Enrique Godoy v. Marion Spearman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENRIQUE ANTHONY GODOY, No. 13-56024

Petitioner-Appellant,

D.C. No.

v. 2:10-cv-07927-

R-AGR

MARION SPEARMAN,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted En Banc March 22, 2017

San Francisco, California

Filed June 30, 2017

Before: Sidney R. Thomas, Chief Judge, and Kim McLane

Wardlaw, Raymond C. Fisher, Ronald M. Gould, Marsha

S. Berzon, Johnnie B. Rawlinson, Milan D. Smith, Jr.,

N. Randy Smith, Paul J. Watford, Andrew D. Hurwitz and

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Fisher

2 GODOY V. SPEARMAN

SUMMARY*

Habeas Corpus

The en banc court reversed the district court’s judgment

denying a habeas corpus petition in which Enrique Anthony

Godoy, who was convicted of second-degree murder, claimed

improper outside influence on the jury.

The en banc court held that the California Court of

Appeal – which acknowledged juror misconduct and a

presumption of prejudice, but concluded that the presumption

was rebutted and refused to hold an evidentiary hearing –

acted contrary to clearly established law:

(1) by never requiring the state to rebut the presumption

of prejudice, as required by Mattox v. United States, 146 U.S.

140 (1892), and Remmer v. United States, 347 U.S. 227, 229

(1954);

(2) by relying on the same statement from a juror’s

declaration both to raise the presumption of prejudice and to

rebut it; and

(3) by requiring Godoy to show a “strong possibility” of

prejudice in order to have an evidentiary hearing, contrary to

the Remmer requirement of a hearing whenever, as here, the

presumption attaches but the prejudicial effect of the

improper contact is unclear from the record.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GODOY V. SPEARMAN 3

The en banc court remanded with instructions that the

district court hold a hearing to determine the circumstances

of a juror’s misconduct, the impact upon the jury, and

whether or not it was prejudicial.

COUNSEL

Stephanie Adraktas (argued), Berkeley, California, for

Petitioner-Appellant.

James William Bilderback II (argued), Stephanie A. Miyoshi,

and Colleen M. Tiedemann, Deputy Attorneys General;

Lance E. Winters, Senior Assistant Attorney General; Gerald

Engler, Chief Assistant Attorney General; Office of the

Attorney General, Los Angeles, California; for Respondent-

Appellee.

OPINION

FISHER, Circuit Judge:

One of the most fundamental rights in our system of

criminal justice is the right to trial before an impartial jury.

Its common law origin can be traced back to the Middle

Ages. It was enshrined in the Sixth Amendment to the

Constitution, and it has been embraced by the Supreme Court

in numerous cases. The Court reaffirmed just last year that

“the guarantee of an impartial jury . . . is vital to the fair

administration of justice.” Dietz v. Bouldin, 136 S. Ct. 1885,

1893 (2016).

4 GODOY V. SPEARMAN

Here we address a critical safeguard of an impartial jury,

protecting the jury against improper influence from outside

parties. Enrique Godoy – after being convicted by a jury of

second-degree murder – claimed just such an improper

outside influence and moved for a new, untainted trial.

Specifically, he alleged that a juror (Juror 10) had

communicated about the case while it was ongoing with a

“Judge up North.” According to an uncontroverted

declaration from alternate juror “N.L.,” Juror 10 “kept

continuous communication” with the “judge friend” “about

the case” and passed the judge’s responses on to the rest of

the jury.

Despite the troubling questions Godoy’s allegations raised

about the jury’s impartiality, the California Court of Appeal

upheld the jury’s verdict. The court acknowledged that

N.L.’s declaration demonstrated juror misconduct and raised

a presumption that Godoy was thereby prejudiced. The court

concluded, however, that the presumption was rebutted – not

because the state made any showing to disprove prejudice,

but because N.L.’s declaration itself failed to prove actual

prejudice. The California Court of Appeal also affirmed the

trial court’s refusal to hold a hearing to determine whether

prejudice in fact had occurred.

The state appellate court’s decision was contrary to the

clearly established Supreme Court law that the parties agree

governs this case. The Court emphasized long ago that due

process does not tolerate “any ground of suspicion that the

administration of justice has been interfered with” by external

influence. Mattox v. United States, 146 U.S. 140, 149 (1892),

called into doubt on other grounds by Warger v. Shauers,

135 S. Ct. 521, 526–27 (2014). Thus, when faced with

allegations of improper contact between a juror and an

GODOY V. SPEARMAN 5

outside party, courts apply a settled two-step framework. At

step one, the court asks whether the contact was “possibly

prejudicial,” meaning it had a “tendency” to be “injurious to

the defendant.” Id. at 150. If so, the contact is “deemed

presumptively prejudicial” and the court proceeds to step two,

where the “burden rests heavily upon the [state] to establish”

the contact was, in fact, “harmless.” Remmer v. United

States, 347 U.S. 227, 229 (1954). If the state does not show

harmlessness, the court must grant the defendant a new trial.

