# Petition — Peed v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1078%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1219 ## Text 83 -11 3 8 Office - Supreme Court US FILED JAN 11 1984 No. 83-___ ALEXANDER L Srevas | C5 « | IN THE Supreme Court of the Gnited States OCTOBER TERM, 1983 Gary J. PEED and JAMES C. CODDINGTON, Petitioners, v. UNITED STATES OF AMERICA PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT KENNETH R. WEINER 3251 Old Lee Highway, Suite 411 Fairfax, Virginia 22030 (703) 591-0700 STEVEN D. KuPFERBERG 5900 Hubbard Drive Rockville, Maryland 20852 (301) 231-9480 Attorneys for Petitioners Of Counsel: RONALD J. BACIGAL Georce A. WEINER Epwarp L. WEINER PRESS OF BYRON 5. ADAMS PRINTING. INC.. WASHINGTON, D.C. (202) 347-4203 i QUESTIONS PRESENTED I. Are mid-trial chambers conferences between a juror and a trial judge, regarding the juror’s apprehension for his safety caused by third party contact with the jury critical stages ofthe trial, and the intentional exclusion of the Petitioners and Peti- tioners’ counsel from such proceeding a violation of the Peti- tioners’ right to be present under Fed. R. Crim. P. 43(a) and their Sixth Amendment right to counsel? II. Is the burden on the Government to prove violations of Petitioners’ right to be present and right to counsel during mid-trial ex parte juror-judge substantive communications harmless beyond a reasonable doubt pursuant to Remmer v. United States, Smith v. Phillips and Rushen v. Spain? III. Can a due process post-trial hearing authorized in Remmer v. United States and Smith v. Phillips be conducted without adequate notice, without an impartial fact finder and without the right to summon material witnesses and evidence? PARTIES BELOW Petitioners, Gary J. Peed and James C. Coddington,’ pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Fourth Circuit, affirm- ing the judgment of the United States District Court for the Eastern District of North Carolina, Raleigh Division. ' Petitioners Gary J. Peed and James C. Coddington’'s cases were consolidated for trial in the United States District Court for the Eastern District ef North Carolina, Raleigh Division, and the United States Court of Appeals for the Fourth Circuit with Ronald Doyle Hines, Teresa Eleazar, James Maurice Jackson and Jeffery Craig Bumgardner. ij TABLE OF CONTENTS Page I Sa nore Ae biden ode Wéae bakoneese i ec acncenbsecs sheet oente i EE RENE Tr 1 ES a ee a 2 CONSTITUTIONAL PROVISIONS INVOLVED ............... 2 PC CCI oc ook nebecesescossceccnceés 2 REASONS FOR GRANTING THE WRIT .............00005- 8 i Mh cece a bce ciedebeeed nbn cones taetecet 12 I. Mid-Trial Chambers Conferences Between A Juror And A Trial Judge, Re ing The Juror’s Appre- hension For His Safety Ca By Third Party Con- tact With The Jury Are Critical S Of The Trial, And The Intentional Exclusion Of Petitioners And Petitioners’ Counsel From Such Proceedings Is A Violation Of The Petitioners’ Right To Be Present Under Fed. R. Crim. P. 43(a) And Their Sixth Amendment Right To Counsel. ................ 12 II. The Burden Is On The Government To Prove Viola- tions Of Petitioners’ Right To Be Present And Right To Counsel During Mid-Trial Ex Parte Juror-Judge Substantive Communications Harmless Beyond A Reasonable Doubt Pursuant To Remmer v. United States, Smith v. Phillips and Rushen v. Spain... 22 Ill. Notice, An Impartial Fact Finder And The Right To Summon Material Witnesses And Evi- dence Essential To Conduct A Due Process Post-Trial Hearing Authorized In Remmer v. United States And Smith v. Phillips. ........... 23 I IE ee oF I Pe. 7 aaa age 29 iii TABLE OF AUTHORITIES CASES: Page Allen v. United States, 376 F. Supp. 1886(E.D. Pa. 1974) 26 Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969) 27 Capella v. Braumgartner, 59F.R.D.312(S.D. Fla. 1973) 27 Coleman v. Alabama, 399 U.S. 1 (1970) ............. 12 Estelle vy. Williams, 425 U.S. 501 (1976) ............. 16 Gibson v. Clanon, 683 F.2d 851 (9th Cir. 1980) ...... 20 Jones v. United States, 299 F.2d 661 (10th Cir. 1962). 23 Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977) . 17, 27, 28 Krische v. Smith, 662 F.2d 177 (2nd Cir. 1981) ....... 15 Mor —" United States, 399 F.2d 93 (5th Cir. Remmer v. United States, 347 U.S. 227 (1954) ..... 10, 24 Remmer v. United States, 350 U.S. 377 (1956) ..... 16, 27 Rogers v. United States, 422 U.S. 35 (1975) ........ 14, 21 Rushen v. Spain, 464 U.S. ——., (Slip op. Dec. 12, BOER ie cunavisétigervectesss6¥ipnabos s Ope nes passim Smith v. Phillips, 455 U.S. 209 (1982) . 9, 17, 22, 24, 25, 29 Stone v. United States, 113 F.2d 70 (6th Cir. 1940) ... 27 Tillman v. United States, 406 F.2d 930 (5th Cir. 1969) 27 Tumey v. Ohio, 273 U.S. 510 (1927) .............005 20 United States v. Aimone, 715 F.2d 822 (3rd Cir. 1983) 26 United States v. Barnes, 604 F.2d 121 (2nd Cir. 1979) 26 United States v. Brown, 571 F.2d 980 (6th Cir. 1978) . 27 United States v. Bufalino, 576 F.2d 446 (2nd Cir. 1978) 21 United States v. Ferguson, 486 F.2d 968 (6th Cir. 1973) 14 United States v. Flaherty, 668 F.2d 566 (1st Cir. 1981) 21 United States v. Fleming, 594 F.2d 598 (7th Cir. 1979) 27 United States v. Gay, 522 F.2d 429 (6th Cir. TEED ovcccceccecegereeeesetercgneeeseee 14, 15, 21 United States v. Gersh, 328 F.2d 460 (2nd Cir. 1964) . 14 United States v. Guthrie, 387 F.2d 569 (4th Cir. 1967) 26 United States v. Hines, 696 F.2d 722 (10th cir. 1982) . 14 iv Table of Authorities Continued Page United States v. Jones, 542 F.2d 186 (4th Cir. 1976) .. 21 United States v. Khoury, 539 F.2d 441 (5th Cir. 1976) 27 United States v. Myers, 626 F.2d 365 (4th Cir. BEE sis Fie Cdb abe a celle naceckinckeaes 13, 15, 21 United States v. Rakes, 74 F. Supp. 645 (E.D. Va. 1947) 25 United States v. Ronder, 639 F.2d 931 (2nd Cir. ED nw didi Racks’ GO padi Mian 6 bide aeks 13, 14, 15, 21 United States v. Schrimsher, 493 F.2d 848 (5th Cir. 1974) 27 Unit 7 States v. Spinella, 506 F.2d 426 (5th Cir. 1975) 26 United States v. Taylor, 562 F.2d 1345 (2nd Cir. 1977) 15 United States v. Treatman, 524 F.2d 320 (8th Cir. 1975) 15 United States v. United States Gypsum Co., 438 U.S. 422 DED idx date Busbinhs ce seesaeanmektaadéus 12, 15, 21 United States v. Wood, 299 U.S. 123 (1986) .......... 26 Ward v. Monroville, 409 U.S. 57 (1972) ............. 25 STATUTES: Federal Rules of Criminal Procedure Rule 30 ...... 15, 21 Federal Rules of Criminal Procedure Rule 43(a) .... 12, 21 Federal Rules of Evidence Rule 606(b) ........ 11, 12, 26 OTHER AUTHORITIES: United States Constitution Amendment VI ........ 12, 21 Judges’ Nonverbal Behavior in Jury Trials: A Threat to Judicial Impartiality, 61 Va. L. Rev. 1266 (1975) . 15 IN THE Supreme Court of the Anited States OCTOBER TERM, 1983 No. 83-__ Gary J. PEED and JAMES C. CODDINGTON, Petitioners, Vv. UNITED STATES OF AMERICA PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT The Petitioners respectfully pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Fourth Circuit entered in this proceeding on September 9, 1983. OPINIONS BELOW The opinion of the United States District Court for the Eastern District of North Carolina, Raleigh Division. A copy of the opinion is attached to this petition (App. 5a-8a). The opinion of the United States Court of Appeals for the Fourth Circuit reported at 717 F.2d 1481 (4th Cir. 1983) the relevant portion of which is attached to this petition (App. la-3a). The order of the United States Court of Appeals for the Fourth Circuit denying Petitioners’ Motion for Rehearing is attached to this petition (Ap. 4a). 2 JURISDICTION The judgment of the Court of Appeals for the Fourth Circuit was entered on September 9, 1983. Rehearing was denied on November 14, 1983. This petition for writ of certiorari was filed within 60 days of the latter date. 28 U.S.C. § 2102(c); Supreme Court Rule 20.1, 20.2, 20.4. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Amendment VI STATEMENT OF THE CASE The Petitioners herein were indicted, tried and convicted of conspiracy to possess with intent to distribute cocaine and use of a communication facility (telephone) in furtherance of that conspiracy in the United States District Court for the Eastern District of North Carolina, Raleigh Division. The Petitioners’ appeal from the former conviction was denied by the United States Court of Appeals for the Fourth Circuit. A. Facts Relating To Extraneous Jury Contacts There were three extraneous contacts with jurors during the course of Petitioners’ and co-defendants’ trial. During their case in chief, as the jury was exiting the court- house after the sixth day of Petitioners and four co-defendants’ trial, at least five jurors (9/30 TR 102 Ap. 41a, 122, Ap. 44a) saw an unidentified individual seated in a parked automobile across from the courthouse aiming a camera equipped with a 12’’-15’’ telephoto lens at them (9/30 TR 116 Ap. 43a). Juror Bryant Deaton later testified that because of the na- ture of the trial, he and the other jurors were “scared,” feared for their personal safety and believed the defendants were having pictures taken of the jury (9/30 TR 95, App. 37a-38a, 99, App. 38a-39a; 100, App. 39a-40a; 101, App. 40a). 3 As a result of his concern Juror Deaton copied the license plate number of the automobile and returned tothe courthouse (9/30 TR 85, Ap. 30a). Juror Deaton first told the trial judge’s law clerk of the photographing incident. The judge’s law clerk immediately advised the trial judge that Juror Deaton was in the outer office. Thereupon, the trial judge had Juror Deaton brought into his chambers. Juror Deaton related the photographing incident to the trial judge and gave the judge the piece of paper on which he had recorded the license plate number and description of the auto- mobile (9/30 TR 22, Ap. 20a). (This document was never re- vealed by the Court, viewed by counsel nor admitted into evidence.) The trial judge indicated to Juror Deaton that he was concerned about the incident, that he would look into it immediately and get back to him (9/30 TR 85, App. 30a-31a; 86, Ap. 3la). The trial judge requested the local F.B.I. office to send an agent to his chambers. Shortly thereafter two F.B.I. agents reported to the trial judge’s chambers. The trial judge related Juror Deaton’s account of the incident, and gave the agents the information Deaton had written. The trial judge requested the F.B.I. agents to investigate the incident immediately. The F.B.I. agents informed the trial judge that they would find out who was taking the pictures by morning. The next morning one of the F.B.I. agents who had met with the trial judge the previous afternoon, and F.B.I. Agent James J. Roche, Jr. presented themselves at the judge’s chambers. The F.B.I. agents advised the judge that Agent Roche was the individual who was covertly taking the pictures. That same morning Juror Deaton informed the other members of the j jury that he (Deaton) had met with the trial judge the previous afternoon, had informed the judge of the photographing in- cident and had given the judge the license plate number and description of the automobile (9/30 TR 99, App. 38a-39a). Juror Deaton further told the jury members that the judge was going to “look into the matter and get back to him.” At about that 4 time the trial judge’s law clerk entered the jury room and told Deaton that the judge wanted to see him. Juror Deaton then left the jury room accompanied by the judge’s clerk and re- ported to the trial judge’s chambers. The trial judge advised Juror Deaton that he (the judge) had looked into it (the photographing incident) and wanted to assure us (the jury) that our safety was not (threatened). However, the trial judge said he would discuss this with me (Juror Deaton) after the trial; and that he would prefer not to now (9/30 TR 86, Ap. 31a). Juror Deaton then left the trial judge’s chambers and re- turned to the jury room. He conveyed the trial judge’s assur- ances to the rest of the jury (9/30 TR 87, 88, App. 3la-33a). The trial continued that day and concluded early the follow- ing evening with the jury finding the Petitioners and co- defendants guilty. (Codefendant Eleazer was found not guilty of using a communication facility in furtherance of the con- spiracy). The trial judge thereafter polled the jury and then thanked them for their services as jurors. He informed them that his law clerk would be giving them a questionnaire which he hoped they would complete and return to him. Then he informed them regarding the procedure for picking up their wraps from the jury room and returning their jury buttons. At that moment Juror Deaton stood up in the jury box. The U.S. Marshal approached the standing Juror Deaton. The marshal asked permission of the trial judge to approach the bench and an unrecorded bench conference between the mar- shal and the judge took place. The trial judge then made the following statement. Members of the jury, an inquiry was made during the trial to me by one of your number concerned some of you leaving the courthouse one day and some- one snapping pictures out at the curbs and one that ease og yen As — Ja Deaton ben follow- ing morning, I investiga’ matter deter- malsed that thore wes saiiiter te is ofeie esianen te any of you about what happened. I found out the 5 source of it, what it was and I assure you that it’s nothing to jeopardize any of your health, welfare or security. If any of you desire to learn more about that, you may communiate with me in private later and I will be happy to discuss it with you further. All right, ou may now leave. (TR vol 9 of 9, App. 12a-13a; i26 Ap. 13a). This statement was the first information or notice to Peti- tioners, Petitioners’ co-defendants and their counsel regarding the jury’s concern for their health, welfare and security as the result of third party contact with the jury and the juror/judge ex parte mid-trial communications. The trial judge stated that he did not advise Petitioners, co-defendants and their counsel of the third party contact with the jury, or the mid-trial communications with the juror be- cause he (the trial judge) didn’t feel it would have been proper to do so (TR VOL 9 of 9:138, Ap. 15a). The trial judge further stated he had made a determination that the photographing incident would not affect or jeopardize the right of any of the defendants to a fair trial (TR VOL 9 of 9:140, Ap. 16a). The trial judge declined to furnish any additional information to Peti- tioners, their co-defendants or counsel at that time. The judge then recessed without answering counsels’ oral motion for a more complete disclosure of the incident prior