finding noteworthy that the jury was exposed to the extraneous information "after the _________________________________________________________________ 1. We were advised at argument that "fractured" in this context means that the jury was able to distinguish between the two counts, convicting on one and acquitting on the other. 18 jury was instructed to decide the case on the basis only of the evidence and not extrinsic information, an instruction the jury is presumed to have followed"
How later courts described this case
- finding noteworthy that the jury was exposed to the extraneous information "after the _________________________________________________________________ 1. We were advised at argument that "fractured" in this context means that the jury was able to distinguish between the two counts, convicting on one and acquitting on the other. 18 jury was instructed to decide the case on the basis only of the evidence and not extrinsic information, an instruction the jury is presumed to have followed"
- finding noteworthy that the jury was exposed to the extraneous information “after the jury was instructed to decide the case on the basis only of the evidence and not extrinsic information, an instruction the jury is presumed to have followed”
- finding relevant to its conclusion that no prejudice ensued the fact that the allegedly prejudicial information "was received at the outset of the trial and was followed by a mass of evidence delivered over a 24-day, six-week period."
- noting that the extraneous information could actually support the defense position, so it cannot possibly be prejudicial to the defense
Written by the judges who cited it.
The opinion
STAPLETON, Circuit Judge,
dissenting:
The opinion of the court sets forth accurately and fairly the facts of this matter and I agree with its conclusion that exposure to the full text of the newspaper articles would be very unlikely to prejudice the defendants in the eyes of a juror. There is, however, a problem with the court’s analysis. The uncontradicted record evidence indicates that a number of jurors were told that “they offered to settle, but the judge said no because no time would be served" and the record provides no assurance that the jurors exposed to this information read the newspaper articles. I cannot escape the conclusion that an average juror who was exposed only to the “news according to George” would understand that the defendants offered to plead guilty as part of a deal with the government but that the judge refused to go along because the stipulated punishment was too light. 1 This is the kind of understanding that would stay with an average juror and color his or her view throughout even the longest of trials.
Were it true that further development of the record is either precluded or imprudent, I would hold, in accordance with United States ex rel. Greene v. New Jersey, 519 F.2d 1356 (3d Cir.1975), that the current record requires a new trial. In my view, however, the sensible and entirely proper thing to do in these circumstances is to hold an evidentiary hearing and determine precisely what, if any, extraneous prejudicial information was brought to the atten *99 tion of members of the jury. It may be that the jurors who heard extraneous information received a fair understanding of what went on at the hearing on the plea agreement and, if so, the conviction should stand. While care would have to be taken to avoid inquiry into “the effect of anything upon ... a juror’s mind or emotions ... or concerning his mental processes,” Fed. R.Evid. 606(b) (emphasis supplied), nothing cited by the court suggests that a post verdict inquiry of the kind I propose would be impermissible or impractical. Indeed, Federal Rule of Evidence 606(b) and its legislative history, as reviewed in Tanner v. United States, 483 U.S. 107 , 107 S.Ct. 2739 , 97 L.Ed.2d 90 (1987), make clear that such a post verdict hearing is expressly authorized and that a juror could testify at such a hearing concerning any “extraneous prejudicial information ... improperly brought to the jury’s attention.” Fed. R.Evid. 606(b).
I would remand this case to the district court with instructions to hold an evidentia-ry hearing consistent with this opinion.
. This court was unable to escape a similar conclusion in United States ex rel. Greene v. New Jersey, 519 F.2d 1356 (3d Cir.1975) where members of the jury received information that the defendant had offered to plead non vult and we held that the risk of prejudice required a new trial.