See Remmer v. United States, 350 U.S. 377, 382 (1956)

(Remmer II). When the presumption arises but the prejudicial

effect of the contact is unclear from the existing record, the

trial court must hold a “hearing” to “determine the

circumstances [of the contact], the impact thereof upon the

juror, and whether or not it was prejudicial.” Remmer,

347 U.S. at 229–30.

Here, the California Court of Appeal failed to adhere to

this framework in three key respects. First, although the state

court correctly acknowledged at step one that N.L.’s

declaration raised a presumption of prejudice, it never

required the state to rebut that presumption at step two. It

concluded instead that the presumption was rebutted because

Godoy’s evidence failed to prove prejudice. But under

Mattox and Remmer, Godoy was not required to prove

prejudice at step two; once he triggered the presumption, the

burden “rest[ed] heavily upon the [state]” to disprove

prejudice. Id. at 229. Thus, in denying relief because

Godoy’s evidence did not prove prejudice at step two, the

state court acted contrary to Mattox and Remmer.

Second, setting aside the state court’s failure to hold the

state to its burden, it was error for the court to rely on the

very same statement from N.L.’s declaration both to raise the

6 GODOY V. SPEARMAN

presumption of prejudice and to rebut it. This defies not only

logic, but also the clearly established definition of a

“presumption.” It is well settled that a presumption can be

rebutted only by other, contrary evidence. It is not enough,

as the state court did here, to draw contrary inferences from

the same statement that established the presumption in the

first place.

Third, the California Court of Appeal denied Godoy a

hearing on prejudice under the wrong legal rule. It held he

had to show a “strong possibility” of prejudice, but Remmer

requires a hearing whenever, as here, the presumption

attaches but the prejudicial effect of the contact is unclear

from the record. See id. at 229–30.

Because the state court’s decision contravened these

bedrock principles, it was “contrary to” clearly established

Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

Furthermore, because Godoy established the presumption of

prejudice, but it is unclear from the existing record whether

he, in fact, suffered prejudice, Godoy is entitled to an

evidentiary hearing. We therefore reverse the judgment of

the district court and remand with instructions to hold a

hearing to “determine the circumstances [of Juror 10’s

misconduct], the impact thereof upon the jur[y], and whether

or not it was prejudicial.” Remmer, 347 U.S. at 230.

I

A

Enrique Godoy was convicted of second-degree murder

by a Los Angeles County Superior Court jury. A week before

his June 12, 2006 sentencing, he moved for a new trial

GODOY V. SPEARMAN 7

alleging that Juror 10 had improperly communicated about

the case with a judge friend. Godoy argued that because

Juror 10’s misconduct “injected . . . improper considerations

into the jury’s deliberations,” “prejudice is presumed, [and]

the prosecutor must rebut the presumption or lose the

verdict.” He argued that “once the court is informed of

potential juror misconduct, the court must then conduct

hearings to ascertain whether such misconduct has in fact

occurred.”

To substantiate his allegations, Godoy brought to the June

12 sentencing hearing alternate juror “E.M.” The trial judge,

apparently believing E.M.’s testimony would impermissibly

impeach the jury’s verdict, refused to hear live testimony

from her, insisting instead that Godoy obtain a sworn

declaration. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855,

861 (2017) (describing the no-impeachment rule). Moreover,

because Godoy had not previously informed the state he

intended to have E.M. testify, the state sought a continuance

to interview her and discover what she had to say.

The trial court put the hearing over to June 29. To

facilitate the state’s discovery in the interim, the court

obtained E.M.’s contact information and informed her that the

state would likely contact her for an interview. E.M. gave her

cell phone number and address, and she indicated her

willingness to speak with the state. We do not know whether

the state followed up with E.M., and the state never offered

evidence from E.M. regarding Juror 10’s communications.

On June 22, Godoy sent the prosecutor a declaration

about Juror 10’s misconduct, from alternate juror N.L., who

wrote that

8 GODOY V. SPEARMAN

[d]uring the course of the trial, juror number

ten kept continuous communication with a

gentleman up north, who she referred to as her

“judge friend.” Juror number ten explained to

us, the jury as a whole, that she had a friend

that was a judge up north. From the time of

jury selection until the time of verdict, juror

number ten would communicate with her

“judge friend” about the case via her T-

Mobile Blackberry, a two way text paging

system. When the jury was not sure what was

going on or what procedurally would happen

next, juror number ten would communicate

with her friend and disclose to the jury what

he said.

The state responded to N.L.’s declaration on June 27, two

days before the continuation of sentencing. It offered no

evidence contrary to the declaration. The state argued instead

that the declaration was inadmissible and that it failed to

show juror misconduct in the first place because the alleged

communications involved procedural issues. As to prejudice,

the state simply argued that “the defendant is unable to show

any.”

On June 29, the court proceedings reconvened. Although

no more progress was made toward resolving Godoy’s

allegations, the trial court denied Godoy’s request for another

adjournment and then – without explanation – denied his

motion for a new trial. Neither Godoy nor the state made any

further argument or offered any further evidence at the June

29 hearing. The court then sentenced Godoy to 16 years’ to

life imprisonment.

GODOY V. SPEARMAN 9

B

Godoy appealed his conviction to the California Court of

Appeal, arguing the trial court erred by (1) refusing to

presume Juror 10’s communications prejudiced the verdict

and (2) refusing to hold an evidentiary hearing on the alleged

misconduct.1

The California Court of Appeal rejected both of these

arguments on the merits and affirmed Godoy’s conviction.

