United States v. Michael Vernon Dutkel

O’SCANNLAIN, Circuit Judge,

concurring in the result:

I concur in the result ordered by the court’s opinion but not entirely in its legal analysis. I write separately to express my view that in criminal cases involving jury tampering by a co-defendant, the defendant must establish that prejudice was likely to have resulted before the government should be required to prove the harmlessness of the intrusion. In this case, I agree we should reverse and remand for a harmlessness hearing because *900 Dutkel has presented evidence sufficient to establish that some prejudice to himself was a likely result of Washington’s jury tampering. Nevertheless, I would leave the burden of proof with the defendant rather than shift it to the government.

The opinion places the burden of proof in jury tampering cases upon the government, requiring the government to “show that there is no reasonable possibility that [any juror] ‘was ... affected in his freedom of action as a juror’ as to [the defendant].” Op. at 899 (quoting Remmer v. United States, 350 U.S. 377, 379 , 76 S.Ct. 425 , 100 L.Ed. 435 (1956)) (Remmer II) (emphasis added). In allocating this burden to the government, the opinion relies heavily upon Remmer v. United States, 347 U.S. 227 , 74 S.Ct. 450 , 98 L.Ed. 654 (1954). In Remmer, the Supreme Court stated 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 prejudicial.” Id. at 229, 74 S.Ct. 450 .

In more recent cases, however, the Supreme Court has retreated from Rem-mer ’s presumption of prejudice and the sweeping language of that opinion. In Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982), the defendant argued that he was entitled to a new trial because of the possible partiality of a juror who had applied for a job in the prosecutor’s office during the defendant’s trial. The Court rejected his argument, explaining that “[t]his Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Id. at 215 , 102 S.Ct. 940 (emphases added). 1 It is difficult to reconcile this language in Phillips with Remmer’s presumption of prejudice: “[Assuring the defendant ‘an opportunity to prove actual bias’ is out of synch with the Remmer presumption; why would a defendant enjoying a presumption in his favor need such an opportunity?” United States v. Williams-Davis, 90 F.3d 490, 496 (D.C.Cir.1996). Under Phillips , then, it would appear that the burden rests upon the defendant to prove prejudice in cases involving improper interference with the jury.

In United States v. Olano, 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993), the Supreme Court reversed the Ninth Circuit’s holding that the defendant was entitled to a new trial because two alternate jurors were present in the jury room during deliberations. The Olano Court stated that “[t]here may be cases where an intrusion should be presumed prejudicial, but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and thereby its verdict?” Id. at 739 , 113 S.Ct. 1770 (emphasis added and citations omitted). This language from Olano , deemphasizing the importance of presumptions of prejudice, seems inconsistent with Remmer’s categorical directive. See Williams-Davis, 90 F.3d at 496 (“[T]he Olano Court appeared to see Remmer largely as a case illustrating the importance of weighing the likelihood of prejudice rather than as a source of rigid rules.”).

In sum, the Supreme Court’s post-i2em- mer cases suggest that allegations of improper interference with jury deliberations should be addressed through case-specific investigation into the existence of actual prejudice, rather than automatic application of Remmer’s inflexible presumption. Our sister circuits have recognized the *901 Court’s retreat from, or narrowing of, the Remmer presumption. See United States v. Sylvester, 148 F.3d 923, 934 (5th Cir.1998) (“[T]he Remmer presumption of prejudice cannot survive Phillips and Olano.”); Williams-Davis, 90 F.3d at 496-97 (noting language in Phillips that is “out of synch with the Remmer presumption,” and pointing to Olano’s apparent “reconfiguration]” of Remmer ). 2 While it is not our place to “second-guess” the Supreme Court, op. at 895, we certainly can — and must — follow the Court’s modification of its own opinions. In light of Phillips and Olano , I would follow the Fifth and D.C. Circuits in holding that “only when the court determines that prejudice [from a suspected intrusion] is likely should the government be required to prove its absence.” Sylvester, 143 F.3d at 934; see also Williams-Davis, 90 F.3d at 497 (“[T]he district court was correct under the Supreme Court’s and our cases to inquire whether any particular intrusion showed enough of a ‘likelihood of prejudice’ to justify assigning the government a burden of proving harmlessness.”).

