                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROCKY DIETZ,                              No. 13-35377
            Plaintiff-Appellant,
                                           D.C. No.
               v.                    2:11-cv-00036-RWA

HILLARY BOULDIN,
          Defendant-Appellee.              OPINION


      Appeal from the United States District Court
              for the District of Montana
   Richard W. Anderson, Magistrate Judge, Presiding

                Argued and Submitted
        February 4, 2015—Seattle, Washington

                    Filed July 24, 2015

       Before: Raymond C. Fisher, Carlos T. Bea
         and Mary H. Murguia, Circuit Judges.

              Opinion by Judge Fisher;
              Concurrence by Judge Bea
2                       DIETZ V. BOULDIN

                           SUMMARY*


                             Jury Trial

    The panel affirmed the district court’s judgment, and held
that the district court did not abuse its discretion in re-
empaneling a jury shortly after dismissal where the jurors
were not exposed to any outside influence that would
compromise their ability to fairly reconsider the verdict.

    The panel held that the standard of review for a district
court’s decision to re-empanel discharged jurors was abuse of
discretion. As a matter of first impression in the circuit, the
panel held that in limited circumstances, a district court may
recall a jury shortly after it has been dismissed to correct an
error in the verdict, but only after making an appropriate
inquiry to determine that the jurors were not exposed to any
outside influences that would compromise their ability to
fairly reconsider the verdict. The panel further held that the
record supported the district court’s finding that the jurors
were not exposed to prejudicial outside influences during the
brief period of the dismissal.

    Concurring in the judgment, Judge Bea agreed with the
majority that the district court did not err in re-empaneling
the jury in this case. Judge Bea, however, did not agree that
the district court judge should be required to undertake “an
appropriate inquiry” into whether prejudicial influences
tainted the jury.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      DIETZ V. BOULDIN                         3

                         COUNSEL

Geoffrey C. Angel (argued), Angel Law Firm, Bozeman,
Montana, for Plaintiff-Appellant.

John F. Bohyer and Jesse Beaudette (argued), Bohyer,
Erickson, Beaudette & Tranel PC, Missoula, Montana, for
Defendant-Appellee.


                          OPINION

FISHER, Circuit Judge:

    We consider, as a matter of first impression in this circuit,
whether a jury can be recalled shortly after it has been
ordered discharged. Joining the majority of circuit courts to
have decided the issue, we hold a district court may re-
empanel a jury shortly after dismissal, but only if, during the
period of dismissal, the jurors were not exposed to any
outside influences that would compromise their ability to
fairly reconsider the verdict.

                      BACKGROUND

    Hillary Bouldin’s vehicle collided with Rocky Dietz’s in
August 2009. Dietz subsequently filed a negligence
complaint in Montana state court against Bouldin for
“injuries including to his low back” and “physical pain,
suffering, grief, anxiety and a loss of course of life”
stemming from the accident. The case was subsequently
removed to federal court.
4                     DIETZ V. BOULDIN

    Before trial, Bouldin admitted he was at fault and that
Dietz was injured as a result of the accident. The parties
stipulated to $10,136 in past expenses Dietz incurred as a
result of the accident. The only disputed issue at trial was the
amount of future damages Bouldin owed Dietz. Dietz
presented evidence he would need regular physical therapy,
medication and injections to alleviate the pain he was
experiencing following the accident. Bouldin emphasized
that Dietz had a long list of medical conditions predating the
collision, that only some of his medical expenses were related
to the accident and that he was exaggerating the amount of
treatment he would actually seek.

    During closing argument, Bouldin’s counsel reminded the
jury of the stipulated amount of past damages and explained
that its award additionally had to include the reasonable value
of necessary care, treatment and services received and those
reasonably probable to be required in the future. He
suggested the jury award Dietz an amount “somewhere
between ten and $20,000, depending on what you feel his
relief is, what level of pain he has, and how his condition has
been affected by this automobile accident.”

