Jim Guy Tucker appeals from an order of the district court
1
on remand from our earlier decision in
United States v. Tucker,
When this- case was tried, Jim Guy Tucker was the governor of Arkansas. After he was convicted for conspiracy and mail fraud, Tucker learned that during the trial one of the jurors, Renee Johnson, had married Charles Hayes. Hayes is a former state prisoner whom Tucker had denied clemency, both directly and by blocking an acting governor’s attempt to commute his sentence. Hayes is also the nephew of a political activist, Say McIntosh, who had attacked Tucker in leaflets and demonstrated against him outside the courthouse during trial. Tucker moved for a new trial based on his allegations that Johnson had concealed her relationship with Hayes at voir dire, that she had concealed bias against Tucker, and that she had engaged in improper discussions with Hayes during trial.
Tucker,
In a jury questionnaire submitted about two weeks before voir dire, Johnson stated that she was single, that questions concerning a spouse were not applicable, and that she had a three-month-old child. Id. at 1021. In response to a question asking whether “any memberfs] of your family [have] ever been charged with a crime,” “what ... charge,” and “how did the case end?” Johnson wrote, “Yes. Drug Conviction. Guilty (serving 4 years).” During the voir dire itself, held on March 4-7, 1996, Johnson stated that she had not formed an opinion regarding the guilt or innocence of any of the defendants. Id. at 1021-22. The judge repeatedly stressed the need for venire members to reveal possible sources of bias and gave the veni-re members multiple opportunities to disclose anything that could have any bearing on their partiality. Id. at 1022. When asked directly, Johnson said there was nothing that would affect her ability to serve fairly and impartially in the case. Id. Trial began on March 11, 1996, and on the fourth day of trial, Johnson married Charles Hayes over the lunch break. Id. at 1023 n. 4, 1025.
The district court conducted a hearing on Tucker’s new trial motion, but even though Tucker alleged both concealment of facts at voir dire and outside influence over a juror, the court announced that the scope of the hearing would be limited to the question of whether the jury had been exposed to extraneous evidence during deliberations.
Id.
at 1024. At the hearing, Johnson testified that she did not know at the time she served as a juror that her husband had ever applied for clemency and consequently she did not know that Tucker had denied him clemency.
Id.
at 1024. She testified that she had been engaged to marry Hayes since 1994 and that she had lived with him, but counsel was not permitted to ask for further details or to explore her knowledge about Say McIntosh.
Id.
at 1024-25. Johnson stated that she did not tell about her husband’s conviction when she filled out her jury questionnaire.
Id.
at 1025. (Her answer to the question about family members charged with crimes referred to her sister’s husband, who, it turns out, is also Charles Hayes’s brother.) The court did
*502
not allow Tucker to question Johnson about whether she considered herself part of a family with Hayes and her daughter at the time of the voir dire.
See
Although the scope of the hearing was narrowly circumscribed, Tucker made an extensive proffer. He offered to prove that he had denied Hayes’s clemency request. On another occasion when Governor Tucker was out of the state, Acting Governor Jerry Jewell had tried to grant Hayes clemency, but Tucker’s staff had frustrated Jewell’s attempt by refusing access to Hayes’s file. Id. at 1025. Hayes’s cousin, Tommy McIntosh, was convicted in connection with the same crime as Hayes, and Jerry Jewell successfully commuted Tommy McIntosh’s sentence. Tucker offered to prove that the Hayes-Mclntosh family knew that his staff prevented Jewell from granting Hayes clemency and that Hayes had expressed anger over the denial of clemency. Tucker’s proffer also detailed the anti-Tucker activities of Say McIntosh, Tommy McIntosh’s father, including his distribution of fliers accusing Tucker of racism in denying clemency to a black prisoner and juxtaposing the prisoner’s supposed innocence with Tucker’s supposed guilt. Tucker offered to prove that McIntosh demonstrated in front of the courthouse during Tucker’s trial. The court denied Tucker’s new trial motion because the court was not persuaded that the jury had access to extraneous evidence during deliberations. Id. at 1026.
On appeal, we concluded that Tucker was entitled to a fuller hearing than he had received. Tucker’s claim of concealed juror bias was based on
McDonough Power Equipment, Inc. v. Greenwood,
Despite the narrow parameters of the 1996 hearing, Tucker had adduced evidence raising substantial questions about whether Johnson had tried at voir dire to conceal her relation to Hayes.