The court agreed with Godoy that “[b]ased on N.L.’s

declaration, juror number 10 committed misconduct . . . [,]

rais[ing] a rebuttable presumption of prejudice.” The court

then held, however, that “[t]he presumption of prejudice

arising from juror number 10’s misconduct was rebutted.”

The California Court of Appeal cited no evidence other than

N.L.’s declaration. Instead, it held N.L.’s declaration itself

rebutted the presumption:

N.L. was an alternate juror with no personal

knowledge of what had occurred during jury

deliberations. Her declaration indicates that

1

While his direct appeal was pending, Godoy also filed a habeas

petition in the California Court of Appeal. The court of appeal denied the

petition, saying only that Godoy “fail[ed] to state a prima facie case for

relief.” The California Supreme Court denied review. In connection with

the state habeas petition, Godoy submitted a declaration from E.M. (the

juror he had brought to the June 12 hearing). The three-judge panel of this

court that first considered Godoy’s appeal concluded E.M.’s declaration

was not part of the federal habeas record, because it was not part of the

trial court record the California Court of Appeal considered on direct

review. See Godoy v. Spearman, 834 F.3d 1078, 1088–89 (9th Cir. 2016).

We assume without deciding that this was correct because, even based

solely on N.L.’s declaration, Godoy was denied due process.

10 GODOY V. SPEARMAN

the information furnished by juror number

10’s “judge friend” related to procedural

matters rather than appellant’s guilt. Nothing

in the declaration suggests that the “judge

friend” communicated information prejudicial

to appellant. Accordingly, there was no

substantial likelihood of juror bias.

The California Court of Appeal also rejected Godoy’s

argument that he was entitled to an evidentiary hearing on the

prejudicial effect of Juror 10’s misconduct. It held the trial

court properly “refused to conduct an evidentiary hearing on

the allegations of juror misconduct” because Godoy had not

“come forward with evidence demonstrating a strong

possibility that prejudicial misconduct ha[d] occurred.” The

court affirmed Godoy’s conviction, and the California

Supreme Court summarily denied review.

Godoy thereafter filed a federal habeas petition raising the

same arguments, which the federal district court denied.

After a divided three-judge panel of this court affirmed the

district court’s judgment, a majority of nonrecused active

judges voted in favor of rehearing en banc.

II

A

We review de novo a district court’s denial of a 28 U.S.C.

§ 2254 habeas corpus petition. See Lopez v. Thompson,

202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). Because

Godoy filed his petition after April 24, 1996, the

Antiterrorism and Effective Death Penalty Act (AEDPA)

governs review of his claims. See Estrella v. Ollison,

GODOY V. SPEARMAN 11

668 F.3d 593, 597 (9th Cir. 2011). As relevant here, when a

state court has adjudicated a claim on the merits, AEDPA

permits a federal court to grant habeas relief only if the state

court’s adjudication of the claim “resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1).

When reviewing a state court’s determination under

AEDPA, “we look ‘to the last reasoned decision’ that finally

resolves the claim at issue.” Amado v. Gonzalez, 758 F.3d

1119, 1130 (9th Cir. 2014) (quoting Ylst v. Nunnemaker,

501 U.S. 797, 804 (1991)). Here, that is the California Court

of Appeal’s decision affirming Godoy’s conviction on direct

review.

B

1

Even under AEDPA’s deferential standard, the California

Court of Appeal’s decision does not withstand scrutiny. We

begin by outlining the Mattox and Remmer framework that

the parties agree governs Godoy’s claim, and which the

California Court of Appeal purported to apply.2 That

framework is straightforward: When a defendant alleges

improper contact between a juror and an outside party, the

court asks at step one whether the contact was “possibly

prejudicial.” Mattox, 146 U.S. at 150. If so, the contact is

2

The presumption of prejudice the California courts apply is derived

from Remmer. See In re Price, 247 P.3d 929, 938 (Cal. 2011) (citing

Remmer, 347 U.S. at 229).

12 GODOY V. SPEARMAN

“deemed presumptively prejudicial” and the court moves to

step two, where the “burden rests heavily upon the [state] to

establish” the contact was actually “harmless.” Remmer,

347 U.S. at 229. If the state does not prove harmlessness, the

court sets aside the verdict. When the presumption arises but

the prejudicial effect of the contact is unclear, the trial court

must hold a “hearing” to “determine the circumstances [of the

contact], the impact thereof upon the juror, and whether or

not it was prejudicial.” Id. at 229–30.

2

This framework finds its origins in the Supreme Court’s

1892 decision in Mattox v. United States. After Clyde Mattox

was convicted of murdering John Mullen, he filed a new trial

motion. In support of his motion, Mattox offered affidavits

from two jurors saying that the bailiff had told the jurors that

Mullen was “the third fellow [Mattox] ha[d] killed.” Mattox,

146 U.S. at 142. Mattox also alleged that a newspaper article

discussing the trial and Mattox’s criminal history “was

introduced into the jury room.” Id. at 143. These contacts, he

alleged, violated his right to trial before an impartial jury.

In evaluating Mattox’s allegations, the Court began by

underscoring the fundamental nature of the right to an

impartial jury.