to post-trial motions (TR VOL 9 of 9:140, 141, Ap. 16a). B. Facts Relating To The Post-Trial Hearing Petitioners and co-defendants were subsequently notified of a date for argument of post-trial motions without benefit of a complete disclosure from the court. Petitioners and co- defendants nonetheless filed motions for a new trial based upon the third party (picture taking) contact with the jury and the trial judge’s ex parte communications with Juror Deaton. On the date set by the trial judge for argument of post-trial motions, Petitioners, co-defendants and counsel, without 6 notice, were then advised by the trial judge (9/30 TR 20, Ap. 19a) that he (trial judge) intended to conduct a hearing (9/30 TR 6, App. 17a-18a) an evidentiary hearing (9/30 TR 17, Ap. 18a) for the purpose of exploring whether the photographing of the jury in any way prejudiced Petitioners’ and co-defendants’ trial. The trial judge stated he set this “Remmer Hearing” and will follow the procedure of bringing such witnesses to the stand whom I (the judge) will question and then I will allow counsel to question them also (9/30 TR 24, Ap. 21a). Petitioners and co-defendants moved the trial judge to re- cuse himself (9/30 TR 24, 25, App. 2la-22a). The trial judge denied the motion. The trial judge stated critical evidentiary facts on the record without first being sworn and without being subject to cross examination (9/30 TR 21, 22, 23, 24, App. 19a-22a). Counsel moved the court to have the thirteen other jurors and alternates present and subject to questioning on the issues of juror impartiality (9/30 TR 27, 28, 169, Ap. 23a-24a, 49a-50a). Counsel objected to the procedure (9/30 TR 6, Ap. 18a) by which the trial judge intended to conduct the post trial hearing . . . (9/30 TR 27, 28, App. 23a-24a). Thereafter the trial court called F.B.I. Agents Albert P. Koehler and James J. Roche, Jr., and Juror Bryant Lee Deaton as witnesses. The Court permitted Petitioners to call United States Customs Service Agent Susan Rowley who was physically present in Court at the time. It is significant that the Assistant U.S. Attorney asked but one question during the entire post-trial hearing (9/30 TR 59, Ap. 29a) and moved the court to conclude the post-trial hearing without questioning the remaining thirteen jurors and alternates (9/30 TR 188, Ap. 53a). The trial judge conducted a direct examination of F.B.I. Agent Albert P. Koehler in which he (the trial judge) repeated- ly asked the witness leading questions and questions which were highly suggestive of answers (9/30 TR 28, 29, 31, 32, App. 24a-27a). The direct examination by the trial judge of F.B.I. Agent Roche was also characterized by leading questions. 7 Agent Roche admitted on direct examination he focused his camera on members of the jury (9/30 TR 57, 58, App. 27a-28a). Juror Bryant Deaton was next called as a witness by the trial judge who continued to ask leading questions (9/30 TR 84-91, App. 29a-35a). The juror stated the photographing incident would have been a “problem” had he (Juror Deaton) not had the judge’s personal assurances (instruction) that he (the judge) looked into it. From that assurance Juror Deaton perceived the trial judge knew the source of the photographing (9/30 TR 89, 90, App. 33a-34a). The trial judge then asked Juror Deaton whether he had “any feeling or any reason to believe that it (the photograph- ing) had any impact at all on the jury totally—the deliberations of the jury in the trial of this case?” (9/30 TR 90, Ap. 34a). This question was objected to by counsel, but the trial judge over- ruled the objection (9/30 TR 91, Ap. 34a). Juror Deaton testified on cross-examination that given the nature of the case he was concerned that there might be some reason that someone would like to know something about the jurors or have pictures of them. He testified he was scared and concerned for his personal welfare (9/30 TR 93, App. 36a-37a) Juror Deaton further testified he thought some of the other jurors were also concerned (9/30 TR 95, Ap. 38a). He testified that every member of the jury panel was aware of the fact that he (Deaton) and others had been photographed as they were leaving the courthouse, and knew he (Deaton) had taken down the license plate number of the car and reported it to the judge (9/30 TR 99, App. 38a-39a). Notwithstanding the trial judge’s personal assurances, Juror Deaton could not testify whether the other jurors were as assured as he was (9/30 TR 100, App. 39a). Further cross-examination of Juror Deaton indicated that he (Deaton) believed the perpetrator(s) of the photographing in- 8 cident to be the Petitioners and co-defendants (9/30 TR 100, 101, Ap. 40a). Juror Deaton testified that his fear abided with him over- night (9/30 TR 101, Ap. 40a). He testified that from September 1, 1982, the date of the incident, until September 30, 1982, the date of the post-trial hearing, he (Juror Deaton) believed the photographing incident had something to do with the case; the trial judge never informed Juror Deaton otherwise (9/30 TR 106, 107, Ap. 42a). In view of the information elicited from cross-examination of Juror Deaton, counsel again requested the opportunity to ex- amine the thirteen other jurors and alternates, and D.E.A. Agent Johannesen. Counsel also requested that the court initi- ate a further investigation into the effect of this matter on the deliberation of the jury. The trial judge did not respond to this request (9/30 TR 145, 147, App. 47a-48a). e In his Order of November 8, 1982 (Ap. 8a), the trial judge summarily denied Petitioners and co-defendants’ right to call the thirteen additional jurors and alternates for examination by the court and cross-examination by counsel. The trial judge found that Juror Deaton was the only juror directly involved and therefore the only juror who could have been prejudiced or influenced in any way. REASONS FOR GRANTING THE WRIT Important questions are presented involving serious aspects of federal criminal justice. Petitioners ask this Court to recognize that the fundamental rights of a criminal defendant to be present and to be repre- ‘ sented by counsel during mid-trial substantive communica- 9 tions between judge and jury are of a constitutional dimension. (Petitioners concede that non-substantive comnunications— e.g., responding to questions as to the location of the washroom—are not of a constitutional dimension.) If such rights are recognized, then Rushen v. Spain, 464 U.S. —_., (Slip op. Dec. 12, 1983) [a decided case not yet published in official advance sheets] established that a violation of such rights must be proven harmless beyond a reasonable doubt. A post-trial determination of harmless error must be clearly distinguished from the type of due process post-trial hearing authorized in Smith v. Phillips, 455 U.S. 209 (1982). The Court of Appeals approved the District Court’s denial of Petitioners’ motion for a new trial without the benefit of a full hearing with full participation of Petitioners into the issues of mid-trial third party contact with the jury and mid-trial ex parte juror judge substantive communications. The decision in this case illustrates the confusion that exists after the recent decisions of Smith v. Phillips, Id. and Rushen v. Spain, supra. Smith and Rushen involved a number of separate but interrelated constitutional rights: 1. the right to be present at a critical stage of trial; 2. the right to be repre- sented by counsel at critical stages of the trial; 3. the right to an impartial jury; 4. the right to a due process post-trial hearing on jury bias; and 5. a possible due process right to a mid-trial hearing on jury bias. As Justice Stevens noted in his concurr- ing opinion in Rushen, confusion abounds in identifying these rights and applying them in a factual context. This confusion led Petitioners’ trial judge to overlook the Petitioners’ right to be present and to be represented by coun- sel during mid-trial substantive communications between judge and jury. This confusion further caused the trial judge to erroneously relieve the government of its burden to prove violations of such rights are harmless beyond a reasonable doubt. The trial judge mistakenly applied the principles of Smith in conducting the wrong type of post-trial hearing and erroneously placed the burden upon the Petitioners to prove 10 actual prejudice. Such confusing application of Smith and Rushen is likely to recur unless this Court provides clarifica- tion. Rushen applied the harmless error doctrine to assumed violations of a defendant’s right to be present and to be repre- sented by counsel at mid-trial communications between judge and jury, but Rushen did not decide the underlying issue of whether such “fundamental rights” are of “constitutional dimension.” Slip op. at 3, n. 2. The opinion in Rushen contains strong language suggesting that trial courts should immediate- ly notify counsel of communications with the jury, but the bench and bar require guidance as to whether this suggestion is a constitutional mandate. As this Court noted in Rushen, /d. at 4, “There is scarcely a lengthy trial in which one or more jurors does not have occasion to spe :k to the trial judge about something. . .” A situation which occurs so frequently should be directly and clearly addressed by this Court. Smith authorized a post-trial hearing where the defendant has the burden to establish a constitutional violation of the right to an impartial jury. Rushen, however, authorized a post-trial inquiry into a different constitutional violation— denial of the right to be present and the right to counsel. Rushex also recognized a different burden of proof—harmless beyond a reasonable doubt. The trial court in this case mistakenly conducted a Smith type hearing thereby placing the burden of proof upon the Petitioners. The Petitioners were entitled to both a Smith type hearing and a Rushen type hearing where the government has the burden of proof. This case also presents the opportunity to clarify and define the nature of a Smith type hearing by deciding whether a Smith hearing is distinct from a Remmer hearing where the Petitioners would be entitled to a presumption of prejudice. Prior to Smith, the long standing precedent of Remmer v. United States, 347 U.S. 227 (1954) had provided guidance for post-trial inquiries into jury contamination by third parties. The Smith opinion cited Remmer but did not mention Rem- 1] mer’s presumption of prejudice. It is now unclear what re- mains of the Remmer presumption of prejudice. Smith’s hold- ing that due process merely requires that a defendant have an “opportunity to prove actual bias” can be read as overturning the Remmer presumption. However, Smith and Remmer can both be read as valid law if each is limited to a distinct situation. Remmer involved third party contact with a juror, and the presumption of prejudice may apply only when third party contact exists. Smith, however, did not involve any third party contact but only the juror’s own possible misconduct which raised the issue of potential bias. When no third party contact exists, the Remmer presumption of prejudice may be inappli- cable and the burden to prove actual prejudice may shift to the defendant. Because proof of any form of jury bias is often difficult to obtain in a post-trial hearing, allocation of the bur- den of proof will often determine the substantive issue. This Court should provide needed guidance to the lower courts by explaining whether the Remmer presumption of prejudice sur- vives the holding in Smith. If the Remmer presumption still applies to third party contact cases, then the Petitioners’ trial court improperly charged the Petitioners with the burden of proving actual prejudice. The apparent photographing of jurors herein constitutes third party contact and raises the Remmer presumption of prejudice as does the third party substantive judicial contacts. Guidance is also needed as to the nature of the defendant’s “opportunity to prove prejudice” in a Smith type hearing. Petitioners believe that all previous cases permitted examina- tion of every juror who was aware of the extraneous facts which raised the possibility of juror bias. The present case stands alone in denying the defense an opportunity to examine those jurors aware of potentially prejudicial information. Rushen also appears to hold that the opportunity to prove prejudice is not restricted by Fed. R. Evid. 606(b). The Circuit Courts have differed as to whether Rule 606(b) precludes post-trial examination of jurors. Rushen appeared to define, in footnote 5, the area of proper inquiry in post-trial examination of jurors. If this footnote does in fact dispose of the controversy 12 surrounding Rule 606(b), there should be no legitimate legal obstacle to tne Petitioners’ questioning of all jurors. The Peti- tioners’ trial court was thus in error in denying the Petitioners’ right to examine all jurors. This Court should now advise the Circuits of the proper procedure to safeguard the integrity of the jury system and ensure all defendants their constitutional right to a fair and impartial trial. ARGUMENT I. Mid-Trial Chambers Conferences Between A Juror And A Trial Judge, Regarding The Juror’s Apprehension For His Safety Caused By Third Party Contact With The Jury Are Critical Stages Of The Trial, And The Intentional Ex- clusion Of The Petitioners And Petitioners’ Counsel From Such Proceedings Is A Violation Of The Petitioners’ Right To Be Present Under Fed. R. Crim. P. 43(a) And Their Sixth Amendment Right To Counsel. In Rushen v. Spain, 464 U.S. —— (Slip op. Dec. 12, 1983) this Court noted that “the right to personal presence at all critical stages of the trial and the right to counsel are fun- damental rights of each criminal defendant” Slip op. at 3, but this Court did not decide if such rights were of a constitutional dimension because the government had conceded federal con- stitutional error. /d. at 3, n. 2. The Petitioners contend that such fundamental rights are of a constitutional dimension. The right to counsel exists “at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Cole- man v. Alabama, 399 U.S. 1 (1970). This Court has recognized that “any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error.” United States v. United States Gypsum Co., 438 U.S. 422, 460 (1978). The defendant and counsel must be present at such meetings to guard against any unintended and misleading impression communicated by the trial judge, and to correct whatever mistaken impression the juror might 13 otherwise communicate to the other