    During deliberations, a juror sent the following question
to the judge: “Has the $10,136 medical expenses been paid;
and if so, by whom?” The court responded that the
information was not germane to the jury’s verdict. Speaking
to the parties’ counsel, the court then observed:

       What I’m wondering – [l]et’s just do a little
       speculating on our own. If we end up with a
       verdict in less than that amount, and I can’t
       believe that would happen, but if this is what
       we’re heading toward, that would be grounds
                     DIETZ V. BOULDIN                        5

       for a mistrial and I don’t want a mistrial. Do
       you think they understand clearly, after the
       argument and the instructions, that their
       verdict may not be less than that amount?

Bouldin’s counsel said he had made the point “crystal clear,”
and the court agreed. Accordingly, the court took no further
action to instruct the jury to award at least $10,136 in
damages. The jury returned with a verdict, finding for Dietz
but awarding him damages in the amount of $0. The court
asked counsel if they would like the jury polled, and both
declined. The court then thanked the jurors for their time,
told them they were “free to go,” discharged them and
recessed. Realizing the verdict was a legal impossibility
given the stipulated damages exceeded $10,000, the court
quickly called back the jurors, noting for the record it was
doing so “moments after having dismissed them.” It told the
jurors their verdict violated the stipulation, inquired whether
any of them had experienced undue outside influence in the
period following dismissal and, when they collectively
responded they had not, ordered them to reconvene the
following morning to issue a new verdict consistent with the
stipulation. Dietz objected to this procedure and moved for
a mistrial, arguing recall was not appropriate because the jury
had been dismissed. The jury again found for Dietz and
awarded him damages in the sum of $15,000. Dietz timely
appealed.

                       DISCUSSION

    Dietz argues the district court erred by recalling the jury
after it had already been dismissed. Given the circumstances
here, where the court promptly recalled the jurors, questioned
them and found they were not exposed to prejudicial
6                     DIETZ V. BOULDIN

influence during the brief duration of their dismissal, we
conclude the recall was not an abuse of discretion. We thus
affirm the judgment.1

I. Standard of review

    We first address the correct standard of review for a
district court’s decision to re-empanel discharged jurors.
Dietz argues “the judgment is void because the district court
acted in a manner inconsistent with due process of law,” so
we must review de novo the district court’s decision to re-
empanel the jurors. Bouldin counters that the correct
standard should be abuse of discretion because Dietz requests
a new trial based on an alleged error committed by the district
court.

    Federal Rule of Civil Procedure 60(b)(4) provides relief
from a final judgment if it is void as a matter of law. The list
of such judgments is “exceedingly short,” and “Rule 60(b)(4)
applies only in the rare instance where a judgment is
premised either on a certain type of jurisdictional error or on
a violation of due process that deprives a party of notice or
the opportunity to be heard.” United Student Aid Funds, Inc.
v. Espinosa, 559 U.S. 260, 271 (2010).

    Here, Dietz does not allege that the court lacked
jurisdiction to enter the judgment or that he was deprived of
notice or an opportunity to be heard. Instead, he argues the
court should have granted his motion for a mistrial because
the verdict did not comply with the stipulated damages.
Denials of motions for mistrial are reviewed for abuse of

  1
    We address Dietz’s remaining arguments in a concurrently filed
memorandum disposition.
                          DIETZ V. BOULDIN                                7

discretion. See United States v. Hagege, 437 F.3d 943,
958–59 (9th Cir. 2006). Therefore, that is the standard of
review we apply here.

II. Legal standard

   Our circuit has not yet addressed when a district court
abuses its discretion by recalling jurors after dismissing
them.2 Therefore, we must decide what legal standard
governs our analysis.

