United States v. Gordon Pennell

CELEBREZZE, Senior Circuit Judge,

dissenting.

The majority holds that a presumption of prejudice should not be applied in a hearing to determine juror bias when five jurors receive late night threatening phone calls, the entire jury discusses the phone calls during deliberations, and one juror expresses privately doubts as to whether she can render an objective decision based solely on the evidence. Respectfully, I dissent.

Generally, the remedy for allegations of juror bias is a hearing to determine whether actual bias exists. E.g., Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982). The rule to be applied at such a hearing has long been that unauthorized contact with a juror in a criminal case is presumptively prejudicial. This rule was set forth by the Supreme Court in 1892:

Private communications, possibly prejudicial, between jurors and third persons ... are absolutely forbidden and invalidate the verdict at least unless their harmlessness is made to appear, (emphasis added).

Mattox v. United States, 146 U.S. 140, 150 , 13 S.Ct. 50, 53 , 36 L.Ed. 917 (1892). The rule that any unauthorized contact with a juror during a trial is presumptively prejudicial was restated by the Supreme Court in Remmer v. United States, 350 U.S. 377 , 76 S.Ct. 425 , 100 L.Ed. 435 (1956). The Court in Remmer admonished that the government has a heavy burden in overcoming the rebuttable presumption; it must demonstrate that “such contact with the juror was harmless to the defendant.” Id. at 229, 102 S.Ct. at 952 ; Mattox v. United States, 146 U.S. 140 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892).

As the majority concedes, this Circuit has “strictly applied the presumptive prejudice standard” in both criminal and civil cases. United States v. Ferguson, 486 F.2d 968 (6th Cir.1973); Stone v. United States, 113 F.2d 70 (6th Cir.1940). See Krause v. Rhodes, 570 F.2d 563 (6th Cir.1977), cert. denied, 435 U.S. 924 , 98 S.Ct. 1488 , 55 L.Ed.2d 517 (1978); Stiles v. Lawrie, 211 F.2d 188 (6th Cir.1954). Other circuits have also applied the presumption of prejudice in Remmer type hearings to determine juror bias. See Rinker v. County of Napa, 724 F.2d 1352 (9th Cir.1983) (unauthorized communication with jury creates presumption of prejudice and government has heavy burden to demonstrate that no prejudice resulted from such communication); United States v. Flaherty, *539 668 F.2d 566 (1st Cir.1981); Miller v. Estelle, 677 F.2d 1080 (5th Cir.), cert. denied, 459 U.S. 1072 , 103 S.Ct. 494 , 74 L.Ed.2d 636 (1982); United States v. Greer, 620 F.2d 1383 (10th Cir.1980); United States v. Fleming, 594 F.2d 598 (7th Cir.), cert. denied, 442 U.S. 931 , 99 S.Ct. 2863 , 61 L.Ed.2d 299 (1979); United States v. Boscia, 573 F.2d 827 (3d Cir.), cert. denied, 436 U.S. 911 , 98 S.Ct. 2248 , 56 L.Ed.2d 411 (1978); United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S. 928 , 99 S.Ct. 314 , 58 L.Ed.2d 321 (1978) (dicta). The majority disregards this over-whelming case law and holds that the Supreme Court in Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982), has “reinterpreted” Remmer . In essence, the majority believes that Phillips not only departs from Supreme Court precedent, but also, overrules precedent established by this court and at least seven other federal courts of appeal.

The majority infers that the presumptive prejudice standard was altered by Phillips because the Supreme Court noted that the defendant must prove actual bias at a Remmer style hearing. The majority must have reasoned that Remmer placed the burden of proving juror prejudice on the government and, therefore, that Phillips shifted the burden of proof from the government to the defendant. Accordingly, the majority holds that the presumption of prejudice no longer applies. In my view, the majority misapprehends the role of the presumption in both Remmer and Phillips .

A presumption has a narrow effect:

A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof.

10 J. Moore, Federal Practice Sec. 300.01 (1970). Under Remmer , a defendant has the burden of establishing that the unauthorized juror contact was prejudicial; the defendant is aided by a presumption that prejudice did arise from unauthorized juror contact. In the absence of evidence to the contrary, a presumption operates to invalidate any verdict. In contrast, if the government introduces evidence which rebuts effectively the presumption that unauthorized juror contact was prejudicial, the court would allow the case to continue to a final jury resolution. Thus, the government has the burden of going forward with evidence to rebut the presumption. Remmer v. United States, 350 U.S. 377 , 76 S.Ct. 425 , 100 L.Ed. 435 (1956). The Supreme Court’s decision in Phillips it is not inconsistent with this procedure.

In Phillips , the issue was whether a conclusive presumption of prejudice should apply. The issue of a conclusive presumption, more often termed the doctrine of “implied bias,” involves a different line of cases than those which address a presumption of prejudice. 1 Phillips is merely another case which rejects the use of a conclusive presumption of prejudice under circumstances which are not extreme. In less extreme cases, such as those in Phillips and the case at bar, a post-conviction hearing, where the defendant is aided by the *540 presumption of prejudice, will suffice to determine whether juror bias exists.

There is no precedent in support of the majority’s conclusion that the Supreme Court has abandoned the application of the presumption of prejudice when unauthorized contacts are made with jurors. 2 Moreover, the majority has acknowledged that if Remmer and Sixth Circuit precedent did control this case, it would be “hard pressed to affirm the defendant’s conviction.” In my view, Remmer controls the disposition of this case.

There is no evidence in the record to suggest that the trial court applied the presumption of prejudice at the hearing to determine whether the improper jury contact was prejudicial. Because the court did not apply a presumption required by the law, the hearing was defective. In my view, the conviction should be reversed and the case remanded for a new trial.

. The presumption of prejudice doctrine is represented by Remmer v. United States, 350 U.S. 377 , 76 S.Ct. 425 , 100 L.Ed. 435 (1956), and its progeny. In contrast, the doctrine of implied bias is represented by cases such as Dennis v. United States, 339 U.S. 162 , 70 S.Ct. 519 , 94 L.Ed. 734 (1950) and Leonard v. United States, 378 U.S. 544 , 84 S.Ct. 1696 , 12 L.Ed.2d 1028 (1964) (per curiam).

Justice O’Connor's concurrence in Phillips indicates clearly that under extreme circumstances, for example when a juror actually participates in the criminal act with a defendant, a postconviction Remmer type hearing is inadequate to safeguard a defendant’s right to a fair and impartial jury. In such extreme circumstances, juror bias may be implied conclusively without a hearing. Justice O'Connor was concerned that the majority’s opinion in Phillips would be read as a rejection of the implied bias doctrine in all circumstances.

Phillips and Remmer represent two different doctrines. Which doctrine applies depends upon the gravity of the breach of the jury’s integrity. In extreme cases, such as when a juror is involved in serious misconduct, bias is to be presumed conclusively. Under less serious circumstances, such as when a jury might be affected by the misconduct of a third party, a Remmer type hearing safeguards adequately a defendant’s right to an impartial jury.

. If the Supreme Court had intended Phillips to overrule Remmer and its established progeny, it would have done so clearly. Absent a clear indication that the Supreme Court has "reinterpreted” Remmer , I cannot agree with the majority’s assertion that the presumption of prejudice standard has been abandoned. In my view, the Supreme Court’s opinion in Phillips does not address the dispositive issue in this case; namely, whether the court applied a presumption of prejudice at the hearing to determine whether jurors were biased by the threatening phone calls.