jurors. Jd. at 460-62. Counsel’s intentional exclusion, without notice, from the trial court’s chambers conference with Juror Deaton prevented counsel from protecting the fundamental integrity of his client’s trial by jury. United States v. Myers, 626 F.2d 365 (4th Cir. 1980). The application of the harmless error doctrine in Rushen v. Spain does not render it any less crucial to determine whether the underlying constitutional rights exist. The harmless error doctrine is a useful device for avoiding needless reversals, and as such, the doctrine affects only the remedy not the existence of the basic rights. By definition the harmless error doctrine means that the error which occurred in the progress of the trial was not prejudicial to the rights of the party assigning it, and for which, therefore, the Court will not reverse the judgment. In order to deter excessive reliance on the harmless error doctrine and to avoid, when possible, the inherent difficulties of determining prejudice at post-trial hearings, it is important for this Court to enunciate the correct constitutional proce- dure. Petitioners contend that the correct constitutional proce- dure was established in United States v. Ronder, 639 F.2d 931 (2d Cir. 1981) where the Second Circuit identified four neces- sary components for the proper disposition of any communica- tion between judge and jury. “THE JURY’S INQUIRY SHOULD BE SUBMITTED IN WRITING.” IT “SHOULD BE MARKED AS A COURT EXHIBIT AND BE READ INTO THE RECORD IN THE PRE- SENCE OF COUNSEL AND THE DEFENDANT.” “COUNSEL SHOULD BE AFFORDED AN OPPOR- EPONGRE TO SUGGEST APPROPRIATE RE- “MESSAGES FROM A JURY SHOULD BE ANSWERED IN OPEN COURT... .” (1) “Thejury’s inquiry should be submitted in writing. This is the surest way of affording the court and counsel an appro- 14 priate opportunity to confer about a response.” /d. at 934. Such a requirement insures that counsel will have proper notice of the communication. Secret communications between judge and jury cannot be tolerated in our criminal justice system. Had Juror Deaton not spoken up in open court after the verdict (TR VOL 9 of 9:125, 126, App. 12a-13a) the Petitioners might never have learned that the communications occurred. The integrity of the judicial system and the appearance of justice demand a rule which precludes the possibility that the trial court’s communications with a juror might remain secret be- cause of oversight or faulty judgment on the part of the trial judge. Rogers v. United States, 422 U.S. 35 (1975); United States v. Ferguson, 486 F.2d 968 (6th Cir. 1973). The communi- cations in this case were not the result of some inadvertent encounter between the judge and the juror in a hallway or elevator. Both communications occurred after the trial judge summoned the juror to his chambers. (9/30 TR 22, Ap. 20a). “The judge should have advised counsel immediately on receiv- ing the [communication].” United States v. Gersh, 328 F.2d 460, 463 (2d Cir. 1964); United States v. Hines, 696 F.2d 722,- 730 (10th Cir. 1982); Rushen v. Spain, 464 U.S. —_ (Slip op. Dec. 12, 1983). (2) When the communication is reduced to writing it “should be marked as a court exhibit and be read into the record in the presence of counsel and the defendant.” (United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981)). Even though the trial judge must have some discretion in dealing with jury communications, “his discretion is always subject to review for abuse, and a record is necessary for such review.” United States v. Gay, 522 F.2d 429, 435 (6th Cir. 1975). The trial judge here attempted to reconstruct the communications at the post-trial hearing, but at best he could only attempt to paraphrase the communications. The exact words used can be crucial and there is little point in having counsel and the trial court labor over the precise wording of formal instructions when only the gist of such informal instructions can be recon- structed for appellate review. There is also no way of knowing what unintentional messages the juror or judge communicated 15 during their meetings—a shrug of the shoulders; a tone of voice; an exchange of knowing glances accompanying an oral communication, etc. (See generally, Judges’ Nonverbal Be- havior in Jury Trials: A Threat to Judicial Impartiality, 61 Va. L. Rev. 1266 (1975)). This Court has recognized that such unintended and misleading impressions are a very real possibility—“all the more so when counsel are not present to challenge the statements.” United States v. United States Gypsum Co., 438 U.S. 422, 460 (1978). In the absence of a record of the communication between judge and juror, preju- dice to the defendant must be presumed. United States v. Myers, 626 F.2d 365, 366 (4th Cir. 1980); United States v. Taylor, 562 F.2d 1345, 1365 (2d Cir. 1977); United States v. Treatman, 524 F.2d 320, 323 (8th Cir. 1975); United States v. Gay, 522 F.2d 429, 435 (6th Cir. 1975). (3) “Counsel should be afforded an opportunity to suggest appropriate responses.” United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981)). Fed. R. Crim. P. 30 requires the trial judge inform counsel of the disposition of proposed requests to charge prior to summations. It is well established that counsel has the right to submit proposed instructions and raise objec- tions to the instructions the court intends to give. In United States v. United States Gypsum Co., 4388 U.S. 422, 462 (1978) this Court found it “most troubling” that counsel were denied any chance to correct whatever mistaken impression the juror might have taken from his conversation with the judge. “The issue here is not whether the language of the court’s communi- cation with the jury in itself constituted reversible error, but rather whether the input of the defendant and his counsel at the appropriate moment could have substantially affected the content of the message to the jurors. . . .” Krische v. Smith, 662 F.2d 177, 180 (2d Cir. 1981). Although Juror Deaton was told that he had nothing to fear, the trial judge never explained that the photographing incident was not connected with the defendants (9/30 TR 106, App. 4la-42a). If any jurors con- tinued in the belief that the defendants were responsible for photographing the jury, the jurors might have wished to pun- ish the defendants for this misconduct. “Jurors required by 16 the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well see [a person who deserves to be convicted. }” Estelle v. Williams, 425 U.S. 501, 518-19 (1976) (Brennan, J., dissenting). Juror Deaton, as well as the other jurors, had been subjected to extraneous influences to which no juror should be subjected, for it is the law’s objective to guard jealously the sanctity of the jury’s right to operate as freely as possible from outside unau- thorized intrusions purposefully made. Remmer v. United States, 350 U.S. 377, 382 (1956) The trial court denied counsel the opportunity to inquire into the jurors’ impartiality. The photographing incident was so troubling to Juror Deaton that it provoked him to breach an explicit admonition from the judge not to discuss the case with anyone. Reasonable concerns were thus raised about the abil- ity of Juror Deaton and other jurors to continue as impartial jurors. The Petitioners’ absence from conversations implicat- ing a juror’s ability to judge impartially the case against them presents the same possibility for frustrating the fairness of the proceedings as would their absence from initia! voir dire. Un- like the situation in Rushen v. Spain, 464 U.S. —_ (Slip op. Dec. 12, 1983) (Stevens, J., concurring) potential bias arose after the commencement of the trial and could not have been uncovered during the initial voir dire. While attempts to recon- struct the juror’s state of mind at post-trial hearings are deemed adequate after constitutional error occurs, their in- herent deficiencies demonstrate that post-trial hearings are less desirable than an immediate inquiry into a serious ques- tion of juror impartiality. At the post-trial hearing the juror and trial judge admitted they had been afraid for the juror’s safety (9/30 TR 25, 93, App. 22a, 36a-37a) but the memory of that fear some four weeks after the event does not give an accurate picture of the situation. Questions posed at a time when the emotional state prompting the juror’s contacts with the trial judge was still fresh might well elicit from the juror(s) different responses from those given at a post-trial hearing. 17 Courts have taken note of the obvious inadequacies of post- trial inquiries into a juror’s state of mind. “Even when the investigation is made immediately upon learning of an in- trusion it is extremely difficult to learn the extent of the extraneous influence upon a jury. This difficulty is compound- ed if questioning is deferred. . . . Considering the problem of fading memories and the natural reluctance of a juror to admit that he had been improperly intiuenced . . .” it is almost im- possible to make such a determination at a post-trial hearing. Krause v. Rhodes, 570 F.2d 563, 570 (6th Cir. 1977). Smith v. Phillips, 455 U.S. 209 (1982) is distinguishable from the pre- sent case because there was no opportunity for a mid-trial voir dire. In Smith v. Phillips the trial court convened a post-trial hearing immediately upon being informed that there was an issue of possible juror misconduct. This Court held that a post-trial hearing was an adequate remedy in such a situation. But the situation in Petitioners’ case is quite different. The trial judge was aware of possible jury contamination during the trial, and attempted to handle the matter through ex parte and unrecorded communications with the jury. In such situations the defendant and counsel have the right to participate in mid-trial communications and cannot be restricted to partici- pation in an after-the-fact post-trial hearing. Petitioners are not asking that Rushen be overruled. Once error occurs it may still be harmless. The harmless error doctrine only affects the remedy not the underlying right. A violation of a constitutional right may ultimately be deemed harmless, but it does not retroactively eliminate the right. Petitioners seek a determination of the unresolved issue in Rushen, the initial right to participate in mid-trial communications regarding jury bias. Had counsel been permitted an immediate inquiry into potential jury bias, the probing questions of counsel would have more fully illuminated the jurors’ state of mind. This was amply demonstrated at the post-trial hearing when Juror Deaton’s characterization of his state of mind in response to 18 questions from the trial judge is contrasted with his response to counsel’s questions: Judge: Juror: Counsel: Juror: Counsel: Juror: Counsel: Juror: Counsel: Juror: Counsel: Juror: Counsel: As aresult of that incident, did you at any time have any apprehensions or fear for your safety? No, I didn’t. (9/30 TR 88, App. 32a-33a). x « « Your concern basically was for your own personal welfare; was it not? Yes, it was. Would it be safe to say that you were somewhat scared? I think that is—I was scared. Well, yes, sir; sounds good. (9/30 TR 98, App. 36a-37a). * * * And I believe, if you will relate again—didn’t you talk with the other jurors immediately after talking with Judge Britt about what had taken place? Yes; I did. Can you relate any specific remarks that any partic- ular juror made at that time? I will summarize what I think the feeling was. I don’t remember particular remarks. I think some of them were, just as I was, concerned. And then when I came back and relayed the message, it was not discussed. But at the time— (Interposing) I don’t remember any specific re- marks. But their concern, then—your testimony is their concern was basically the same as yours? And that is your personal welfare and safety? Juror: Counsel: Juror: Counsel: Juror: Counsel: 19 Yes. (9/30 TR 95, App. 37a-38a). * * * . .. When you first experienced this incident, you have indicated you had concern? And then it was developed it was concern for safety and other con- cerns? Who did you think would be the perpetrator of anything that would affect your safety? What was going on in your innermost mind as to who was behind all this—you are in a lawsuit and you are a juror—the United States of America or the Defend- ants sitting over here at these tables? The Defendants. It didn’t enter your mind at all that the Government would be doing you bodily harm? No. And I realize you have been very tasteful in communicating it. But I want to be sure that I understand what was going on in your mind. Is this an accurate summary of what your apprehension was: that someone was taking photographs of the jurors, so that if they voted “guilty” that someone might come do them bodily harm? Yes, sir. That was what you were afraid of? Yes. And that fear abided with you for a period of time? Until the next morning; yes. Well, a period of time is overnight? Okay. It abided with you during that period of time, from the afternoon experience until you had your com- munications with the court? Yes. (9/30 TR 100-101, App. 39a-41a). 20 The trial judge admitted that he carried the centra! role at the post-trial hearing in defending the actions he had taken (9/30 TR 174, Ap. 50a). The trial judge’s efforts to justify his handling of the matter is understandable in view of the only remedy available to him at a post-trial hearing—the granting of a new trial. Had the judge conducted a mid-trial inquiry with full participation of counsel, the trial court may have been able to cure any prejudice with a cautionary instruction, or utilize alternate jurors and proceed with trial. The trial judge’s in- terest in defending his handling of the matter may not be sufficient to render him unfit to preside [cf: Tumey v. Ohio, 273 U.S. 510 (1927)] but it certainly affects his impartiality and openmindness about the prejudice to the defendant. The acknowledgement of a criminal defendant’s constitutional right to be present with counsel during mid-trial inquiries affords the trial court a number of available options, and allevi- ates the pressure on a trial judge to try to find some way to uphold the jury verdict. The acknowledgement of this con- stitutional right would also place a lesser burden on the government. There are few prosecutors who would not wel- come a mid-trial opportunity to address jury bias, rather than face the burden of proving beyond a reasonable doubt at a post-trial hearing that the defendant was not prejudiced by er parte communications between judge and jurors. An open and immediate inquiry into juror impartiality would also provide an opportunity for counsel to reassess the evi- dence to be presented or take other “tactical steps” which might offset or mitigate the juror’s potential bias. Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980); Rushen v. Spain, 464 U.S. — (Slip op. Dec. 12, 1983) (Marshall, J., dissent- ing). This opportunity, once lost, cannot be regained by a post-trial hearing. Although Petitioners’ trial counsel had no knowledge of the photographing of the jury, they were aware that photographs had been taken of defense counsel and others (9/30 TR 179-180, App. 5la-52a). Trial counsel Kupferberg indicated at the post-trial hearing that this incident played some part in tactical decisions regarding the presentation of 21 the defense case (9/30 TR 141-144, App. 44a-47a). Had defense counsel been informed that the jury was concerned that Peti- tioners and co-defendants were a threat to their safety, counsel may have altered their presentation of evidence to establish that the defendants were not of a character to harm jurors. It is, of course, speculation as to how the defense strategy might have been affected, but it is the denial of Petitioners’ right to be present and the right to counsel which necessitate this specula- tion. (4) “Messages from a jury should be answered in open court. .. .” United States v. Ronder, 639 F.2d 931 (2d Cir. 1981); United States v. Gay, 522 F.2d 429, 436 (6th Cir. 1975); Rogers v. United States, 422 U.S. 35 (1975). “Any occasion which leads to communications with the whole jury through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith of the participants.” United States v. United States Gypsum Co., 438 U.S. 422, 461 (1978). Juror Deaton communicated his meetings with the judge to other jurors (9/30 TR 95, 99, App. 37a-38a), but there is no way to determine precisely what Juror Deaton said when he returned to the jury room. Nor is there any way to know how the jurors reacted to this “second-hand instruc- tion” from the trial judge. As this Court noted in United States v. United States Gypsum Cu., Id. at 461, any confusion would have been readily cleared by calling the entire jury into the courtroom for a clarifying instruction. The trial judge may have been concerned with contaminating those jurors who were unaware of the photographing incident, but at a minimum the judge should have discussed the matter, in the presence of counsel, with those jurors who already knew of the incident. The form of ex parte communication between the judge and jury utilized in this case violates both Fed. R. Crim. P. 43(a), Fed. R. Crim. P. 30 and the Sixth Amendment. United States v. Flaherty, 668 F.2d 566, 602 (1st Cir. 1981); United States v. Myers, 626 F.2d 365, 366 (4th Cir. 1980); United States v. Bufalino, 576 F.2d 446 (2d Cir. 1978); United States v. Jones, 542 F.2d 186 (4th Cir. 1976). 22 II. The Burden Is On The Government To Prove Violations Of Petitioners’ Right To Be Present And Right To Coun- sel During Mid-Trial Ex Parte Juror-Judge Substantive Communications Harmless Beyond A Reasonable Doubt Pursuant To Remmer v. United States, Smith v. Phillips And Rushen v. Spain. The trial judge applied an erroneous standard at the post- trial hearing because he failed to identify the separate con- stitutional violations which occurred. (Order of Judge Britt dated 11/8/82, Ap. 8a) (See Rushen v. Spain, 464 U.S. —— (Slip op. Dec. 12, 1983) (Stevens, J., concurring).) The post- trial hearing inquired into the possible violation of Petitioners’ right to an impartial jury caused by the photographing in- cident, but failed to consider any possible prejudice flowing from the trial judge’s ex parte communications with the jury. Defense counsel alerted the judge to this separate issue: “part of the problem here, Judge—and I say this respectfu!ly—was the non-disclosure to defense counsel.” (9/30 TR 174, App. 50a-5la). But at no point in the hearing nor in the opinions of the District or Appeals courts is any consideration given to the possible prejudicial effect of the denial of Petitioners’ right to counsel at the communications between judge and jury. Thus the post-trial hearing did not determine that the trial judge’s handling of this matter was harmless error because the issue was never addressed although raised by Petitioners. The trial court attempted to conduct the type of hearing mandated in Smith v. Phillips, 455 U.S. 209 (1982), but Smith v. Phillips did not involve any ex parte communications be- tween judge and jury. Smith v. Phillips places the burden on the defense to prove a violation of the constitional right to an impartial jury. In this case the trial court totally ignored the separate issue of a violation of Petitioners’ constitutional right to be present and to be represented by counsel at the communi- cations between judge and jury. “The right to the assistance of counsel and the right to be present at critical stages of the trial ... Were not at issue in Smith.” Rushen v. Spain, 464 U.S. ——, (Slip op. at 11, n. 20, Dec. 12, 1983) (Marshall, J., dissent- | ) ; 23 ing). By relying exclusively upon Smith, the trial court failed to appreciate that “the language used by the Court in Smith to define the burden a criminal defendant must sustain in order to prove an abridgement of his constitutional right to an impartial jury thus has no relevance to [the denial of the right to be present and to be represented by counsel)” /d. Slip op. at 13, n. 23. In Rushen v. Spain this Court applied the harmless error doctrine to such assumed constitutional violations and gave great deference to the findings of the lower court. No defer- ence can be given to the lower courts in this case because the lower courts never made a determination regarding the pre- judicial or harmiess effect of such constitutional errors. “We can let stand no conviction where the defendant was not pre- sent at all stages of the proceedings unless the record com- pletely negates any reasonable possibility of prejudice arising from such error.” Jones v. United States, 299 F.2d 661, 662 (10th Cir. 1962). III. Adequate Notice, An Impartial Fact Finder And The Right To Summon Material Witnesses And Evidence Are Essential To Conduct A Due Process Post -Trial Hearing Authorized In Remmer v. United States And Smith v. Phillips. Petitioners, co-defendants and counsel appeared at the trial court for argument of their respective motions for new trial and sentencing on September 30, 1982. Upon arrival in the trial judge’s chambers, the judge announced that he intended to conduct a “Remmer type” hearing. (9/30 TR 6, 20, App. 17-18a, 18a-19a) Counsel had not received advance notice of the nature of the hearing nor were they given an opportunity to collect factual information or prepare argument prior to the commencement of the hearing. The record reflects this con- fusion. Trial Counsel Tew: Your Honor, may I inquire as to whether the court intends, in fact, to conduct such a hear- ing? (9/30 TR 6, App. 17a-18a). 24 Trial Counsel Sheppard: May I ask the Court to set on the record—I don’t really know what is ha g—and I don’t think the record does either. (9/30 PR 508 — * * * Someone has evaluated what we need . oo conclude that it was anyone other than the Court that ha os evaluated what we need for the hearing. (9/30 TR 20-27, App. 18a-24a). The due process concept of notice requires that counsel be informed of the relevant factual situation and legal issue set forth, be allowed to develop additional facts, and have an opportunity to prepare legal argument for the court’s consider- ation. The trial court’s precipitous handling of the hearing forced Petitioners’ counsels to react spontaneously to previ- ously undisclosed facts and thus denied Petitioners any oppor- tunity to be heard in a meaningful fashion. The post-trial hearing was constitutionally inadequate be- cause the trial judge did not function as an impartial fact- finder. The trial judge did not place the burden on the prosecu- tion to rebut the presumption of prejudice, Remmer v. United States, 347 U.S. 227 (1954), nor did he place the burden on the defense to initially prove prejudice. Smith v. Phillips, 455 U.S. 209 (1982). Instead the trial judge shouldered the entire load and set out to disprove prejudice by testifying without being placed under oath or subject to cross-examination. The trial judge’s precipitous handling of the hearing indicates that he was attempting to make a record justifying his previous decision that the photographing incident did not “in any way, affect or jeopardize the right of any of the defendants to a fair trial... .” (TR VOL 9 of 9:140, Ap. 16a). As counsel pointed out to the court, this previous decision was made without a hearing and without participation of counsel (TR VOL 9 of 9:140, Ap. 16a). The trial judge did not function as an indepen- dent fact finder, but as an advocate defending a previously Petitioners do not contend that every trial judge is dis- qualified from conducting the post-trial hearing authorized in Smith v. Phillips. The Smith case is distinguishable from the present case because the trial court in S mith was inquiring into 25 possible misconduct by a juror and/or the prosecution. The judge’s own conduct was not at issue in Smith. In the present case, however, the trial judge assumed the position of defend- ing, then passing judgment upon his own possible contamina- tion of the jury. When the trial judge’s own conduct is in question, the judge should disqualify himself as did the judge in United States v. Rakes, 74 F. Supp. 645, 647 (E.D. Va. 1947). As this Court stated in Ward v. Monroville, 409 U.S. 57, 60 (1972) the proper test for judicial impartiality is whether the situation is one “which would offer a possible temptation to the average man as a judge. . . which might lead him not to hold the balance nice, clear and true between the State and the accused . . .” A fair reading of the transcript of the post-trial hearing demonstrates that the trial judge became an advocate defending his own actions and did not hold the balance true (9/30 TR., App. 17a-538a) (TR VOL 9 of 9:138-141, App. 14a- 16a). Another serious inadequacy of the post-trial hearing was the denial of Petitioners’ right to participate fully and present relevant evidence. As Justice O’Connor observed in her con- curring opinion in Smith v. Phillips, supra at 221: “A hearing permits counsel to probe the juror’s memory, his reasons for acting as he did, and his understanding of the consequences of his actions. A hearing also permits the trial judge to observe the juror’s demeanor under cross examination and to evaluate his answers in light of the particular circumstances of the case.” It is unconscionable to place the burden to prove preju- dice upon the Petitioners and then deny the Petitioners the only effective means to establish such prejudice. The trial judge’s denial of Petitioners’ repeated requests to question all jurors and others (9/30 TR 27, 169-170, App. 23a-24a, 49a-50a) denied the Petitioners an adequate hearing under Smith v. Phillips and Remmer. The request that all jurors be sum- moned to the hearing was not a mere fishing expedition on the part of counsel. The record clearly demonstrates that at least five jurors had witnessed the picture taking incident (9/30 TR 102, 122, App. 4la-44a) and all jurors were aware of Juror 26 Deaton’s meetings with the trial judge about the incident (9/30 TR 99, App. 38a-39a). Once a juror feels that he may be subjected to violence at the hands of the defendant, it is ex- tremely difficult for his judgment to remain free and impartial as the constitution requires. United States v. Barnes, 604 F.2d 121, 140 (2d Cir. 1979). “Impartiality is not a technical concep- tion. It is a state of mind.” United States v. Wood, 299 U.S. 123, 149 (1936). Yet the trial judge denied defense counsel any opportunity to inquire into each juror’s state of mind. In place of summoning the other jurors, the trial court had Juror Deaton offer his opinion and impression of the other jurors’ states of mind in violation of Fed. R. Evid. 606(b), Rushen v. Spain, slip op. at 7, n. 5. (9/30 TR 90-91, App. 34a-35a). The Fourth Circuit previously condemned the use of ex parte affi- davits at post-trial hearings. United States v. Guthrie, 387 F.2d 569, 572 (4th Cir. 1967). The situation is aggravated when the statements which are not subject to cross-examination do not come directly from the jurors but come second hand from the impressions of one juror. The “model” (see Allen v. United States, 376 F. Supp. 1386 (E.D. Pa. 1974)) for proper post-trial hearings was established in Morgan v. United States, 399 F.2d 93 (5th Cir. 1968) where the court required: “(1) a full hearing at which counsel were free to introduce any evidence relevant to the alleged conversation; (2) separate questioning of each juror by the trial judge; (3) cross-examination of the panel members by counsel. . . .” Jd. at 97. Petitioners have been unable to locate any case where the trial judge refused to examine jurors who were aware of third party contacts with the jury and had knowledge of private communications between the judge and a single juror. The only cases approving the trial judge’s refusal to interrogate jurors are based on waiver or a lack of factual evidence that the jury has any knowledge of extraneous matters. For example, United States v. Aimone, 715 F.2d 822 (3rd Cir. 1983) and United States v. Spinella, 506 F.2d 426 (5th Cir. 1975) both involve defense counsel’s acquiescence in the trial court’s deci- sion that all jurors would not be interrogated. As the court held in Aimone, supra, at 830, counsel “may not promote action by 27 the trial judge and then assign that compliance as error. ‘Sandbagging’ will not be countenanced by this court.” There is no form of waiver or acquiescence in this case as Petitioners at all times asserted their right to examine all jurors who were aware of the contact and communication with the jury. (9/30 TR 174, App. 50a-51a). There is no lack of factual evidence establishing third party contact with the jury in this case. The courts have recognized that a full hearing is not required in every instance where an uncorroborated rumor or conjecture came to the attention of the trial court. Tillman v. United States, 406 F.2d 930, 938 (5th Cir. 1969); United States v. Brown, 571 F.2d 980 (6th Cir. 1978); Capella v. Braumgartner, 59 F.R.D. 312 (S.D. Fila. 1973). The present case does not involve conjecture or any factual dispute regarding the extent of jury