    Typically, a jury is no longer an entity after the court
discharges it, and its duties “are presumed to be at an end
when its verdict has been rendered, received, and published.”
Summers v. United States, 11 F.2d 583, 586 (4th Cir. 1926).
When the jury has “been discharged altogether and relieved,
by the instructions of the judge, of any duty to return . . . . it
has ceased to be a jury, and, if its members happen to come
together again, they are there as individuals, and no longer as


  2
   We have upheld the district court’s decision to reconvene a jury five
weeks after trial to clarify an ambiguous verdict. See E.F. Hutton & Co.
v. Arnebergh, 775 F.2d 1061, 1063–64 (9th Cir. 1985). In that case,
however, we did not need to reach the issue of whether such a recall was
permissible because the parties had stipulated to the procedure. See id. at
1064.

      We have also encountered the question of jury reassembly in other
contexts. See, e.g., Harrison v. Gillespie, 596 F.3d 551, 574–75 (9th Cir.
2010) (refusing to allow jury to be reconvened three years after death
penalty trial), rev’d on other grounds en banc, 640 F.3d 888 (9th Cir.
2011); United States v. Boone, 951 F.2d 1526, 1532 (9th Cir. 1991)
(rejecting proposal to reconvene a jury for polling over two years after the
trial had ended); United States v. Washington, 819 F.2d 221, 224–25 (9th
Cir. 1987) (refusing to recall jury two years after trial to question
individual jurors about potential prejudice).
8                    DIETZ V. BOULDIN

an organized group, an arm or agency of the law.” Porret v.
City of New York, 169 N.E. 280, 280 (N.Y. 1929) (opinion of
Cardozo, C.J.). Correspondingly, the “protective shield”
imposed by the district court, which prevents jurors from
being subjected to prejudicial outside influences, is removed
upon dismissal. United States v. Figueroa, 683 F.3d 69, 73
(3d Cir. 2012); see also United States v. Marinari, 32 F.3d
1209, 1214 (7th Cir. 1994) (observing that “after discharge,
the jurors are quite properly free to discuss the case with
whomever they choose”).

    Nevertheless, several courts have recognized that in
certain limited circumstances, a district court may recall a
jury immediately after dismissal to correct an error in its
verdict. See Figueroa, 683 F.3d at 73; United States v. Rojas,
617 F.3d 669, 677 (2d Cir. 2010); Marinari, 32 F.3d at 1215.
These courts look at the totality of circumstances to
determine whether the jurors were exposed to prejudicial
outside influence before the recall. See Wagner v. Jones,
758 F.3d 1030, 1034 (8th Cir. 2014), cert. denied, 135 S. Ct.
1529 (2015) (“One line of authority . . . requires a case-
specific analysis of ‘whether the jurors became susceptible to
outside influences and [were] beyond the control of the court
once discharged.’” (quoting Figueroa, 683 F.3d at 73)). This
line of cases appears to originate from Summers v. United
States, 11 F.2d 583.

    In Summers, immediately after the district court
pronounced the jury discharged but before the jurors
dispersed, the court realized it had read one of the charges to
the jury outside the presence of the defendant. See 11 F.2d at
586. Because the jurors had not yet left their seats, the court
set aside the verdict, reread the charge in the presence of the
defendant and sent the jurors to deliberate anew. See id. The
                          DIETZ V. BOULDIN                                9

defendant objected, contending this process was improper
because the jury had been discharged. See id. The court
observed it would be “guilty of a very technical ruling” if it
held the jury was dismissed before it had even left the box.
See id. The Fourth Circuit sustained the court’s actions,
holding that a jury

         may remain undischarged and retain its
         functions, though discharge may have been
         spoken by the court, if, after such
         announcement, it remains an undispersed unit,
         within control of the court, with no
         opportunity to mingle with or discuss the case
         with others, and particularly where, as here,
         the very case upon which it has been
         impaneled is still under discussion by the
         court, without the intervention of any other
         business.

Id.

