LEZMOND C. MITCHELL, AKA Lezmond Charles Mitchell, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 18-17031
United States Court of Appeals for the Ninth Circuit
April 30, 2020
D.C. Nos. 3:09-cv-08089-DGC, 3:01-cr-01062-DGC-1. Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. Argued and Submitted December 13, 2019, Phoenix, Arizona.
Before: Sandra S. Ikuta, Morgan Christen, and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Ikuta; Concurrence by Judge Christen; Concurrence by Judge Hurwitz.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
LEZMOND C. MITCHELL, AKA Lezmond Charles Mitchell, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 18-17031
D.C. Nos. 3:09-cv-08089-DGC, 3:01-cr-01062-DGC-1
OPINION
Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding
Argued and Submitted December 13, 2019 Phoenix, Arizona
Filed April 30, 2020
Before: Sandra S. Ikuta, Morgan Christen, and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Ikuta; Concurrence by Judge Christen; Concurrence by Judge Hurwitz
SUMMARY*
Criminal /
The panel affirmed the district court‘s denial of Lezmond Mitchell‘s motion pursuant to
Mitchell argued that the Supreme Court‘s intervening decision in Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), which held that jury statements demonstrating racial animus could be admissible in a proceeding inquiring into the validity of the verdict, changed the law governing requests to interview jurors for evidence of racial bias, and that this change constituted an extraordinary circumstance justifying relief under
The panel held that the district court had jurisdiction to decide the
The panel held that Mitchell presents no extraordinary circumstances or district court errors that would justify reopening his case, and that the district court therefore did not abuse its discretion by denying the
panel explained that although Peña-Rodriguez established a new exception to
Concurring, Judge Christen wrote that it is worth pausing to consider why Mitchell, who did not receive the death penalty for his murder convictions, faces the prospect of being the first person to be executed by the federal government for an intra-Indian crime, committed in Indian country, by virtue of a conviction for carjacking resulting in death.
Concurring, Judge Hurwitz wrote to suggest that the current Executive take a fresh look at the wisdom of imposing the death penalty in this case in which the crimes were committed by a Navajo against Navajos entirely within the territory of the sovereign Navajo Nation, and where the Navajo Nation, and members of the victims’ family, have opposed imposition of the death penalty on the defendant.
COUNSEL
Jonathan C. Aminoff (argued) and Celeste Bacchi, Deputy Federal Public Defenders; Amy M. Karlin, Interim Federal Public Defender; Federal Public Defender‘s Office, Los Angeles, California; for Petitioner-Appellant.
William G. Voit (argued), Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; Michael Bailey, United States Attorney; United States Attorney‘s Office,
OPINION
IKUTA, Circuit Judge:
In May 2009, Lezmond Mitchell asked the district court for authorization to interview the jurors at his criminal trial in order to investigate potential juror misconduct. The district court denied the motion because Mitchell identified no evidence of juror misconduct, and therefore failed to show good cause. In March 2018, Mitchell filed a motion under
I
A
We have described the facts of this case in detail in two prior opinions, see United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007) (direct appeal) (“Mitchell I“); Mitchell v. United States, 790 F.3d 881 (9th Cir. 2015) (appeal of denial of motion under
summarize them only briefly. In October 2001,
Three days after the murders, Mitchell and two accomplices drove the GMC pickup truck to the trading post. Once there, they struck the store manager with a shotgun, threatened another employee, and stole some $5,530 from the store. Mitchell and his accomplices drove the GMC pickup truck back to a location where one of the accomplices had parked his own vehicle. Mitchell set the truck on fire and left the scene in the other vehicle.
A Navajo police officer discovered the pickup truck a mile and a half south of a town within the Navajo Indian reservation. Criminal investigators discovered evidence in the truck connecting Mitchell to both the robbery and the murders. When the FBI arrested Mitchell at an accomplice‘s house, Mitchell (who was in bed) “asked for his pants, which he told an FBI agent were near a bunk bed on the floor.”
Mitchell I, 502 F.3d at 944. When the agent picked them up, “a silver butterfly knife fell from a pocket.” Id. After the accomplice and his mother consented to a search of the house, FBI agents retrieved the silver butterfly knife. “Trace amounts of blood from the silver knife were matched to Slim.” Id.