contamination. The record is clear that several jurors were directly involved in the photographing incident (9/30 TR 122, Ap. 44a) and all jurors were aware of Juror Deaton’s meetings with the trial judge about the incident (9/30 TR 99, App. 38a-39a). Every court which has confronted such a situation has permitted questioning of “each of the jurors who was aware of the ex parte communication... .” United States v. Fleming, 594 F.2d 598, 608 (7th Cir. 1979); Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977); United States v. Khoury, 539 F.2d 441 (5th Cir. 1976); United States v. Schrimsher, 493 F.2d 848 (5th Cir. 1974); Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969); Mor- gan v. United States, 399 F.2d 93 (5th Cir. 1968); Stone v. United States, 113 F.2d 70 (6th Cir. 1940). It is the paucity of information relating to the entire situa- tion coupled with the presumption which attaches to the kind of facts alleged by Petitioners which manifest the need for a full hearing. Remmer v. United States, 350 U.S. 377 (1956). The case of Krause v. Rhodes, supra, is particularly rele- vant to the present case. In Krause the court held that “it was error for the trial court to determine ex parte and without any personal interrogation that a juror who had been threatened . . . could continue to serve unaffected by these incidents.” Jd. 28 at 569. Although the trial judge in the present case dealt with Juror Deaton’s apprehension, the judge refused to examine the other jurors who also felt threatened and shared Juror Deaton’s apprehension (9/30 TR 95, App. 37a-38a and Judge Britt’s Order dated 11/8/82, Ap. 8a). The procedure utilized in the present case was the very procedure condemned in Krause. “No attempt was made to determine whether the remainder of the panel had been possibly contaminated. In- stead, they were merely told that efforts had been made to influence one of their number, with alarming references to the extreme seriousness of the threats, and were left to speculate about the entire matter.” Jd. at 569. The jurors at Petitioners’ trial felt threatened (9/30 TR 95, App. 37a-38a); they received only second hand reassurances from Juror Deaton. There was no disclosure as to the source of the possible threat or what remedies the trial judge had utilized to protect them. The jurors could only speculate as to the source, nature, and extent of the threat. It is only speculation that the other jurors were sufficiently reassured as Juror Deaton claims he was. But there is no evidence as to their reassurance or continued fear except for Juror Deaton’s “opinion” and “impression” as to their state of mind (9/30 TR 90-91, App. 34a-35a). Such con- jecture by Juror Deaton cannot dispel the very real possibility that some, if not all, the jurors either continued to fear the defendants or were angry at the defendants for having en- gaged in efforts to intimidate the jury. Juror Deaton candidly admitted that he did not ask nor did he know whether the other jurors felt as assured as he (9/30 TR 93, 100, App. 36a-37a, 39a-40a). Proper concern for protecting and preserving the integrity of our jury system dictates against speculation about the dis- persion of the cloud created by both F.B.I. and judicial ex parte contact while jurors sat for the remainder of the trial and cast their ballot. If the situation were reversed and the Petitioners relied solely on one juror’s impression of other jurors (e.g. “I think they were all afraid.”), it is difficult to believe that a court 29 would decline to interrogate all the jurors to determine whether the Petitioners had conclusively carried their burden of proving actual prejudice. However, the trial judge here accepted such conjecture as conclusively establishing the ab- sence of prejudice, thereby cutting off the Petitioners’ right to properly inquire into possible prejudice. Smith v. Phillips, 455 U.S. 209 (1982) is premised on the principle that “preservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury.” Jd. at 216. The denial of Petitioners’ opportunity to present evidence deprived the Petitioners of the due process hearing mandated by Remmer and Smith v. Phillips. CONCLUSION For the foregoing reasons, it is respectfully submitted that this petition for writ of certiorari should be granted. KENNETH R. WEINER 3251 Old Lee Highway, Suite 411 Fairfax, Virginia 22030 (703) 591-0700 STEVEN D. KUPFERBERG 5900 Hubbard Drive Rockville, Maryland 20852 (301) 231-9480 Attorneys for Petitioners Of Counsel: RONALD J. BACIGAL GeorGE A. WEINER EDWARD L. WEINER Dated: January 11, 1984 APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 82-5274(L) UNITED STATES OF AMERICA, Appellee, Vv. RONALD DoyLe HINEs, Appellant. No. 82-5275 UNITED STATES OF AMERICA, Appellee, Vi Gary J. PEED, Appellant. No. 82-5276 UNITED STATES OF AMERICA, Appellee, Vv. TERESA ELEAZAR, Appellant. 2a No. 82-5277 UNITED STATES OF AMERICA, Appellee, » JAMES MAURICE JACKSON, Appellant. No. 82-5278 UNITED STATES OF AMERICA, Appellee, Vv. JAMES C. CODDINGTON, Appellant. No. 82-5286 UNITED STATES OF AMERICA, Appellee, VV. JEFFREY CRAIG BUMGARDNER, Appellant. Appeals From The United States District Court For The Eastern District Of North Carolina, At Raleigh. W. Ear! Britt, United States District Judge. Argued: July 14, 1983 Decided September 9, 1983 3a Before PHILLIPS, SPROUSE and ERVIN, Cireuit Judges. William J. Sheppard (Elizabeth L. White on brief) and Gary S. Lawrence (Steven D. Kupferberg; Hugh Clifton Talton, Jr.; Christine Witcover Dean; Edwin C. Walker on brief) for Appellants; William E. Martin, Assistant United States Attor- ney (Samuel T. Currin, United States Attorney, Wallace W. Dixon, Assistant United States Attorney, James G. Lindsay, U.S. Dept. of Justice on brief) for Appellee. IX. One day during the trial, an FBI agent photographed per- sons leaving the courthouse and was noticed by juror Denton. Juror Denton advised the court and was informed that the photographs were not being made of jurors, that there was no cause for concern, and that the matter should be disregarded. At a post-trial hearing on the possible prejudicial influence of the picture-taking episode, juror Denton indicated that after receiving the court’s assurances, he was not concerned about the photographing and the incident did not affect his delibera- tions. Nor was the incident further discussed by him or the other jurors after he conveyed the court’s assurances to the other jurors. The district court considered Denton’s testimony credible and found that the episode had no prejudicial influence on the jury. That finding is not clearly erroneous. Under Smith v. Phillips, 455 U.S. 209 (1982), and Remmer v. United States, 350 U.S. 377 (1956), appellants were entitled to a hearing, which they received, on the possible prejudicial impact of the episode. Absent a showing that the district court’s finding of no unfair prejudice was clearly erroneous, we cannot reverse. X. For the foregoing reasons, the convictions are AFFIRMED. da No. 82-5278 UNITED STATES OF AMERICA, Appellee, . JAMES C. CODDINGTON, Appellant. No. 82-5286 UNITED STATES OF AMERICA, Appellee, ws JEFFREY CRAIG BUMGARDNER, Appellant. ORDER Upon consideraton of the appellants’ petition for rehearing, by counsel, IT IS ORDERED that the petition for rehearing is DE- NIED. Entered at the direction of Judge Ervin for a panel consist- ing of Judge Phillips, Judge Sprouse, and Judge Ervin. For the Court ‘s/ William K. Slate, II WiuuiaM K. Sate, II CLERK FILED NOV 14 1983 U.S. Court of Appeals Fourth Circuit oa APPENDIX B UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION No. 82-8-CR-5 UNITED STATES OF AMERICA, JEFFREY CRAIG BUMGARDNER, et al. ORDER This matter is before the Court on motion of defendants for a new trial based on an incident occurring during the trial involv- ing the jury. FACTUAL BACKGROUND The trial was begun at 10:00 a.m. on 24 August 1982 with the selection of a jury consisting of twelve regular and two alter- nate members. On 25 August 1982, the jury was impaneled and the trial begun. During the course of the trial, the names of Costello Ramey and Doug Ross were mentioned as suppliers of drugs to the organization in which the defendants were in- volved. On 1 September 1982, Costello Ramey and Doug Ross were called as witnesses by one of the defendants and each took the fifth amendment. Court adjourned at 4:30 p.m. on that date, and shortly therea‘ter juror, Bryant Deaton, reported to Susan Umstead, law clerk for the presiding judge, that some- one was taking pictures of jurors as they left the courthouse. Mr. Deaton was brought into the Judge’s Chambers and, at that time, advised the Court that as he and some of the other jurors were leaving the main entrance of the courthouse an unidentified individual sitting in a car parked at the curb in front of the courthouse appeared to be taking pictures of the 6a jurors. Mr. Deaton further informed the Court that he had taken down the license number of the automobile. The Court, thereupon, took the slip of paper on which the license number was written down by the juror, advised the juror that he would look into the matter and excused him. Immediately thereafter, the Court requested an FBI agent to come to chambers. Agent Albert P. Koehler responded, and he was advised of the in- cident and requested by the Court to immediately investigate the matter and report back to the Court as promptly as possible. At approximately 8:00 a.m. on 2 September 1982, Agent Koehler came to chambers and reported to the Court that the photographs were being taken by another FBI agent, James J. Roche, Jr., of the two suspected drug dealers, Ramey and Ross. When juror Deaton arrived at court, he was brought to chambers by Susan Umstead, law clerk for the presiding judge, at which time he was advised that the Court had ascer- tained the identity of the photographer. The Court further assured the juror that photographs were not being made of jurors, that there was no cause for concern by him or any other juror, and that he should disregard the incident entirely. The Court further advised juror Deaton that the Court was not at liberty to discuss the matter further at that time but cculd possibly do so at some later date. On 3 September 1982 at 10:00 a.m., the jury retired to begin its deliberations. At 7:23 p.m. the jury returned its verdict. Before leaving the courtroom, juror Deaton inquired of the Court further concerning the picture-taking incident. The Court again advised juror Deaton that it was not at liberty to discuss the matter further at that time but would, at a later date should he make further inquiry. The jury was then dis- charged and the Court advised the parties of the incident and what had transpired thereafter. Motions for a new trial based on alleged prejudice resulting from the picture-taking incident have been filed by all defend- ants. On 30 September 1982, a hearing was conducted at which a Se ee a eee a ee 7a time Agents Koehler, Roche and Susan Rowley, who was in the automobile with Agent Roche at the time of the incident, and juror Deaton testified. All were examined initially by the Court and all defense counsel were given an opportunity to question the witnesses. CONTENTIONS OF THE DEFENDANTS The defendants contend first, that the Court erred in not bringing the matter to their attention at the time it occurred and conducting a hearing involving one or more of the jurors and secondly, that the cause of the defendants was prejudiced by the incident. Defendants principally rely on Remmer v. United States, 347 U.S. 227 (1954) and Smith v. Phillips, —— U.S. —~, 71 L.Ed.2d 78 (1982). DECISION The presence of cameras of all varieties in and about the courthouse is an everyday occurrence. In the Eastern District of North Carolina, the taking of photographs in the courtroom, court offices, or in corridors immediately adjacent thereto is prohibited by local rule. Local Rule 8.00, E.D.N.C. The cour- troom in the Raleigh Courthouse is located on the seventh floor of the Federal Building. Although the local rule prohibits the taking of photographs on the seventh floor, it is not unusual for photographers to be stationed in the lobby where the elevators empty and out in front of the courthouse. Thus, the taking of photographs of participants in a court proceeding if not an everday occurrence is, at least, not an unusual occurrence. Remmer involved a situation where a remark had been made to a juror during trial that the juror could profit by bringing in a verdict favorable to the defendant. Smith involved a situation where a juror had made application for employment in the prosecuting attorney’s office while serving as a juror in the case. Other cases brought to the attention of the Court or disclosed by its own research involve contact with or by ajuror. None have been found in which it has been contended that the jury was prejudiced because of an event not directly involving a member of the jury panel. 