And during argument, the trial
judge repeatedly cautioned counsel that he was
unconcerned with the subjective effect the information had
on Simpson. See App. at 916, 918, 921. Inasmuch as a
portion of the District Court's questions and the juror's
responses were not admissible under Rule 606(b), we limit
our inquiry to the portion of the colloquy that was
admissible, i.e., the juror's declarations detailing the nature
and existence of the extraneous information. See United
States v. Maree, 934 F.2d 196, 201 (9th Cir. 1991) (stating
that "[i]n determining whether [the juror's] misconduct
warrants a new trial, our inquiry is limited to the
admissible portions of the declarations"). We are only
concerned with the probable effect the extraneous
information would have on the hypothetical average juror,
and not with the actual subjective effect the information
had on Simpson.

A new trial is warranted if the defendant likely suffered
"substantial prejudice" as a result of the jury's exposure to
the extraneous information. United States v. Gilsenan, 949
F.2d 90, 95 (3d Cir. 1991). In examining for prejudice, we
must conduct "an objective analysis by considering the
probable effect of the allegedly prejudicial information on a
hypothetical average juror." Id. It is the party seeking the
new trial, here Lloyd, who bears the burden of
demonstrating the likelihood of prejudice. See Waldorf v.

                               13
Shuta, 3 F.3d 705, 710 (3d Cir. 1993). We independently
review the record to determine if that party has met that
burden. See Gilsenan, 949 F.2d at 95.

Several courts of appeals have applied a presumption of
prejudice whenever a jury is exposed to extraneous
information. See, e.g., Mayhue v. St. Francis Hosp. of
Wichita, Inc., 969 F.2d 919, 922 (10th Cir. 1992); United
States v. Perkins, 748 F.2d 1519, 1533 (11th Cir. 1984);
United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.
1983); United States v. Bassler, 651 F.2d 600, 603 (8th Cir.
1982). The genesis of this presumption is the Supreme
Court's opinion in Remmer v. United States, 347 U.S. 227
(1954), where the Court explained that "[i]n a criminal case,
any private communication, contact, or tampering directly
or indirectly, with a juror during a trial about a matter
pending before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance of
known rules of the court . . . with full knowledge of the
parties." Id. at 229.

This court has applied the presumption of prejudice only
when the extraneous information is of a considerably
serious nature. See Waldorf, 3 F.3d at 710 n.6; see also
Bertoli, 40 F.3d at 1394 (commenting that only"certain
extra-jury influences create" the presumption). In
particular, we have tended to apply the presumption of
prejudice when a juror is directly contacted by third-
parties. See United States v. Console, 13 F.3d 641, 666 (3d
Cir. 1993) (stating that application of the presumption is
most appropriate when there is direct communication
between a juror and a third-party during deliberations); see
also United States v. Boylan, 898 F.2d 230, 261 (1st Cir.
1990) (applying "the Remmer standard . . . to cases of
significant ex parte contacts with sitting jurors or those
involving aggravated circumstances").

In contrast, we tend not to apply the presumption to
circumstances in which the extraneous information at issue
is a media report, such as a television story or newspaper
article. See Gilsenan, 949 F.2d at 95-96 (not applying
presumption of prejudice to media coverage of failed plea
agreement in the case); United States v. D'Andrea, 495 F.2d
1170, 1172 n.5 (3d Cir. 1974) (per curiam) (not applying

                               14
presumption to media coverage of defendant's indictment
on other charges and its description of him as a"reputed
underworld figure"); see also Console, 13 F.3d at 666 n.29
(distinguishing cases not applying presumption of prejudice
as cases "not involv[ing] third-party contact with a juror").
Yet, as this court stated in Waldorf, "[i]n some cases the
publicity that occurs is so fundamentally prejudicial that
actual prejudice is presumed as a matter of law. Where the
improper publicity is of a less serious nature however, no
similar presumption applies." 3 F.3d at 710 n.6 (quotation
omitted). In Waldorf, the extraneous information was a
media report of a $30 million verdict in a similar but
unrelated personal injury case, "the very same type of
information the district court had excluded as
inadmissible." Id. at 707. Still, we declined to apply the
presumption in that case. See id. at 710-11.