    Other circuits have extended the Summers rule to
situations where the jurors have been released but effectively
remained under control of the court.3 For example, the Third


 3
    In Summers, the jurors had not yet left the jury box and therefore had
no “‘opportunity’ to encounter an outside influence.” Wagner, 758 F.3d
at 1035 n.9 (quoting Summers, 11 F.2d at 586). As the Eighth Circuit
explained, “[i]n any meaningful sense, once a juror leaves direct judicial
supervision in the courtroom, he or she virtually always has the
‘opportunity’ to encounter outside influences.” Id. Summers did not
address whether jurors who had briefly left the courtroom could validly be
recalled. Later cases have relied on Summers for the more basic
proposition that a jury may be recalled shortly after it has been discharged
if it was not exposed to prejudicial outside influences during dismissal,
10                      DIETZ V. BOULDIN

Circuit upheld a district court’s decision to re-empanel a jury
where the court “immediately sent a court employee to hold
the jury” after initially releasing it. Figueroa, 683 F.3d at 72.
The court considered the “pivotal inquiry” to be whether the
jury “became susceptible to outside influences” during the
dismissal. Id. at 73 (noting “[t]he jurors did not disperse and
interact with any outside individuals, ideas, or coverage of the
proceedings”).

    Similarly, the Second Circuit upheld a district court’s
decision to reconvene a dismissed jury to clarify a technical
error in the verdict. See Rojas, 617 F.3d at 677. The court
was informed of the error six minutes after the jurors had
been discharged, at which point they had returned to the
deliberation room. See id. at 673, 678 n.3. The circuit court
noted the jurors had not been “exposed to outside factors”
during the brief discharge, so recall was proper. See id. at
678 (internal quotation marks omitted).

    The Seventh Circuit has also recognized that “[u]ntil the
jury is actually discharged by separating or dispersing (not
merely [by] being declared discharged), the verdict remains
subject to review.” Marinari, 32 F.3d at 1214. In that case,
defense counsel requested a poll of the jury after the jurors
had left the courtroom, but while they remained sequestered
in the jury room awaiting a security escort to the parking lot.
See id. at 1215. The court concluded that, although the jurors
had been declared dismissed, they “had not dispersed and
they remained untainted by any outside contact.” Id. Thus,
they were available to be recalled and polled. See id.



even where jurors have left the courtroom. See, e.g., Figueroa, 683 F.3d
at 73.
                          DIETZ V. BOULDIN                              11

    By contrast, a handful of state courts and, most recently,
the Eighth Circuit, have eschewed this case-specific analysis
and instead adopted a restrictive bright-line rule prohibiting
recall once the jurors have left the confines of the courtroom.
See Wagner, 758 F.3d at 1035 (“[W]here a court declares a
mistrial and discharges the jury which then disperses from the
confines of the courtroom, the jury can no longer render,
reconsider, amend, or clarify a verdict on the mistried
counts.”); see, e.g., Spears v. Mills, 69 S.W.3d 407, 413 (Ark.
2002) (noting the “strict” and “absolute” rule that a jury may
not be recalled once it has “left the presence and control of
the court”).

    In Wagner, the Eighth Circuit case, the jurors, who were
deliberating on two counts, told the court they were
deadlocked after two and a half days of deliberations. See
758 F.3d at 1032. The court declared a mistrial and thanked
the jurors for their service. See id. at 1033. Two minutes
later, the court reassembled the jurors because it had failed to
ask whether they were deadlocked on one or both counts. See
id. The foreperson said the jury had reached a verdict for the
defendant on Count I, and the court accordingly amended the
previous mistrial ruling over the plaintiff’s objection. See id.
The Eighth Circuit reversed, holding the error in the verdict
was “beyond correction after the jury left the courtroom.” Id.
at 1036.4

   4
     The facts in Wagner were much more suggestive of prejudicial
influence than the facts here. There, the court had declared a mistrial on
the very charges the jury was then recalled to deliberate. As the Eighth
Circuit noted, “nothing indicate[d] that the jury understood that the case
was being placed back in their hands, and that they were being re-polled
essentially to rescind the mistrial.” 758 F.3d at 1036. Furthermore, the
judge had provided the jurors with “letters” to complete and send back to
the court as a post-trial assessment as to which the judge specifically told
12                        DIETZ V. BOULDIN