According to Tucker’s proffer, Johnson lived with Hayes, had a child with him, and was only a few days away from marrying him at the time of voir dire. Whether a juror in such a position would either understand Hayes to be included in the term “family” or at least would understand that the questionnaire meant to ask about people with whom she shared such a close relationship, is, we believe, an issue that requires further detailed inquiry.
Id. at 1028. Tucker had also raised fact questions about whether Johnson harbored bias against Tucker that she should have revealed during voir dire. His proffer of evidence suggested Johnson might have known about her husband’s clemency proceedings and have been prejudiced against Tucker because of his role in denying Hayes clemency.
We held that Tucker had “raised enough question about what Johnson knew at the *503 time of voir dire to entitle him to a full-hearing on [the McDonough ] issue, including crucial credibility determinations.” Id. at 1027. We remanded with instructions that Tucker be allowed to adduce evidence relevant to the key questions of whether Johnson concealed her relation with Hayes and the story of his clemency petition; whether Johnson concealed these circumstances out of partiality; and whether there were grounds to strike Johnson for cause. Id. at 1029.
We also held that Tucker’s allegations of improper communications between Hayes and Johnson during the trial suggested the sort of “private communication, contact, or tampering,” which gave rise to a presumption of prejudice in
Remmer v. United States,
The allegations of ex parte contact must be viewed in light of the extraordinary saga of Hayes’s attempts to gain clemency; Tucker’s frustration of those attempts directly and then by hiding Hayes’s file from Jewell; and the McIntosh family’s campaign against Tucker. With these facts in the background, the assertion that Johnson and Hayes had discussed the case during the trial must be taken as an allegation of serious misconduct, with a significant potential for prejudice to Tucker.
Id. at 1031. Such allegations entitled Tucker to a hearing to determine whether outside influence affected Johnson’s ability to serve impartially on Tucker’s jury. Id. at 1033. However, the court had limited the scope of the 1996 hearing to investigation of whether the jury as a whole had been exposed to extraneous evidence, which was not the nature of Tucker’s contention. Therefore, we remanded for the district court to conduct a hearing that would address Tucker’s actual claim, probing whether Hayes and Johnson had talked about the case, what was said, and what effect such communications had on Johnson. Id. at 1033.
On remand, the district court conducted a three-day hearing in which Renee Johnson Hayes, Charles Hayes, William Walker, Tommy McIntosh, Tucker and others testified.
Johnson testified that she became involved with Hayes about six months or a year after he was released from prison, that she had lived with him about a year and a half before January 1996, and that at the time of voir dire she lived with him and their daughter “as a family.” By February 1996, she said, they were contemplating getting married. She had bought a wedding ring and had looked into reserving a bed and breakfast for a wedding or wedding reception. She said that the reason she did not identify Hayes as a family member on her juror questionnaire was that she was not married to Hayes when she filled it out (in February 1996) and she did not believe the questionnaire asked anything that called for her to identify him. She later agreed with Tucker’s lawyer that she and Hayes “bought a house as a family,” “lived in it as a family,” “paid utility bills as a family,” and “paid the mortgage as a family.” However, she also answered yes to the special prosecutor’s leading question asking whether it took a marriage to make a family, and she agreed with another leading question that this was why she had not identified Hayes on the questionnaire.
Johnson said she had “known of’ Hayes all her life, but she had not become personally involved with him, in the sense of being engaged, until 1993 or 1994. She said she had known of him when he was in jail, because his brother was married to her sister at the time. However, Johnson denied that she ever talked to Hayes about the circumstances surrounding his attempts to get out of prison.
Johnson said that Tommy McIntosh had visited Hayes at their house once or twice *504 in the six months before the Tucker trial. McIntosh would visit with Hayes outside the house while she was inside. Johnson’s only contact with Tommy McIntosh would have been to exchange pleasantries with him, and she explicitly denied that he ever expressed to her any hostility toward Tucker.
Johnson said that during the trial she did not discuss what went on in the courtroom with anyone and that no one tried to influence her thoughts about the trial.
Hayes also took the stand. He testified that before he and Johnson were married on March 14, 1996, they had been engaged a year and a half. He said she had wanted to get married “several times before then,” but that he was “holding out.”