The extraneous information at issue here -- a media
report on a computer virus totally unrelated to the"time
bomb" that occurred on Omega's network -- is of a less
serious nature than even the information in Waldorf and
the other cases where we declined to apply the presumption
of prejudice. Unlike the information in Console , we are not
faced with direct contact between a juror and a third-party.
And, unlike the extraneous information in Waldorf, the
"Love Bug" story is both completely unrelated and factually
dissimilar to the facts of the case. Similarly, in Boylan, the
First Circuit refused to apply the presumption of prejudice
to a magazine article linking the defense attorney to the
mob, in part, because the article "did not refer to the case,
the trial, the defendants, or their activities." 898 F.2d at
261. Likewise, we shall not apply the presumption of
prejudice to this case. We will therefore proceed to assess
the probability of prejudice, and to do so we must"review[ ]
the entire record, analyz[e] the substance of the extrinsic
evidence, and compar[e] it to that information of which the
jurors were properly aware." United States v. Weiss, 752
F.2d 777, 783 (2d Cir. 1985).

In examining for prejudice, this court has never set forth
a list of factors to consider, yet it is apparent from our
jurisprudence that several factors do stand out as relevant
to the analysis. To start, it is obvious that, for there to be

                               15
any possibility of prejudice, the extraneous information
must relate to one of the elements of the case that was
decided against the party moving for a new trial. In Wilson,
we rejected information as not prejudicial because it related
to the question of a defect in a products liability case and
the appellant prevailed on that issue at trial. See 170 F.3d
at 394. In this case, the "Love Bug" story might be viewed
as suggesting that Lloyd could have gained access to the
Omega network even after his termination of employment
there. Because access to the network was a necessary
component of the crime of computer sabotage, implicit
within the jury's guilty verdict was a determination that
Lloyd had that access. Therefore, our analysis must
proceed further.

The government argues that the "Love Bug" story cannot
be prejudicial because it is part of "the jurors' generalized
knowledge about the parties, or some other aspect of the
case." Virgin Islands v. Gereau, 523 F.2d 140, 151 (3d Cir.
1975). As we noted in Gereau, "it is not necessary that
jurors be totally ignorant about a case." Id. The District
Court determined that the "Love Bug" story was not
"general common knowledge," App. at 921, even though
several members of the jury had computer knowledge. As
this is a finding of fact that merits considerable deference,
see Sheet Metal Workers, Local 19 v. 2300 Group, Inc., 949
F.2d 1274, 1278 (3d Cir. 1991); Fed. R. Civ. P. 52(a), and
the fact that several jurors in this case "had never even
used a computer," App. at 909, we are not willing to
overturn the court's finding.

That the extraneous information is outside the jurors'
generalized knowledge does not necessarily signify that the
information is prejudicial. One factor often considered by
courts is the extent of the jury's exposure to the extraneous
information. See Console, 13 F.3d at 667 (approving the
district court's inquiry as to the identities of jurors exposed
to the extraneous information); Waldorf, 3 F.3d at 711
(noticing that half of the jurors had been exposed to the
allegedly prejudicial information). In this case, that means
we must inquire into what extent the "Love Bug" story was
shared with the rest of the jury. Simpson testified that on
the last day of deliberations -- the first day following media

                               16
reports of the "Love Bug" virus -- the jury did not discuss
the "Love Bug" at all during the actual deliberations.
Nevertheless, she admitted to asking "some jurors" if they
had heard the story over the weekend, and they said they
did, but the jurors "didn't discuss it, we mentioned it."
Sealed App. at 953.

Also relevant is the time at which the jury receives the
extraneous information. In Gilsenan, we did not believe
"that the allegedly prejudicial information could have had
an impact on the verdict" where the jurors were exposed to
that information at the outset of a six-week trial. 949 F.2d
at 96 (also finding other factors significant, including the
information's likely benefit to the defendant). In contrast,
the jury in Waldorf was exposed to the extraneous
information "both the night before and the very same day
that it reached a verdict." 3 F.3d at 713. The court noted
that "a more critical moment would have been difficult to
find." Id.; cf. Mayhue, 969 F.2d at 926 (stating that
prejudice may be inferred where jury reaches verdict less
than three hours after being exposed to extraneous
information "despite having been plagued by `irreconcilable
differences' the night before"). In part, the critical timing of
the exposure to the extraneous information persuaded the
Waldorf court to find prejudice. See 3 F.3d at 713 (also
finding relevant the fact that the "information was precisely
the type specifically excluded by the district court during
trial"). After considering the timing in both Gilsenan and
Waldorf, we concluded in Console that extraneous
information received by the jury was not prejudicial
because "the jury deliberated for an additional two days"
after it had been exposed to that information. 13 F.3d at
668-69 (quotation omitted).