After signing a waiver of his Miranda rights, Mitchell admitted that he had been involved in the robbery and had been present when “things happened” to Slim and her granddaughter. Id. He directed Navajo police officers to the site where he and Orsinger had buried the bodies, and he told the officers “that he had stabbed the ‘old lady,’ and that the evidence would show and/or witnesses would say that he had cut the young girl‘s throat twice.” Id. at 944–45. He also admitted that “he and Orsinger [had] gathered rocks, and with Orsinger leading on, the two took turns dropping them on [the granddaughter‘s] head.” Id. “Mitchell indicated that he and Orsinger retrieved an axe and shovel, severed the heads and hands, buried the parts in a foot-deep hole, burned the victims’ clothing, and cleaned the knives in a stream.” Id. Mitchell stated that it was Orsinger‘s idea to sever the victims’ heads and hands “because [Mitchell] would also have severed the feet.” Id.
Mitchell was indicted for eleven crimes, including premeditated first degree murder, armed carjacking resulting in death, felony murder, robbery, kidnapping, and use of a firearm in a crime of violence. The government filed a notice of intent to seek the death penalty as to Mitchell based on the charge of carjacking resulting in death.
Jury selection in Mitchell‘s trial began on April 1, 2003.1 Potential jurors filled out prescreening questionnaires, and were subjected to a twelve-day voir dire in
The penalty phase began on May 14, 2003. Consistent with the Federal Death Penalty Act,
In order to impose the death penalty under the Federal Death Penalty Act, the jury was required to “unanimously
find beyond a reasonable doubt: (1) the defendant was 18 years of age or older at the time of the offense; (2) the defendant had at least one of four enumerated mentes reae (often referred to as ‘gateway intent factors‘); and (3) the existence of at least one of sixteen statutorily defined aggravating factors.” Id. at 973 (internal citations omitted). Here, the jury found the four gateway intent factors, the necessary statutory aggravating factors, and one non-statutory aggravating factor. Id. at 946. “After weighing the aggravating and mitigating factors, the jury recommended imposition of a sentence of death.” Id.
The court sentenced Mitchell to death on September 15, 2003. As the jurors were discharged, the district judge stated:
You are free to talk about the case with anyone or not talk about it as you wish. If someone asks you about the case, and you don‘t want to talk about it, just advise them of the fact and they will honor your request.
The lawyers will be standing in the hallway as you exit. If you choose to talk to them, if you have any questions for them, you may approach them and ask them questions. They‘ve been instructed not to approach you. It‘s only if you want to talk or discuss the case with lawyers on either side as you wish, you may do. So if you decide to just exit the building, you may.
On direct appeal, Mitchell contended that the procedures used to empanel jurors caused an under-representation of Native Americans. Id. at 949–50. Mitchell also argued that
his constitutional rights “were violated when the government elicited testimony bearing on race, religion and cultural heritage, and made statements in closing argument impermissibly plying on the same factors.” Id. at 989. We rejected these arguments. With respect to the government‘s statements in closing, we “accept[ed] the jurors’ assurance [in their certifications] that no impermissible considerations of race or religion factored into the verdict.” Id. at 990.
Mitchell alleged additional errors related to race and religion at the penalty phase. He argued that the government erred by suggesting, in closing, that “Mitchell turned his back on his religious
B
Nearly six years later, in May 2009, Mitchell filed a motion in the district court requesting to interview members of the jury in order to ascertain “whether any member of the jury panel engaged in ex parte contacts, considered extrajudicial evidence, allowed bias or prejudice to cloud their judgment, or intentionally concealed or failed to disclose material information relating to their qualifications to serve as jurors in [his] case.”