It is vital in capital cases that the jury should

pass upon the case free from external causes

tending to disturb the exercise of deliberate

and unbiassed judgment. Nor can any ground

of suspicion that the administration of justice

has been interfered with be tolerated. Hence,

the separation of the jury in such a way as to

GODOY V. SPEARMAN 13

expose them to tampering, may be reason for

a new trial, variously held as absolute; or

prima facie, and subject to rebuttal by the

prosecution; or contingent on proof indicating

that a tampering really took place.

Id. at 149–50.

To implement this principle, the Court created the

foundational rule that applies here: “Private communications,

possibly prejudicial, between jurors and third persons, or

witnesses, or the officer in charge, are absolutely forbidden,

and invalidate the verdict, at least unless their harmlessness

is made to appear.” Id. at 150. The Court granted Mattox’s

motion for a new trial.

Six decades later, in Remmer, the Court reaffirmed

Mattox’s core rule and fleshed out its application. In

Remmer, the defendant was convicted of federal tax evasion.

347 U.S. at 228. During the trial, FBI agents were sent to

investigate a juror who had informed the judge and

prosecutor (but not the defense) that he had been told “he

could profit by bringing in a verdict favorable to the

[defendant].” Id. When the defendant learned of the FBI’s

investigation, he moved for a new trial, alleging the juror’s

contact with the agents tainted the verdict.

Applying Mattox, the Court agreed, holding that

[i]n a criminal case, any private

communication, contact, or tampering,

directly or indirectly, with a juror during a

trial about the matter pending before the jury

is, for obvious reasons, deemed presumptively

14 GODOY V. SPEARMAN

prejudicial, if not made in pursuance of

known rules of the court and the instructions

and directions of the court made during the

trial, with full knowledge of the parties. The

presumption is not conclusive, but the burden

rests heavily upon the Government to

establish, after notice to and hearing of the

defendant, that such contact with the juror was

harmless to the defendant.

Id. at 229 (emphasis added) (citing Mattox, 146 U.S. at

148–50).

Beyond its restatement of the presumption of prejudice,

Remmer established that once the presumption of prejudice

arises, the court must hold a “hearing” – at which the state

bears the burden – to “determine the circumstances [of the

contact], the impact thereof upon the juror, and whether or

not it was prejudicial.” Id. at 230; see id. at 229.

The Court explained that a hearing was required because

the FBI’s investigation raised a possibility of prejudice, but

the existing record did not show whether or not prejudice had

occurred:

We do not know from this record, nor does

the petitioner know, what actually transpired,

or whether the incidents that may have

occurred were harmful or harmless. The

sending of an F.B.I. agent in the midst of a

trial to investigate a juror as to his conduct is

bound to impress the juror and is very apt to

do so unduly. A juror must feel free to

exercise his functions without the F.B.I. or

GODOY V. SPEARMAN 15

anyone else looking over his shoulder. The

integrity of jury proceedings must not be

jeopardized by unauthorized invasions. The

trial court should not decide and take final

action ex parte on information such as was

received in this case, but should determine the

circumstances, the impact thereof upon the

juror, and whether or not it was prejudicial, in

a hearing with all interested parties permitted

to participate.

Id. at 229–30. The Court made its reasoning even more plain

when the case returned to it after remand, explaining that “[i]t

was the paucity of information relating to the entire situation

coupled with the presumption which attaches to the kind of

facts alleged by petitioner which, in our view, made manifest

the need for a full hearing.” Remmer II, 350 U.S. at 379–80

(emphasis added). Because the government never rebutted

the presumption of prejudice, the Court granted the defendant

a new trial. See id. at 381–82.

Taken together, Mattox and Remmer clearly establish the

framework that applies to Godoy’s allegations.3 Under this

3

Some courts have viewed Smith v. Phillips, 455 U.S. 209, 215

(1982), as limiting Mattox and Remmer. See, e.g., United States v.

Pennell, 737 F.2d 521, 532 (6th Cir. 1984). We have previously

questioned, in dictum, whether Smith limited the scope of Remmer, even

as we held that Remmer remains good law as applied to jury tampering.

United States v. Dutkel, 192 F.3d 893, 895–96 & n.1 (9th Cir. 1999).

Smith did not, however, purport to abrogate these earlier decisions in any

respect, and no Supreme Court authority has suggested that it did.

Consistent with the Court’s treatment of the issue, our own case law

continues to follow Mattox and Remmer, see, e.g., Tarango v. McDaniel,

837 F.3d 936, 947–49 (9th Cir. 2016), cert. denied sub nom. Filson v.

16 GODOY V. SPEARMAN

framework, the California Court of Appeal’s decision

contravened Mattox and Remmer in three respects.

C

1

The California Court of Appeal’s first two errors boil

down to the same central problem: The court applied the

presumption of prejudice in name alone. It did so first by

failing to place any burden on the state to rebut the

presumption of prejudice and second by relying on the exact

same statement from N.L.’s declaration both to establish the

presumption and to rebut it.

Turning first to the burden issue, the state court properly

acknowledged that, based on N.L.’s declaration, Godoy

established a presumption of prejudice. Under Mattox and

Remmer, that was the only burden Godoy needed to carry;

once he triggered the presumption, the burden shifted to the

state to prove the contact was “harmless.” Remmer, 347 U.S.

at 229 (citing Mattox, 146 U.S. at 148–50). The California

Court of Appeal, though, never held the state to this burden.