Hayes said he first learned from Tommy McIntosh before Tucker’s trial that Hayes’s file had been intentionally concealed from Jerry Jewell, but that he did not associate the incident in any way with Tucker. He said he was not even aware that it was Tucker who had denied his request for clemency. He said he had not placed much hope in the idea that he would receive clemency but instead had concentrated on getting relief from the federal court (which in fact granted his habeas corpus petition). Hayes said that he and Johnson “really didn’t get into” discussing his conviction. Hayes said, to his knowledge, Johnson never broke her word as a juror not to discuss the trial. He also said he never told Tommy McIntosh or William Walker that he and Johnson had discussed the trial while it was going on.
Tommy McIntosh testified that he had dated Johnson a couple of times after he got out of jail and that she knew his father, Say McIntosh, at that time. He found out through family members that Johnson was on the Tucker jury. Tommy testified that he and Hayes talked about the Tucker case and that Tommy expressed his opinion to Hayes that Tucker was going to be convicted. However, Tommy said, he never talked to Johnson about the trial, nor did he do anything to encourage Hayes to influence her. Tommy said he did not know about Tucker’s staff hiding files from Jewell until after Tucker was convicted. He did not recall that Hayes ever said he discussed the case with Johnson during trial, but Tommy believed they did discuss it because, “[I]t’s obvious. People on juries talk to their husbands.” Tommy characterized his relation to Hayes as “best buddies, best cousins” and said that they were “like brothers.” He said he wanted Tucker to be convicted so Tucker would “see what it felt like to be convicted on something you think you didn’t do.” Tommy telephoned William Walker during the trial. Knowing that Walker was a Tucker ally, Tommy said something like, “Yeah, your boy going to jail. We got him. He’s going to be convicted.” He said he may have bragged to Walker about Johnson being on the jury.
William Walker stated that after Jewell had failed in his attempt to commute Hayes’s sentence, Walker contacted Hayes and explained to him that Hayes’s file had not been made available so that Jewell could act on it. Walker said that Hayes’s disappointment and anger were apparent. Walker testified that Tommy McIntosh called him late one night during trial and told him, “We’ve got somebody on the jury.” Walker didn’t know at the time what Tommy was talking about, but when he found out after the trial that Hayes’s wife had been on the jury, he concluded that Tommy had been talking about Hayes’s wife. He called Hayes, who confirmed that his wife was on the jury. Walker asked Hayes whether he and his wife had any conversation about the trial, and Hayes responded, “Sure, that’s my wife. We sleep together every night.” On cross examination about this conversation, Walker was unsure whether Hayes had said he talked to his wife about the trial during trial: “I don’t know whether he said ‘during the trial.’ I think at that point, I think he may have, he may not have.” Furthermore, though he thought *505 Hayes said that he talked with Johnson about “the trial,” he had not asked Hayes for any further detail about what was said. Walker admitted that he was a Tucker political ally, that he had done approximately $13,000 worth of consulting work for Tucker some twenty years before, and that he had received a political campaign contribution from him and from a company in which Tucker held an interest.
Tucker himself testified about the Hayes-Mclntosh clemency proceedings and about Say McIntosh’s anti-Tucker campaigns. Tucker said that Say McIntosh turned against him after the denial of clemency to Charles Hayes. Tucker identified McIntosh fliers calling Tucker a liar, murderer, and thief, saying Tucker had a witness killed, and alleging that Tucker had stolen “all that good money that was meant for blacks to go into business for themselves.”
There was also evidence about the timing of Johnson’s arrangements at the Hotze House, the bed and breakfast where Johnson and Hayes had a reception after their marriage. Johnson had made arrangements in January 1996 with the Hotze House for a wedding and reception on March 9, 1996, but during the trial she changed the reservation to March 29, which was when the reception actually occurred (after the March 14 wedding).
After the 1998 hearing, the district court found that Johnson was not dishonest in failing to identify Hayes in response to the question about family members charged with crime:
Johnson did not believe that living as a “family” constituted a family. As Johnson stated, it takes a marriage to make a family. Johnson testified credibly, in the Court’s opinion, that Question 39 concerned only family members and that Charles Hayes did not fall into that category because they were not married.