8a The Court’s concern at the time of the incident was first, to determine who the photographer was and second, to alleviate any fears on the part of the juror that there was any threat to his safety or well-being. Both of these objectives were accom- plished with a mini: um of effort and without disruption of the trial. When questioned, juror Deaton testified that he had no apprehension or concern for his safety. He further testified that the incident did not in ‘any way affect his deliberations or decision as a juror and that he felt that it did not in any way atfect the decision of the other jurors. He specifically testified that after the Court assured him there was nothing to be concerned about that the matter was not mentioned by him or any of the jurors again. The burden is on defendants to show bias on the part of the jury. Smith v. Phillips, supra. This they have failed to do. Defendants contend that the Court should have required all of the jurors to be brought in as witnesses and subjected to examination by the Court and cross-examination by the attor- neys. The Court disagrees, finding that the testimony of the juror was not mentioned again during the course of the trial or jury deliberations. That being true, it is inconceivable to the Court that any of the other jurors, not directly involved in the incident, could have been prejudiced or influenced in any way. The motions for new trial are denied. AND IT IS SO ORDERED. This 8 November 1982. /s/ W. Ear! Britt W. EARL BRITT United States District Judge 9a APPENDIX C AMENDMENT VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnes- ses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Coun- sel for his defence. Rule 30. Instructions. At the close of the evidence or at such earlier time — the trial as the court reasonably directs, any party may file written requests that the court instruct the oy on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its pro- posed action upon the requests prior to their arguments to the jury, but the court shall instru ’* the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he oye and the grounds of his objection. Mey Gets mp shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury. Rule 43. Presence of the Defendant. (a) Presence Re- quired. The defendant shall be present at the arraign- ment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the iraposition of sentence, except as other- wise provided by this rule. (b) Continued Presence Not Required. The further - ss of the trial to and including the return of the ict shall not be prevented and the defendant shall be combate to have waived his right to be present whenev- er a defendant, initially present, (1) Voluntarily absents himself after the trial has com- menced ( whether’ or not he has been informed by the court of his obligation to remain during the trial), or 10a (2) After being warned by the court that disruptive conduct will cause him to be removed from the courtroom, persists in conduct which is such as to justify his being excluded from the courtroom. (c) Presence Not Required. A defendant need not be present in the following situations: (1) A corporation may appear by counsel for all pur- poses. (2) In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sent- ence in the defendant's absence. ls (3) At a conference or argument upon a question of w. (4) Ata reduction of sentence under Rule 35. Rule 606. Competency of Juror as Witness. (a) Aft the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a oo, f he is called so to testify, the opposing party shall be afforded an opportunity to object out of the pre- sence of the jury. (b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indict- ment, a juror may not testify as to any matter or state- ment occurring during the course of the jury’s delibera- tions or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his davit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. lla APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA RALEIGH DIVISION File No. 82-8-CR-5 UNITED STATES OF AMERICA Vv. JEFFREY CRAIG BUMGARDNER GARY J. PEED RONALD DoyLeE HINES TERESA ELEAZER JAMES MAURICE JACKSON JAMES C. CODDINGTON Trial Before The Honorable W. Earl Britt United States District Judge And Jury Taken At: The United States Courthouse Federal Building 310 New Bern Avenue Raleigh, North Carolina Taken On: Friday, September 3, 1982 Volume 9 of 9 Pages 1 to 142 ‘ oS * * 12a [124] courts. So if any of you feel that you are in any way discriminated against as a result of your jury service, just let me know and communicate with me or with the clerk of this court. And I will see that something is done about that or I will advise you what you can do about it. Your notes that you took, little note pads that you had, you may keep those ii you desire. If you don’t want to keep them, you may leave them in the juryroom and we will dispose of them. They are yours to do what you want to with. It’s up to you. When you start to leave, my law clerk will give you an envelope that wiil contain in it a questionnaire. Since being on the bench for some 2 and % years now, I have developed and revised this questionnaire for my use and the use of others associated with me in the court process, to try to make the life of jurors a little easier. And the responses from some of your fellow citizens before you has made it a little easier for you, I hope, by getting some refres’ ents in the juryroom and a few other things that probably have occurred as a result of ques- tionnaires to other jurors. So, the information you can give me there will be helpful to me and to others in the court system. If you don’t mind filling it out and sticking it back in that self-addressed envelope and stick it in the mail and return it to me. However, if after 2 solid weeks of late August and early [125] September, you’ve had enough of this federal court, you may throw it in the first trash can you see and you need not worry about the marshal coming after you. I promise you I won’t do anything. Finally, to say that it’s been my pleasure to serve as your presiding judge during this 2-week period and I feel like I’ve gotten to know you quite well. And I invite any of you to come by to see me if you are in Raleigh and in or about the federal court, I will be glad to talk to you about your jury service in general or the court system in general. When you leave, if you left your wraps or whatever in the juryroom, you may go by and pick them up. I must ask also that 13a you turn your little jury buttons back in. This is a period of austerity, you know, where we're trying to protect the dollar and we have to make that go further. So if you will, turn that in to the marshal or the law clerk as you leave. And you may now go with my thanks. THE MARSHAL: May I approach the bench, your honor? THE Court: Yes, sir. (Unreported bench conference.) THE Court: Members of the jury, an inquiry was made during the trial to me by one of your number concerned about some of you leaving the courthouse one day and [126] someone snapping pictures out at the curbs and one that was in an automobile. As I told Mr. Deaton the following morning, I investigated that matter and determined that there was noth- ing to be of any concern to any of you about what happened. I found out the source of it, what it was and I assure you that it’s nothing to jeopardize any of your health, welfare or security. If any of you desire to learn more about that, you may communicate with me in private later and I will be happy to discuss it with you further. All right. You may now leave. (The jury was excused and exited the courtroom at 7:42 p.m.) THE Court: What happened to the clock up there? It stopped sometime. Mr. Wingo, do you have the pre-sentence reports? Mr. WINGo: Yes, your honor. THE Court: On all defendants? Before you pass them out, let me make some inquiry. You can put mine on up here. I do not propose to pass sentence tonight. With that in mind and particularly with regard to you out-of-state lawyers, I will be glad to hear you as to when. l4a Mr. KuPFERBERG: Your honor, I would be available at the court’s discretion and I’m not sure a full * * x [137] are. Defendant Peed will be required to file a $25,000.00 unsecured bond because he is the only one that is on a personal recognizance. All defendants will be required to report to the nearest probation office, not less frequently than once a week, except of course, Mr. Jackson. Mr. SHEPPARD: Mr. Jackson is in their hands 24 hours a day, judge. And got more people waiting for him. THE Court: I will advise you when the sentencing will be scheduled. And you want to get any motions considered at that time, I suggest you get them in early and submit them accom- panied by briefs in support of them. Mr. WALKER: Your honor, can I inquire for Mr. Bumgardner right now, who is having to report to the marshal’s office every day. Is he the—is this report to the probation office in addition? THE Court: Yes, sir, that was not a change. Mr. WALKER: Thank-you, your honor. Mr. LAWRENCE: Your honor, with respect to Mr. Peed, can we have until Tuesday to post that bond because of the lateness of the hour? THE Court: No, sir. The clerk is—it’s worse on her than it is on you. She says she will stay and get it ready. Mr. SHEPPARD: If it please the court, I [138] realize the lateness of the hour, but I am very very concerned about the communication with the marshal and the court and this photographing situation. THE Court: All right. I'll state everything I know for the public record. Mr. SHEPPARD: I would appreciate it. lda THE CovRrt: I did not do it at the time it occurred because I didn’t feel that it would have been proper to do so. The juror, Mr. Bryant Deaton, reported to the court one day during the trial, I don’t remember the exact date, some con- cern over the fact that as he and, I believe, he said the two alternate jurors. One of them, I believe, is sitting back there now, were leaving the courthouse, that they observed some- one sitting in a car at the curb taking photographs, apparently of them. And for that reason, they were somewhat concerned about it. And Mr. Deaton stepped on by the car and got the license number and brought that to me. That was the only communica- tion between Mr. Deaton and myself and it was in the presence of my law clerk or somebody, one of the law clerks. In any event, I told him I would look into it and not to worry about it. I then called agent Al—I called—I had my law clerk to have the FBI report to my office. I had agent Al [139] Kohler who came to my office — K-O-H-L-E-R — and told him what had transpired and to be sure to check into it. And the next morning at 8:30, he reported to my office and had determined who the person was who was taking photographs, the reason for it and the fact that it was not of the jurors and had nothing to do with the jurors. And he satisfied me of that. At this time, I’m not at liberty to say what else he told me, but it had nothing to do with freedom or liberty of any of these defendants or their rights to a fair trial. And I simply communicated then to Mr. Bryant Deaton, in the presence of my law clerk again, that I had determined much what I told here in the courtroom, that I had checked into it and had determined that it was not involving them, that the person taking photographs was not attempting to take photo- graphs of them. And that he should not be concerned. Mr. KuPFERBERG: I might indicate to the court that I, my- self, had some photographs taken of me as I was leaving the courtroom—the courthouse and so was Mr. Coddington. And in fact, I called the police, that I was so apprehensive of that Pee —* l6a situation. The guard downstairs told me because they’re out- side of federal property, that he could not investigate the situation. And would indicate to the court, that eventually we did find out who it was and that they were, in fact, involved ina corollary of this case. I didn’t know [140] it was the jurors. THE Court: Well, I haven't said anything about what was done. The only thing I’ve said is, that what my determination of the matter was, that it had nothing that would, in any way, affect or jeopardize the right of any of the defendants to a fair trial in this case or that involved the safety or well-being of any of the defendants, as far as I know, any of the lawyers or any of the jurors. At the time, I was concerned only, of course, with the jurors. Mr. KUPFERBERG: That was one of the reasons I was con- cerned, your honor. THE Court: So, at the appropriate time, I will be glad to discuss it further with anyone. At the appropriate time that I feel that I can. I can’t right now. Mr. SHEPPARD: Could you make that appropriate time, your honor, set the hearings or the sentencings and what have you, at a time after that appropriate time, so that we might determine—my concern is that if a juror walks out of the United States Federal courthouse and people are taking photo- graphs of them, in a case where they’re talking about people getting knocked off and what have you, they think that it’s the defendants. And I’m concerned about the court’s finding with- out a hearing that it does not deprive the defendants of a fair trial. Perhaps it does and there may be more in this than we think. I’ve never run into the problem [141] and I appreciate the court disclosing to us what you have, so that we might be able to do some research and determine the appropriateness of proceeding to get to the bottom of it. But it concerns me. I don’t know who was taking pictures, but it surely is offensive. THE Court: All right. Let’s take a recess. (The proceeding was adjourned at 8:00 p.m., sine die.) 17a APPENDIX E [5] PROCEEDINGS 9:30 A.M. THIS CAUSE CAME ON FOR SENTENCINGS BEFORE THE HONORABLE W. EARL BRITT, UNITED STATES DISTRICT JUDGE, AT RALEIGH, ON THURSDAY, SEPTEMBER 30, 1982, AT 9:30 A.M. THE Court: Madam reporter, we are here for the purpose of hearing motions and sentencing hearings in the cases of Jeffrey Craig Bumgardner and others, 82-8-CR-5. Mr. Bumgardner himself is not here. And Mr. Walker, if you will state for the record what you told me in chambers a moment ago about your client? Mr. WALKER: Your honor, I have been informed by the marshal’s office that on the way to the airport last night, Mr. Bumgardner was arrested for driving while intoxicated and is presently in the Duval County Jail. THE Court: Okay. Well, as I have indicated to you, we will go ahead with the motion hearings and everything which, of course, you may fully participate in. And I have a sentencing in a related matter in Fayetteville next week, I think. You can check with the law clerk and get the day and time. And see if you can [6] get him sobered up and out of jail and up here for that. If not, we will send the marshall and let him explain it. All right. I think the best thing for me to do is to go through the motions of the respective defendants seriatim and do what I am going to do. I have read the written motions and memor- anda, et cetera. It is my intention to rule on the motions as submitted, with the exception of the motion for a new trial, et cetera, with regard to the picture incident, on which the court has arranged for witnesses to be here and to take testimony and hear arguments concerning that. Mr. Tew: Your honor, may I inquire as to whether or not the court intends, in fact, to conduct such a hearing? THE Court: Yes. 18a Mr. Tew: I would request at this time your honor, that the agent or agents who were present and the equipment that they used be present during the hearing, so that the record can reflect what, in fact, they did and what, in fact, they had at the time the incident occurred. THE Court: Well, the agents will be here, counsel. I am not sure about the equipment. I will make a determination on that when I hear their testimony. I have arranged for them to be here. * - ” [17] evidentiary. Do you have evidence that you think needs to be submitted? Mr. Tew: No, sir. I just want to recount for the court the evidence that was presented. THE Court: Well, no. I heard the trial Mr. Tew. I was here. No, sir. I can’t do that in fairness to the other attorneys. The motions