                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 28 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-1473
                                                   (D.C. No. 98-CR-456-M)
    KAYES AHMED,                                          (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and ANDERSON, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
         Kayes Ahmed was convicted following a jury trial of two counts of making

false statements to the Small Business Administration and aiding and abetting, in

violation of 15 U.S.C. § 645(a) and 18 U.S.C. § 2. He was sentenced to a total of

30 months imprisonment and ordered to pay $1.5 million in restitution. Ahmed

appeals his conviction, arguing that the district court failed to adequately

investigate a juror’s allegation of jury misconduct.



                                   BACKGROUND

         The presentation of evidence by both parties lasted three days. After the

evidence was closed, the court recessed until the following day. The next

morning, the trial judge informed counsel, out of the presence of the jury, that

shortly after recess the previous day one of the jurors had approached the jury

clerk. The juror informed her that some of the jurors had been talking during the

recesses about the case and that he was concerned about whether the jury could

deliberate fairly. The judge also told counsel that that morning the same juror

had informed the courtroom clerk that he thought that he knew where the jury was

going.

         The judge indicated to counsel that as a result he would take “an extra

precaution” by, one, reminding the jury that they have a duty to rely on the

recollections of all the jurors with respect to the testimony and to follow the law,


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and, two, asking whether anything had occurred that would affect their ability to

do so. The defense moved for a mistrial. The court denied the motion, indicating

that all that was before the court was a “hearsay report from my jury clerk.”

Transcript at pp. 649, 651.

      The court proceeded to address the jury. He reiterated their duty to

deliberate with each other. See id. at 653. He then asked whether there was

“anything that any of you have seen, heard, read or discussed with anyone in any

way that would affect your ability to do your duty and decide according to the law

and the evidence?” Id. at 654. The jury answered in the negative.

      Counsel then presented closing arguments and the court instructed the jury.

At the end of his instructions, the judge inquired of the jury whether “any of you

are for any reason now unable to go forward with your deliberations?” Id. at 713.

      The juror who had originally approached the court’s staff indicated that he

would be unable to proceed. The court excused the rest of the jury and

questioned the juror. The juror indicated that he believed that the jury had

already made up its mind. This opinion was based on the comments he had heard

from fellow jurors made outside the courtroom. Some of these comments were

about the prosecutor and the way he presented himself and the points he was

trying to make. One of the jurors stated that she did not think that the trial was

important. He also indicated that several derogatory comments were made about


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two of the government’s witnesses. He stated that the jury was downplaying what

was said by both the defense and the prosecution.

      The following discussion then took place:



              THE COURT: Well, would it be fair to say this in
              summary, that you are concerned that to work with these
              other jurors now, you think that they are oriented
              towards the defense?

              [THE JUROR]: Correct.

              THE COURT: And that they are not going to give the
              government a fair consideration of the evidence? I’m
              not trying to put words in your mouth, but I’m trying
              to –

              [THE JUROR]: It’s well said, though.

              THE COURT: Okay. That’s how you feel?

              [THE JUROR]: That’s how I feel.


Id. at 716.

      The court excused the juror and substituted the alternate juror. No

objections were made by either side. The jury then returned a guilty verdict.




                                  DISCUSSION

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      The defendant argues that the district court abused its discretion by failing

to adequately investigate whether the jurors had prematurely discussed the case or

prematurely deliberated. He contends this failure precluded the court from

making any meaningful assessment of the nature and extent of any premature

discussion or deliberation in order to determine for itself that there was no

prejudice to the defendant’s right to a fair trial by an impartial jury.

      An allegation of intrajury misconduct may or may not warrant a hearing.

See United States v. McVeigh, 153 F.3d 1166, 1187 (10th Cir. 1998), cert. denied,

119 S.Ct. 1148 (1999).

             In determining whether the allegation is sufficiently
             serious to warrant a hearing, the district court must
             consider the content of the allegations, including the
             seriousness and likelihood of the alleged bias, and the
             credibility of the source. Ultimately, the court must
             weigh the benefits of having a hearing, including the
             ability perhaps to ascertain more fully the extent and
             gravity of the possible prejudice, against the risks
             inherent in interrupting the trial and possibly placing
             undue emphasis on the challenged conduct.


Id. (citations and quotation omitted).

      Here, the first time the misconduct was brought to the district court’s

attention, the court discounted the source of information, calling it “hearsay.”

However, a juror coming forward to inform the court of possible jury misconduct

certainly should not be dismissed out-of-hand as mere hearsay. See United States


                                           -5-
v. McVeigh, 153 F.3d at 1185 (source of alleged misconduct was an alternate

juror reporting a conversation among the jurors to the clerk of the district court);

United States v. Abrams, 137 F.3d 704, 705 (2d Cir.) (source of alleged

misconduct was note from juror to a court clerk), cert. denied, 525 U.S. 821

(1998).

       In addition, we are unable to determine whether the district court erred in

concluding, at this point in the trial, that the allegations were not serious enough

to warrant a hearing. There was insufficient information before the court

regarding the content of the allegations and the seriousness and likelihood of

prejudice. See United States v. Resko, 3 F.3d 684 (3d Cir. 1993) (holding that

where the issue of premature deliberations was raised mid-trial, a two-part

questionnaire distributed to the jury by the district court, which called for only

yes or no answers to the questions of whether they had discussed the case with

other jurors, and if they had, whether those discussions had led them to form an

opinion as to the guilt or innocence of the defendants, was an inadequate basis to

evaluate juror taint where all of the jurors had indicated that they had discussed

the case prematurely). In fact the court here acknowledged that it did not know

whether the jury was doing what it had been instructed not to do. Transcript at p.

651.




                                          -6-
      Thus, the mere giving of additional cautionary instructions by the court

after it first became aware of the possible jury misconduct was not adequate to

resolve the matter.

      However, given the unique facts of this case, we need not decide whether

the district court’s actions constitute reversible error. When it seemed from the

subsequent questioning of the juror that the alleged bias was against the

government, the defendant failed to move for a mistrial or otherwise object. This

failure constitutes a waiver of any error. See United States v. Edwards, 696 F.2d

1277, 1282 (11th Cir. 1983) (“the defendant cannot wait to hear the verdict before

contesting the impartiality of the jury and then attack the court’s refusal to

investigate his allegation.”).

      Accordingly, the judgment of the United States District Court for the

District of Colorado is AFFIRMED.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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