Respondents Brief — Tanner v. United States

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No, 86-177

Iu the Supreme Court of the Buiter

Ocroser TERM, 1986

ANTHONY R. TANNER AND WILLIAM M. CONOVER,

PETITIONERS

UNTrTep STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

CHARLES FRIED

Solicitor General

Wus.unM F. We

Assistant Attorney General

WiLtiaM C. BRYson

Deputy Solicitor General

Ricuagp J. LAZARUS

Assistant to the Solicitor General

Gioai C. PHARES

Attorney

Department of Justice

Washington, D.C. 20530

(208) 633-2217

1. Whether petitioners’ conduct constituted a con-

spiracy to defraud the United States within the mean-

ing of 18 U.S.C. 371.

2. Whether the district court erred by denying

petitioners’ post-verdict motions for a new trial based

on allegations of juror intoxication.

(1)

IL.

Conclusion

Petitioners’ conduct constituted a conspiracy to

defraud the United States in violation of 18

ESS

A. Petitioners violated Section 371 by conspir-

ing to interfere with and obstruct the law-

ful functions of the REA ee

B. Section 371 does not require proof of pecu-

niary loss or a violation of another provi-

C. Section 371 does not require proof that the

a Coes of

petitioners’ fraudulent activities _

D. Neither the rule of lenity nor principles of

federalism compel a narrower construction

Petitioners are not entitled to a hearing to

ee om one

drug use during the trial .

d, Gees Gns Cees fever tecttees chews ot.

leged juror intoxication during the trial.

B. Apart from Rule 606(b), the district court

did not abuse its discretion by refusing to

permit interrogation of jurors ..........__.

C. The Sixth Amendment does not require an

evidentiary hearing to question jurors about

allegations of juror intoxication ..._....

(111)

Ss &

TABLE OF AUTHORITIES

Cases : Page

Carter v. McClaughry, 183 U.S. 365 (1902)... 21

Clark v. United States, 289 U.S. 1 (1933) _......... 31

Crawford v. United States, 212 U.S. 183 (1909). 21

Curly v. United States, 130 Fed. 1 (ist Cir.), cert.

denied, 195 U.S. 628 (1904) —............................. 18

Dennis v. United States, 384 U.S. 855 (1966)... 14

Dizson v. United States, 465 U.S. 482 (1984) ..22, 23, 24,

25, 26, 27

Glasser v. United States, 315 U.S. 60 (1942)... 14

Government of Virgin Islands v. Nicholas, 759

oo} Ff Fe 48

Haas Vv. Henkel, 216 U.S. 462 (1910) ................. 10, 14, 17

Hammerschmidt v. United States, 265 U.S. 182

(1924) 14, 17, 18, 26

Harney Vv. United States, 306 F.2d 523 (ist Cir.),

cert. denied, 371 U.S. 911 (1962) . 23

Heald v. United States, 175 F.2d 878 “(10th Cir.),

cert. denied, 338 U.S. 859 (1949) 25

Huddleston v. United States, 415 U.S. 814 (1974) . 26

Hyde v. Shine, 199 U.8. 62 (1905) 17, 31, 42

Jorgensen ¥. York Ice Machinery Corp., 160 F.2d

432 (2d Cir.), cert demied, 332 US. 764

(1947) ...... 31

Langer V. United States, 76 F.2d 817 (8th Cir.

SD | ceneneeennestnitiientneeen 23

Mammoth Oil Co. ¥. United States, 275 U.S. 13

(1927) en 21

Mattox v. United States, 146 U.S. 140 (1892) ....... 30, 38

McClanahan v. United States, 230 F.2d 919 (5th

Cir.), cert. denied, 352 U.S. 824 (1956) ......... 25

McDonald ¥. Pless, 238 U.S. 264 (1915)... 81, 37, 40, 49

McDonough Power Equipment, Inc. ¥. Green-

wood, 464 U.S. 548 (1988) 46, 48

Nye & Nissen v. United States, 336 U.S. 6153

(1949) .......... a 21

Parker v. Gladden, 385 U.S. 363 (1966) . a 30, 38

Patterson vy. Colorado, 205 U.S. 454 (1907)... 38

Remmer v. United States, 347 U.S. 227 (1954) 30, 38, 47

Ross v. United States, 180 F.2d 160 (6th Cir.

_— 25

Cases—Continued : Page

Rushen v. Spain, 464 U.S. 114 (1983) _................ 30, 47

Sheppard ¥. Mazwell, 384 U.S. 333 (1966) _......... 38

Smith v. Phillips, 455 U.S. 209 (1982) 30, 47

Sullivan v. Fogg, 613 F.2d 465 (2d Cir. 1980)... 47, 48

United States vy. Andersen, 579 F.2d 455 (8th

Cir.), cert. 488 US. 980 (1978) ........... 22, 23

United States v. , 7383 F.2d 842 (11th Cir.

1984), cert. denied, 469 U.S. 1158 (1985)... 10, 48

United States v. Bornetein, 423 US. 308 (1976) .... 22

United States ¥. Bradford, 148 Fed. 413 (E.D. La.

1905), aff'd, 152 Fed. 616 (Sth Cir.), cert. de

nied, 206 U.S. 563 (1907) ~...............................- 18

United States v. Burgin, 621 F.2d 1352 (5th Cir.),

cert. denied, 449 U.S. 1015 (1980) 22, 27

United States v. Cohn, 270 U.S. 339 (1926)... 14

United States v. Davila, 704 F.2d 749 (5th Cir.

| 45

United States v. Del Toro, 513 F.2d 656 (2d

Cir.), cert. denied, 423 U.S. 826 (1975) ._...22, 24, 26

United States v. Dioguardi, 492 F.2d 70 (2d

Cir.), cert. denied, 419 U.S. 829 (1974)... 47, 48, 49

United States vy. Feola, 420 U.S. 671 (1975)... 19

United States v. Furer, 47 F. Supp. 402 (8.D.

Cal. 1942) 23

United States v. Gradwell, 248 U.S. 4’ 476 (1917)... 26

United States v. Harding 81 F.2d 563 (D.C. Cir.

Ne 23

United States v. Hoy, 627 F.2d 990 (10th Cir.

1975), cert. denied, 425 U.S. 935 (1976) ....... 22

United States v. Hess, 317 U.S. 537 (1943)... 22, 24

United States v. Keitel, 211 U.S. 370 (1908)... 14, 17

United States v. Lane, 765 F.2d 1376 (9th Cir.

1985) a . 22, 23

United States vy. Levinson, 405 F.2d 971 (6th Cir.

1968), cert. denied, 395 U.S. 958 (1969) _........ 26

United States v. Lovasco, 431 U.S. 788 (1977)... 27

United States v. Moore, 423 U.S. 122 (1975)........ 26

United States v. Moten, 582 F.2d 654 (2d Cir.

SD eens 45

United States v. Pintar, 630 F.2d 1270 (8th Cir.

1980) :

Cases—Continued : Page

United States v. Provenzano, 620 F.2d 985 (3d

Cir.), cert. denied, 449 U.S. 899 (1980) .__.39, 42, 44, 49

United States v. Reid, 53 U.S. (12 How.) 361

(1851) 80

United States v. Thompson, 366 F.2d 167 (6th

Cir. 1966), cert. denied, 386 U.S. 945 (1967)... 23

United States v. Wheadon, 794 F.2d 1277 (7th

Oe ee ee ee 23, 24

United States v. Yermian, 468 U.S. 63 (1984)... 14

Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944

(K.B. 1785) 30

Constitution, statutes, regulations and rules:

U.S. Const. :

Act of Apr. 8, 1935, ch. 48, 49 Stat. 115 et seq...

Act of May 20, 1996, ch. 482, 49 Stat. 1368, 7

U.S.C. 901 et seq.

False Claims Act:

18 U.S.C. 201 (a)

18 U.S.C. 286

SE EEE EEE EES EEE OEE EERE EE oe REO OO

Pub. L. No. 93-595, 88 Stat. 1926 et seq. = 32

18 U.S.C. 245(b) (1) (D) |. 39

18 U.S.C. 371 .. seeeeeenfpassim

passim

1£ U.S.C. 1341

18 U.S.C. 1503

itt ee ee ee eee

tee eee eee ee ee eee ee ee ee

iti he EEL LL LET LLL

ere

Fed. R. Evid. 606(b)

D. SII Tieitcirrenertcnentiemennemnmeseteninamnntemeiaemens

D. EGET AIA, te Ran a acid

I Se 7,

S.D. Fla. R. 16(e) .

8.D. Ga. R. TV (8)

M.D. La. R. 16(A) (5) ................. es

QS ———————————E

S.D. & N.D. Miss. R. 1(b) (4)

TT ere ee

i?RQCCE7> yE————————_——_——_—_——————EE

eee

E.D. N.C. R. 6.08 _............ iiliaiah adieu aes —

CN os

CC IS _—_———————————— ue 8

W.D. Okla). R. 30(B) (5)... snensitieialin -

D. P.R. R. 322 ........... :

Se RE, III... ccsseasssuntereieiieitepiannscsninenatwonsenn

8 SX 8 iieneitaiahanii —

NONI ties aS

CC —_—w ieee -

ae sa Se 3 ae |

RRRSRRRRGRRRSKEKSKSKSKSRSEGES :

ph ean tad Rese itera RRS 80, 46

American Bar Ass’n Project on Minimum Stand-

ards of Criminal Justice, Standards Relating

To Trial By Jury (1968) _.............................. 34, 42, 46

Comment, Impeachment of Jury Verdicts, 25 U.

RS SS —_y——————EE 42

C. Dickens, The Pickwick Papers (N.Y. Heritage

Dee 33

Miscellaneous—Continued : Page

117 Cong. Rec. (1971):

p. 33645 _......... - 35

Se 35

51 F.R.D. 315(1971) —._... ... 32,34

56 F.R.D. 183 (1972 82, 35

II H. Brill, Cyclopedia of Criminal Law (1923)... 21

H.R. Conf. Rep. 93-1597, 98d Cong. 2d Sess.