    We recognize there are some advantages to the Eighth
Circuit’s rule. As that court observed, it “offers better
guidance than an amorphous rule,” id. at 1035, and it is more
straightforward to apply than the totality-of-circumstances
approach. In addition, by foreclosing the possibility of recall
after jurors have left the courtroom, it is theoretically more
protective of litigants’ right to a jury untainted by improper
external influence. See id. at 1036 n.10 (observing that “even
in civil cases, both the litigants and the public must have the
utmost confidence that verdicts remain untainted”); see also
Lahaina Fashions, Inc. v. Bank of Hawaii, 297 P.3d 1106,
1118 (Haw. Ct. App. 2013) (opining that forbidding recall
once jurors have left the courtroom “offers the greatest
protection against the erosion of public confidence in
juridical impartiality”). The Eighth Circuit emphasized that,
“[i]n this age of instant individualized electronic
communication and widespread personal control and
management of pocket-sized wireless devices,” such a
restrictive rule better protects against improper external
influence. Wagner, 758 F.3d at 1035.

    Precisely because we live in an age of instant electronic
communication, however, there is nothing talismanic about
the courtroom door. For that reason, we should not adopt
such a rigid rule. Jurors can easily send messages and
communicate with outside parties before stepping out of the
jury box, let alone the courtroom. Once a court has
discharged the jurors, thus lifting the “protective shield” and


them: “If there’s something about this case that we need to know about,
this is your opportunity to tell us.” Id. (alteration omitted). At this point,
the admonition not to discuss the case with others had been lifted, and
there was no information in the record about the jurors’ conduct once they
had dispersed from the courtroom. See id.
                         DIETZ V. BOULDIN                            13

enabling them to discuss the case with others, it triggers the
potential for prejudicial influence.

    But at the same time, just because jurors may potentially
engage in improper outside contacts the moment they are
dismissed does not mean they actually do. Regardless of
whether the dismissed jurors have remained in the courtroom
or left, before deciding to recall them, district judges must
conduct a proper inquiry into the circumstances to ensure
jurors were not exposed to prejudicial influences during the
brief period of dismissal. The court – and, if permitted by the
court, counsel – can specifically question the jurors about
what they did during the moments they were dismissed, and
through its evaluation of their responses and observations of
the courtroom, determine whether recall is appropriate.

    Such a rule strikes a sensible balance between
considerations of fairness and economy and allows for a cost-
effective alternative to an expensive new trial. In the
somewhat analogous context of resubmission of special
verdict questions, we explained that “[a]llowing the jury to
correct its own mistakes conserves judicial resources and the
time and convenience of citizen jurors, as well as those of the
parties” and “best comports with the fair and efficient
administration of justice.” Duk v. MGM Grand Hotel, Inc.,
320 F.3d 1052, 1058 (9th Cir. 2003).5 We give weight to
those same principles by adopting the totality-of-
circumstances approach here. That said, recall should be the


 5
    An important factual difference between Duk and this case is that the
jury in Duk had not been declared discharged, nor had it dispersed. See
id. at 1058. Nevertheless, the policy considerations underlying Duk are
relevant here, where the jury was dismissed for a matter of moments and
was still available to be recalled.
14                        DIETZ V. BOULDIN

exception rather than the convenient rule, lest the sanctity of
untainted jury deliberations be compromised.

    In sum, we hold that, in limited circumstances, a court
may recall a jury shortly after it has been dismissed to correct
an error in the verdict, but only after making an appropriate
inquiry to determine that the jurors were not exposed to any
outside influences that would compromise their ability to
fairly reconsider the verdict.6, 7 See Figueroa, 683 F.3d at 73
(holding the “pivotal inquiry is whether the jurors became
susceptible to outside influences”). In deciding whether
recall is proper, the district court “must evaluate the specific
scenario presented in order to determine whether recalling the
jury would result in prejudice to the [parties] or undermine
the confidence of the court – or of the public – in the verdict.”
Rojas, 617 F.3d at 677.