Indeed, it did not require the state to make any showing at

step two. Rather than requiring the state to prove

harmlessness – something the state never attempted to do –

the state court held that “[t]he presumption of prejudice

Tarango, 2017 WL 635904 (U.S. Apr. 24, 2017); Caliendo v. Warden of

Cal. Men’s Colony, 365 F.3d 691, 695–97 (9th Cir. 2004); United States

v. Littlefield, 752 F.2d 1429, 1431 (9th Cir. 1985), as does California’s

case law, see, e.g., Price, 247 P.3d at 938. We reaffirm now that Smith

left Mattox and Remmer intact. We also note that the California Court of

Appeal in this very case treated the Mattox and Remmer framework as the

governing law, and the state does not argue otherwise on appeal.

GODOY V. SPEARMAN 17

arising from juror number 10’s misconduct was rebutted”

because “[n]othing in [N.L.’s] declaration suggests that the

‘judge friend’ communicated information prejudicial to

appellant. Accordingly, there was no substantial likelihood

of juror bias.” (emphasis added). But saying the presumption

was rebutted because Godoy’s evidence failed to prove actual

prejudice is the equivalent of placing the entire burden of

proof on Godoy. Under Mattox and Remmer, that was clearly

wrong.

2

The California Court of Appeal’s reliance on N.L.’s

declaration to rebut the presumption also led to a second error

under Remmer. Once the state court decided that a statement

in N.L.’s declaration triggered the presumption of prejudice,

it could not rely on the exact same statement to conclude the

presumption was rebutted – effectively negating the

presumption. Here is the entirety of what N.L. said about

Juror 10’s misconduct:

During the course of the trial, juror number

ten kept continuous communication with a

gentleman up north, who she referred to as her

“judge friend.” Juror number ten explained to

us, the jury as a whole, that she had a friend

that was a judge up north. From the time of

jury selection until the time of verdict, juror

number ten would communicate with her

“judge friend” about the case via her T-

Mobile Blackberry, a two way text paging

system. When the jury was not sure what was

going on or what procedurally would happen

next, juror number ten would communicate

18 GODOY V. SPEARMAN

with her friend and disclose to the jury what

he said.

This statement cannot be read to both raise and rebut the

presumption of prejudice. Although this is true as a matter of

common sense, it is also clear from Remmer itself. The Court

applied a presumption of prejudice, and a “presumption” can

be rebutted only by contrary evidence. See Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (“[I]f [one

party] is silent in the face of the presumption, the court must

enter judgment for [the other party] because no issue of fact

remains in the case.”); Lincoln v. French, 105 U.S. 614, 617

(1881) (“Like other presumptions, it was sufficient to control

the decision of the court if no rebutting testimony was

produced.”); Presumption, Black’s Law Dictionary (10th ed.

2014) (“calling for a certain result . . . unless the adversely

affected party overcomes it with other evidence” (emphasis

added)); Rebuttable Presumption, Black’s Law Dictionary

(10th ed. 2014) (“[a]n inference” that “may be overcome by

the introduction of contrary evidence” (emphasis added)); 9 J.

Wigmore, Evidence in Trials at Common Law § 2491 (3d ed.

1940) (the “effect of a presumption . . . is . . . to invoke a rule

of law compelling the jury to reach the conclusion in the

absence of evidence to the contrary from the opponent”); 2 K.

Broun, McCormick on Evidence § 343 (7th ed. 2016) (“A

presumption shifts the burden of producing evidence, and

may assign the burden of persuasion as well.”). In every

context of which we are aware, a presumption can be rebutted

only by contrary evidence.

There is no reason to think the presumption recognized in

Remmer deviates from this well-settled definition. Here, that

means the state needed to produce some evidence contrary to

N.L.’s declaration, not simply draw contrary inferences from

GODOY V. SPEARMAN 19

the same statement that established the presumption. The

state neither offered contrary evidence nor pointed to contrary

evidence elsewhere in the record. The single statement from

N.L.’s declaration was the only evidence either party offered.

Thus, once the California Court of Appeal concluded this

statement triggered the presumption, the absence of any

additional evidence shedding light on prejudice means the

presumption should have carried the day. Because the state

court concluded otherwise, it acted contrary to Remmer.4

Furthermore, even if it were permissible to view a single

statement as both raising and rebutting a presumption of

prejudice, that would not be possible here, because nothing in

N.L.’s statement demonstrates that the improper

communications were harmless. The state court focused on

N.L.’s use of the word “procedurally,” theorizing that

communications between a judge and a jury concerning

procedural matters could not influence the jury’s verdict. But

the state court knew nothing about what “procedural” matters

were discussed. It also had no idea what N.L. meant by the

word “procedurally.” The state court ignored that

communications about procedural matters could well have

4

We recognize that in theory the same declaration could both raise

and rebut a presumption where the court looks only to one part of the

declaration to conclude the presumption exists but consults the declaration

as a whole to conclude the contact was actually harmless. But nothing in

the case law suggests this is how the Mattox and Remmer framework

works, and there is certainly no indication the state court engaged in this

sort of parsing, blinding itself at step one to anything suggesting Juror 10’s

communications were innocent. We assume the state court did what it

was supposed to do at step one – look at the entirety of N.L.’s statement,

in its full context, to determine whether a possibility of prejudice existed

at all.