(1974) 37

H.R. Rep. 93-650, 93d Cong., ist Seas. (1973)... 36

3 J. Weinstein & M. Berger, Weinstein’s Evidence

ee .:] SaaS 39, 42

11 N. Hari, Agricultural Law (1986) ... 15

REA, A Brief History of the Rural and Electric

Telephone Programs (1985) .... 15

Rules of Evidence, Hearings Before the Special

Subcomm. on Reform of Federal Criminal Laws

of the House Comm. on the Judiciary, 93d Cong.,

GQ QS ee ee 35

Rules of Evidence (Supplement), Hearings Before

the Subcomm. on Criminal Justice of the House

Comm. on the Judiciary, 93d Cong., ist Seas.

GD eeesnnseneenerene | 36

S. Rep. 93-1277, 938d Cong., 2d Seas. (1974). 37

Iu the Supreme Court of the United States

OcToBEeR TERM, 1986

No. 86-177

ANTHONY R. TANNER AND WILLIAM M. CoNOVER,

PETITIONERS

UNrrTep STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

The opinion of the court of appeals (Pet. App. 3-

22) is reported at 772 F.2d 765.

The judgment of the court of appeals was entered

on September 30, 1985. A petition for rehearing was

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

STATUTE AND RULE INVOLVED

18 U.S.C. 371 provides, in pertinent part, as fol-

lows :

object of the , each shall be fined not

more than $10,000 or imprisoned not more than

five years, or both.

* Tanner was acquitted on Count Three (Pet. App. 13 n.2).

An earlier triai of both petitioners had resulted in a mistria!

when the jury was unable to reach a verdict (id. at 8).

Diyithe bse

Rat, rit

1. Seminole Electric Cooperative, Inc., is a Florida

by several rural

in central Florida. Pet.

case,

Bank,

of the

plant

REA),

the

, the

with

Tr. 64

for

toa

provide

line would

patrol

at issue in this

borrowed

power

(

dealt

1; 2 Tr.

plant

called

-mile

that

Pet. App.

: <%

ae alu ii} HE

(es He nity Hail ie

ment on each count. Petitioner Tanner was also

fined $10,000.

mission engineering instructed Conover to locate

sources of fill material for the patrol road, because

Seminole’s existing construction contractor was en-

countering difficulties obtaining sufficient amounts of

volumes are

* The transcript of the trial (“Tr.”) is cited by the volume

number, where applicable. The testimony of some witnesses

‘lite

Hie

ste

t SE

Hie

att

Hehe:

35°

HATE

;

the purchase

Co. In an April &,

engineers

and approved the

prepared two to

s Citrus Sand and Clay

Conover stated that

engineers had

yeiaee i Lb a. cS Haiti

li te He HH

ih lt i il

ite HE ait Pil fie ie HHEH

solicit

fill

for

Bank,

the REA's

road

; GXs 3-

Boman Ane

the

ed a ep

and Cay Co

to bid on the

Sand and

even

"mad balies at

~~ -_

for the

were

+1 t-_ +

ya Be

a certain

the

Ant,

misture of

Spb.

oats

mixture (4 Tr. 111-112; GX 2-8)

ellie

33288

Tatt i

ll 1

Lisi]

if H Mies

| HE

HHS

Kt Hie : au Ait alt

ies HiT FF

i ia hel, i i

ee a

HE “try HT

pie?

HE x3 eee MILE

7 He A

‘ 4 asi

i i ult HN

| Ht Hilt HF fees

HHH TE iF ts rt

434

The judge also emphasized that courtroom employees

the past reported any jury problems they ob-

served, but that “[n]othing was brought to my at-

tention in this case about anybody appearing to be

or being intoxicated” (id. at 171-172).

The judge concluded that based on his observations he

was satisfied that the motion to interview the jurors

should be denied (id. at 173; see id. at 181-182).

Notwithstanding the court’s order that the parties

not interview the jurors, attorney Best spoke with a

second juror, Daniel Martin Hardy, on two occasions

approximately five months later while this case was

on appeal. Best first spoke with Hardy when Hardy

purportedly showed up at Best’s home unannounced.

Best spoke with him a second time when Best tele-

phoned Hardy two days later and arranged for a

formal transcribed interview to be conducted by an

ployee of Best’s law firm (Pet. App. 25-27; J.A.

242). On neither occasion did Best seek leave of

court for the interview. Instead, Best attached the

product of the formal interview, an affidavit signed

by Hardy, to a second motion for a new trial or for

an evidentiary hearing to interrogate the jurors con-

cerning possible juror misconduct (see J.A. 203). In

the affidavit, Hardy alleged that several jurors drank

beer and smoked marijuana during the luncheon re-

cesses (Pet. App. 27, 29, 31-32, 36-39). He also al-

leged that two jurors had occasionally ingested co-

caine during the luncheon recess (id. at 40, 44, 45).

Hardy stated that the drinking and drug use had

affected his “reasoning ability” one day in the mid-

dle of the trial (id. at 55) and that the two principal

drug users had fallen asleep during the trial (id. at

46). The district court denied the second motion on

the same grounds that it had denied the first (J.A.

255-258).

3. The court of appeals affirmed (Pet. App. 3-16).

The court rejected petitioners’ claim that the district

court erred in refusing to conduct an evidentiary

hearing that included examination of the jurors (id.

at 8). The court concluded that the affidavit did not

“allege that prejudicial information was brought to

the jury’s attention [or] * * * that any outside in-

fluence was brought to bear upon any juror” (id. at

10). Accordingly, the court concluded, no eviden-

tiary hearing was warranted (ibid., citing Fed. R.

Evid. 606(b)). The court added that “[e]ven if the

allegations of substance abuse were true, [ petition-

ers had not made an] ‘adequate showing of extrinsic

influence to overcome the presumption of juror im-

partiality’” (ibid., quoting United States v. Barshov,

733 F.2d 842, 851 (11th Cir. 1984), cert. denied, 469

U.S. 1158 (1985)). Finally, the court rejected peti-

tioners’ claim that the indictment failed to charge

and the evidence at trial failed to prove a conspiracy

“to defraud the United States” within the meaning

of 18 U.S.C. 371. Pet. App. 10-13.

SUMMARY OF ARGUMENT

1. Petitioners’ conduct constituted a conspiracy to

defraud the United States, within the meaning of 18

U.S.C. 371. Section 371 makes unlawful a conspiracy

to defraud an agency of the United States “in any

manner or for any purpose,” which includes “any

conspiracy for the purpose of impairing, obstructing

or defeating the lawful function of any department

of Government.” Haas v. Henkel, 216 U.S. 462,

479 (1910). Petitioners’ conspiracy defrauded the

United States because it undermined the REA’s rural

electrification program, which was being implemented

by Seminole with federal money and under the REA’s

direct supervision.

Section 371 does not require proof that the defend-

ants’ conduct resulted in a pecuniary loss to the

eee

United States or that it violated any other federal

law. Nor must the United States be the immediate

object of the fraud. In any event, however, petition-

ers’ conspiracy exposed the United States to pecuni-

ary loss by diverting federal funds, by causing pe-

cuniary injury to Seminole, which was responsible

for repaying the federal loan, and by violating fed-

eral requirements that were designed to ensure mean-

ingful and substantial REA supervision over Semi-

nole’s use of the federal loan proceeds.

A fraud against a private entity constitutes a

fraud against the United States when the private

entity is an intermediary which, pursuant to con-

tract or statute, is in effect acting on behalf of the

federal government. In this case, Seminole was an

intermediary performing the federal] function of us-

ing federal funds to bring electric power to rural

areas. Where, as in this case, one of the conspirators

is employed by the private entity and has official re-

sponsibilities for the implementation of the federal

program, the federal nature of the fraud is undeni-

able.

2. The district court did not abuse its discretion

in denying petitioners’ motions for a new trial with-

out holding an evidentiary hearing to interrogate the

jurors. In considering Fed. R. Evid. 606(b), Con-

gress faced the very issue presented in this case—

whether jurors should be permitted to testify, after

reaching their verdict, concerning allegations of juror

intoxication. Congress concluded that the overall risk

to the jury system of allowing such testimony out-

weighs the benefits to litigants in isolated cases

from permitting such inquiries. Rule 606(b) there-

fore prohibits juror testimony for the purpose of

impeaching the jury’s verdict, with two limited ex-

ceptions: to determine “whether extraneous prejudi-

cial information was improperly brought to the jury’s

attention” and to determine “whether any outside in-

fluence was improperly brought to bear upon the

allegations, such as those in this case, that a juror

voluntarily ingested alcohol or drugs.

The policy underlying Rule 606(b) and

tive common law rule on which it is based

one. Permitting jurors to be called, after verdict, to

testify about the behavior of other jurors during the

trial would invite the harassment of jurors and the

risk of manipulation of the jury system by unscrupu-

lous litigants. Although juror interrogation might

seem justified in a particular case, the instances in

which juror interrogation will disclose a disturbing

degree of juror intoxication or inattentiveness are

too rare to justify the risk of harassment and manip-

ulation that would likely accompany a system per-

mitting juror interrogation whenever a defendant

makes a colorable claim of misconduct within the

jury.

Even if Rule 606(b) did not preclude juror testi-

mony concerning petitioners’ allegations of juror

intoxication, the district court would not have abused

its discretion in denying petitioners’ motions. The

thrust of petitioners’ allegations accompanying both

its first and second motions was juror inattentiveness

due to intoxication. The court properly discounted

the allegations based on its own observations of the

jury during the trial, as well as the failure of any of

the parties or any of the courtroom employees to re-

port any apparent misconduct or inattentiveness by

any of the jurors. The court was also entitled to

ignore the juror’s affidavit filed in support of peti-

tioners’ second motion, because that affidavit was the

product of petitioners’ violation of the court’s order

barring interviews of any juror without prior judicial

Bear

Pe x Ht

ted in a direct injury to the REA’s

rural electrification program, which was being imple-

of i8 U.S.C. 371. The fraud in this case,

F Cute

Hf i HiT qigit

IN VIOLATION OF 18 U.S.C. 371

Petitioners argue that while they may have com-

mitted a fraud upon Seminole or violated its internal

’ SPIRACY TO DEFRAUD THE UNITED STATES

conflict of interest policies, they did not defraud the

uror

of the

often

during

who

trial

does not

peti

I. PETITIONERS’ CONDUCT CONSTITUTED A CON

“United States, or an[] agency thereof,” within the

mented by Seminole with federal money and under

the REA’s direct supervision. The happenstance that

fraudulent activities does not place petitioners’ con-

Seminole was the immediate victim of petitioner's

duct outside the reach of Section 371.