Our own decision in United States v. Angulo, 4 F.3d 843 (9th Cir.1993),,similarly recognizes that Remmer has been modified since being handed down over four decades ago. The court characterizes An-gulo as “reaffirming” the Remmer presumption in a case of jury tampering, op. at 895; careful examination of Angulo , however, cannot support such analysis. Rather than reaffirming Remmer, Angulo subtly reconfigures the Remmer presumption, applying a flexible multifactor test in place of a pure Remmer analysis.

If the court’s reading of Angulo were correct, one would expect Angulo to conduct a straightforward Remmer analysis like the one undertaken here. Such an analysis would contain the following three steps: (1) classification of the case as a jury tampering case, (2) application of the Remmer presumption, and (3) remand for an evidentiary hearing pursuant to Rem- mer, But. the Angulo court proceeded down a different path. After briefly summarizing Remmer, see Angulo, 4 F.3d at 846 , it noted that “not every improper ex parte contact with a juror requires a mistrial.” Id. at 847 . It further observed that “[a]n evidentiary hearing is not mandated every time there is an allegation of jury misconduct or bias.” Id. The Angulo court then stated:

[I]n determining, whether a hearing must be held, the court must consider the content of the allegations, the seriousness of the alleged misconduct, or bias, and the credibility of the source. Considering these factors, we deem it clear that the district court abused its discretion in failing to hold a hearing under the facts presented in this case.

Id. (emphases added and citation omitted). Thus, instead of undertaking a conventional Remmer analysis, the Angulo court applied a more flexible, multi-faceted test that led it to conclude that a hearing should have been held in light of the specific circumstances present in that case.

Although the Angulo test may produce results similar to a pure Remmer analysis in many (but not all) jury tampering cases, as an analytical matter the Angulo approach is clearly distinct from the court’s application of the Remmer presumption here. A Remmer analysis calls upon courts to classify the type of interference presented and apply a presumption if jury tampering is involved. In contrast, the Angulo test focuses not on interference classification but on evaluation of “the seriousness of the alleged misconduct or bias,” Angulo , 4 F.3d.at 847. Thus the Angulo test is much closer to the views of the Fifth Circuit in Sylvester and the D.C. Circuit in Williams-Davis than it is to the *902 approach taken by the court in this case. See Sylvester, 143 F.3d at 934 (calling for trial courts to “assess the severity of the suspected intrusion”); Williams-Davis, 90 F.3d at 497 (calling for trial courts to assess the “likelihood of prejudice” from an intrusion). While the outcome of Angu-lo might simulate the court’s result, Angu-lo ’s reasoning cannot bear the interpretation the court’s analysis seeks to place upon it.

Like my colleagues, I reject Dutkel’s argument that Washington’s jury tampering constituted a structural error entitling Dutkel to a new trial. In light of the considerable evidence suggesting the likelihood of some prejudice to Dutkel, I agree that the district court erred by failing to hold a hearing to determine the harmlessness of Washington’s jury tampering vis-a-vis Dutkel. 3 I part with the majority only to the extent that I would leave the burden of proof at such harmlessness hearing with Dutkel, giving him “the opportunity to prove actual bias” called for by Phillips .

. Phillips was not a jury tampering case, as the opinion points out. See op. at 894-95. The Phillips Court explicitly referred to Rem-mer, however, as an example of a case "in which the defendant [was properly given] the opportunity to prove actual bias,” 455 U.S. at 215 , 102 S.Ct. 940 . The Phillips Court’s cila-lion of Remmer suggests that its modification of the Remmer presumption extends to jury tampering cases. The majority’s attempt to distinguish Phillips as applicable only to cases not involving jury tampering, see op. at 894-95, is difficult to sustain in light of Phillips's express citation of Remmer.

. I am not persuaded by the Fourth Circuit’s unqualified retention of the Remmer presumption in United States v. Cheek, 94 F.3d 136, 142 (4th Cir.1996). The Cheek opinion discusses neither Phillips nor Olano , suggesting that the Cheek court may have overlooked the possibility that these cases reconfigured Rem-mer.

. The evidence suggesting the possible ways in which Dutkel may have been prejudiced by his co-defendant’s jury tampering is amply discussed in the opinion, op. at 897-99, and therefore I do not repeat it here.