Tarango v. McDaniel
837 F.3d 936
9th Cir.2016Background
- In a heavily publicized 2005 Las Vegas trial of Manuel Tarango for multiple felonies arising from a 1999 bar shooting, the jury reported a holdout (Juror No. 2) during deliberations.
- Juror No. 2 sent a note to the judge expressing reasonable-doubt concerns and later told the court and defense counsel that a marked Las Vegas Metropolitan Police squad car followed him for about seven miles on the morning he returned to re-deliberate.
- The trial court held a hearing, limited juror testimony under Nevada’s anti-impeachment rule, found Juror No. 2 had been followed but concluded there was no outside communication or misconduct, and denied a new-trial motion; the Nevada Supreme Court affirmed.
- Tarango pursued state habeas relief and then federal habeas under 28 U.S.C. § 2254, arguing the police tailing created a presumptively prejudicial external influence that denied him due process and an impartial jury.
- The Ninth Circuit majority held the Nevada Supreme Court incorrectly limited its inquiry to whether the police conduct was a “communication” and therefore failed to apply Supreme Court precedent (Mattox and progeny) requiring inquiry into prejudice from any external contact with a tendency to influence a juror; it vacated and remanded for an evidentiary hearing. A dissent argued the state courts’ factual determinations were reasonable and AEDPA deference precluded federal relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an alleged police "tail" of a known holdout juror is an external contact triggering a presumption of prejudice | Tarango: The marked police car following Juror No. 2 for ~7 miles on deliberation day was an unauthorized contact by government agents that had a tendency to intimidate and thus was presumptively prejudicial | State: The contact (if any) was not a communication about the case, was speculative, ambiguous, and insufficiently tied to intentional tampering to trigger a presumption of prejudice | Held: The Nevada court erred by treating the issue as limited to "communication"; under Mattox/Remmer a noncommunicative external contact by law enforcement that tends to influence a juror warrants inquiry into prejudice |
| What standard governs federal habeas review when a state court fails to apply Supreme Court precedent on juror external contacts | Tarango: Because the Nevada Supreme Court ignored Mattox’s prejudice inquiry, the federal court may review de novo the constitutional question | State: State court applied its own precedent (Meyer) and made factual findings; AEDPA requires deference | Held: Where a state court applied an incorrect legal standard inconsistent with clearly established Supreme Court law, AEDPA deference gives way and federal courts may review de novo |
| Scope of juror testimony admissible to show external influence/prejudice | Tarango: Juror No. 2 should be permitted to testify about the effect of the police tail on his fear, anxiety, and the impact on his deliberative state (but not his mental processes in reaching the verdict) | State: Nevada’s anti-impeachment rule (N.R.S. §50.065 / Fed. R. Evid. 606(b) analog) bars juror testimony about deliberations and mental processes; only limited factual testimony should be allowed | Held: Juror testimony about the external contact and its effect on the juror’s fear/anxiety is admissible (but not testimony about how the juror voted or the juror’s deliberative mental processes) for the prejudice inquiry |
| Remedy/procedure when prejudicial contact is plausible but record is incomplete | Tarango: A post-conviction evidentiary hearing is required so defendant can prove prejudice and the government can attempt to rebut it | State: The trial and state-court proceedings were sufficient; allegations were speculative and the hearing need not have been expanded | Held: Vacated and remanded for an evidentiary hearing applying the correct standard; the district court should allow limited juror testimony about the contact’s effects and other evidence of prejudice |
Key Cases Cited
- Mattox v. United States, 146 U.S. 140 (Sup. Ct.) (external contacts tending to disturb jury verdicts invalidate the verdict unless harmlessness is shown)
- Remmer v. United States, 347 U.S. 227 (Sup. Ct.) (unauthorized contact between a juror and third party is presumptively prejudicial and requires inquiry/hearing)
- Smith v. Phillips, 455 U.S. 209 (Sup. Ct.) (remedy for allegations of juror partiality is a hearing to prove actual bias)
- Parker v. Gladden, 385 U.S. 363 (Sup. Ct.) (officials’ presence or comments can carry great weight with juries and create prejudice)
- Tanner v. United States, 483 U.S. 107 (Sup. Ct.) (certain juror internal misconduct—drugs/alcohol—is barred from impeachment as deliberative process)
- Caliendo v. Warden of Cal. Men's Colony, 365 F.3d 691 (9th Cir.) (Mattox presumption and harmlessness framework reiterated)
- United States v. Rutherford, 371 F.3d 634 (9th Cir.) (permitting juror evidence about fear/anxiety from outside contacts while preserving anti-impeachment limits)
- United States v. Armstrong, 654 F.2d 1328 (9th Cir.) (discussion of when outside influence presumption applies)