The court rejected the claim of improper communication with a juror because there was no evidence that any such communication occurred. Though Walker had signed an affidavit saying that Hayes and Johnson had discussed the trial “during the trial,” Walker’s testimony at the hearing negated the crucial time allegation: “At the hearing, Walker could not recall whether Hayes said that the communications occurred during the trial.” Id. at 1117. Walker’s testimony also fell short of establishing that there had been communication of an improper nature: “Furthermore, Walker admitted that he did not know the content of any conversations between Hayes and Johnson and Hayes did not tell Walker that he had said anything improper to his wife during the trial.” Id. Moreover, there was evidence that Johnson had not been subjected to any improper influence: “Johnson testified credibly, in the Court’s opinion, that she did not have any conversations with Hayes, or any McIntosh family member, about the trial during the trial. The Court is persuaded that Johnson heeded the Court’s regular *506 admonition not to discuss the case with anyone.” Id. at 1117-18.
I.
Tucker argues that the district court erred in rejecting his McDonough claim because the court’s decision was based on erroneous findings of fact and because the court mistakenly thought it could only find bias if Johnson admitted bias against Tucker.
Findings of fact on a
McDonough
hearing are reviewed under the “clearly erroneous” standard of review.
See United States v. Rouse,
The Supreme Court discussed the meaning of the “clear error” standard of review in
Anderson v. City of Bessemer City,
If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
Id.
at 573-74,
Tucker’s attack on the district court’s findings is primarily an attack on the district court’s judgment that Johnson was credible. Therefore, the level of deference owed to the district court’s findings is particularly high. However, Tucker argues that Johnson’s testimony is self-contradictory and too implausible to be credited and that some of her testimony is contradicted by extrinsic evidence.
Tucker argues that Johnson minimized the extent of her relationship with Hayes in order to defend her failure to identify him in response to the question about family members charged with crime. First, Tucker contends that Johnson’s testimony about the status of her wedding plans at the time of voir dire was contrary to fact. In the 1996 hearing, she said that she and Hayes became engaged in 1994 but had never set a date for their wedding. Tucker put on evidence in the 1998 hearing that Johnson had made a reservation at the Hotze House in January 1996 for a March 9 wedding and reception. Johnson also admitted that at the time of voir dire, she had bought a ring for the wedding. How
*507
ever, the Hotze House reservation lapsed in February, for nonpayment of the deposit, and was eventually rescheduled as a reception for March 29. The district court found that Johnson’s plans for marriage “were not definite.”
Even assuming Johnson’s testimony about the status of her wedding plans was disingenuous, the whole question about the wedding plans is really subsidiary to the question of whether she was “virtually married” or part of a “family” with Hayes at the time of voir dire so that she knew her failure to identify him was misleading. On this question, the court considered Tucker’s evidence that Johnson and Hayes lived together as a family, that they had a daughter together, and that they had bought a house together.
Tucker also attacks the district court’s finding that “Johnson was not being dishonest or intentionally deceiving the litigants or the Court when she did not respond to the Court’s requests that the jurors disclose anything that could have any bearing on their partiality.”
Id.
First, Tucker points out that Johnson had testified at the 1996 hearing that she did not know Hayes when he was in jail. At the 1998 hearing, Tucker’s counsel introduced Johnson’s testimony from her 1998 divorce proceedings in which she said she had known Hayes all her life. Moreover, Hayes testified that he met Johnson when she came with her sister to visit his brother and him in prison. The district court concluded that these contradictions did not show that Johnson was lying, but rather that she was using the word “know” in two different senses: “She ‘knew of Hayes’ but did not know him, in the sense of being friends or having conversations, until after he was released from prison. Her distinction is rational, not farfetched.”
Tucker points out that Johnson testified in the 1996 hearing that she “knew of’ Say McIntosh, but did not “know” him. At the 1998 hearing, Tommy McIntosh testified that Johnson knew Say McIntosh when Tommy was dating her, before her marriage. Tommy did not say how well Johnson knew his father, and so his testimony is not necessarily at odds with hers. And, more to the point, Johnson said that she was not interested in Say McIntosh’s political activities, testimony which the district court believed based on demeanor and context.