of the defendant Teresa Eleazer for a new trial and for acquittal under rule are denied. The motions of the defendant James Coddington numbered 4 in his document to incorporate the motions for a new trial filed by co-defendants is allowed. The court will conduct a hearing on the secorid motion, in which it is alleged the government intimated and prejudiced the jury when its agents were in- structed to take pictures of the participants of the instant trial, which included at least two members of the jury panel. Intimidation of the jury and counsel was so severe it caused counsel for defendant Coddington to call the Raleigh Police Department to investigate the taking of the former pictures. The court will, as I have indicated, conduct an evidentiary hearing on that. Otherwise, the Motion of the defendant Cod- dington for a new trial is denied. * = « (20) Mr. KuPFERBERG: May I ask the court for a sequestra- tion, your honor? ye 19a THE Court: Pardon me? Mr. KuUPFERBERG: May I ask the court for a sequestration of all witnesses? I believe at least there was two people in that automobile. And they are both here. THE Court: All right. Mr. Koehler, I want you to come around the take the stand. And the other FBI agents who were involved in this please remain out in the hall. We will call you when we need you. Mr. SHEPPARD: Your honor, on behalf of Defendant Jackson, may I ask the court to set in the record—I don’t really know what is happening, and I don’t think the record does either. I know that when I made inquiry at the conclusion of the trial who was taking photographs, the court’s response—and I think I can quote it—is “I am not at liberty to say.” Now we are back n the record. And everybody knows who this fellow is. But defendant Jackson's attorney doesn’t. And there is obviously something going on here that I don’t know about. THE Court: Mr. Sheppard, if you will give me time, I will try to explain it to you. Mr. SHEPPARD: Thank you, your honor. [21] (Whereupon, Albert B. Koehler was called as a witness, duly sworn, and testified as follows:) THE Court: All right. I think I have stated most of this for the record during the course of the trial or afterwards. Mr. SHEPPARD: Your honor, on behalf of defendant Jackson, I object to the court reciting facts in the presence of the witness after the rule of sequestration has been invoked. THE Court: Well, the objection is overruled, Mr. Sheppard. Mr. SHEPPARD: Yes, sir. THE Court: The court recalls that during the course of the trial juror number 1 in the back row, Mr. Bryant Deaton, indicated to either the marshal or one of the law clerks that as 20a he and the two alternate jurors, as I recall, were going to lunch that it appeared that somebody was taking their photograph from a car parked at the curb in front of the Federal Building, in which the courthouse is located; that he—that is, Mr. Deaton—walked around the front or back of the car and ob- served the license number, wrote it down, and then went on to lunch. [22] I had the juror, Mr. Deaton, brought into my chambers; and in the presence of my law clerk or the marshall or both inquired of him what had happened. He told me substantially what I have just repeated. And he handed Mr. Marshal the paper on which he had written down the license number. I thanked him and told him I would look into the matter. And nothing further was said. I then immediately had my law clerk to call the FBI to send someone down. In response to that, Agent Albert Koehler came to my chambers. And I recited to him approximately what I have recited in this courtroom at this present time. Mr. Koehler returned to my chambers the next morning and reported to me in sunstance that he had determined that the people in the car were FBI agents; that they were taking photographs of the two witnesses—or attempting to—who had testified during that day, who had been called during that day, and who were suspects in the pending drug operation; that there was no intention to take photographs of anyone else. I thanked Mr. Koehler and he departed. I then, as I recall, had the juror Mr. Deaton—well, I had told Mr. Deaton to check with me the next morning. And he check- ed with my law clerk, as I recall. And I asked him to come into my chambers. And I advised [23] him that the court had deter- mined who was doing the photographing; and that the photographing was not intended to be of jurors and should not be taken by him as directed toward him in any way. And it was something that he was not to be concerned about and not to worry about at all. 2la At the end of the trial, then, as I recall, in open court—the record will show exactly what happened—one of the jurors made some inquiry as to what the court had determined what the picture-taking incident was or something to that effect. I have got exactly what was said. But in any event, as I recall, I also told the entire jury panel that the incident did not involve them in any way and was something they should not be concerned about in any way; and that I was not at liberty at that time to tell what I knew about it; that I had determined the true facts of the situation; and that if they cared to look into it further later, if they would contact me I would be glad to discuss it with them. Quite frankly, the court perceived the incident as one in which the jurors expressed some possibilities of fear for their safety, maybe, and wondering what the event was about. And when I determined that there was no reason for them to have any fear of their [24] safety, I felt that that was the proper place to put an end to it. The question has now been raised as to whether that incident in any way prejudiced the trial of these defendants. And for the purpose of exploring that further, the court has set this Rem- mer hearing and will follow the procedure of bringing such witnesses to the stand whom I will question. And then I will allow counsel to question them also. Mr. Tew: Your honor, at this time, if you are through, I would respectfully like to make a motion. THE Court: All right. Mr. Tew: I would move that your honor respectfully recuse himself for this reason: You are, in effect, a participant in it. And obviously, you determined at the time the incident oc- curred that it had no effect because you allowed the matter to go to the jury. You have recited matters in the record which, in effect, makes you a witness subject to testifying under oath and 22a subject to cross-examination by counsel. Therefore, I feel that it would be only fair, appropriate and p:uper that this court allow some impartial judge who has no knowledge and has certainly not participated to make the determination as to what effect, if any, the events [25] had upon the jurors. THE Court: I take it the rest of you counsel would like to join in that motion? Mr. SHEPPARD: The defendant Jackson joins. MR. KUPFERBERG: Yes, sir. THE Court: The Motion is denied. MR. KUPFERBERG: Your honor, may I inquire as to one fact that your honor stated—that you did, in fact, call Mr. Koehler. Could your honor explain to counsel how your honor deter- mined that the FBI was involved in this? THE Court: I will get into that right now. You will see. MR. KuPFERBERG: All right. Thank you, your honor. Mr. SHEPPARD: Your honor, may I make two other inquiries to the court with regard to the factual recitation? I am con- fused. You stated that jurors expressed the possibility of fear for safety. But I only heard you talking about one juror communicating with the court. THE Court: No, sir. No, sir. I said that I perceived it. My perception of the whole incident was only that there might possibly have been—no juror has told my anything about any fear of safety. [26] Mr. SHEPPARD: Thank you, your honor. The second thing, your honor: You said at the end of the trial that a juror asked about the problem. THE Court: That was from the jury box. Whatever was said was said here in your presence. The record will reflect exactly what it was. Mr. SHEPPARD: Well, I am not sure the record is going to reflect which juror. And what I am trying to establish is that it 23a was not Mr. Koehler that made the inquiry at the conclusion of the trial, if that is the court’s recollection. That is mine. THE Court: There is no juror named Koehler. Mr. SHEPPARD: I mean—excuse me—Mr. Deaton. THE Court: Well, I don’t know who it was. The record will reflect, I take it. Mr. KUPFERBERG: It was my understanding, your honor, that it was the foreman. THE Court: Sir? Mr. KUPFERBERG: It was my understanding that the mar- shal indicated it was the foreman. Mr. SHEPPARD: Who was not Mr. Koehler—l mean Mr. Deaton. But I am not sure the record does reflect. That is why I am asking. THE Court: Mr. Franklin Wright was the [27] foreman. I am not expressing any comment at this time as to who made the inquiry at that time. If the record doesn’t reflect, then some- thing will have to be done to cure it. Mr. SHEPPARD: Well, rnaybe now is the time to try and cure it, rather than four years from now, judge. THE Court: Well, Mr. Sheppard, the only way I know is we will ask Mr. Deaton when he comes in. And if he doesn’t know, the only other way is to subpoena all the other jurors. And I am not prepared to do that right now. How else do you propose? Mr. SHEPPARD: I think that the Remmer case and the Smith v. Phillips, decided at the last term of the United States Supreme Court, contemplates exactly that. That is my point. THE Court: Well, I disagree. Mr. SHEPPARD: Someone has evaluated what we need. And I think that bolsters Mr. Tew’s position. I can’t conclude that it vas anyone other than the court that has evaluated what we need for the hearing. And we as lawyers— 24a THE Court: (Interposing) That is exactly right, Mr. Shep- pard. I do think it is important for somebody to evaluate what is needed. And if after [28] this hearing I feel that it is neces- sary to inquire of any of the additional jurors, then I may very well do that. Mr. SHEPPARD: Fine. THE Court: If you lawyers will give me an opportunity to proceed with what I am trying to do without second-guessing me before I even get a chance to open my mouth. Mr. SHEPPARD: Judge, respectfully, I am not trying to second-guess anybody. I am trying to represent my client. THE Court: Just have a seat, Mr. Sheppard. Have a seat. EXAMINATION 10:12 A.M. BY THE COURT: Q. Mr. Koehler, do you recall when the court called you to chambers during the course of this trial? A. Yes, your honor; I do. It was in the late afternoon. Q. All right. Was anyone with you? A. Yes. When I came to your office, it was Special Agent Judson Wray. Q. All right. As best you recall, please recount for the record what the court told you and what you told the court. (29) A. Yes, your honor. I came into your office. And you said that a juror during a trial that you were presently involved in thought that someone was taking photographs outside of the Federal Building; and that the juror had written down what he thought was the license number of the vehicle that two in- dividuals were parked in taking the photographs. He thought it might have been somebody taking a photo- graph of him—the juror—and that he was walking with an alternate or a juror when he was coming out at lunch breach. 25a Q. Doyourecall any response you made to me at that time? A. Yes. I told your honor that we would immediately try to find out who was taking the pictures; and if it was possible, if we needed to interview the juror that we could do so. And you said to attempt to determine who it was, and then that if need be that you would make arrangements to have the juror in- terviewed the next morning. And I said we would know who it was by tomorrow morning. Q. Do you recall whether I gave you anything? A. Yes. You gave me a slip of paper which I believe you said was what the juror had written down or what was the license number. I believe it was ZTL 488 [30] with a North Carolina plate. And I believe that even the color of the car was on it. It was a dark sedan. Q. All right. What did you do then? A. Well, limmediately went down to our office on the sixth floor of this building here and ran a Department of Motor Vehicle check on the license number that was handed to me. And it was not in file. And I looked at the aumber. And I believe it was “ZTL” which was written down. And when it was not in file, it occurred to me that most of our FBI cars in the Raleigh area are prefixed by “ZLT.” And I figured the juror might have gotten it backwards in his haste to write the number down. And I checked our list. And it was one of our vehicles with the letters reversed. And it was assigned to agent Jim Roche. And I knew that he works narcotics matters from our office. And I got a hold of Mr. Roche. And he said yeah, he was outside the building on that afternoon attempting to take a photograph of two witnesses who had either testified that day or at some time during the course of the trial. He said he was trying to get a picture of one of them because he already had some photographs of the other. But they were together. And he was attempting to try to get a photograph of 26a one because of an ongoing [31] narcotics investigation. He had no photograph of that individual. He was in a car with a United States customs agent—a female customs agent. Q. What was her name? A. I don’t recall her name right now, sir. She was in the courtroom. He also said that he did recall that a juror walked by at the time he was taking a picture. because he had been present—Mr. Roche had been present in the courtroom for some of the proceedings and had recognized the juror walking by. He said he was certainly not taking a picture of the juror. And he does recall the individual walking by the car—the juror walking by the car with, I think he said, a female alternate. And he said he could understand why they thought that he was taking a picture of them, because they walked in front of the two individuals he was trying to take a picture of. I then brought Mr. Roche up to your honor’s office the next morning. And he reiterated that he was, in fact, the individual that was taking the pictures. Q. Did he say who the witnesses were whose picture he was seeking to take? A. Yes, your honor. But I don’t recall their names right now. I think he said he was one of them that [32] took the Fifth during the proceedings. Q. All right. Now, the next morning you state that you came to my office and reported back to me? A. Yes, your honor. It was about 8:30 in the morning. Q. Did you tell me at that time substantially what you have told here? A. Yes, your honor. Q. At any time, did you make any contact with any of the jurors? 