Waite Gesatetiy Hut

lis et anes

HEC HmiTt iit ie , i

ct a

iti i

oH ddl

ee ret ie any ali :

i al ne F

THK.

i i

49 Stat. 115 ef seg.

1363, 7 U.S.C. 901 ef

yor ty Arty

cle

(id. at 59) and that the system was constructed by

responsible contractors, ordinarily “the lowest respon-

sible bidder” (id. at 60, 61). The REA also required

Seminole to obtain the agency’s approval prior to let-

ting out certain contracts (id. at 65, 68, 80-81) and

to follow specified REA procedures (i.e., formal bid-

ding, informal bidding, informal quotes) in awarding

all contracts; the specific procedure required de-

pended on the type of contract involved (see id. at 83,

105-108). The stated purposes of the REA contract

approval and bidding requirements included “protect-

ing the security interests of the Government’s loans”

and ensuring that “the costs of construction, mater-

ials, and equipment [were] reasonable and within

the limits of economic feasibility” (id. at 77; see 2

Tr. 63; 2/22 Wright Tr. 69). Hence, even if REA

prior approval was not required, the REA reserved

the right to challenge contracts that were later sub-

mitted for review (J.A. 24-27). Finally, the loan

contract required Seminole to warrant that every

statement, certificate, and opinion “submitted to the

Government by it or in its behalf [would be] true

and correct” (id. at 68).

The funds for the two contracts that were the sub-

jects of petitioners’ fraud originated in REA’s guar-

anteed loan (see J.A. 24), and at least one of the two

contracts required prior REA approval (id. at 32,

42-45). Both contracts were subject to REA’s super-

vision: Seminole was required to follow REA proce-

dures in awarding each contract (see id. at 108), and

the failure to do so could be the basis of REA’s

declaring Seminole in default. Nor was REA’s in-

volvement in the contracts only theoretical. Seminole

employees consulted an REA official on several occa-

sions about the bidding procedures on the two con-

tracts (id. at 31-32; see also id. at 24-28; 2 Tr. 57-

64).

The necessary effect of petitioners’ corrupt prac-

tices was to interfere with Seminole’s ability to coi-

ply with REA contractual requirements and with the

REA’s ability to supervise Seminole’s administration

of the federal funds. As a result, the fraud inter-

fered both with the accomplishment of federal objec-

tives and with the protection of federal property. In

short, petitioners’ conspiracy had the effect of “inter-

fer[ing] with or obstruct[ing]” the REA’s “lawful

* * * functions by deceit, craft or trickery” (Ham-

merschmidt v. United States, 265 U.S. at 188) and

therefore violated Section 371.

Petitioners’ contention that Section 371 does not

apply to their fraudulent activities rests on two prop-

ositions. First, they argue (Br. 17, 22) that Section

371 does not apply because their activities did not

cause the federal government any pecuniary loss and

did not violate any other federal statute or regula-

tion. Second, they contend (Br. 16-17, 24-25, 27-28)

that while they may have committed a private fraud

upon Seminole, the project was not sufficiently “fed-

eral” to come within the scope of the federal statute.

Neither argument is persuasive.

B. Section 371 Does Not Require Proof Of Pecuniary

Loss Or A Violation Of Another Provision Of Fed-

eral Law

1. It has long been settled that the government

need not demonstrate pecuniary loss to obtain a con-

viction under Section 371. See, e.g., Haas v. Henkel,

216 U.S. at 479; United States v. Keitel, 211 U.S. at

394; Hyde v. Shine, 199 U.S. 62, 81-82 (1905).

“(Djefrauding the government of its right and its

facilities for rendering a proper service to the people

* * * cuts deeper than defrauding the government

of a wheelbarrow, and it is unquestionably within the

power of the government to protect itself against that

kind of a fraud.” Curly v. United States, 130 Fed. 1,

9 (1st Cir.), cert. denied, 195 U.S. 628 (1904); see

United States v. Bradford, 148 Fed. 413, 421-422

(E.D. La. 1905), aff’d, 152 Fed. 616 (5th Cir.), cert.

denied, 206 U.S. 563 (1907) (“It is certainly just as

important that the government should not be de-

frauded with regard to its operations, even if no

pecuniary value is involved, as that it should not be

defrauded of its property. * * * [I]t would be as-

tonishing, indeed, if Congress had failed to afford

protection against such frauds.”’).

There is likewise nothing to support petitioners’

claim that their convictions must be overturned be-

cause their conduct did not violate any federal statu-

tory or regulatory requirement. Section 371 by its

terms does not require proof of a violation of any

other federal law,* and this Court has not required

that the means used to do so violate any other federal

law. It is enough, the Court has said, that the de-

fendants agree to interfere with or obstruct a lawful

governmental function “by misrepresentation, chicane

or the overreaching of those charged with carrying

out the governmental intention.” Hammerschmidt v.

United States, 265 U.S. at 188."

* The statute is written in the disjunctive. The first por-

tion, which is the general federal conspiracy statute, requires

proof of an agreement to commit a federal offense. The

second portion, which prohibits conspiracies to defraud the

United States, contains no such requirement.

* It is, of course, unnecessary to show that the defendants

knew or intended that the United States would be the victim

of their fraudulent conduct. It is enough that they willfully

conspired to engage in fraudulent conduct and that the

2. Even under petitioners’ narrow reading of Sec-

tion 371, their fraudulent conduct would fall within

the statutory prohibition. Petitioners’ conspiracy to

defraud risked pecuniary loss to the federal govern-

ment and violated federal requirements established

by its contract with Seminole.

Petitioners’ fraudulent conduct plainly increased

the risk of financial loss to the federal government.

The $1.1 billion loan for the project consisted of fed-

eral funds, and the loan was guaranteed by the REA,

a federal agency. The fraudulent diversion of the

project funds thus constituted a diversion of federal

loan monies. In addition, the fraudulent diversion of

funds from the project increased the risk that Semi-

nole would be unable to complete the project within

the amount budgeted and thus would default on the

loan. The proper use of the federal funds as well as

the security of the government’s investment in the

project therefore depended on the honest administra-

tion of the loan proceeds.

The government proved at trial that pursuant to

petitioners’ conspiracy, Conover failed to explore

alternative construczion techniques (Pet. App. 5) and

drew up contract specifications to ensure that Tanner

would be awarded the contract (id. at 6), thereby

precluding other more qualified and lower cost busi-

nesses from receiving the contract (ibid.). Moreover,

because Tanner’s fill material proved inadequate for

the job, Seminole had to purchase from Tanner a sup-

plemental fill material (“clear sand”) at a price

higher than others had been willing to charge (id.

at 7). In addition, Conover advised Seminole to re-

United States was in fact a victim of the fraud. See United

States v. Feola, 420 U.S. 671, 687-688 (1975).

solve a contract dispute over costs in Tanner’s favor

(id. at 6), and he misrepresented Tanner’s progress

on the contract to bonding companies (id. at 7).”

As we have noted, petitioners’ fraudulent conduct

also violated several federal requirements established

by the loan agreement and mortgage with Seminole

and further detailed in REA bulletins and memo-

randa to recipients of REA loan guarantees. For in-

stance, the corrupt bidding practices engaged in by

petitioners flatly violated the REA bidding require-

ments (see J.A. 60-61, 83, 105-108) and the REA

requirement that Seminole warrant that its state-

ments to the REA would be “true and correct” (id.

at 68). Although REA policy provided Semincle with

the option of using either informal competitive bid-

ding or informal quotes in the awarding of the par-

ticular contract at issue in this case (see id. at 32,

83), neither option sanctioned the collusive and deceit-

ful practices petitioners employed. Those federal pol-

icies were designed, of course, to protect the federal

interest in the project against precisely the kind of

misconduct that is at issue in this case. Thus, peti-

tioners are mistaken in asserting that their conspiracy

did not fall within Section 371 because it did not of-

fend any specific federal regulations or policies.

C. Section 371 Does Not Require Proof That The

United States Was The Immediate Object Of Peti-

tioners’ Fraudulent Activities

1. Petitioners’ second principal defense—that the

REA project was not sufficiently “federal” in charac-

It is no answer that petitioners’ fraud was small in

comparison to the size of the project. There is no de minimis

defense to fraud charges; the diversion of $10,000 from a

$10,000,000 project is no different analytically from the diver-

sion of $10,000 from a $100,000 project.

ter to fall within the scope of Section 371—is simi-

larly without merit. It is no bar to prosecution under

Section 371 that a federal agency is not the immedi-

ate object of the fraud. Indeed, even under the com-

mon law of fraud, the false representation “need not

be made directly by the defendant to the victim. A

conviction may be had where the accused causes the

representation to reach the victim through the inter-

vention of an innocent third person or persons, or

where the representation is made to and the property

obtained from one person, though the loss falls upon

a third person and the intent was to defraud him.”

Il H. Brill, Cyclopedia of Criminal Law § 1244, at

1892 (1923) (footnotes omitted). The scope of Sec-

tion 371, moreover, is even broader than the common

law crime.

To be sure, the classic case of conspiracy to defraud

the United States within the meaning of Section 371

occurs when the conspirators are dealing directly

with the federal government, particularly when one

conspirator is a federal employee with official re-

sponsibilities. See, e.g., Mammoth Oil Co. vy. United

States, 275 U.S. 13, 35-86 (1927); Crawford v.

United States, 212 U.S. 183 (1909); Carter v. Me-

Claughry, 183 U.S. 365, 367-368 (1902). It is well

settled, however, that it is no less a fraud upon the

federal government when the immediate object of the

fraud is an intermediary which, pursuant to a con-

tractual undertaking or by statutory design, is in

effect acting on behalf of the federal government.

