United States v. Jean D. Littlefield, United States of America v. George G. Nicoladze, United States of America v. Fred F. Solomon, Jr.
752 F.2d 1429
9th Cir.
1985
Check Treatment

*2 GOODWIN, Bеfore WALLACE and BOOCHEVER, Judges. Circuit GOODWIN, Judge. Circuit Littlefield, Nicoladze, ap- and Solomon peal conspiracy their convictions for to vio- late the tax laws for various tax-relat- arising ed criminal offenses from tax shel- ter activities. We remand trial new because a Time article on simi- larly by fraudulent tax shelters was carried jurors during one of room deliberations and read and discussed by one or more of the other of defense counsel all knew Because publication article before they (although was announced verdict carried into did not know had been room), government argues any right to seek a new have waived Defense cоunsel contend trial. cautionary rely general entitled jury. We believe instructions case comes close ‍‌​​‌‌​​‌​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​‌​​‍to the practice disfavored complaining then testing of if it the verdict and side, but in this case goes аgainst one’s in the technical sense. no waiver jus- administration The interest fair holding that against defendants weighs tice waived trial any opportunity to seek second harmless, case, juror with a though in this a second “the even burden perhaps heavily upon rests tablish ... could defense avoided had the the Government to es been that such juror contact immediately notified the court of was harmless to the defendant.” government publication article. See United Rattenni, (2d and the Sixth Circuit F.2d maintain that ing Cir.1973) (dereliction by overruled Remmer defense counsel is hold remedy allegations stand). grounds verdict let tainted *3 Dean, partiality hearing is a “in which the But seе United v. 667 F.2d defend States 729, (en opportunity ‍‌​​‌‌​​‌​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​‌​​‍prove ant has the (8th Cir.) vote), 732-34 banc 4-3 actual 1006, 215, denied, 945; bias.” 455 U.S. at 102 2296, 102 S.Ct. at cert. 73 L.Ed.2d 1300 456 U.S. S.Ct. Pennell, (defense But, (1982) 737 F.2d at 532. the Su waived preme -type upheld Court right expressly trial the to seek a second because it did Remmer proof; burden of held report receipt its that to the court of an determi during jury partiality “may nations of anonymous indicating jury properly note be bias). We made at hearing note that the article did not deal a like that ordered in defendants, specifically Remmer and with and defense held in this case.” 455 U.S. 217, Quite at government (and specific knowledge counsel had no 102 at simply, before S.Ct. the Circuit) the the verdict that extrinsic material hаd Sixth misread been Phillips “opportunity the prove jury Supporting carried into the room. actual shifting bias” as a proof of the burden of position Second Circuit’s is the Sixth to the defendant. requirement Amendment Recent decisions from a evidence circuits, number of against subject Supreme and the judicial an accused be Phillips Court’s Remmer, reliance on control and the of Evidence. Rules Turner point clearly Louisiana, 466, ‍‌​​‌‌​​‌​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​‌​​‍472-73, vitаlity to the v. continued of the 379 U.S. 85 S.Ct. 546, 549-50, (1965). government rule that 424 must bear 13 L.Ed.2d We proof of showing burden tiality 727 F.2d that accept par that view. Duckworth, was harmless. v. Owen Clanon, Pursuant to Gibson v. 633 F.2d 643, (7th Cir.1984) (once 646 851, (9th Cir.1980), denied, 855 cert. 450 proved extrajudicial defendant has tact con 1035, 1749, U.S. 101 68 S.Ct. L.Ed.2d 231 jury, government with the has the (1981), the district determined that it of rebutting presumption prej burden udice); 639, a of beyond could be concluded a reasonable Delaney, United States v. 732 F.2d doubt that the extrinsic material did not (8th (burden Cir.1984) 642 on the influence the verdict. We reverse because government presumption prej to rebut a this on conclusion was based factual find udice); Hillard, United 701 States v. F.2d ings that erroneous. See Fed. 1052, (2d Cir.), denied, 1064 cert. 461 U.S. 52(a). R.Civ.P. 958, 2431, (1983) 103 S.Ct. 77 L.Ed.2d 1318 argues government The that Gibson is (a presumption can prejudice be rebutted law, longer good no and cites the recent only by showing a that the information the Sixth Circuit case of nell, v. United Statеs Pen- harmless); jury received was United 521, (6th Cir.1984), 737 F.2d 532-33 Weiss, 1224, F.Supp. 579 1237 proposition for the defendants rather (S.D.N.Y.1983)(government must make an government than the bear the burden of showing harmlessness); ‍‌​​‌‌​​‌​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​‌​​‍affirmative see proving jury hearing in a partiality оn the Flaherty, also United 668 States v. F.2d argument matter. We believe misinterprets 566, (1st Cir.1981)(heavy 602 burden on the meaning of Smith v. government prejudice). to show no 209, 940, Phillips, 102 455 U.S. S.Ct. 71 (1982). L.Ed.2d 78 case, contrary The to the Sixth States, analysis, In Remmer v. 347 Circuit’s not confront United U.S. the is- 227, 450, (1954), proof 74 S.Ct. 98 L.Ed. 654 sue of burden or but rather con- Supreme placed proof necessity hearing Court the burden of cerned the a government on presump- jury partiality. to overcome a issue of issue thаt vance of It was prejudice “any pri- tion of where there is Court discussed rele- communication, Remmer; tampering vate or contact its conclusion that the directly hearing a indirectly, during constitutionally adеquate or a state did not even pending proof trial about the burden of matter before the address the jury.” 74 Phillips, 347 U.S. at S.Ct. at 451. In issue. 455 102 U.S. at 944-46. determine contact S.Ct. issue, therefore, we misconduct do not reach Phillips, we light In еrror. assertion that Gib defendants’ other contentions of government’s reject the longer good law. no and Remmer are son Although ‍‌​​‌‌​​‌​​‌​‌​​​‌‌​‌‌‌​‌​​‌​‌‌‌‌​​‌​‌​‌‌‌​‌‌​‌​​‍possible jury bias obligation here to had an government reversal, ground enough for we must also doubt that the reasonable prove appellants’ the evi address claims that reading arti juror’s of the constitutionally dence insufficient Remmer, at F.2d at cle was harmless. 