Mitchell‘s request to interview jurors was governed by District of Arizona Local Rule Civil 39.2,2 which requires a defendant seeking permission to interview jurors to file “written interrogatories proposed to be submitted to the juror(s), together with an affidavit setting forth the reasons for such proposed interrogatories, within the time granted for a motion for a new trial.” The rule provides that permission to interview jurors “will be granted only upon the showing of good cause.” Mitchell argued that good cause existed because an investigation into potential juror misconduct was a necessary part of any federal capital post-conviction investigation. Despite lacking evidence of juror impropriety, Mitchell speculated that jurors could have been affected by the prosecutor‘s comment regarding Mitchell‘s turning his back on the Navajo religion. In connection with this argument, Mitchell cited United States v. Henley, 238 F.3d 1111, 1120 (9th Cir. 2001), to support his argument that Rule
The district court denied Mitchell‘s request. The court ruled that Mitchell had
forth reasons for interrogatories. In any event, the court held that Mitchell had failed to establish “good cause,” as required by Local Rule 39.2, because there was no preliminary showing of juror misconduct; rather Mitchell‘s allegations of juror misconduct were “based on wholesale speculation.” According to the court, the prosecutor‘s statement that Mitchell “turned his back on his religious and cultural heritage” did not raise a potential for juror bias because the Ninth Circuit had determined on direct appeal that the statement was not improper. Moreover, the court reasoned that any testimony regarding the subjective effect of the prosecutor‘s statements on the jury‘s deliberation would be barred by After the denial of his request under Local Rule 39.2, Mitchell brought a federal habeas motion under The district court did not grant a certificate of appealability for this claim. On appeal, we denied a certificate of appealability with respect to all uncertified claims and affirmed the district court‘s denial of Mitchell‘s Two years after Mitchell II, the Supreme Court decided Peña-Rodriguez, which held that, notwithstanding We have jurisdiction pursuant to but we review questions of law underlying the district court‘s decision de novo, Hall v. Haws, 861 F.3d 977, 984 (9th Cir. 2017). We review de novo whether a Before addressing the merits of Mitchell‘s Under Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court has only limited authority to hear a claim presented in a second or successive habeas motion. The court must deny a second or successive motion unless the court of appeals first certifies that the motion relies on a new rule of constitutional law that is retroactively applicable or presents new evidence that meets the criteria set forth in According to the Supreme Court, these rules require courts to examine A denied,” or an argument “contend[ing] that a subsequent change in substantive law is a ‘reason justifying relief.‘” Id. at 531 (internal citation omitted); accord Washington, 653 F.3d at 1063. An “attack based on the movant‘s own conduct, or his habeas counsel‘s omission... in effect asks for a second chance to have the merits determined favorably” and amounts to a claim. Gonzalez, 545 U.S. at 532 n.5. However, not all arguments in a The government argues that even if a challenging a procedural “defect in the integrity of the habeas proceedings.” Id. at 864. The Fifth Circuit rejected this characterization of the We decline to follow In re Robinson. The Fifth Circuit read Gonzalez as holding that a prisoner could use a for evidence to develop a possible new claim and an effort to bolster a prior claim, concluding that both fell within the category of disallowed substantive challenges. Again, we disagree. Consistent with Gonzalez, we have held that a request for “newly discovered evidence in support of a claim previously denied” qualifies as a “claim.” Wood v. Ryan, 759 F.3d 1117, 1120 (9th Cir. 2014) (quoting Gonzalez, 545 U.S. at 531) (holding that a state prisoner‘s But Gonzalez did not hold that a prisoner‘s request to develop evidence for a potential new claim also qualifies as a “claim.” Such a request does not meet Gonzalez‘s definition of a substantive merits-based claim because it does not assert a federal basis for relief from the prisoner‘s conviction or sentence. Here, for instance, Mitchell‘s denominated creates no inconsistency with the habeas statute or rules.” Id. at 533. Therefore, we conclude that Mitchell‘s motion is not a disguised second or successive We therefore turn to whether Mitchell has established “‘extraordinary circumstances’ justifying the reopening of a final judgment.” Id. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). In considering whether there is an “extraordinary” circumstance for purposes of a “[A] change in intervening law” can constitute an extraordinary circumstance. Id. at 987–88. Gonzalez made have saved a prisoner‘s habeas petition from being time-barred. 