Decisions of this Court involving Section 371 prosecu-

tions reflect this understanding of the statute’s scope

(see Nye & Nissen v. United States, 336 U.S. 613

(1949) (Section 371 prosecution premised on sub-

contractor fraud upon a general contractor of the

Navy)) as do numerous decisions of this Court con-

struing related statutory provisions. See United

States v. Bornstein, 423 U.S. 303, 309 (1976) (False

Claims Act); United States v. Hess, 317 U.S. 537,

541-545 (1943) (same);™ Dixson v. United States,

465 U.S. 482, 496-500 (1984) (federal bribery stat-

ute). In addition, numerous court of appeals deci-

sions have upheld Section 371 prosecutions when

the immediate object of the fraud has been a non-

federal public or private intermediary responsible for

administering a federally sponsored program.”

" Because the False Claims Act is not as broad as Section

371, fraudulent conduct barred by the former should invari-

ably be prohibited by the latter.

12 See, e.g., United States vy. Lane, 765 F.2d 1376, 1378-1380

(9th Cir. 1985) (immediate object of contract fraud a state

agency administering federal Social Security Title IV(A) and

Title XX funds to train state employees providing community

services) ; United States v. Pintar, 630 F.2d 1270, 1274-1275,

1277-1278 (8th Cir. 1980) (fraud in grant application process-

ing upon federally funded regional commission designed to

encourage economic development in parts of the upper middle

west); United States v. Burgin, 621 F.2d 1352, 1354-1357

(5th Cir.), cert. denied, 449 U.S. 1015 (1980) (contract fraud

upon state agency responsible for administering federal Title

XX funds to provide services to various Head Start centers) ;

United States v. Anderson, 579 F 2d 455, 457-458 (8th Cir.),

cert. denied, 439 U.S. 980 (1978) (contract fraud upon county

agency administering federal highway funds) ; United States

v. Hay, 527 F.2d 990, 992-993, 997-998 (10th Cir. 1975),

cert. denied, 425 U.S. 935 (1976) (loan agreement fraud upon

foreign government (South Vietnam), which was lent federal

money to finance a new water system) ; United States v. Del

Toro, 513 F.2d 656, 658 (2d Cir.), cert. denied, 423 U.S. 826

(1975) (contract fraud upon city agency responsible for ad-

ministering federal Department of Housing and Urban Devel-

Where, as in this case, one of the conspirators is

employed by the intermediary and has official respon-

sibilities in the implementation of the federal pro-

gram, including the disbursement of funds originat-

ing with the federal government, the federal nature

of the fraud is virtually undeniable. See, e.g., United

States v. Lane, 765 F.2d 1376, 1378-1380 (9th Cir.

1985) ; United States v. Anderson, 579 F.2d 455, 457-

458 (8th Cir.), cert. denied, 439 U.S. 980 (1978);

United States v. Del Toro, 513 F.2d 656, 658 (2d

Cir.), cert. denied, 423 U.S. 826 (1975); United

States v. Harding, 81 F.2d 563, 564-567 (D.C. Cir.

1936) ; United States v. Furer, 47 F. Supp. 402, 407

(S.D. Cal. 1942). Cf. Dixson v. United States, 465

U.S. 482 (1984); United States v. Wheadon, 794

F.2d 1277, 1279-1283 (7th Cir. 1986). Hence, in

opment project) ; United States v. Thompson, 366 F.2d 167,

169, 171-173 (6th Cir. 1966), cert. denied, 386 U.S. 945 (1967)

(contract fraud upon federally financed county hospital) ;

Harney v. United States, 306 F.2d 523, 525-526 (1st Cir.),

cert. denied, 371 U.S. 911 (1962) (condemnation appraisal

fraud upon state agency receiving federal highway funds) ;

Langer v. United States, 76 F.2d 817, 824 (8th Cir. 1935)

(fraud upon state relief committee responsible for distribu-

tion of federal relief funds); United States v. Furer, 47

F. Supp. 402, 407 (S.D. Cal. 1942) (contract fraud upon

private company responsible for administering federal funds

in contracting for construction of military tools and parts) ;

see also United States v. Wheadon, 794 F.2d at 1279-1280,

1282-1283 (fraud upon state agency disbursing HUD funds a

conspiracy “to defraud the United States,” within meaning

of False Claims Act, 18 U.S.C. 286).

18 Under this Court’s analysis in Dixson, petitioner Conover

would likely qualify as a “‘public official’ within the meaning

of the federal bribery statute, 18 U.S.C. 201(a). Cf. United

this case, as in United States v. Hess, 317 U.S. at

544, “[t]he fraud * * * [w]Jould not have been any

more of an effort to cheat the United States if there

had been no * * * intermediary.”

D. Neither The Rule Of Lenity Nor Principles Of

Federalism Compel A Narrower Construction Of

Section 371

Contrary to petitioners’ claim, upholding the con-

victions in this case does not depend on a construc-

tion of Section 371 with “almost limitless boundaries”

(Br. 28). Our interpretation of the statute is con-

sistent with the settled judicial construction of the

law as reflected both in the decisions of this Court

and in decades of lower court decisions.

We fully agree that the government must establish

some injury to the United States to prove a violation

of Section 371. We assert only that, as this Court

has repeatedly held, it is sufficient that the govern-

ment prove that injury by demonstrating that the

States v. Wheadon, 794 F.2d at 1282-1283. Like the private

employee in Dixson, Conover’s official duties as procurement

officer for Seminole “directly influenced the expenditure of

federal funds” (465 U.S. at 499). And, like the private em-

ployee in Dixson (see id. at 485), Conover used his official

position to extract kickbacks from a contractor (Tanner)

seeking work. To be sure, it is not a prerequisite to a success-

ful prosecution under Section 371 that a member of the con-

spiracy occupies an employment position with the inter-

mediary that renders the conspirator the equivalent of a

“public official” for the purposes of the federal bribery law

(see, e.g., United States v. Del Toro, 513 F.2d at 663-664,

658). Where, however, a member of the conspiracy is an

official acting on behalf of the United States, the conclusion

is inescapable that the fraudulent conduct constitutes a con-

spiracy ‘‘to defraud the United States” within the meaning of

Section 371.

conspiracy contemplated interference with or obstruc-

tion of lawful federal functions.

Our construction of Section 371 would not mean,

as petitioners claim (Br. 28-29 (emphasis in origi-

nal)), that “every person who engages in any kind

of wrongful conduct against a person or entity re-

ceiving governmental assistance, no matter how in-

direct, or affected by a government program, no mat-

ter how slightly, will be subject to a Section 371

prosecution.” Plainly, Section 371 does not apply to

fraudulent conduct against any entity that receives

some amount of federal financial assistance or is sub-

ject to some form of federal regulation. Cf. Dixson,

465 U.S. at 499." Instead, there must be substantial

* Petitioners suggest (Br. 29) that the court of appeals’

construction of Section 371 would improperly reach cases of

fraud committed by a broker and seller against a buyer who

takes out a Federal Housing Authority or Veterans Adminis-

tration loan. In fact, a fraud committed by a broker and

seller that is designed to result in the buyer’s obtaining a

federally guaranteed loan that would not otherwise be avail-

able falls squarely within the reach of Section 371. See Heald

v. United States, 175 F.2d 878, 880 (10th Cir.), cert. denied,

338 U.S. 859 (1949) (“Concealing [by the broker and seller]

of the actual selling price for the purpose of obtaining a [VA]

guaranteed loan which could not be obtained were such price

known, impairs the functions of the Veterans Administration

and conspiracy to do so states an offense against the United

States.”) ; see also Ross v. United States, 180 F.2d 160, 163-

165 (6th Cir. 1950) ; McClanahan vy. United States, 230 F.2d

919, 921-922 (5th Cir.), cert. denied, 352 U.S. 824 (1956).

In any event, in this case one of the conspirators was em-

ployed by the entity that was the immediate object of the

fraud, and in that capacity he was directly responsible for

the disbursement of the funds received from the federal gov-

ernment. Hence, the more appropriate analogy would be to

a fraud committed by a bank official and a borrower to ob-

tain a federally guaranteed loan through the bank. Without

question, Section 371 would make unlawful a conspiracy that

ongoing federal supervision of the defrauded inter-

mediary or delegation of a distinctly federal function

to that intermediary to render a fraud upon the in-

termediary a fraud upon the “United States,” within

the meaning of Section 371.” In this case, both of

those factors are present. Section 371 thus unambig-

uously extends to conduct such as petitioners’, and the

rule of lenity therefore does not call for a narrower

construction that would remove them from the reach

of the statute. See Dixson v. United States, 465 U.S.

at 500 n.19; United States v. Moore, 423 U.S 122,

145 (1975); Huddleston v. United States, 415 U.S.

814, 831 (1974).*

embraced such fraudulent conduct. See, e.g., United States v.

Levinson, 405 F.2d 971, 975-976, 981-986 (6th Cir. 1968),

cert. denied, 395 U.S. 958 (1969) (VA guaranteed loans) ; see

also United States v. Del Toro, 513 F.2d at 658.

Petitioners’ reliance (Br. 20-21) on United States v.

Gradwell, 243 U.S. 476 (1917), and Hammerschmidt v. United

States, 265 U.S. 182 (1924), is misplaced. In Gradwell, it was

clear that Congress did not intend Section 371 to apply at all

to elections, including election fraud, with which Congress

had exhaustively dealt elsewhere (see 243 U.S. at 481-485).

In Hammerschmidt, it was equally clear that the words “to

defraud” were not so broad as to encompass individuals ad-

vocating that others defy federal draft laws. In this case,

however, petitioners’ fraudulent conduct is at the core of

traditional fraud—corruption in the award of contracts—and

petitioners’ conspiracy obstructed the REA’s rural electrifica-

tion project.

%* Petitioners also suggest in passing (Br. 16, 24) that

applying Section 371 to them would violate their rights under

the Due Process Clause of the Fifth Amendment. This con-

stitutional claim was not raised in the district court or in the

court of appeals in the first instance, and petitioners made

only oblique references to it in their petition for rehearing

below (at 10) and in their petition for a writ of certiorari

(at 15). The issue is therefore not properly before this Court.