229, Bibbero, convict. F.2d States v. Gibson, 451; 74 S.Ct. аt (9th Cir.1984). If the evi insufficient, jeopardy dence was double preclude would retrial. The court found that none magazine article jurors discussed the Time evi We cannot conclude that an un except foreperson Graves and dence insufficient to show willfulness. person. finding incorrectly re known That Dahlstrom, 713 F.2d See United States testimony. Juror Brown testified calls (9th denied, Cir.1983), 1426-27 cert. —jur among there was a discussion *4 —, 104 S.Ct. 80 L.Ed.2d U.S. article, juror Jeffrey the and ors about (1984). Viewing in the 835 light the evidence juror that told her that testified McGovern government, to most favorable the gotten magazine her had the from she mother. the and was “kind of looked jury the evidence was sufficient for thе Jeffrey Juror also testified that conclude that the defendants acted not jurors article was examined other and merely negligently, willfully, but as re at, opened, §§ 7206(1), 7206(2). quired by 26 U.S.C. in the there and amidst conversations [the accordingly We case for a remand this jury Juror Brown testified that room].” subsequent Any appeal new trial. matter reading saw the article and she McGovern panel. will be referred to this “engrossed” McGovern in it. that rememberеd McGovern was She reading parts on the article tax evasion other WALLACE, dissenting: Judge, Circuit rejection of accepting Even the court’s The judge hearing district held to de- a credible, jury not testimony Brown’s as the magazinе termine the article Time clearly with the arti- was cle than indicate. more conversant jury’s influenced the beyond verdict and concluded findings the court’s would district not, a reasonable doubt that did part in he becаuse found that none of the jurors magazine discussed the article cheating was cover Time the The article tax together. finding I conclude that this only not It dis- story magazine. in the erroneous, clearly fact I is not and thus vеry fraudulent schemes were cussed majority’s holding dissent from the were to the the defendants one similar charged “at least a doubt reasonable with, problem as the but described magazine’s about the influence on the deplored and national concern growing a jury’s Maj. op. verdict.” at 1432. frequently associated light sentences the juror No could have schemes. such with brought process has stated “that due Court room, jury magazine the every time a require does a new trial magazine in the could read nor juror placed potentially com- has been a receiving room, instantly without rule, promising situation. Were something impor- message thаt here was accept- constitutionally few be trials would very case related tant trying. Phillips, able.” Smith 940, 946, 71 L.Ed.2d 102 S.Ct. (1982). Because of the error the district suggested The Court findings, we are forced to court’s factual in a government proof meets its burden hearing “jury court’s conclusion if it partiality hold that the district shows willing ma- case of the extrinsic and decide the capable about the contribution [was] wrong. it, solely The testi- and terial to the verdiсt was on the evidence before [the] hearing prevent created at least a mony reasonable doubt about fluence on the judge at the ever watchful [was] magazine’s in- prejudicial to determine occurrences and we jury’s verdict. Because the effect of such occurrences when happen.” on account of the remand for new trial the effect of judge explored I majority The district 102 S.Ct. at 946. beliеve the jury’s magazine article fails to follow this sound advice. In the Time least, uncontra- that “the I impartiality. He found case at would defer to the district jurors” was that testimony judge’s magazine of all the conclusion that diсted magazine jury’s ar- juror “no discussed the not influence verdict any dur- any juror other time doubt. ticle with reasonable deliberations, except an ing the trial or person, [juror] Brown said unknown whom [juror] Graves.” The overturn the triаl majority has decided to conclusion that the arti- judge’s jury’s influence the verdict on cle did not finding ground that this of fact is clear- op. ly Maj. erroneous. at 1432. Alterna- ground tively, majority reverses on more conversant that “the SORENSON, individually Marie D. article than sum the dis- with the of] [the similarly on behalf of all others findings Maj. would indicate.” trict court’s situated, Plaintiff-Appellant, op. at 1432. agree ground. I either Al- cannot though failed to mention district The SECRETARY OF TREASURY juror testimоny Brown’s that she also ob- STATES; OF UNITED and The discussing the served cle with other McGovern arti- America, Defendants- *5 jurors, is clear from read- Appellees. ing transcript of the any did not of Brown’s testi- believe 83-3694, Nos. Moreover, mony. аlthough juror Jeffrey testified that had told her that McGovern Appeals, United States Court of magazine she had obtained her Ninth Circuit. mother, Jeffrey never testified that the two Argued had discussed the article. The record is and Submitted Feb. 1984. Jeffrey’s cryptic also clear that statement Decided Feb. at, that the article was “kind of looked opened, and the conversa- amidst—amidst solely having tions in there” referred to her glanced through nоisy in the room, setting any and not to taking place conversations about the article Thus, among the district judge’s finding concerning of fact the lack of conversations about the article was not clearly erroneous. that the sum of I also do not conclude judge’s findings erro- the district neous. His three members of the only findings indicate that jury knew the article to, majority objects existed. What therefore, is not the sum of district fact, findings his conclusion

judge’s but that, findings, the article did despite these jury’s judgment not influence The Court reasonable doubt. appellate courts should not stressed merely jury impartiality decision reverse a was some scin- they believe there because tilla of doubt concerning the influence of evidence. extrinsic See