20 GODOY V. SPEARMAN

influenced the jury.5 In sum, no reasonable jurist could

conclude, based only on N.L.’s declaration, that the

communications between the jury and Juror 10’s judge friend

were harmless.

3

Finally, the California Court of Appeal’s decision was

also contrary to Remmer because it denied Godoy an

evidentiary hearing under the wrong legal rule. The court of

appeal concluded the presumption attached but nonetheless

held that the trial court properly “refused to conduct an

evidentiary hearing on the allegations of juror misconduct”

because Godoy had not “come forward with evidence

demonstrating a strong possibility that prejudicial misconduct

ha[d] occurred.” (emphasis added). Remmer, however,

clearly requires a hearing where, as here, the presumption of

prejudice attaches yet the prejudicial effect of the

communications is unclear from the existing record. There is

no additional requirement that the defendant establish a

“strong possibility” of prejudice. See Remmer, 347 U.S. at

229–30; Remmer II, 350 U.S. at 379–80. Thus, the court of

appeal’s decision that the trial court properly “refused to

conduct an evidentiary hearing” was contrary to Remmer.

5

The description by N.L. indicates that the discussions with the judge

were not limited to procedural matters. N.L. said Juror 10 contacted her

judge friend when “the jury was not sure what was going on or what

procedurally would happen next.” (emphasis added). The phrase “was

not sure what was going on” could refer to substantive legal or factual

questions as easily as procedural questions, and the use of “or” suggests

some of the inquiries went beyond “what procedurally would happen

next.”

GODOY V. SPEARMAN 21

III

Because the California Court of Appeal’s decision was

contrary to Mattox and Remmer, AEDPA is no bar to habeas

relief, and we evaluate Godoy’s claim “without [the]

deference to the state court’s decision” that “AEDPA

normally requires.” Panetti v. Quarterman, 551 U.S. 930,

948 (2007). That is, “we review de novo . . . , applying the

correct legal standard to determine whether the applicant is

entitled to relief.” Castellanos v. Small, 766 F.3d 1137, 1146

(9th Cir. 2014).

A

Because we now must review Godoy’s claim de novo –

rather than through the lens of AEDPA – we reiterate the

governing two-step process.

1

At step one, the court determines whether the alleged

external contact was “possibly prejudicial.” Mattox, 146 U.S.

at 150. To meet this “low threshold,” the defendant must

present “evidence of an external contact that has a ‘tendency’

to be ‘injurious to the defendant.’” Tarango v. McDaniel,

837 F.3d 936, 947, 949 (9th Cir. 2016) (quoting Mattox,

146 U.S. at 150), cert. denied sub nom. Filson v. Tarango,

2017 WL 635904 (U.S. Apr. 24, 2017). The contact must

“raise a credible risk of influencing the verdict” before it

triggers the presumption of prejudice. Id. at 947; accord

Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697

(9th Cir. 2004).

22 GODOY V. SPEARMAN

We recognize the practical impossibility of shielding

jurors from all contact with the outside world, and also that

not all such contacts risk influencing the verdict. See

Tarango, 837 F.3d at 947 (citing Smith v. Phillips, 455 U.S.

209, 217 (1982)). Thus, the defendant’s burden at step one

cannot be met by “[t]hreadbare or speculative allegations” of

misconduct. Id. Nor do “allegations involving prosaic kinds

of jury misconduct,” id. (internal quotation marks omitted),

such as “chance contacts between witnesses and jury

members – while passing in the hall or crowded together in

an elevator,” id. at 951, trigger the presumption. The

defendant must present evidence of a contact sufficiently

improper as to raise a credible risk of affecting the outcome

of the case.

Among the considerations relevant to this determination

are the identity of the outside party and the nature of the

contact. We have held, for example, that “undue contact”

between jurors and certain government officers – like bailiffs

or law enforcement agents – will “almost categorically”

trigger the presumption. Id. at 947. This may be especially

true when the officer is “deeply entangled in [the] case.” Id.

at 949 (applying the presumption where police officers who

were victims, investigators and witnesses in the case tailed a

holdout juror on his drive to the courthouse); see also Parker

v. Gladden, 385 U.S. 363, 365 (1966) (per curiam) (“[T]he

official character of the bailiff – as an officer of the court as

well as the State – beyond question carries great weight with

a [sequestered] jury which he had been shepherding for eight

days and nights.”); Remmer, 347 U.S. at 229 (“The sending

of an F.B.I. agent in the midst of a trial to investigate a juror

. . . is bound to impress the juror and is very apt to do so

unduly. A juror must feel free to exercise his functions

without the F.B.I. . . . looking over his shoulder.”); Mattox,

GODOY V. SPEARMAN 23

146 U.S. at 151 (“Nor can it be legitimately contended that

the misconduct of the bailiff could have been otherwise than

prejudicial. Information that this was the third person Clyde

Mattox had killed, coming from the officer in charge,

precludes any other conclusion.”). Similarly – regardless of

the outside party’s identity – communications “about the

matter pending before the jury,” “if not made in pursuance of

[the] rules . . . and the instructions . . . of the court,” greatly

increase the risk of prejudice. Remmer, 347 U.S. at 229; see

also Caliendo, 365 F.3d at 697–98 (“Other factors may

include the length . . . of the contact, . . . evidence of actual

impact on the juror, and the possibility of eliminating

prejudice through a limiting instruction.”).