Petitioners’ reliance (Br. 27-28) on “principles of

federalism” is also unpersuasive. Petitioners claim

(id. at 27) that our construction of Section 371

would render “traditionally local criminal conduct a

matter for federal enforcement and would also in-

volve a substantial extension of federal police re-

sources.” The construction of Section 371 we propose

is not so sweeping. There is a strong federal interest

in prosecuting individuals for corrupt misuse of fed-

eral funds. See Dixson, 465 U.S. at 500-501. Where

federal funds or federal programs are victimized by

fraud, it is entirely appropriate to rely on federal

law to remedy the problem. The mere presence of an

intervening private entity that is disbursing the fed-

eral funds or operating the federal program does not

convert an essentially federal program into a matter

of exclusive state and local concern.

As the REA loan agreement at issue in this case

makes plain, it is often critically important to the

success of federal programs that the power to choose

among potential contractors remain free of corrup-

tion. For this reason, the federal government often

maintains a substantial federal presence even when

it has left the implementation of federal objectives to

nonfederal entities that the federal government has

financed. There is nothing “intrusive” about inter-

preting federal criminal law to protect federally fi-

nanced and supervised projects from corruption. Cer-

tainly, the federal interest in such projects is sufficient

to ensure that principles of federalism are not of-

See United States v. Lovaseo, 481 U.S. 783, 788 n.7 (1977).

In any event, their conduct occurred after the Fifth Circuit’s

decision in United States v. Burgin, 621 F.2d 1352 (1980),

a case similar to this one; at least as of that time petitioners

were on notice that they were subject to federal prosecution.

fended by permitting the United States to exercise

concurrent jurisdiction over fraudulent conduct in

the operation of the projects.”

II. PETITIONERS ARE NOT ENTITLED TO A HEAR-

ING TO QUESTION JURORS ABOUT ALLEGA-

TIONS OF ALCOHOL AND DRUG USE DURING

THE TRIAL

The strength of the jury system—its reliance on

peer judgment—is also the source of its frailty.

Jurors are ordinary citizens. They are not specially

selected arbiters or trained experts, and they are not

expected to give an accounting of the reasons for

their verdicts. Recognizing the special nature of the

jury process, courts and legislatures historically have

allowed only limited inquiry into the way the jury

conducts its affairs. In particular, out of respect for

juror privacy and to prevent juror harassment and

tampering, the courts have largely prohibited post-

17 Petitioners argue (Br. 30 n.12) that if the Court over-

turns their convictions on the Section 371 count, it must also

reverse their mail fraud convictions. We do not believe that

is so. The mail fraud charges were based not only on the

fraud against the United States, but also on the fraud against

Seminole (J.A. 12-15). Moreover, the court’s jury instruc-

tions on the mail fraud counts focused exclusively on the

private fraud as the basis for those charges (see 18 Tr. 21-

26). In any event, even if the jury based its mail fraud

verdicts on the fraud against the United States, the jury

could not have found that the United States was defrauded

‘vithout also finding that Seminole was defrauded. Therefore,

regardless vf the disposition of the Section 371 count, peti-

tioners’ convictions on the mail fraud counts can be upheld.

Because the mail fraud counts can be sustained without the

need for a new trial, the Court should reach the jury miscon-

duct issue in this case even if it rules in petitioners’ favor on

the Section 371 issue.

verdict interrogation of jurors as a means of

impeaching jury verdicts.

Petitioners invite this Court to depart from that

practice and to expand the grounds for impeachment

of verdicts and interrogation of jurors. The invita-

tion should be declined. Congress considered the very

issue presented by this case when it enacted Rule

606(b) of the Federal Rules of Evidence in 1975. At

that time, Congress rejected proposals to expand the

grounds for post-trial impeachment of jury verdicts,

and in our view the Sixth Amendment does not dis-

place that congressional judgment. Accordingly, we

submit that the district court did not abuse its dis-

cretion in declining to grant petitioners’ motions for

a new trial or an evidentiary hearing to interrogate

jurors for impeachment purposes.

Contrary to petitioners’ contention (Pet. i; Br. i),

this case does not present the question whether peti-

tioners are entitled to an evidentiary hearing con-

cerning their allegations of juror misconduct. The

district court held a limited evidentiary hearing on

the first motion, at which Tanner’s counsel testified.

At that time, the district court invited petitioners to

call any witness, other than a juror, or to offer any

other evidence that might support their allegations of

juror misconduct (see J.A. 169-171).

Petitioners were not satisfied with that kind of

hearing. Instead, the focus of both of their post-trial

motions was to request a hearing at which they could

interrogate the jurors (J.A. 113-117, 203). The dis-

trict court’s rulings denying petitioners’ requests

were directed to that aspect of their motions (id. at

125, 181-182, 255-258). The court concluded that

Fed. R. Evid. 606(b) barred the introduction of

juror testimony regarding the allegations of juror

misconduct, but that, in any event, the court’s oppor-

tunity to observe the jury during the lengthy trial

obviated any need for the extraordinary remedy of

juror interrogation (id. at 147-149, 167-173). Ac-

cordingly, the question presented by this case is

whether the district court erred in refusing to allow

petitioners to interrogate the jurors, either in an evi-

dentiary hearing or in some other setting.

A. Rule 606(b) Bars Juror Testimony About Alleged

Juror Intoxication During The Trial

1. The common law flatly prohibited the introduc-

tion of juror testimony to impeach a jury verdict.

See Vaise v. Delaval, 1 T.R. 11, 99 Eng. Rep. 944

(K.B. 1785); 8 J. Wigmore, Evidence § 2352, at 696

(McNaughton rev. ed. 1961). The common law rule

was accepted in the United States with what Wig-

more termed “an adherence almost unquestioned” (id.

at 697 (footnote omitted) ).

The broad common law prohibition against juror

testimony has not been significantly diluted in this

country during the last 200 years. This Court has

fashioned exceptions to the rule in only limited cir-

cumstances. The Court has allowed post-verdict juror

testimony to explore the prejudicial effect of the in-

troduction into the jury room of information not

admitted into evidence. See, e.g., Mattox v. United

States, 146 U.S. 140, 151 (1892); see also United

States v. Reid, 53 U.S. (12 How.) 361, 362-363

(1851). The Court has also permitted inquiry into

jurors’ associations with outside parties that might

affect their impartiality. See Rushen v. Spain, 464

U.S. 114, 116, 121 (1983); see also Smith v. Phil-

lips, 455 U.S. 209, 213-214, 215, 217 (1982). And

the Court has permitted jurors to be questioned about

efforts by outsiders to influence the jury by bribery,

threats, or expressions of opinion. See Parker v.

Gladden, 385 U.S. 363, 363-364 (1965); Remmer v.

United States, 347 U.S. 227, 228-230 (1954) ; Mattox

v. United States, 146 U.S. at 150. Beyond those lim-

ited settings, however, the Court has repeatedly ad-

hered to the traditional rule against admitting juror

testimony for the purpose of impeaching the jury’s

verdict. See, e.g., McDonald v. Pless, 238 U.S. 264,

267-269 (1915) ; Hyde v. United States, 225 U.S. 347,

384 (1912).

In the leading case of McDonald vy. Pless, 238 U.S.

at 267-268, the Court explained in detail the justi-

fication for precluding juror testimony even when the

allegations, if proved, would provide grounds for a

new :

[L]et it once be established that verdicts sol-

emnly made and publicly returned into court

can be attacked and set aside on the testimony

of those who took part in their publication and

all verdicts could be, and many would be, fol-

lowed by an inquiry in the hope of discovering

something which might invalidate the finding.

Jurors would be harassed and beset by the de-

feated party in an effort to secure from them

evidence of facts which might establish miscon-

duct sufficient to set aside a verdict. If evidence

thus secured could be thus used, the result would

be to make what was intended to be a private

deliberation, the constant subject of public in-

vestigation—to the destruction of all frankness

and freedom of discussion and conference.

See also Clark v. United States, 289 U.S. 1, 13

(1933) ; Jorgensen v. York Ice Machinery Corp., 160

F.2d 432, 435 (2d Cir.) (Learned Hand, J.), cert.

denied, 332 U.S. 764 (1947) (“[J]udges * * *

would become Penelopes, forever engaged in unravel-

ling the webs they wove.”).

2. After 14 years of intensive study by members

of the bar, judges, and legislators, this Court in 1972

promulgated uniform rules of evidence for the federal

courts. In 1975, Congress enacted those rules into

law as the Federal Rules of Evidence.“ One of those

rules, Fed. R. Evid. 606(b), in effect codified this

Court’s precedents regarding the inadmissibility of

juror testimony to impeach the jury’s verdict. This

Court’s proposed rule and the version ultimately en-

acted by Congress, which were identical, prohibited

juror testimony for the purpose of impeaching the

jury’s verdict, with two limited exceptions—to deter-

mine “whether extraneous prejudicial information

was improperly brought to the jury’s attention” and

to determine “whether any outside influence was im-

properly brought to bear upon any juror.” Fed. R.

Evid. 606(b). Hence, unless the proffered juror testi-

mony concerns either “extraneous prejudicial infor-

mation” or “outside influence,” it is not admissible

for the purpose of impeaching the jury’s verdict.

Petitioners argue (Br. 33-34) that the use of

alcohol by a juror falls within the rule’s exception for

juror testimony regarding “any outside influence

[that] was improperly brought to bear upon any

juror.” The language and legislative history of the

rule, however, rebut that contention and show that

the “outside influence” exception does not encompass

_ anything a juror does that might incidentally affect

his mental processes during the trial or during the

jury’s deliberations.

