                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                _______________

                                Nos. 96-1386/2930
                                _______________

United States of America,             *
                                      *
       Appellant,                     * Appeals from the United States
                                      * District Court for the Western
       v.                             * District of Missouri.
                                      *
Everett Kyle Hall, Also Known as      *
Eric, Also Known as Shorty; Roy Lee *
Hall; and Randall Joe Hall,           *
                                      *
       Appellees.                     *
                                 ___________

                             Submitted: March 11, 1997

                                  Filed: July 7, 1997
                                   ___________

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS
      SHEPPARD ARNOLD, Circuit Judge.
                             ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      The government appeals from an order granting a new trial to defendants Everett
Kyle Hall, Roy Lee Hall, and Randall Joe Hall because the jury was exposed to
prejudicial extrinsic matter. We find that the extrinsic matter was harmless beyond a
reasonable doubt and thus reverse the order for a new trial. We remand for sentencing
pursuant to the judgments of "guilty" originally entered.
                                             I.
       The trial court originally ordered a new trial in this case because, on the day that
the defendants were to be sentenced pursuant to their conviction on drug offenses,
defense counsel produced an affidavit of the jury foreman, William Snyder, stating that
Mr. Snyder had "heard the Judge's comments concerning whether there would be
evidence of chop shop, prostitution and murder admitted at the trial," and that these
comments "were heard by other members of the jury and were discussed by the jury
panel during recesses." On appeal from that order, see United States v. Hall, 85 F.3d
367, 369 (8th Cir. 1996), we found that "one affidavit does not provide sufficient
evidence on which to reach a fully informed decision," and remanded so that the district
court could "explore the nature of the jury's exposure to extraneous, prejudicial
information beyond what the single affidavit recount[ed]."

       On remand, the trial court reinstated its order immediately after holding an
evidentiary hearing. At that hearing, defense counsel called only one juror, Mr. Snyder,
and he affirmed what he had said in his affidavit. He estimated that the subject of what
was overheard from side-bar conferences was broached three or four times in the
presence of a majority of the jurors. He said that it "wasn't any kind of serious
deliberation of, you know, worldly matters or anything, [but] break room type
discussion in the manner of, did you hear what he said or that kind of discussion." The
government, on its part, called eleven jurors, none of whom testified to being able to
understand anything that was ever said at a side-bar conference. One juror, Tammy
Smith, testified that "a couple" of jurors approached her and indicated a desire to talk
about matters overheard from bench conferences, but that she stopped the conversation
before it began. None of the other jurors whom the government called had any
recollection of any discussions among the jurors on these matters. Only two of the
jurors did not testify: The government called a government agent to testify about a
telephone interview of one of those, and the other one was not located.




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       The trial court found that Mr. Snyder's credibility had not "been disproven," and
credited his testimony. In granting the motion for a new trial, the trial court commented
that "certainly the case was not so strong or overwhelming on the part of the
government that the jury would have returned a verdict such as it did, absent a hearing
of the statements concerning chop shop, prostitution and murder."

                                            II.
       As we noted in the first appeal, we believe that prejudice might properly be
presumed in this case because the comments alleged to have been overheard from
side-bar conferences involved " 'factual evidence not developed at trial.' " Hall, 85 F.3d
at 371, quoting United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988). Once
such a presumption arises, it becomes the government's burden to show that "the
contact was harmless beyond a reasonable doubt." United States v. Blumeyer, 62 F.3d
1013, 1017 (8th Cir. 1995), cert. denied, 116 S. Ct. 1263 (1996). We must ask, in
other words, if a presumption of prejudice arises, whether the extrinsic evidence was
"reasonably likely to affect the verdict, considering the strength of the government's
case and whether [the strength of the government's case] outweighed any possible
prejudice caused by the extrinsic evidence." Id. In light of our holding in United
States v. Delaney, 732 F.2d 639, 643 (8th Cir. 1984), quoting Stone v. United States,
113 F.2d 70, 77 (6th Cir. 1940), that " '[i]f a single juror is improperly influenced, the
verdict is as unfair as if all were,' " we believe that the appropriate inquiry is whether
there is any reasonable chance that the jury would have been deadlocked or would have
reached a different verdict but for the fact that even one reasonable juror was exposed
to prejudicial extraneous matter.

       Even if we credit Mr. Snyder's testimony entirely, and discredit all of the other
testimony, as the trial court did, thus giving rise to a presumption of prejudice, we
believe that there was no reasonable chance that the jury would have been deadlocked
or would have reached a different verdict in the absence of the extraneous information.
First of all, we think that the government's case, which was based on strong physical

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evidence, and was supported extensively by the corroborating testimony of Kellie
Wright and four others, was compelling. Second, we find for reasons that follow that
the extrinsic information to which the jury was exposed was received in a context that
made any association between it and the defendants speculative; in fact, we are
unpersuaded that a reasonable inference could even have been drawn that the
conversations at the bench had to do with the conduct of the defendants rather than the
conduct of a prosecution witness.

        Key to the understanding of the matter of context is the fact that it was the
defense, not the prosecution, that wanted to introduce evidence relating to murder,
prostitution, and the operation of a chop shop. Defense counsel hoped to undermine
the credibility of Ms. Wright, the prosecution's primary witness, by showing that on
previous occasions she had falsely accused the defendants of these crimes. The first
time that these words arose in the courtroom was in a side-bar conference that followed
immediately after the trial court interrupted a defense counsel's question to Ms. Wright
which began "Did you tell Mark Deeds that you worked as a prostitute for Roy...."
In that conference, the trial court told the defense that "you're not to go into the
prostitution ... [t]he murder or the chop shop." The defense counsel argued at some
length that these matters were important to its plans to impeach the witness. The trial
court eventually cut off the discussion with a ruling that the matters were out of bounds.
It is important to note that the prosecutor did not speak at all during this conference.

        While Ms. Wright was still on the stand, the defense renewed its attempt to go
into these matters a short while later in a second bench conference. The trial court said
to the defense counsel, "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." The prosecutor spoke only briefly at the beginning of this
conference, and did not speak at all after the trial court's comment.




                                           -4-
       There are, therefore, by our reading, only two times when a juror conceivably
could have heard the trial court mention the offending words, and it is important to bear
in mind that it was the trial court's words that Mr. Snyder testified to overhearing.
These two episodes both occurred in the course of the defense cross-examination of the
key prosecution witness. During the bench conferences the defense counsel was the
party arguing at length, and with some vehemence, with the trial court. The first
conference, moreover, came on the heels of the trial court abruptly curtailing a defense
counsel's questioning of the prosecution witness. The only reasonable inference, we
believe, that a reasonable person overhearing these utterances could draw in these
circumstances is that the offending words had to do with matters that the defense itself
wanted to bring into trial, as was indeed the case.

      We find, therefore, that in the circumstances of this case the possibility of
measurable prejudice to the defendants was highly unlikely, and, when we consider the
strength of the government's case, we find that the effect of the extrinsic matter was
harmless beyond a reasonable doubt.

                                         III.
      For the reasons indicated, we remand the case to the district court for sentencing.

      A true copy.

             Attest:

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




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