# Respondents Brief — Tanner v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1200%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1987 - **Citation:** 483 U.S. 107 ## Text (9 - No, 86-177 Iu the Supreme Court of the Buiter Ocroser TERM, 1986 ANTHONY R. TANNER AND WILLIAM M. CONOVER, PETITIONERS v. 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) L. 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- A 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 EE 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) 8 10 13 14 17 21 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) : vI 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 15 15 23 23 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 2 39 39 15 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 UT 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): © GD cence 35 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 v. 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). a Diyithe bse Rat, rit : 52 1. Seminole Electric Cooperative, Inc., is a Florida by several rural in central Florida. Pet. case, Bank, of the plant REA), of the , the with Tr. 64 for toa provide line would patrol at issue in this s borrowed power ( dealt 1; 2 Tr. plant called t To -mile that Pet. App. : <% ae alu ii} HE (es He nity Hail ie 3 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 - j 2 : 43 : i: ste t SE if Hie att Hehe: 35° st HATE ; $3 +t 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 6. 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-_ + ys ya Be a certain a7 the Ant, misture of Spb. oats mixture (4 Tr. 111-112; GX 2-8) Bx ellie 33288 Tatt i 0) ae ll 1 i Lisi] in if H Mies Ht HE s - z HL ih | HE HHS ne Kt Hie : au Ait alt ies HiT FF i ia hel, i i ee a ty 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 Hi 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). 10 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 11 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 12 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 nu 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 in of the often during by 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. 7 - 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. be i i 49 Stat. 115 ef seg. 1363, 7 U.S.C. 901 ef yor ty Arty cle 16 (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). eB 17 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 18 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 19 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. 21 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- 23 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 24 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. 25 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 26 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. 27 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. 28 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. 29 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, 31 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). 33 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 y. 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). 34 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). 37 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. 38 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 39 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. 40 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- 41 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 42 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). 43 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- 44 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. 45 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. 47 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- 48 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). 49 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. 2 0 © coveer sent ces' 0 ererce 1007 es 8640808 itn at —~ iad a — 3's ies 2 is 2 oe a oe --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1200%3A6. Public record. Not legal advice.