%® See 51 F.R.D. 315 (1971) (advisory committee version) ;

56 F.R.D. 183 (1972) (Supreme Court version) ; Pub. L. No.

93-595, 88 Stat. 1926 et seq. (final version as enacted).

a. To extend the exception for “outside influence”

to anything a juror voluntarily chooses to ingest

would allow the exception to swallow the rule. Under

petitioner’s construction of the term, anything hap-

pening to any juror during the course of the trial (or

even before the trial) that might affect the juror’s

mental processes would constitute an “outside influ-

ence.” The rule’s general prohibition against inquir-

ing into “any matter or statement * * * or 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” would be rendered nearly meaning-

less. As the district court aptly noted (J.A. 144):

If you say that a juror who has something to

drink outside the jury room and brings it with

him is an outside influence, you might also say

that any juror who stayed up half the night

watching T.V. or had a big argument with his

wife the morning before he came to trial so he

was upset for the first half-day wasn’t thinking

straight, or any juror who had a particularly

— cup of coffee that morning was irritable all

No one, of course, can deny that such conditions

might affect a juror’s behavior in a given case.” It

has nonetheless been recognized that such speculative

* Indeed, such matters have been the subject of literary

speculation:

“I wonder what the foreman of the jury * * * has got for

breakfast,” said Mr. Snodgrass.

“Ah!” said Perker, “I hope he’s got a good one.”

Why so?” inquired Mr. Pickwick.

“Highly important—very important, my dear Sir,” re-

plied Perker. “A good, contented, well-breakfasted jury-

man, is a capital thing to get hold of. Discontented or

hungry jurymen, my dear Sir, always find for the plain-

tiff.”

C. Dickens, The Pickwick Papers 449 (N.Y. Heritage Press

1962).

inquiries into the mental processes of a juror must be

disallowed if the institution of the jury is to be pre-

served. See Model Code of Evidence Rule 301, illus.

3 (1942) (juror’s testimony that “he was induced to

agree to the verdict because his wife was ill and he

was anxious to get home” inadmissible); see also

ABA Project on Minimum Standards of Criminal

Justice, Standards Relating To Trial By Jury § 5.7

(a), at 171 (1968).

b. The legislative history of Rule 606(b) reveals

that Congress considered the precise issue presented

hy this case—the admissibility of juror testimony

regarding juror intoxication—and concluded that

such testimony should not be allowed.

Rule 606(b) was the subject of considerable debate.

The debate focused on whether the prohibition

against juror testimony should extend to certain

types of juror misconduct (such as allegations of

juror intoxication) and not merely bar inquiry into

the effect of certain conduct on the juror’s thought

processes. The version of Rule 606(b) that was pro-

posed by the Advisory Committee was much shorter

than the final version. It included neither the general

prohibition against juror “testi[mony] as to any mat-

ter or statement occurring during the course of the

jury’s deliberations” nor the limited exceptions for

“extraneous prejudicial information” or “outside in-

fluences” that are found in the version that was ulti-

mately enacted. See 51 F.R.D. 387 (1971). Instead,

the Advisory Committee proposal simply provided

that a “juror may not testify concerning the effect of

anything upon his or any other juror’s mind or emo-

tions as influencing him to assent to or dissent from

the verdict or concerning his mental processes”

(ibid.).

The Advisory Committee’s version was the subject

of much criticism. In a letter to the Advisory Com-

mittee, Senator McClellan criticized the proposed rule

because it “would * * * permit the impeachment of

verdicts by inquiry into, not the mental processes

themselves, but what happened in terms of conduct in

the jury room” (117 Cong. Rec. 33642, 33645

(1971)).” The Department of Justice voiced similar

concerns in its own letter to the Advisory Committee:

“The [rule] is a manifest departure from existing

law concerning the extent to which jurors may

impeach their verdict. * * * Strong policy consider-

ations continue to support the rule that jurors should

not be permitted to testify about what occurred dur-

ing the course of their deliberations” (117 Cong. Rec.

33655 (1971) ).

In response to those criticisms, the Advisory Com-

mittee drafted a new version, which the Supreme

Court in turn formally adopted and transmitted to

Congress. The new version embodied the language of

the current rule, including the broad prohibition and

the two discrete exceptions. See 56 F.R.D. 183

(1972) ; see also Rules of Evidence, Hearings Before

the Special Subcomm. on Reform of Federal Criminal

Laws of the House Comm. on the Judiciary, 93d

Cong., Ist Sess. 316 (1973) (letter from Advisory

Committee to Senator McClellan).

The issue whether juror testimony concerning alle-

gations of juror intoxication would be allowed under

the more stringent, traditional rule promulgated by

* See 117 Cong. Rec. 33645 (1971) (letter from Sen Me-

Clellan to Advisory Committee) (“The mischief in this Rule

ought to be plain for all to see. * * * I do not believe it would

be possible to conduct trials, particularly criminal prosecu-

tions, as we know them today, if every verdict were followed

by a post-trial hearing into the conduct of the juror’s delibera-

tions. * * * I urge that you recognize that trials are human

processes and (hat perfect trials, using lay jurors as the Sixth

Amendment rightly commands, are an illusionary goal.”).

this Court first explicitly arose during the House

Judiciary Committee’s consideration of the rule. The

House Committee concluded that such testimony

would have been allowed under the Advisory Commit-

tee’s original proposal, but would not be allowed

under this Court’s version. For that reason, the

House Committee amended the rule for the

purpose of permitting such inquiries. The House

Committee report noted that under the Court’s ver-

sion of the rule, a juror could testify “as to the influ-

family, but the Court’s rule would not permit a juror

to testify “to the drunken condition of a fellow juror

which so disabled him that he could not participate

ciary Committee.”

The House Committee’s discussion of Rule 606(b)

made two points clear. First, the Committee wanted

the rule to permit juror testimony on allegations of

21 See Rules of Evidence (Supplement), Hearings Before the

Subcomm. on Criminal Justice of the House Comm. on the

Judiciary, 93d Cong., Ist Sess. 389 (1973) [hereinafter cited

as Supplemental House Hearings) (letter from Prof. R. Carl-

son to House Committee concluding that misconduct such as

the version of Rule 606(b) proposed by the Court).

2 Following the House Report, both Senator McClellan and

the Department of Justice reiterated their earlier criticisms

of the original Advisory Committee proposal. See Supple-

mental House Hearings, at 53-54 (Senator McClellan), 347

(Department of Justice).

juror intoxication, and second, the Committee did

not believe the exception for “outside influence” in

the Court’s version of the rule permitted such testi-

mony.

The Senate Committee rejected the House version

of Rule 606(b) in favor of the more restrictive ver-

sion promulgated by this Court. See S. Rep. 93-1277,

93d Cong., 2d Sess. 13-14 (1974). The Senate Com-

mittee did so with full awareness that the Court’s

version would have the effects that the House Com-

mittee had sought to avoid. The Senate Committee

report reflected a preference for the “long-accepted

Federal law” in order to avoid “the harassment of

former jurors by losing parties, as well as the pos-

sible exploitation of disgruntled or otherwise badly-

motivated ex-jurors” (ibid.). The Conference Com-

mittee adopted the Senate version of the rule, which

was then enacted into law. H.R. Conf. Rep. 93-1597,

93d Cong., 2d Sess. 8 (1974).

The legislative history thus reveals that Congress

asked itself the very question posed by petitioners in

this case. After considering and debating the issue,

Congress selected “the lesser of two evils” (McDonald

v. Pless, 238 U.S. at 267) by determining that juror

*3 The Senate report noted that the House version of the

rule was “considerably broader” than the version proposed

by this Court and that the House version “would permit the

impeachment of verdicts by inquiry into, not the mental proc-

esses of the jurors, but what happened in terms of the conduct

in the jury room. This extension of the ability to impeach a

verdict is felt to be unwarranted and ill-advised. * * * Public

policy requires a finality to litigation. And common fairness

requires that absolute privacy be preserved for jurors to en-

gage in the full and free debate necessary * * *. In the inter-

est of protecting the jury system and the citizens who make

it work, rule 606 should not permit any inquiry into the in-

ternal deliberations of the jurors.” S. Rep. 93-1277, supra,

at 13-14.

testimony on matters such as allegations of intoxica-

tion must be excluded.

c. Finally, the decisions of this Court and related

statutory provisions support the conclusion that peti-

tioners’ allegations of juror intoxication do not fall

within the “outside influence” exception in Rule

606(b). This Court’s decisions suggest that “outside

influence” is confined to improper efforts of outsiders

calculated to influence juror impartiality. None of

the decisions of this Court upholding the admissibil-

ity of juror testimony for impeachment purposes has

involved juror misconduct even remotely similar to

that alleged in this case. Instead, each of those cases

involved instances in which third parties attempted

to influence juror behavior by making remarks to

jurors or by bribery or threats. See Parker v. Glad-

den, supra; Remmer v. United States, supra; Mattox

v. Unitea States, supra.

This interpretation of the term “outside influence”

is consistent with its origin. Apparently first coined

by Justice Holmes in Patterson v. Colorado, 205 U.S.

454 (1907), the expression was used in discussing

the need to protect the jury from attempts by out-

siders to influence the jury’s deliberations. See 205

U.S. at 462 (“The theory of our system is that the

conclusions to be reached in a case will be induced

only by evidence and argument in open court, and

not by any outside influence, whethe? of private talk

or public print.”); see also Parker v. Gladden, 385

U.S. at 364; Sheppard v. Maxwell, 384 U.S. 333, 351

(1966).

Related federal statutory provisions reflect a simi-

larly narrow construction of the term. Provisions in

the federal criminal code concerned with efforts by

third persons to “influence” jurors in the discharge

of their duties could not fairly be read as extending

to the case of a juror “influenc[ing]” himself by

- re ee

drinking alcohol or ingesting other substances. In-

stead, in those provisions, as in Rule 606(b), the

exclusive congressional concern is with improper ef-

forts by outside parties to influence the jurors. See

18 U.S.C. 1503, 1504; see also 18 U.S.C. 245(b) (1)

(D).**

In sum, faced with the difficult choice between

protecting the jury process from post-verdict chal-

lenge and permitting broad inquiry into allegations

of juror misconduct, Congress has chosen the former,

more traditional course. Congress has determined

that the greater danger to the administration of jus-

tice and to the institution of the jury lies in broaden-

ing the grounds for jury impeachment, rather than

** Petitioners cite Judge Weinstein’s treatise in support of

their view that juror intoxication is an “outside influence”

within the meaning of the rule (Br. 34, citing 3 J. Weinstein

& M. Berger, Weinstein’s Evidence { 606[04], at 606-29

through 606-32 (1985)). Judge Weinstein’s treatise, how-

ever, does not provide clear support for petitioners’ position.