 6
   We presume for purposes of this holding that one party objects to the
recall procedure. Such an inquiry may not be necessary where the parties
have explicitly stipulated to the recall procedure. Cf. E.F. Hutton & Co.,
Inc. v. Arnebergh, 775 F.2d 1061, 1063–64 (9th Cir. 1985) (upholding
court’s recall of jurors five weeks after they were discharged to interview
them about the verdict because parties had stipulated to the procedure).
  7
    The concurrence contends such an inquiry is “inconsistent with our
system of adversarial justice.” In the context of jury management,
however, the district court regularly engages in such inquiries, as the cases
the concurrence itself cites reveal. See, e.g., United States v. Vartanian,
476 F.3d 1095, 1098–99 (9th Cir. 2007) (describing district court’s
“careful interview” of jury members before dismissing juror for good
cause); United States v. Symington, 195 F.3d 1080, 1086 (9th Cir. 1999)
(explaining the trial court’s “investigative power . . . puts it in the best
position to evaluate the jury’s ability to deliberate” (quotation marks
omitted)). Our holding here is entirely consistent with the principle that,
once a district court has been made aware of a problem relating to jury
deliberations, it must investigate the problem. Of course, the details of the
investigation remain within the district court’s discretion.
                         DIETZ V. BOULDIN                              15

III.     Application

    Having concluded the totality of circumstances analysis
is proper, we next consider whether the jurors here were in
fact exposed to prejudicial outside influences during the brief
period of the dismissal. Because the record supports the
district court’s finding they were not, recalling them was not
an abuse of discretion.

    When the court called back the jurors, it noted for the
record that it was doing so “moments after having dismissed
them.” In Figueroa, the district court had “retained control
of the jury at all times after it informed the jurors they were
released,” 683 F.3d at 73, because it had “immediately sent
a court employee to hold the jury” after initially releasing it,
id. at 72. Similarly, here, the record reflects that the court
“just stopped the jury from leaving the building when [it] told
them they were dismissed,” because “in a fairly quick second
thought,” the court realized the verdict was “not legally
permissible.” Given the court was able to recall the jurors
promptly after dismissal, it appears they had not yet
dispersed. Cf. id. at 73 (noting that, although jury had been
“momentarily released,” they had not “disperse[d]”); Rojas,
617 F.3d at 678 & n.3 (six minutes between jury discharge
and reassembly suggested jury had not “dispersed”).

    Dietz argues the jury had dispersed because at least one
juror had left the floor, or possibly the building, to get his
hotel receipt and other jurors were observed talking to the
clerk of court in the courtroom.8, 9 After Dietz’s counsel


  8
   The record is inconsistent as to whether the juror who left exited the
building or just the floor. The clerk of court noted for the record that
“there was one [juror] that left the building to go get his hotel receipt.”
16                        DIETZ V. BOULDIN

voiced this concern, the court asked the jurors whether
“anything occurr[ed] during the . . . few minutes after you
were discharged where you talked to anybody about the case
outside your immediate numbers.” The jurors responded they
had not:

         JURY PANEL VOICES: No, sir. No.

         THE COURT: Did we get everybody stopped
         in time for that not to occur?

         JURY PANEL VOICES: (Heads nod)
         Uh-huh, yes.

         JUROR: I didn’t. You did. Most of us were
         just outside the door here. And there was only
         two that went down the –

         THE COURT: That’s what I tried to do. I
         understand one juror had gone to the first
         floor and it was maybe to get a hotel receipt.

         JUROR: I did that, but I didn’t talk to
         anybody.




When the court quizzed the jurors, it asked if any of them had gone to the
“first floor,” “maybe to get a hotel receipt,” and one juror responded, “I
did that, but I didn’t talk to anybody.”
 9
   While registering this objection, Dietz’s counsel said he had observed
certain jurors talking to the clerk of court but conceded he was “not at all”
suggesting that there was substantive discussion about the case.
                       DIETZ V. BOULDIN                           17

        THE COURT: You didn’t talk to anyone. So,
        in terms of you being contaminated by any
        outside information, that is not a factor.