See
Tucker also infers dishonesty from Johnson’s testimony at the 1996 hearing that she could not say whether Hayes was still in touch with Tommy McIntosh. At the 1998 hearing, Johnson seemingly acceded to the statement that Tommy McIntosh and her husband were in “constant *508 contact.” However, this testimony must be considered in light of the fact that Tommy McIntosh was living in Nashville, not Little Rock, during the trial. When questioned more specifically about contact between Tommy and Hayes, Johnson said Tommy had been to her house to see Charles probably once or twice before the trial. Neither Hayes nor Tommy told of any more extensive contacts between the two men, and both indicated that Johnson was inside while they visited outside the house. This evidence does not compel a finding that Johnson was dishonest.
Tucker also attacks the district court’s finding that Johnson was not well informed on political matters, see id. at 1117, which he points out is in some tension with her statement that she was well informed on local news events. Johnson said that she did not read the newspapers every day, and she watched the news “occasionally.” She said she had not been politically active in 1996 or before. Even if there is a discrepancy between the testimony and finding, it is necessarily minor and tangential, because the primary questions were what Johnson knew about her husband’s dealings with Tucker and whether, with such knowledge as she had, she was obliged to inform the court about those dealings. Her direct testimony on this issue was that she had no knowledge whatsoever of the circumstances under which Hayes regained his freedom and she never became aware of her husband’s request for clemency until Tucker’s new trial motion was filed. Her general interest in the news is not particularly relevant in assessing her relation with Say McIntosh, because she testified she was aware of his political activities, but not interested in them.
In sum, under the rigorous standard of Anderson v. City of Bessemer City for review of findings of fact, we must affirm the district court’s finding that Johnson’s answers at voir dire were honest. Thus, Tucker’s McDonough claim fails at the first step.
Tucker argues on this appeal that he could be entitled to a new trial without a finding of juror dishonesty, by simply proving bias. To divine the law on this question in our circuit requires careful study.
Compare Cannon v. Lockhart,
Tucker argues that the district court made a legal error in supposing that Johnson would have had to agree that she was biased before the court could have found that she was. The district court’s opinion betrays no such misconception.
Although Tucker’s brief does not develop a detailed argument, he at least alludes to the idea of presumed or implied bias — that a juror may have such a close relation to a case that he or she should be deemed biased without regard to subjective state of mind or “actual bias.”
See generally McDonough,
464 U.S. at
556-57,
We must affirm the district court’s holding that Tucker failed to establish his right to a new trial based on juror misconduct at voir dire.
II.
Tucker also attacks the district court’s assessment that there was no evidence of improper outside influence over Johnson. We review a district court’s decision on whether to grant a new trial because of outside juror contacts for abuse of discretion.
See United States v. Pennington,
*510 Tucker suggests that Johnson may have been subjected to outside influence by overhearing Tommy McIntosh’s statements to Hayes outside her house while she was indoors. There is no direct evidence of this. A new trial order entered on the basis of this theory would be questionable, at the least. But here, Tucker asks us to reverse a district court for not making this imaginative leap. Clearly, the district court acted within its discretion.
Nor is there other, more satisfactory evidence of misconduct. Tommy McIntosh’s statement that he believed Johnson and Hayes must have talked because “[p]eople on juries talk to their husbands” is not a “reasonable inference,” as Tucker would have it, but rather an unfounded opinion by someone with no personal knowledge of the facts. To credit Tommy McIntosh’s sweeping opinion of juror conduct, we would have to repudiate the usual presumption that jurors follow the instructions of the court.
See Francis v. Franklin,
William Walker’s testimony was eoriclu-sory to begin with, to the effect that Hayes said he had some discussion with Johnson about the case. On cross-examination, it became clear that Walker did not have any knowledge about two crucial facts: when the putative discussion took place and what was said. Without these facts, there is simply no way to tell whether the discussion Walker was describing was improper or not. Moreover, Walker’s credibility as a witness might be affected by his position as a Tucker political ally and busi-. ness associate.
On the other hand, the only direct evidence on this subject is the testimony of Johnson and Hayes that they did not discuss the case during the trial, except perhaps immaterial statements about scheduling. Johnson testified, “I didn’t discuss what went on in the courtroom.” Hayes said to his knowledge, Johnson never broke her word not to talk about the trial.
The district court concluded on this record: “The Court is persuaded that Johnson heeded the Court’s regular admonition not to discuss the case with anyone.”
We affirm the district court’s denial of Tucker’s new trial motion, and it follows that we must affirm the conviction.
Notes
. The Honorable George Howard, Jr., United States District Judge for the Western District of Arkansas.