27a A. No, your honor. I told you at that point it would not be necessary for us to talk to the jurors. THE Court: All right. Mr. Dixon, do you want to ask him any questions? Mr. Dixon: No, sir. Mr. KUPFERBERG: Yes, Sir. CROSS-EXAMINATION 10:17 A.M. BY MR. KUPFERBERG: Q. Doyouknow why the photographs were not taken inthe courthouse? A. No, I don't. Q. Are you aware there is a rule against taking photo- graphs on Federal Courthouse property? THE Court: Well, why don’t you confine - «x = [57] Q. Was Agent Rowley under the driver’s— A. (Interposing) she was. Q. Was the driver? During the course of the time that you were attempting to take photographs, do you recall ever hav- ing in focus any of the jurors or a person you recognized as a juror? A. Yes, sir; I do. Q. Tell me about that. How did it happen? And what did you do? A. At the time of day that it was—approximately quarter of 5:00, to the best of my recollection—I was sitting in the passenger side of this automobile with the window rolled down. It was parked in the second parking meter west of the newspaper boxes. 28a And the traffic exiting the Federal Building was fairly heavy. I had been given the camera by the individual in the office who is familiar with that kind of thing. I am not familiar with cameras. I know if you push a button, it takes a picture. Other than that expertise, I have none. So I was attempting to set the focus so that I could clearly see the individuals who were exiting the doorway of the building some distance from me, among which I recognized jurors— most of which had buttons still on them when they came out of the door. I recognized some [58] defendants and defense attor- neys, all of which or during which part of the time I probably had the lens up to my eye attempting to correct the focus of the camera. I did not photograph any juror or defense attorney. I was not interested in it. Q. Whom did you photograph? A. Iattempted to photograph Brown Costello Ramey and Douglas Freeman Ross. I attempted, in a humorous vein, to photograph assistant United States Attorney Dixon. None of my pictures were successful. Q. None were? A. Well, if you judge a picture on clarity and focus and identifiability—no; none were. Q. When you developed the pictures, were there any photographs of jurors? A. None that I could recognize. Q. Do you recall how many occasions you were out in front of the courthouse taking pictures? A. Just that one occasion on that one date at that time. Q. Well, during the course of this trial of the United States v. Bumgardner and others to which we are referring, were you in front of the courthouse of anyplace around the courthouse taking any photographs that may have been in the presence of any of the jurors in that case? [59] A. Yes, sir. Q. When and where? A. On the date we have been referring to— Q. (Interposing) Other than on that date? A. No, sir. No, sir. That was the only occasion I was out there or anybody else was out there under my supervision. THE Court: Mr. Dixon? CROSS-EXAMINATION 10:50 A.M. BY MR. DIXON: Q. Who had instructed you to go take photographs or at- tempt to take photographs? A. No One. Mr. Dixon: No further questions. THE Court: Mr. Kupferberg? CROSS-EXAMINATION 10:58 A.M. BY MR. KUPFERBERG: When were you first aware that Mr. Ross and Mr. ey were going to be at the courthouse? Who made you aware of that? I don’t know. Did you just happen to be sitting in on the ~ *« x [84] Mr. Rocue: Yes, sir. THE Court: Bring the juror Mr. Deaton in please. (Whereupon, Bryant Lee Deaton was called as a witness, duly sworn, and testified as follows:) Q. Ram A. I can’t tell you what day, sir. Q A Q eee 30a EXAMINATION 11:28 A.M. BY THE COURT: Q. Mr. Deaton: I have asked you to come here today to ask you some questions concerning the trial of the case of the United States v. Jeffrey Craig Bumgardner and others, which you served as a juror in. And you will recall that during the course of that trial, you reported a photograph taking incident to one of my law clerks. Do you recall that? A. Yes; I do. Q. Tell me as best you can recall what happeened on that date. A. One afternoon after leaving the court walking through the main entrance doors, I observed an individual sitting in a brown Chevrolet—it appeared to be—taking pictures. Now, I really didn’t know if he was taking pictures of the jurors—of several of us walking together (85) or if he was taking a picture of someone in front of us or behind us. It didn’t really matter to me. I just wanted to know. So I walked around to the back of the car and took the license number down on a checkbook and brought it back up to you. Q. Allright. And now recall as best you can what you told my law clerk. Did you tell my law clerk essentially what you just told me? A. Yes; I did. Q. Do you recall anything different that you told the law clerk then other than what you have just summarized? A. No. I think that is all I really knew about it—that someone was taking pictures. And I think I may have de- scribed that there was a female driving the car. This person was sitting on the passenger side. And I really didn’t get a good look at the person. That was about it. A. Allright. And did the law clerk shortly come back and bring you to my chambers? — 3la A. Immediately. Q. Allright. Do you recall what was said in my chambers? A. Yes. You said you would look into it immediately; that you were concerned about it; and that you [86] wanted to assure me that you would take whatever action necessary to find out; and that you would get back with me as soon as possible. And so, you know, the next morning when I came in, you called me— Q. (Interposing) Wait a minute. At that time—was any- thing else said that day between you and me, the best you recall? A. No, sir. Q. My lawclerk, Ms. Umstead, I believe was in the cham- bers with us at that time? A. Yes, sir. Q. All right. Now, the next morning you say you were called into my chambers again. A. Yes. Q. All right. Now, do you recall what was said the next morning? A. You said that you had looked into the matter and that you wanted to assure me that there was nothing that I should be concerned about, nor any of the other jurors; and that you would discuss this with me after the trial; that you would prefer not to now. And I said, “fine.” Q. Is that all that was said? A. Yes, sir. Q. All right. Do you recall who, if any, other [87] jurors were with you at the time you went out that door? A. Idon’t remember. It seems like one of the alternates that we had. Q. A lady? A. Yes. And I don’t remember which one right now. As I was walking up toward the car and walked behind to record the license plate number, I made the statement, “well, you saw that, too.” But I don’t know if I even said anything to you about that. But [ just remember that statement. Q. All right. Do you recall any photographing incident occurring before or after that? A. No. Q. Did anybody during the course of the trial or since the trial make any comments to you about the photographing incident that you recall? A. No; not at all. Q. Did you talk with any of your fellow jurors about it? A. Yes; I did. Q. Do you recall who or how many or all of them or what? A. I think in just general conversation after I left your chambers the morning you told me you had looked into it. I went back and just sort of in general [88] mentioned what had taken place; and that you had assured me everything was okay. Q. Well, do you recall thereafter whether it was discussed by any of the jurors or not? A. No, sir. It never was mentioned again. Q. It was not mentioned again? A. No, sir. Q. Was it mentioned at all during your deliberatons— during the time you were deliberating the guilt or innocence of the defendants’ A. No, sir. Q. Asaresult of that incident, did you at any time have any apprehensions or fear for your safety? A. No; I didn’t. Q. Did you have any apprehensions or concern about your serving on the jury? A. Not at all. Q. Following the verdict and the taking of the verdict here in court, someone made an inquiry about the incident. Do you recall that being in open court? A. After the— (Interposing) Verdict? A. Yes; I. Q. Were you the one that did that? A. Yes. [89] Q. What is your recollection of what I told you at that time? A. You said that—you basically repeated to me at that time what you had said in your chambers—that you wanted to assure us that everything was okay; that you had looked into it; and that our safety was not— Q. (Interposing) Threatened? A. Threatened. Q. Did I at that time disclose to you the source of the photographing incident? A. No, sir; you didn’t. Q. Have you as of yet found out the source of the photographing incident? A. No. That is one of the things that I was hoping that I would be able to get clarified today. Q. Did you inquire of me when you first got here this morning? A. Yes. Q. Did I tell you anything? A. No. You said that you would prefer not to discuss it. Q. Now, Mr. Deaton, do you feel, having been extensively questioned by the judge before you proceeded to serve as a juror on this case concerning your qualifications and the im- portance of having a fair and an [90] impartial jury; and con- sidering the evidence you heard in the case and my instructions to you as to the law—that the incident that occurred on that day in any way had any effect whatsoever on your verdict as a juror in this case? A. No. After you assured me that you had looked into it and I felt like you knew the source. Then It was no longer a concern for me. Now, I think had I not had that reassurance, it may have been a problem. But in this case, it was not. I didn’t think anymore about it. I was curious, you know. And that is why I asked after the deliberations. Q. And you say after you went back following my assur- ance and told the other jurors what you had determined that it was not discussed among you as jurors after that? A. No. Q. All right. Well, based on your total involvement with the jurors—and this case lasted what, approximately two weeks? A. Yes, sir. Q. Based on your total involvement with the jurors, do you have any feeling or any reason to believe that it had any impact at all on the jury totally—the deliberations of the jury in the trial of this case? [91] Mr. Tew: Objection. I object to the question, your honor. THE Court: The objection is overruled. You may answer. 35a THe Witness: It is my opinion that it did not have. By Tue Court: Q. Do you recall when during the course of the trial that was? I suppose the time gets confusing over a period of time. A. Idon’t remember. I think it was in the second seek. But I am not even real sure of that. It just sort of happened. And it was over. Q. Through your communications with me, Mr. Deaton, was my law clerk Ms. Umstead present at all times? A. Yes, sir. Q. Was anyone else present? A. I don’t think so. THE Court: All right. I am going to allow the attorneys in the case now to ask you some questions about this. So try to answer them as truthfully and forthrightfully as you can. Mr. Dixon? Mr. Dixon: I don’t have any, your honor. Mr. KUPFERBERG: Your honor, may I for the purpose of expediency reserve my cross so as not to [92] duplicate other counsel? THE Court: Yes, I was going to start at the opposite end and let Mr. Walker start. Mr. WALKER: No questions, your honor. THE Court: All right. Who have we got next down there— Mr. Talton? CROSS-EXAMINATION 11:40 A.M. By Mr. TALTON: Q. Mr. Deaton, I believe you testified that this did not effect any of the other jurors—this picture-taking incident— the other jurors; is that correct? Mr. Tew: Objection. THE Court: Overruled, Mr. Tew. Q. THe Witness: That was my opinion; yes. By Mr. TALTON: Q. Had you discussed this with any jurors after this time? A. The only thing I can recall is that immediately after returning from the judge’s chambers, I went back in and re- layed the message that he had given me, because before I had walked into the office, I had sort of just briefly told them what I was going in there for. So when I went back in, I explained that the judge said everything was okay. So then in my best [93] memory, that was the last it was discussed. Q. Soreally, you don’t know what went on in the minds of the jurors when you told them that or what? A. No; I don't. Mr. TALTON: No further questions. THE Court: Mr. Tew? CROSS-EXAMINATION 11:41 A.M. By Mr. Tew: Q. Can you relate what you became concerned—not by the fact that the pictures were taken, but the fact that there were being taken caused you to be concerned? Can you verbalize that concern? A. Well, I think given the nature of the case, that I was concerned that there might be some reason that someone would like to know something about the jurors or have pictures of them made. I think it is a natural reaction. Q. Your concern basically was for your own personal wel- fare; was it not? A. Yes; it was. Q. Would it be safe tc say that you were somewhat scared? A. I think that is—i was scared. Well, yes, sir; sounds good. [94] Q. When you first saw Judge Britt and discussed this with him, where were you? A. We were in his chambers. Who else was present? The law clerk. Which one? That voung lady. i i a THE Court: Susan Umstead. By Mr. Tew: Q. Was anyone else present at that time? A. Not that I recall. Q. How long did this conversation last? A. In total, I think it must have been ten—maybe eight to ten minutes or somewhere in there, because I originally came in looking for the marshal. And she said I should—I cornered her. I said, “where is the marshal?” And I sort of explained what I needed. She said, “Well, I think we ought to go see the judge.” So that is the only reason it took that amount of time. Q. The fact that you were escorted in to see the judge about this photographing session—did that cause you an even great- er concern about what had been going n? A. No; not at all. Q. The fact that the judge as opposed to the marshal? [95] A. Ijust thought he would have been too busy to have handled it. 38a Q. And I believe, if you will relate again—didn’t you talk with the other jurors immediately after talking with Judge Britt about what had taken place? A. Yes; I did. Q. Can you relate any specific remarks that any particular juror made at that time? A. 1 will summarize what I think the feeling was. I don’t remember particular remarks, I think some of them, were, just as I was, concerned. And then when I came back and relayed the message, it was not discussed. Q. But at the time— A. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1078%3A1. Public record. Not legal advice.