545 U.S. at 537-38. According to the Court, development of the Supreme Court‘s jurisprudence in a particular area does not necessarily justify “reopening cases long since final“; indeed, it is “hardly extraordinary” that the Supreme Court arrives at a different interpretation of the law after a prisoner‘s case is no longer pending. Id. at 536. Moreover, where an argument is available and raised by other litigants (and even litigated all the way to the Supreme Court), but the prisoner did not diligently pursue the argument, the change in law is “all the less extraordinary.” Id. at 537. Thus, a mere development in jurisprudence, as opposed to an unexpected change, does not constitute an extraordinary circumstance for purposes of Mitchell argues that Peña-Rodriguez was an intervening change in law that constituted an extraordinary circumstance requiring the district court to give Mitchell relief from the prior order denying his request to interview jurors. In addressing this argument, we consider the legal history leading up to the decision in Peña-Rodriguez. We have long imposed restrictions on lawyers seeking access to jurors. These rules derive their authority from the common law, where “judges placed the veil of secrecy about jury deliberations.” N. Pac. Ry. Co. v. Mely, 219 F.2d 199, 201 (9th Cir. 1954). Rules restricting lawyers’ access to jurors “(1) encourage freedom of discussion in the jury room; (2) reduce the number of meritless post-trial motions; (3) increase the finality of verdicts; and (4) further Cuevas v. United States, 317 F.3d 751, 753 (7th Cir. 2003). Indeed, “[i]t is incumbent upon the courts to protect jurors from the annoyance and harassment of such conduct,” Bryson v. United States, 238 F.2d 657, 665 (9th Cir. 1956), and “it is improper and unethical for lawyers to interview jurors to discover what was the course of deliberation of a trial jury,” People of Territory of Guam v. Marquez, 963 F.2d 1311, 1315 (9th Cir. 1992) (quoting Smith v. Cupp, 457 F.2d 1098, 1100 (9th Cir. 1972)). Therefore, in cases where there has been no showing of juror misconduct, we have held that a district court “d[oes] not abuse [its] discretion in refusing to allow postverdict interrogation of jurors.” United States v. Eldred, 588 F.2d 746, 752 (9th Cir. 1978) (upholding an earlier version of the District of Arizona local rule restricting access to jurors in the absence of “some showing of sufficient reason“). We have also held that a district court‘s “denial of a motion to interrogate jurors” does not raise a constitutional problem where “there has been no specific claim of jury misconduct.” Smith, 457 F.2d at 1100. The judicial authority to exercise discretion regarding whether to grant lawyers permission to conduct jury interviews also undergirds Prior to Peña-Rodriguez, the Supreme Court had declined to recognize any exceptions (other than those in Notwithstanding the Supreme Court‘s historical hesitance to interfere with the operation of Vindicating our views in Henley, Peña-Rodriguez subsequently recognized an exception to The Supreme Court reversed, holding that the While acknowledging the safeguards that protect the right to an impartial jury (and urging trial courts to use such “standard and existing processes designed to prevent racial bias in jury deliberations,” id. at 871), the Court noted that “their operation may be compromised, or they may prove insufficient” in addressing juror prejudice, id. at 868. For instance, “[t]he stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations.” Id. at 869. In light of these concerns, the Court held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant,” then “the Despite establishing this exception to Mitchell‘s theory is that Peña-Rodriguez‘s recognition of the threat posed by racial bias to the judicial system worked a sea change in the law applicable to his case. Although Peña-Rodriguez‘s immediate effect was to make an exception to the rule precluding admissibility of evidence of racial bias in jury deliberations under We disagree. Although Peña-Rodriguez established a new exception to Because Peña-Rodriguez does not override local court rules or compel access to jurors, it is not “clearly irreconcilable” with our precedent, Miller v. Gammie, 335 F.3d 889, 893 (2003) (en banc), and therefore did not make any change in the law regarding lawyer access to jurors, let alone one so significant that it would constitute “extraordinary circumstances” for purposes of All other circuits that have considered this issue have reached the same conclusion. The Second Circuit rejected the argument that Peña-Rodriguez required a district court to grant a request for juror interviews, and instead upheld a district court‘s denial of a request to interview jurors where there was no “clear, strong, substantial and incontrovertible evidence” that an impropriety occurred. United States v. Baker, 899 F.3d 123, 134 (2d Cir. 2018) (citation omitted). As the Second Circuit explained, Peña-Rodriguez established “a narrow exception to the no-impeachment rule,” but “d[id] not address the separate question of what showing must be made before counsel is permitted to interview jurors post-verdict to inquire into potential misconduct.” Id. at 133-34. Rather “as to this question, the decision simply reaffirms the importance of limits on counsel‘s post-trial contact with jurors.” Id. at 134; see also United States v. Birchette, 908 F.3d 50, 55-60 (4th Cir. 2018) (affirming the denial of a request to interview jurors, even when presented with some evidence of potential racial bias, because