Here, Simpson was exposed to the "Love Bug" story over
the course of the weekend that preceded the jury's final day
of deliberations. Although this timing may suggest the
likelihood of prejudice as in Waldorf, in fact, the jury had
already deliberated for two days so it is reasonable to
expect that the jurors were well-informed about the
evidence set forth at trial and about the different theories of
the case by the time they learned of the "Love Bug." Thus,
it is unlikely that the average hypothetical juror would have

                               17
been influenced by such unrelated information. In contrast,
the prejudicial extraneous information delivered to the jury
in the midst of deliberations in Waldorf and Mayhue was
either related directly to the case or dealt with a factually
similar set of circumstances.

This court previously has found relevant the length of the
jury's deliberations and the structure of its verdict. In
Gilsenan, we noted that "the jury deliberated for a week and
delivered a fractured1 verdict showing that it carefully
delineated among the offenses and between the appellants."
949 F.2d at 96. We concluded that such deliberate care
suggested that the extraneous information did not prejudice
the jury. See id.; see also Console, 13 F.3d at 669 (finding
noteworthy the fact that the jury returned two partial
verdicts before convicting the defendant on the count
seeking reversal). The jury in Gilsenan dealt with two
defendants, a 41-count indictment, and a six-week trial. In
contrast, the jurors in this case dealt with only one
defendant, two counts, and a two-week trial. Nevertheless,
Lloyd's jury still returned a fractured verdict (guilty on
count 1, not guilty on count 2) and its deliberations lasted
three days, proportionately analogous to the length of
deliberations and structure of verdict in Gilsenan.
Moreover, during deliberations Lloyd's jury asked the court
a number of questions and even requested that certain trial
testimony be delivered to the jury room. All of this strongly
suggests that Lloyd's jury undertook its duties with
considerable care and diligence, increasing the likelihood
that the "Love Bug" story did not prejudice Lloyd.

We also find informative the District Court's instruction
to the jury at the close of trial that it should only consider
the evidence developed in the case. App. at 794-796
(pointing the jury to the testimony at trial as well as
documents and other physical items submitted into
evidence). We presume that juries follow such instructions.
See Gilsenan, 949 F.2d at 96 (finding noteworthy that the
jury was exposed to the extraneous information "after the
_________________________________________________________________

1. We were advised at argument that "fractured" in this context means
that the jury was able to distinguish between the two counts, convicting
on one and acquitting on the other.

                               18
jury was instructed to decide the case on the basis only of
the evidence and not extrinsic information, an instruction
the jury is presumed to have followed"). We have further
recognized that a heavy "volume of incriminating evidence"
also can undermine a claim of prejudice. United States v.
Thornton, 1 F.3d 149, 156 (3d Cir. 1993); see also United
States v. Hornung, 848 F.2d 1040, 1045 (10th Cir. 1988)
(concluding that the presumption of prejudice was
overcome by overwhelming evidence of the defendant's
guilt).

The government's principal argument on appeal is that
the overwhelming evidence of guilt at trial made the"Love
Bug" story insignificant and irrelevant. The government's
theory at trial was that Lloyd was an uncooperative,
obstructionist, and belligerent employee who sabotaged
Omega's computer network by "planting" a "time bomb"
prior to his firing on July 10, 1996, set to detonate on July
31, 1996. The government contended that Lloyd knew he
was going to get fired because he had been demoted, had
been written-up, and had received a lower-than-expected
performance review and raise, and that his motive was
revenge. The government cites Lloyd's job interviews with
W.L. Gore & Associates as evidence of his expectation of an
upcoming departure from Omega. The government further
argued to the jury that whoever committed the act of
sabotage needed direct supervisory-level access to the
Omega network as well as advanced computer
programming skills, and that only Lloyd had both the
requisite access and skills. Government witnesses testified
to Lloyd's workplace behavior and even an expert testified
that the same program that allegedly caused the"purge" of
all the network files was also present on the hard drive of
a computer found at Lloyd's home. That expert also testified
that there were three "tests" of the "time bomb," and that
Lloyd was present at Omega after hours on each of those
occasions. At trial, the government specifically argued that
Lloyd committed the act of sabotage by direct access before
getting fired, not by remote access after getting fired.