        JUROR: No.

        JURY PANEL: No.

    This colloquy supports the conclusion the jury had not
“disperse[d] and interact[ed] with any outside individuals,
ideas, or coverage of the proceedings.” Figueroa, 683 F.3d
at 73. Importantly, the district court specifically asked the
jurors whether they had spoken to anyone about the case. It
also asked them whether they had been “contaminated by any
outside information.” The jurors responded they had not.
The court was in the best position to evaluate the jurors’
responses, including the credibility of those responses.

    Because the right to an impartial, untainted jury is of
utmost importance, we do note that an individualized
examination would be preferable to the collective questioning
employed here – whether by asking jurors to respond
individually or by questioning each juror separately.10 During
such an inquiry, the court or counsel could ask specific
questions to discern whether any juror was susceptible to
prejudicial influence, such as what the jurors did during the
dismissal; whether they spoke to anyone, and, if so, the
content of their conversations; whether they overheard
discussions about the case; whether they used cell phones or



  10
     The extent of questioning required may depend on the length and
complexity of the case. Those involving longer trials or more complex
issues may require a more searching, individualized examination.
18                        DIETZ V. BOULDIN

other devices to communicate; and whether they were
influenced by any discussions they had or overheard.11

    That the jurors were recalled to deliberate anew upon a
substantive matter rather than simply to correct a technical
error does not change our conclusion. Cf. Rojas, 617 F.3d at
678 & n.3 (limiting holding to correction of technical errors).
There was no evidence the jury had been tainted by improper
influence during the momentary dismissal. Cf. Figueroa,
683 F.3d at 73 (upholding district court’s decision to recall
jury after momentary dismissal to deliberate on an additional
count it had not initially considered). Furthermore, the jury’s
initial verdict appears to have resulted from a
misunderstanding regarding the effect of the legal
stipulation.12 Cf. Sierra Foods v. Williams, 816 P.2d 466, 467


 11
    The court, in its discretion, may also afford counsel an opportunity to
voir dire the jurors along these lines as well. Plaintiff’s counsel did not
request that opportunity here nor object to the group questioning.
  12
     This misunderstanding could have been avoided altogether had the
parties submitted the written stipulation into evidence and proposed a jury
instruction on the issue. During the first round of deliberations, the jury
sent a note asking the court if the stipulated $10,136 in medical expenses
had been paid and by whom. The court responded that this consideration
was irrelevant. At this juncture, the court could have instructed the jury
that it needed to award at least the stipulated damages plus some
additional amount. Unfortunately, it did not do so. However, after
realizing the error in the verdict and recalling the jurors, this is exactly
what the court did. It explained to the jurors:

         There was never any dispute, it was admitted from the
         beginning in this case, that the medical bills of
         $10,136.75 were caused by this collision . . . . It
         doesn’t matter by whom or to whom. That was the
         admission in the case. So the verdict as a starting point
         has to be at least $10,136.75. . . . Secondly, it was
                         DIETZ V. BOULDIN                            19

(Nev. 1991) (upholding recall of jury to correct a damages
award that failed to account for its contributory negligence
finding).

    In conclusion, the district court did not abuse its
discretion by recalling the jurors in lieu of declaring a
mistrial. First, and importantly, the recall occurred very
shortly after the dismissal. Although the court might have
conducted an individualized and more detailed inquiry, its
questioning adequately confirmed the jurors had not been
exposed to prejudicial influences during the brief period
between dismissal and recall. The court’s decision to recall
the jurors was thus not an abuse of discretion.

    AFFIRMED.




        admitted by the Defendant that some injury occurred in
        this accident. . . . That being the case, your verdict had
        to be $10,136.75 plus some other and additional
        reasonable amount as compensation for the injury
        which you find was inflicted.