the evidence did not satisfy the local rule‘s “good cause” requirement); cf. United States v. Robinson, 872 F.3d 760, 770 (6th Cir. 2017) (affirming the denial of a motion for a new trial based on evidence of a juror‘s racial bias obtained in violation of local rules because of Peña-Rodriguez‘s “reaffirmation of the validity of... local rules” regulating access to jurors). Given this conclusion, Mitchell has failed to show an intervening change in law that constituted extraordinary circumstances. We reject Mitchell‘s other arguments. First, Mitchell points to the district court‘s statement that procedural safeguards implemented during trial, such as voir dire and the in-court observation of jurors, helped protect Mitchell‘s conviction from the influence of racial bias, and weighed against finding “extraordinary circumstances.” Mitchell argues that the district court erred in making this statement, because Peña-Rodriguez held that procedural safeguards, such as those presented in Tanner and its progeny, were insufficient to protect the right to a fair trial free from racial bias. This argument fails. Although Peña-Rodriguez indicated that procedural safeguards might be insufficient by themselves to protect against racial bias, 137 S. Ct. at 868-69, it also stated that they could effectively limit the impact of racial bias, id. at 871. Here, the district court took significant steps to prevent racial bias. Jurors were asked in voir dire about their attitudes towards Native Americans, were instructed not to consider race, and were required to sign a certification attesting that they did not consider race. In addition, they were given the opportunity to speak with the lawyers as they left the courtroom. Peña-Rodriguez noted that these and similar procedural safeguards “deserve mention” for their role in helping to avoid racial bias in deliberations. Id. Second, Mitchell argues that the district court should have revisited the question whether Mitchell lacked “good cause” for purposes of Local Rule 39.2 in light of Peña-Rodriguez. This argument also fails. Peña-Rodriguez did not change our controlling precedent on the issue of jury access. Moreover, the district court did not err in denying Mitchell‘s request for lack of good cause, given that Mitchell did not offer any “specific claim of jury misconduct.” Smith, 457 F.2d at 1100; see Eldred, 588 F.2d at 752. We previously concluded in Mitchell‘s case that the racial composition of the jury pool and petit jury, the government‘s use of peremptory challenges, and comments made by the prosecutor in closing argument did not constitute errors at trial, see Mitchell I, 502 F.3d at 946-51, 957-58, 970-71, and thus they do not support Mitchell‘s claim that he had good cause to interview jurors. We also decline to adopt a per se rule that good cause is always satisfied in capital cases. Because Mitchell presents no extraordinary circumstances or district court errors that would justify reopening his case, we Our decision today does not mean that defendants will lack opportunities to learn of racial bias occurring in their cases. Although Mitchell asserts that local rules that require a preliminary showing of juror bias before allowing parties to interview jurors operate as an “all-out ban” on the ability of criminal defendants to learn of any racial bias that impacted the jury‘s deliberations, Peña-Rodriguez explained that the “pattern” of jurors approaching the lawyers in the case to report racial bias expressed during deliberation “is common in cases involving juror allegations of racial bias.” 137 S. Ct. at 870 (collecting cases). It was pursuant to this pattern that the criminal defendants in Peña-Rodriguez, id. at 861, and Henley, 238 F.3d at 1113, obtained information of jurors’ racial bias, see also Baker, 899 F.3d at 128-29; Birchette, 908 F.3d at 55. There were ample opportunities for jurors in Mitchell‘s case to report any racial bias, including the opportunity that the district judge gave the jurors to “discuss the case” with the lawyers as the jurors exited the courtroom. Nor does our decision mean that local rules will never give way to the “unique historical, constitutional, and institutional concerns” of racism that motivated Peña-Rodriguez. 137 S. Ct. at 868. If a criminal defendant makes a preliminary showing of juror bias, a district court may set aside a procedural hurdle limiting access to jurors, just as the Supreme Court made an exception to CHRISTEN, Circuit Judge, concurring: I join the majority‘s considered opinion in full, but write separately because the lengthy history of this case may make it easy to lose track of the fact that Mitchell did not receive the death penalty for his murder convictions. Mitchell was sentenced to death because, in the course of committing their atrocious crimes, he and his accomplice also committed a carjacking. In my view, it is worth pausing to consider why Mitchell faces the prospect of being the first person to be executed by the federal government for an intra-Indian crime, committed in Indian country, by virtue of a conviction for carjacking resulting in death. For intra-Indian offenses committed in Indian country, the Major Crimes Act allows federal prosecution of serious crimes such as murder and manslaughter. Because of this history, when the United