It is apparent from the record that the government put
forth credible evidence incriminating Lloyd in the computer
sabotage under the theory that he knew his days at Omega

                               19
were numbered, and that he "planted" the "time bomb"
prior to his termination at a time when he had direct access
to the Omega network. Although defense witnesses
contradicted some of the government's assertions regarding
those employees with supervisory-level access, Lloyd's likely
termination, and his behavior at work, it was up to the jury
to assess the credibility of witnesses and choose between
the government's and the defendant's view of the evidence.
Further, there was strong uncontradicted evidence to
support the verdict. Significantly, evidence that went
unchallenged included: the string of commands found on
the hard drive in Lloyd's home that was identical to that
used in the program that purged the Omega network of all
its files; the testimony that the "time bomb" had been
tested three times previously and that on each occasion
Lloyd had stayed late at the office; Lloyd's willingness to
accept up to $12,000 less in a job with W.L. Gore than in
his position at Omega; and Lloyd's comment to a W.L. Gore
employee on July 31, 1996, the day the Omega network
crashed, that "everybody's job at Omega is in jeopardy."
App. at 601-602.

Most significant is the fact that the story of the"Love
Bug" virus, as explained earlier, is entirely unrelated to the
facts and the theories of this case. The "Love Bug" story
suggests that a person with remote access to a computer
(i.e., access from afar) could sabotage that computer.
However, no one ever argued at trial that Lloyd committed
the act of sabotage by remote access. Instead, the
government emphasized that Lloyd only could have
committed the crime before he was fired when he had direct
access. In discussing the "Love Bug" story in the District
Court, the prosecutor accurately pointed out that"we are
talking about a virus, we are not talking about a time
bomb. We are not talking about deletion of material. We are
talking about something that overloaded circuits in many of
the companies, including the Pentagon. It didn't delete
information." Sealed App. at 956.

Notably, there was only one question that was ever asked
at trial that had anything to do with the theory of remote
access. On cross-examination, the defense questioned
Ontrack expert Robert Hackett, "Were you ever asked, at

                                20
the outset of your data recovery attempt, to investigate
whether this was done via modem?" Hackett answered,
"No," and the questioner continued on to other subjects.
App. at 524. Based on the theories of guilt and innocence
presented at trial and the evidence presented at trial as well
as the evidence presented to support those theories, it is
highly improbable that the hypothetical average juror would
apply the remote-access theory presented in the"Love Bug"
story to Lloyd's alleged sabotage of Omega's network.2 The
Court of Appeals for the First Circuit concluded in a similar
case that "[b]ecause the [extraneous information] was not
logically connected to material issues in the case .. . to find
a material connection between the extraneous information
and the jury's verdict would require an assumption that the
jury members reached an irrational conclusion. We will not
essay so long a logical leap." Boylan, 898 F.2d at 261
(quotation and citations omitted). We likewise will not make
that leap.

We may overturn the verdict and grant a new trial only
if there was a substantial likelihood of prejudice. See
Waldorf, 3 F.3d at 711. We agree with the government that
"[b]ecause the `Love Bug' virus was not related in the least
to the facts or theories of the present case, that information
would not have had an impact on the hypothetical average
juror's vote in Lloyd's case." Br. of Appellant at 47. Thus,
Lloyd has not met his burden of proof.

Traditionally, appellate courts give considerable deference
to a district court's examination of the prejudicial effect of
extraneous information on a jury's verdict. See Bertoli, 40
F.3d at 1393; Mayhue, 969 F.2d at 922. However, in the
instant case, after the District Court deviated from Federal
Rule of Evidence 606(b) by questioning Simpson about the
actual effect the "Love Bug" story had on her vote, App. at
907, the court projected her subjective reaction, which was,
_________________________________________________________________

2. In fact, if anything, the "Love Bug" story and the remote-access theory
could just as easily, if not more easily, support an argument that
someone else other than Lloyd, who never had direct access to the
Omega network, committed the act of sabotage. See Gilsenan, 949 F.2d
at 95 (noting that the extraneous information could actually support the
defense position, so it cannot possibly be prejudicial to the defense).

                               21
at best, ambiguous, onto the hypothetical average juror.
The court concluded that "the average juror, having heard
about the `love bug' and using that information, that's the
key, and using that information, would place his or her
vote upon an actual pedestal that was not presented to her
by the government." App. at 922. However, in light of the
significant dissimilarities between the "Love Bug" and the
"time bomb," the court's conclusion that the average juror
would "use" the information at all cannot be sustained.
Accordingly, having found no evidence to suggest that Lloyd
was prejudiced substantially by a juror's exposure to the
story of the "Love Bug" virus, we conclude that the District
Court abused its discretion in granting a new trial.

CONCLUSION

We will reverse the grant of a new trial, reinstate the
conviction on count one of the indictment for computer
sabotage, and direct the court to proceed to sentencing.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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