At one point, the treatise notes that “[o]utside influence

would seem to preclude proof of threats by one juror against

the other or chance or quotient verdicts as well as drunken-

ness of jurors not observed by outsiders” (3 Weinstein’s Evi-

Jence, supra, {| 606[01] at 606-15 (emphasis added) ). In the

section on which petitioners rely, the treatise makes the con-

trary assertion, but it cites as support only two lower court

cases decided long before Rule 606(b), neither of which held

that juror intoxication constitutes an “outside influence.” See

id. { 606[04] at 606-29 through 606-30 n.25. The decision in

United States v. Provenzano, 620 F.2d 985 (3d Cir.), cert.

denied, 449 U.S. 899 (1980), which is also cited in the treatise,

provides no support for petitioners’ view at all. In that case,

several jurors were accused of smoking marijuana. A mar-

shal advised the judge of the problem during the trial, and

the judge then spoke to the jurors in chambers. ‘That case

sheds no light on petitioners’ claim that a party is entitled to

interrogate a juror about juror intoxication after the jury

has reached its verdict.

in adhering to the traditional rule. That judgment

is consistent with this Court’s observation in Mc-

Donald vy. Pless, 238 U.S. at 268, that “while it may

often exclude the only possible evidence of miscon-

duct, a change in the rule ‘would open the door to

the most pernicious arts and tampering with jurors.’

The practice would be replete with dangerous conse-

quences. ‘It would lead to the grossest fraud and

abuse’ and ‘no verdict would be safe.’ ”

The allegations of jury misconduct in this case,

although dramatic, do not call for abandoning the

judgment expressed in this Court’s cases and in Rule

606(b). Consistent with the traditional approach to

the issue of verdict impeachment, the rule and this

Court’s decisions reflect a judgment that the cost of

permitting jurors to testify in support of post-trial

challenges to verdicts is very high. For that reason,

juror testimony on such subjects should be fore-

closed, even if, in a particular case, such an inquiry

might seem factually justified. The risk of manipu-

lation and juror harassment is too great, and the

cases in which relief would be justified are too few,

to justify an exception to the general rule permitting

juror interrogation in every case in which a color-

able claim of misconduct is raised.

B. Apart From Rule 606(b), The District Court Did

Not Abuse Its Discretion By Refusing To Permit

Interrogation Of The Jurors

Even if Rule 606(b) did not preclude juror testi-

mony in this case, the district court did not abuse

its discretion by denying petitioners’ motions for an

evidentiary hearing to interrogate the jurors. The

district court did not rely solely on Rule 606(b) to

support its denial of petitioners’ motions. The court

also relied on its own evaluation of the substance of

petitioners’ preliminary showings of juror miscon-

duct in determining that the extraordinary remedy

of juror interrogation was inappropriate. In our

view, the court’s independent evaluation of petition-

ers’ allegations, coupled with the comrelling interests

counseling against such interviews, justified the

court’s rulings.

1. In support of their first motion to interrogate

jurors, petitioners filed an affidavit of Tanner’s trial

counsel (J.A. 246-248) that described a telephone

conversation counsel had with one of the jurors con-

cerning juror misconduct. In addition, petitioners

filed two newspaper articles describing interviews

with the same juror (id. at 139) and an affidavit of

a private investigator hired by Tanner, who pur-

portedly overheard a conversation between two jurors

during the trial that suggested misconduct (id. at

177-180). At the hearing on the first motion, Tan-

ner’s counsel formally testified in support of the mo-

tion (id. at 169-171).

The allegations of juror misconduct accompanying

the first motion were not compelling. The only pos-

sibly relevant allegation made in the affidavit filed

by Tanner’s counsel was that several of the male

jurors drank alcohol at lunch during the trial and,

as a result, “slept through the afternoons” (J.A.

247).” The private investigator’s affidavit stated

25 The other allegations purportedly made by the juror were

that (1) “ ‘she did not believe the Defendants are guilty’ ”’;

(2) “she should have ‘stood her ground’ during the delibera-

tions”; (3) one of the male jurors “intimidated her and some

of the other jurors during deliberations, causing [the juror]

to agree that the Defendants were guilty when she did not

believe that they were”; and (4) some of the male jurors

“didn’t care about the trial or the Defendants.” J.A. 247.

Each of these allegations concerns inadmissible matters that

“inhere in the [jury’s] verdict” even under the most relaxed

construction of Rule 606(b). See generally 3 Weinstein’s

only that he had overheard one of the jurors asking

two others where they were “going to drink [their]

lunch” (id. at 179). Tanner’s trial counsel stated

at the hearing only that he saw several jurors sleep-

ing and once noticed one of the jurors in a “giggly

mood” (id. at 168, 171); he conceded that he had

failed to call those matters to the court’s attention

at the time.

Even apart from Rule 606(b), these allegations

fall short of requiring a hearing with testimony from

the jurors. First, evidence that jurors consumed

some alcohol durin the trial does not provide a suffi-

cient basis for overturning a jury verdict. See

United States v. Provenzano, 620 F.2d at 997. Apart

from the conclusory and speculative statement by

Tanner’s trial counsel that one juror “might well

have been intoxicated,” there is not even a bare alle-

gation that the jurors drank an excessive amount of

alcohol or that any one of the jurors was intoxicated.

Indeed, one of the newspaper articles submitted by

petitioners in support of their motion quoted the

juror upon whom petitioners relied as denying that

any juror had been intoxicated (J.A. 139).*°

Moreover, the allegations that jurors had been

sleeping were susceptible to independent evaluation

by the trial judge without any juror testimony. For

that reason as well, the court’s denial of petitioners’

Evidence, supra, * 606[04], at 606-28 to 606-29; ABA Project

on Minimum Standards for Criminal Justice, Standards Re-

lating To Trial By Jury, supra, at 172; Comment, /mpeach-

ment of Jury Verdicts, 25 U. Chi. L. Rev. 360, 362-364 (1958) ;

see also Hyde v. United States, 225 U.S. at 384.

26 The district court was also entitled to discount the testi-

mony of Tanner’s trial counsel because, as noted by the dis-

trict court (J.A. 168), the court had previously advised coun-

sel to bring any such matters to the court’s attention during

the trial, and counsel had not done so (ibid.; see id. at 147).

motion was not an abuse of discretion. In denying

the motion, the trial judge pointed out that he

ha[d] an unobstructed view of the * * * jury box”

and that he “didn’t see anybody sleeping” (id. at

147-149, 167-168). The trial judge also invited the

parties to call to the witness stand any courtroom

personnei or marshal who worked during the trial.

The judge noted that in the past, courtroom employ-

ees with an opportunity to observe the jury had al-

ways reported to him any possible problems with the

jury and that “[n]Jothing was brought to my atten-

tion in this case about anybody appearing to be in-

toxicated or being intoxicated’ (id. at 171-172).

Only after reiterating that he had “observed every-

thing there was to observe” (id. at 173) and had seen

“nothing to suggest” that any jurors we‘e intoxi-

cated (id. at 171-172), did the judge conclude that

the motion to interview the jurors should be denied

(id. at 173). In light of the judge’s ability to evalu-

ate petitioners’ allegations based on his own observa-

tions, the denial of that motion was not an abuse of

the district court’s discretion.

2. Nor did the district court abuse its discretion

in denying petitioners’ second motion to interview

the jurors. While the affidavit by Juror Hardy,

which was filed in support of the second motion, con-

tained more particular allegations of alcohol and

drug use by the jurors, Juror Hardy conceded that

none of the jurors with whom he drank at lunch had

been drunk (Pet. App. 47). The only allegations in

his affidavit concerning the effects of the drug and

alcohol ingestion were his claim that his “reasoning

ability” had been impzired on one day of the trial

and that several of the other jurors were “falling

asleep all the time during the trial” (id. at 46, 55).

These conclusions, like those accompanying petition-

ers’ first motion, were confined to jury conduct dur-

ing the trial and did not refer to the jury’s delibera-

tions.” Like the allegations in the first motion, they

were subject to evaluation by the trial judge based

on his first-hand observations of the jurors (and the

absence of any contrary reports by courtroom per-

sonnel ) .”

The district court was entitled to disregard the al-

legations in support of petitioners’ second new trial

motion for a second reason as well: the Hardy affi-

davit that provided the basis for the second motion

was obtained in direct violation of the court’s prior

order and of a local court rule. Upon denying peti-

tioners’ first motion to interrogate the jurors, the

court specifically instructed petitioners, in accord-

ance with the court’s loeal rule (M.D. Fla. R. 2.04

(c)), not to interview any of the jurors without re-

ceiving the court’s prior approval (J.A. 181-182).

Petitioners violated that order and the local rule by

obtaining the Hardy affidavit without first seeking

or obtaining approval from the court.

2? The allegations in the affidavits filed by Tanner’s counsel

and Juror Hardy pertained exclusively to juror conduct dur-

ing the trial. See J.A. 246-248; Pet. App. 23-56; see also J.A.

159. The only reference to jury deliberations is contained in

an ambiguous affidavit filed by one of Tanner’s employees, in

which the employee claimed that Juror Hardy had stated that

three male jurors had each had a pitcher of beer “within

three hours of rendering a verdict in the case.” See J.A. 244-

245. Juror Hardy’s affidavit does not confirm that account.

%* That the drugs allegea!y used by some jurors were illegal

should not affect the analysis. See United States v. Proven-

zano, 620 F.2d at 997 (“[P]ublic knowledge that sitting

jurors were smoking marijuana does not create such an ap-

pearance of impropriety as to warrant reversal of convictions

where the jurors were not dismissed.”). Presumably, peti-

tioners’ argument would be the same if the jurors had con-

sumed prescription drugs that allegedly affected the jurors’

attentiveness and ability to reason.

As described in the affidavits accompanying the

second motion, Juror Hardy arrived unannounced at

the home of Tanner’s counsel, who invited him in.