States prosecuted Mitchell for the murders of Alyce Slim and her nine-year-old granddaughter, it could not seek the death penalty for those charges. The United States circumvented the tribal option by also charging Mitchell with carjacking resulting in death and seeking the death penalty for that charge. The death penalty was not authorized for carjacking until 1994.2 Because carjacking is a “crime of nationwide applicability,”3 rather than a Major Crimes Act offense, the tribal option is inapplicable to it. United States v. Mitchell, 502 F.3d 931, 948 (9th Cir. 2007). The decision to seek the death penalty in Mitchell‘s case was made against the express wishes of the Navajo Nation, several members of the victims’ family, and the United States Attorney for the District of Arizona. As the Attorney General of the Navajo Nation Department of Justice explained, although “the details of [Mitchell‘s] case[] were shocking,” the Navajo Nation did not support the death penalty for Mitchell because Navajo “culture and religion teaches us to value life and instruct against the taking of human life for vengeance.” To be sure, the evidence of Mitchell‘s guilt was overwhelming, as the majority explains, but those who opposed the death penalty in his case did not doubt the horrific nature of Mitchell‘s crimes. The imposition of the death penalty in this case is a betrayal of a promise made to the Navajo Nation, and it demonstrates a deep disrespect for tribal sovereignty. People can disagree about whether the death penalty should ever be imposed, but our history shows that the United States gave tribes the option to decide for themselves. Our court has already decided that the United States was legally permitted to seek death pursuant to the carjacking statute, Mitchell, 502 F.3d at 946-49, and I do not revisit that conclusion. I write to underscore only that the United States made an express commitment to tribal sovereignty when it enacted the tribal option, and by seeking the death penalty in this case, the United States walked away from that commitment. For all of these reasons, this case warrants careful consideration. HURWITZ, Circuit Judge, concurring: Judge Ikuta‘s opinion ably and comprehensively addresses the issue raised in this appeal, and I join it in full. The Attorney General nonetheless decided to override the decision of the United States Attorney for the District of Arizona not to seek the death penalty. Because this case involved a carjacking, I do not question the government‘s legal right to seek the death penalty; indeed, we have already held that it had the statutory right to do so. See United States v. Mitchell, 502 F.3d 931, 946-49 (9th Cir. 2007). But that the government had the right to make this decision does not necessarily make it right, and I respectfully suggest that the current Executive should take a fresh look at the wisdom of imposing the death penalty. When the sovereign nation upon whose territory the crime took place opposes capital punishment of a tribal member whose victims were also tribal members because it conflicts with that nation‘s “culture and religion,” a proper respect for tribal sovereignty requires that the federal government not only pause before seeking that sanction, but pause again before imposing it. That is particularly true when imposition of the death penalty would contravene the express wishes of several members of the victims’ family. The decision to pursue—and to continue to pursue—the death penalty in this case spans several administrations. The current Executive, however, has the unfettered ability to make the final decision. See C
D
II
III
A
B
C
D
E
AFFIRMED.
Notes
Interviews with jurors after trial by or on behalf of parties involved in the trial are prohibited except on condition that the attorney or party involved desiring such an interview file with the Court written interrogatories proposed to be submitted to the juror(s), together with an affidavit setting forth the reasons for such proposed interrogatories, within the time granted for a motion for a new trial. Approval for the interview of jurors in accordance with the interrogatories and affidavit so filed will be granted only upon the showing of good cause. See Federal Rules of Evidence, Rule 606(b).This rule is made applicable to criminal cases by Local Rule Criminal 24.2. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 60003(a)(14), 108 Stat. 1796, 1968 (1994).
(b) During an Inquiry into the Validity of a Verdict or Indictment.Crimes of nationwide applicability are laws that “make actions criminal wherever committed.” Begay, 42 F.3d at 498. By contrast, enclave laws—such as those prosecuted under the Major Crimes Act—“are laws in which the situs of the offense is an element of the crime—places such as military bases, national parks, federal buildings, and the like.” United States v. Anderson, 391 F.3d 1083, 1086 (9th Cir. 2004).(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury‘s deliberations; the effect of anything on that juror‘s or another juror‘s vote; or any juror‘s mental processes concerning the verdict or indictment. The court may not receive a juror‘s affidavit or evidence of a juror‘s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury‘s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason that justifies relief.