    Thus properly instructed, the jury was quickly able to come to a
verdict consistent with the legal stipulation.
20                        DIETZ V. BOULDIN

BEA, Circuit Judge, concurring in the judgment:

    I agree with the majority that the district court judge did
not err in re-empaneling the jury in this case. I further agree
with the majority’s conclusion that the district court judge
may re-empanel a jury only if he finds that the jury was “not
exposed to any outside influences that would compromise
their ability to fairly reconsider the verdict.” Maj. Op. at 14.
I do not agree, however, that the district court judge should be
required to undertake “an appropriate inquiry” into whether
prejudicial influences have tainted the jury. Id. Because the
majority’s adoption of this duty of inquiry is inconsistent with
our adversarial system of justice, I concur only in the
judgment. I also note the majority cites no statute, case, or
regulation that imposes such a duty of inquiry on the district
court.

    Our system of justice is an adversarial one. “What makes
a system adversarial rather than inquisitorial is not the
presence of counsel,” but “the presence of a judge who does
not (as an inquisitor does) conduct the factual and legal
investigation himself, but instead decides on the bases of
facts and arguments pro and con adduced by the parties.”
McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).
Consistent with this principle, our court has never required
district court judges develop—by interrogation of
witnesses—the record on which they render judgments;
instead, we require district court judges to make specific
findings based on the evidence that the parties place in the
record.1


 1
   There is one exception to the principle I have stated: when the question
before the court is whether a party has received adequate representation,
there is reason to distrust the parties’ ability (or motive) to develop a full
                          DIETZ V. BOULDIN                              21

    Thus, for example, Federal Rule of Criminal Procedure 23
states that a district court can excuse a seated juror in a
criminal case, but only if the district court finds that “good
cause” exists. And when the record does not support a
district court’s finding that good cause existed, we do not
hesitate to tell it so. See, e.g., United States v. Symington,
195 F.3d 1080, 1088 (9th Cir. 1999) (finding district court
erred in dismissing juror when record showed reasonable
possibility that juror’s view of merits of case were basis of
removal). But we have never held that a district court has any
duty to interrogate jurors to develop that record, or that it
would be reversible error for a district court to accept the
parties’ submission that the record was sufficient for it to
rule.2

   Nor should we. District court judges are “in the best
position to evaluate the jury’s ability to deliberate,” and
should be accorded the widest latitude in determining how to


record. Thus, for example, a court cannot accept a guilty plea unless it has
“determine[d] that the defendant understands” the rights he gives up by
pleading guilty, thereby ensuring that a defendant who waives his right to
trial is doing so in knowing and voluntary fashion. Fed. R. Crim. P. 11(b).
Here, by contrast, the majority does not argue (and there is no reason to
think) that the parties are incapable or unwilling to develop the necessary
record by interrogation of the witnesses.
  2
    Of course, much as an appellate court judge may choose to research a
legal point not fully presented in the parties’ briefs, a trial court may
choose to participate in development of the record, by (for example)
asking questions itself of jurors accused of improper conduct. Indeed,
district court judges often question jurors accused of improper conduct to
determine whether the juror may continue to serve, in part because a
party’s lawyer may not be keen to ask hard questions of a juror about to
decide his client’s case. Salutary though this practice may be, no court has
ever made it mandatory in the manner of today’s majority opinion.
22                   DIETZ V. BOULDIN

make that evaluation. United States v. Vartanian, 476 F.3d
1095, 1098 (9th Cir. 2007) (quoting United States v. Beard,
161 F.3d 1190, 1194 (9th Cir. 1998)). Indeed, this court has,
for more than three decades, considered trial courts “uniquely
qualified” to evaluate the possibility that a juror has been
biased. United States v. Bagnariol, 665 F.2d 877, 885 (9th
Cir. 1981). Despite this presumption, the majority creates a
new, unnecessary requirement that will hinder the ability of
district court judges to manage the jury as they see fit.

    In sum, the majority’s rule is inconsistent with both basic
principles of adversarial procedure and well-founded
principles of appellate deference to trial court judgments.
Because I would not mandate any sua sponte inquiry by the
district court into a matter that the parties are well-equipped
to investigate themselves, I concur only in the judgment.