Tanner’s counsel did not seek permission from the

court to interview the juror either at that time or

when he telephoned Juror Hardy two days later to

ask him if he would agree to a transcribed inter-

view. See Pet. App. 25-27; J.A. 241-242.

Because the interview with Juror Hardy was con-

ducted in violation of the court’s order and the local

court rule, the district court was entitled to ignore

the affidavit that resulted from that interview. Fed-

eral district courts throughout the country rely on

local rules similar to the local rule upon which the

district court relied in this case.” Courts and com-

mentators, moreover, have uniformly recognized the

importance of judicial control over access to jurors.”

* See, e.g., N.D. Ala. R. 10; S.D. Ala. R. 12; M.D. Ala.

R. 9; D. Alaska R. 3(H); D. Ariz. R. 12; D. Ark. R. 25;

D. Conn. R. 12(f); S.D. Fla. R. 16(e); S.D. Ga. R. IV(8);

S.D. Ind. R. 35; D. Kan. R. 23A; E.D. Ken. R. 12(b); E.D.

La. R. 14.5; M.D. La. R. 16(A) (5); W.D. La. R. 16; D. Md.

R. 25A; S.D. & N.D. Miss. R. 1(b) (4); E.D. Mo. R. 16(D);

D. NJ. R. 19B; M.D. N.C. R. 112(b); E.D. N.C. R. 6.03;

S.D. Ohio R. 5.6; N.D. Okla. R. 8; W.D. Okla. R. 30(B) (5) ;

E.D. Okla. R. 8; D. PR. R. 322; D. R.I. R. 15(g) ; M.D. Tenn.

R. 12(h); W.D. Tenn. R. 19; S.D. Tex. R. 2(f); W.D. Tex.

R. 500-2; N.D. Tex. R. 8.2(e) ; E.D. Tex. R. 10; W.D. Wash.

R. 47(b); N.D. W. Va. R. 1.19; S.D. W. Va. R. 3.02; E.D.

Wis. R. 8.06; D. Wyo. R. 411.

*” See United States v. Davila, 704 F.2d 749 (5th Cir.

1983); see also United States v. Moten, 582 F.2d 654, 665

(2d Cir. 1978) (“A serious danger exists that, in the absence

of supervision by the court, some jurors, especially those who

were unenthusiastic about the verdict or have grievances

against fellow jurors would be led into imagining sinister

happenings which simply did not occur * * *. Thus, super-

vision is desirable not only to protect jurors from harassment

but also to insure that the inquiry does not range beyond

Before interviewing Juror Hardy, petitioners should

have sought judicial approval; if their request had

been denied, they could have protested that denial to

the court of appeals as part of their new trial claim.”

In light of petitioners’ disregard of the court’s order

and the local rule, it was not an abuse of discretion

for the district court to deny the second motion for

a new trial.

C. The Sixth Amendment Does Not Require An Evi-

dentiary Hearing To Question Jurors About Allega-

tions Of Juror Intoxication

Petitioners claim (Br. 30, 33-34) that the Sixth

Amendment provides them with a constitutional

right to an evidentiary hearing at which they can

interrogate jurors about possible juror misconduct.

In effect, they ask this Court to declare Fed. R. Evid.

606(b) unconstitutional to the extent that it pre-

cludes such a hearing. The Sixth Amendment, how-

ever, does not entitle petitioners to an evidentiary

hearing of that kind.

While a defendant has a right to a mentally com-

petent jury, that does not answer the question

whether the defendant is constitutionally entitled to

use any possible source of evidence to prove that a

particular juror was mentally incompetent or im-

paired during the trial. Cf. 8 J. Wigmore, Evidence,

subjects on which a juror would be permitted to testify under

rule 606(b).”) ; see also ABA Project on Minimum Standards

for Criminal Justice, Standards Relating To Trial By Jury,

supra, at 165.

*1 The aggrieved party in McDonough Power Equipment,

Ine. Vv. Greenwood, 464 U.S. 548 (1983), after being denied

permission to interview a juror, subsequently filed a second

motion with additional information, which the district court

granted with certain conditions. See id. at 550-551. The party

did not, as Tanner’s counsel did in this case, ignore the court’s

authority and interview the juror without judicial approval.

supra, | 2253, at 697-698 (“The question, it is to be

remembered, is not whether certain conduct consti-

tutes a fatal irregularity or whether it can be proved

at all, but whether a juror alone is to be forbidden

to prove it.’’).

The Sixth Amendment does not require that a

trial court allow the interrogation of jurors in re-

sponse to every type of allegation of juror miscon-

duct. Rather, the need for an evidentiary hearing

turns on the nature of the allegation made in a par-

ticular case. When a colorable allegation is made

that the juror was exposed to potentially prejudicial

extrinsic influence, the Sixth Amendment normally

requires that a trial court hold an evidentiary hear-

ing to explore the matter. See Smith v. Phillips, 455

U.S. 209, 217-218 (1982); id. at 222 (O'Connor, J.,

concurring); Remmer v. United States, 347 U.S.

227, 230 (1954); see also Rushen v. Spain, 464 U.S.

114, 120 (1983). The traditional presumption

against post-verdict inquiry into jury deliberations

is overcome in that circumstance by a presumption

of prejudice to the defendant’s right to an impartial

jury. See Remmer v. United States, 347 U.S. at 229;

Sullivan v Fogg, 613 F.2d 465, 467 (2d Cir. 1980);

United States v. Dioguardi, 492 F.2d 70, 80 (2d

Cir.), cert. denied, 419 U.S. 829 (1974). Claims of

juror partiality due to extrinsic influence are usually

susceptible to meaningful evaluation only through an

evidentiary hearing. For those reasons, Rule 606(b)

permits juror testimony to prove extrinsic influence

in the form of “extrinsic prejudicial information” or

“improper[] outside influence.”

The Sixth Amendment, however, does not require

the interrogation of jurors in a case such as this

one, where the allegations of juror misconduct con-

cern intrinsic influences bearing on juror attentive-

ness during the trial.” Because the inquiry into

juror attentiveness involves considerations internal

to the jury process, courts have required an espe-

cially strong showing of impairment prior to order-

ing any post-verdict inquiry. See, e.g., Government

of Virgin Islands v. Nicholas, 759 F.2d 1073, 1077-

1081 (3d Cir. 1985); United States v. Barshov, 733

F.2d 842, 851 (11th Cir. 1984), cert. denied, 469

U.S. 1158 (1985); Sullivan v. Fogg, 613 F.2d at

467: United States v. Dioguardi, 492 F.2d at 80

(“[A]bsent * * * substantial if not wholly conclu-

sive evidence of incompetency, courts have been un-

willing to subject a juror to a hearing on his mental

condition merely on the allegations and opinions of

2 Petitioners’ allegations of juror misconduct, while couched

in terms of juror “competency,” are more accurately char-

acterized as claims of juror “inattentiveness” due to intoxi-

cation, a form of behavior particularly susceptible to judi-

cial observation. Indeed, as described by petitioners in the

district court, their Sixth Amendment claim in this case ap-

pears to be based on the proposition that the Constitution

guarantees them the right to both an impartial and “atten-

tive” jury. See, e.g., J.A. 117 (Def. Motion for Interview of

Jurors and Other Relief) (“It is simply impossible to secure

a full and fair analysis of the evidence by an impartial and

attentive jury.”) ; id. at 127 (remarks of Conover’s trial coun-

sel at hearing on first motion) (“[I]t is more than sufficient to

demonstrate that some jurors were drinking alcoholic bever-

ages over the lunch hour during days when court was in ses-

sion and that this had an effect on their ability to be attentive

and to concentrate on the trial procedures.”) ; see also id. at

152 (remarks of Tanner’s counsel at hearing on first motion)

(alcohol is an “outside source inasmuch as it precludes the

effective hearing and attention to all the evidence in the

trial”). Few jury trials would survive such a constitutional

requirement of juror attentiveness. Cf. McDonough Power

Equipment, Inc. v. Greenwood, 464 U.S. 548, 555 (1984).

a losing party.”)." Moreover, because a full-scale

evidentiary hearing, including juror interrogation,

is not indispensable to the court’s evaluation of cer-

tain types of allegations of juror impairment, the

Sixth Amendment does not mandate juror interroga-

tion in those cases.

Unlike juror partiality, which tends to express it-

self only during jury deliberations and, hence, out-

side the presence of the trial judge, juror incom-

petence or inattentiveness is often reflected in juror

behavior that is observable during the trial, either

by the judge, by counsel, or by court personnel.” In

addition, it is not unusual for other members of the

jury to report to the court instances of a juror’s in-

competence, inattentiveness, or disruptive behavior

before the trial ends. The trial judge can often

together with the jury screening process prior to

trial, provide substantial protection against the risk

that incompetent or seriously impaired jurors will be

selected and remain on the jury.”

* The court in Dioguardi noted with approval the contrast

between the courts’ willingness to set aside jury verdicts

“when there is proof of tampering or external influence” and

the courts’ reluctance to inquire into “possible internal ab-

normalities except ‘in the gravest and most important cases.’ ”

492 F.2d at 79 n.12 (quoting McDonald v. Pless, 238 U.S.

at 269).

™ For example, in United States v. Provenzano, 620 F.2d at

996-997, the trial judge learned about possible juror miscon-

duct (smoking marijuana) from the marshal! during the trial.

* In addition, the requirement that the jury be unanimous

in its verdict is designed in part to protect the parties in

criminal cases against the risk that one or more jurors will

In this case, the court observed the jury through-

out the trial and saw no reason to question any ju-

ror’s competence or attentiveness. J.A. 148, 167-168,

173. One of the defense counsel claimed to have no-

ticed jurors sleeping, but he failed to call the matter

to the attention of the court at the time. Courtroom

except for calling Tanner’s counsel,

clined the court's offer to call any nonjuror to testify

in support of their allegations (J.A. 169-171). Un-

der those circumstances, the district court did not

FEBRUARY 1987 Attorney

ment of unanimity provides a margin of confidence in the

accuracy of verdicts that makes even less compelling the

for close scrutiny of the jury’s internal processes.

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2 is

a oe

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