We bear in mind that even such highly troubling contacts

do not necessarily raise a presumption of prejudice. At step

one, the court considers the full context of the contact to

determine whether a credible risk of prejudice exists. Contact

with a government officer, for example, will trigger the

presumption only if the defendant shows the contact was

somehow improper. Similarly, even contact about the case

may be insufficient to trigger the presumption if the

surrounding circumstances show the contact was innocuous.

Importantly, however, the defendant’s burden at step one

to show a possibility of prejudice is not onerous. The

defendant need only demonstrate a credible risk, and the

presumption may arise even when “[w]e do not know from

th[e] record . . . what actually transpired, or whether the

24 GODOY V. SPEARMAN

incidents that may have occurred were harmful or harmless.”

Remmer, 347 U.S. at 229.6

2

Once a defendant shows a possibly prejudicial contact,

the presumption of prejudice attaches, and the burden shifts

6

Some of our cases have suggested the presumption attaches under

only more limited circumstances. For example, in United States v. Dutkel,

192 F.3d 893, 895–96 & n.1 (9th Cir. 1999), we said in dictum that the

presumption of prejudice arises only in the context of jury tampering (i.e.,

threats or bribes intended to influence the jury’s decision). Although

tampering is among the types of contacts that may raise a presumption,

nothing in Mattox or Remmer suggests this is the only circumstance where

the presumption arises. See Remmer, 347 U.S. at 229 (“private

communication, contact, or tampering” may trigger the presumption

(emphasis added)); Mattox, 146 U.S. at 150 (“Private communications,

possibly prejudicial . . . invalidate the verdict . . . unless their harmlessness

is made to appear.”). We have also suggested that the presumption applies

only to the introduction of extraneous information – not to ex parte

contacts that do not impart information “pertain[ing] to any fact in

controversy or any law applicable to the case.” United States v.

Rosenthal, 454 F.3d 943, 949 (9th Cir. 2006) (internal quotation marks

omitted) (summarizing cases). Although, as noted, it is certainly relevant

whether the contact was “about the matter pending before the jury,”

Remmer, 347 U.S. at 229, neither Remmer nor Mattox suggests that the

outside party must actually “submi[t] . . . extraneous information (e.g., a

file or dictionary) to the jury” before the presumption arises, Rosenthal,

454 F.3d at 949 (internal quotation marks omitted). In Tarango, for

example, the police officers who tailed the holdout juror on his drive into

the courthouse imparted no specific information about any fact or point of

law in the case. 837 F.3d at 942–43. This contact was nonetheless

“possibly prejudicial” within the meaning of Mattox and Remmer. See id.

at 949–50. Accordingly, we reiterate that any outside contact raising a

credible risk of influencing the verdict triggers the presumption of

prejudice. To the extent cases such as Dutkel and Rosenthal suggested

otherwise, they are disapproved.

GODOY V. SPEARMAN 25

to the state to prove the contact was harmless. See id.

Harmlessness in this context means “that there is no

reasonable possibility that the communication . . .

influence[d] the verdict.” Caliendo, 365 F.3d at 697.

As previously discussed, the state must rebut the

presumption by pointing to some evidence contrary to the

evidence that established it. Drawing contrary inferences

from the same evidence is not enough. That approach would

be contrary to the meaning and effect of a legal presumption.

Given the fact-based nature of this inquiry, we express no

opinion on what that contrary evidence must be in any given

case, or where the prosecution must obtain it. Most

obviously, though, the prosecution could seek evidence from

the jurors themselves – as the state had the opportunity to do

here – or from the outside party who had contact with the

jury. See United States v. Remmer, 122 F. Supp. 673, 673–74

(D. Nev. 1954) (at the hearing on remand from the Supreme

Court, the court heard the testimony of 27 witnesses,

including 12 members of the jury, two alternate jurors, the

person who communicated with the juror and the FBI agent

who conducted the investigation); see also Smith, 455 U.S. at

213, 217 & n.7 (approving in a related context the trial

court’s reliance on the allegedly biased juror’s testimony

explaining the harmlessness of his conduct); Remmer II,

350 U.S. at 380–81 (relying on the evidence adduced at the

remand hearing from the third parties who had contact with

the jury to conclude the state had not shown harmlessness);

Tarango, 837 F.3d at 951–52 (holding that on remand, the

trial court should consider juror testimony about the allegedly

prejudicial contact); United States v. Rutherford, 371 F.3d

634, 638, 643–45 (9th Cir. 2004) (considering juror affidavits

about alleged jury intimidation by government agents).

26 GODOY V. SPEARMAN

Alternatively, the prosecution might find contrary evidence

elsewhere in the existing record that sheds new light on the

potentially prejudicial communication. Or the prosecution

could seek further evidence about the content of the

communications themselves, to show, for example, that rather

than texting about the case, the juror was simply asking a

friend out to dinner. These examples are not exhaustive, only

illustrative. In short, regardless of its source of rebuttal

evidence, the prosecution must point to some contrary

evidence in attempting to rebut the presumption of prejudice.

In addition, once the presumption attaches, the trial court

must hold a hearing on prejudice if there is any remaining

uncertainty about “what actually transpired, or whether the

incidents that may have occurred were harmful or harmless.”

Remmer, 347 U.S. at 229; see Remmer II, 350 U.S. at 379–80.

The form of this hearing may vary, depending on what is

necessary to “determine the circumstances [of the contact],

the impact thereof upon the juror, and whether or not it was

prejudicial,” Remmer, 347 U.S. at 230, but due process

always “requires . . . that the investigation be reasonably

calculated to resolve the doubts raised about the juror’s

impartiality,” Dyer v. Calderon, 151 F.3d 970, 974–75 (9th

Cir. 1998) (en banc). In many, if not most, cases, that will

mean the “full hearing” that Remmer deemed “manifest[ly]”

necessary. Remmer II, 350 U.S. at 380; see Remmer, 122 F.

Supp. at 673–74 (at the hearing on remand from the Supreme

Court, the court heard the testimony of 27 witnesses); see

also Smith, 455 U.S. at 213, 217 (approving in a related

context the full evidentiary hearing conducted by the trial

court). In some cases, however, something like a more

“informal in camera hearing may be adequate” to address the

defendant’s allegations. Dyer, 151 F.3d at 974. If the state

GODOY V. SPEARMAN 27

fails to demonstrate the contact was harmless, the defendant’s

conviction is unconstitutional.

B

1

Applying the requisite framework here, Godoy offered

evidence of possibly prejudicial communications that

triggered the presumption of prejudice, as the California

Court of Appeal found. Godoy submitted undisputed

evidence – N.L.’s declaration – that Juror 10 “kept

continuous communication” with her “judge friend” “about

the case” “[d]uring the course of the trial” and “disclose[d] to

the jury what he said.” Although the judge friend was not a

state officer “entangled in this case,” Tarango, 837 F.3d at

949, his status as a judge is nonetheless relevant to the step

one inquiry. The weight a judge’s comments would carry

with the jury greatly increases the risk that his advice about

the case swayed its decision. As noted, that some of the

communications perhaps concerned procedural matters does

not mitigate this risk. See supra note 5 and accompanying

text. Procedural guidance on questions such as why certain

evidence was excluded, or how the jury was to determine

guilt, could certainly influence the jury’s decision. See

Rosenthal, 454 F.3d at 950.7 These facts, taken together,

indisputably show an external contact raising a credible risk

of influencing the verdict.

7

That N.L. was an alternate juror does not detract from the possible

prejudice conclusion. N.L.’s statement concerned communications

throughout the trial – not just during deliberations – communicated to all

the jurors, including the alternates. It is also plausible N.L. heard from

other jurors that the communications continued during deliberations.

28 GODOY V. SPEARMAN

2

Having concluded Godoy triggered the presumption of

prejudice, the next question is whether the state rebutted the

presumption by showing Juror 10’s communications were, in

fact, harmless. On the existing record, the state has not made

that showing. We simply “do not know from this record . . .

what actually transpired, or whether the incidents that may

have occurred were harmful or harmless.” Remmer, 347 U.S.

at 229. Because the existing record is unclear as to prejudice,

and no evidentiary hearing on prejudice has yet been held, we

remand to the district court to conduct such a hearing. See id.

at 230; Tarango, 837 F.3d at 952.8 On remand, the district

court should “determine the circumstances [of Juror 10’s

misconduct], the impact thereof upon the jur[y], and whether

or not it was prejudicial.” Remmer, 347 U.S. at 230.

If the state does not present contrary evidence that rebuts

the presumption of prejudice by showing “there is no

reasonable possibility that [Juror 10’s] communication[s] . . .

influence[d] the verdict,” Caliendo, 365 F.3d at 697, the

district court should grant Godoy’s petition for a writ of

habeas corpus. To be clear, to make the necessary showing,

the state must present evidence beyond N.L.’s declaration. It

cannot rely simply on N.L.’s status as an alternate juror or on

the fact that some of the communications may have involved

procedural matters. For example, the most relevant evidence

would be the actual content of the text messages or testimony

8

Because we evaluate Godoy’s claim de novo, the Supreme Court’s

decision in Cullen v. Pinholster, 563 U.S. 170 (2011), does not preclude

remand for an evidentiary hearing in the district court. See Crittenden v.

Chappell, 804 F.3d 998, 1010 (9th Cir. 2015); Johnson v. Finn, 665 F.3d

1063, 1069 n.1 (9th Cir. 2011).

GODOY V. SPEARMAN 29

from a juror showing what actually transpired between Juror

10 and her judge friend, sufficient to find there is “no

reasonable possibility” Godoy was prejudiced. Id. Under the

circumstances of this case, given the time that has elapsed, it

may be difficult for the state to meet its heavy burden on

remand, but we nevertheless afford it the opportunity to do

so.

IV

We reverse the judgment of the district court and remand

with instructions to hold an evidentiary hearing to determine

the factual basis of Juror 10’s misconduct and its prejudicial

effect, if any, on Godoy’s verdict.

REVERSED and REMANDED.