Opposition Brief — Exxon Mobil Corp. v. Baker

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ame Covit, U.S.

= rI LED

AUG 14 2000

No. 00-90

CLERK

In The

Supreme Court of the United States

EXXON MOBIL CORPORATION, et al.,

Petitioners,

GRANT BAKER et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

JAMES VANR. SPRINGER Davip W. OESTING

Dickstein SHAPIRO Morin (Counsel of Record)

& Osuinsky LLP STEPHEN M. RUMMAGE

2101 L Street N.W. Davip C. TARSHES

Washington, D.C. 20037-1526 Davis WriGHT TREMAINE LLP

(202) 785-9700 Suite 800

701 W. Eighth Avenue

tate ie Beeman, Anchorage, Alaska 99501

2200 Norwest Center (907) 257-5300

90 South 7th Street Attorneys for Respondents

Minneapolis, Minnesota

55402-3901

(612) 336-3000

BriAN B. O'NEILL

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The court of appeals unanimously affirmed the dis-

trict court’s finding, after two evidentiary hearings, that a

court security officer’s remark to a single juror about

putting another, obviously upset juror “out of her mis-

ery” — without any knowledge of her position on the

merits or any reference to the substance of the case - was

taken as nothing more than a tasteless joke that “did not

introduce extraneous information into the deliberations,”

“was not, in context, actually coercive,” and therefore

“did not influence the jury’s deliberations.” Petitioner

Exxon, however, asks this Court to set aside the jury’s

verdict because the court of appeals’ opinion did not

employ the language of “rebuttable presumption” that

this Court used in two older criminal cases (involving

extrinsic evidence of guilt and jury tampering), but

instead followed precedent consistent with more recent

decisions of this Court, which have not introduced any

presumption into the process of determining whether

such jury intrusions were prejudicial.

In these circumstances, Exxon would present the fol-

lowing question:

Was it reversible error for the courts below to deter-

mine the facts and circumstances relating to the nature

and impact of the security officer’s inappropriate remark,

unrelated to the merits, without first positing a rebuttable

presumption of prejudice?

RULE 29.6 DISCLOSURE

The parties to this case are listed at page ii of Exxon’s

petition. The two named corporate responderts, DEBRA

LEE, Inc., and Dew Drop, Inc., have no parent corpora-

tions, subsidiaries or affiliates that have issued shares to

the public.

ill

TABLE OF CONTENTS

Page

8g OB |g: 9 Sa ee eee i

PR BPE GPU AIRE 6 neko os dba vs eee dinwesnsca ta ii

RGER URES GPE EOE GAR cis eat nanheenarevacss 1

A. Pertinent Events During the Trial............ 2

B. The District Court’s 1995 Investigation of the

ES arte SRS Mp ane eens ee ear ere re 5

C. The Marshals Service Personnel Investigation

I 8s de karen sak Gio Seek ep eh deen 11

D. Exxon’s 1997 Rule 60(b) Motion for New

CR ae ON esa kk x Sed 4eR TE A RAO ae 12

REASONS FOR DENYING THE PETITION......... 14

A. The Decision Below Is Consistent with This

Court’s Decisions Concerning Jury Intrusions,

Which Focus on the “Ultimate Inquiry” into

Prejudice Rather Than Attaching Decisional

Significance to Any Presumption ............ 16

B. Exxon’s Purported Conflict among the Circuits

Is Largely Semantic and Not Pertinent to the

Outcome of This Case.......... ery ee 20

1. The Supposed Conflict Makes No Difference

Here Because, Based on the Facts Found by

the Courts Below, Every Circuit Would

Decide This Case in the Same Way ........ 21

2. Like This Court in Olano, the Circuits Have

Recognized the Practical Insignificance of

the Presumption Advocated by Exxon.... 24

EID S56 oop ek vas an a eek ane SSR ey mm te 30

TABLE OF AUTHORITIES

FEDERAL CASES

Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1995) ............ 23

Evans v. Young, 854 F.2d 1081 (7th Cir. 1988)..... 22, 26

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)-..15, 21

Graver Manufacturing Co. v. Linde Co., 336 U.S. 271

hi: ee ree rrr y rr eer err rere se 15, 21

Johnson v. Armontrout, 961 F.2d 748 (8th Cir. 1992) .... 26

Mattox v. United States, 146 U.S. 140 (1892)....... 17, 18

Mayhue v. St. Francis Hospital of Wichita, Inc., 969 |

Pee Fae Ce Ge RO a oo oe Ree eR es 28

Owen v. Duckworth, 727 F.2d 643 (7th Cir. 1984) ..... 28

Parker v. Gladden, 385 U.S. 363 (1966) ............... 19

Port Terminal & Warehousing Co. v. John S. James

Co., CRS Fite Eee TAU Ca BOG Finck ce eree sn 22

Remmer v. United States, 347 U.S. 227 (1954)..... passim

Remmer v. United States, 350 U.S. 377 (1956)...... 18, 19

Rinker v. County of Napa, 724 F.2d 1352 (9th Cir.

SOD 5x55 ccs he Cou Le ea dase ea ea 28

Rushen v. Spain, 464 U.S. 114 (1983).............. a0; a7

Schaff v. Snyder, 190 F.3d 513 (7th Cir. 1999)......... 25

Smith v. Phillips, 455 U.S. 209 (1982) ......... 17, 20, 29

Stephens v. South Atlantic Canners, 848 F.2d 484

Lge 2 Pre er ee rere reg rer er errr ere 28

United States v. Aguirre, 108 F.3d 1284 (10th Cir.

DSc et es ees eee ee 25

A te pe

TABLE OF AUTHORITIES - Continued

United States v. Albert, 595 F.2d 283 (5th Cir. 1979) ....

United States v. Angiulo, 897 F.2d 1169 (1st Cir.

| REE REET Cr ree Teer Cen eE ftp

WO ci eee ee

United States v. Armstrong, 909 F.2d 1238 (9th Cir.

oe OTE PE SET TTT Tee ee reer e Te er re ee

SOON. hiss ade ee ee

United States v. Boylan, 898 F.2d 230 (1st Cir. 1990)..

United States v. Bufalino, 576 F.2d 446 (2d Cir. 1978) .

United States v. Butler, 822 F.2d 1191 (D.C. Cir.

2 ae eB An Pata nin Mn WA oR REF ete SSRs

SOO 5s 0050544 FLAN eee

United States v. Cheek, 94 F.3d 136 (4th Cir. 1996) ...

United States v. Day, 830 F.2d 1099 (10th Cir. 1987)...

United States v. De la Vega, 913 F.2d 861 (11th Cir.

i EEE TEETER ON Eee Tee ee re eee ee

United States v. DiSalvo, 34 F.3d 1204 (3d Cir. 1994) ...

United States v. Doherty, 867 F.2d 47 (1st Cir. 1989) ...

United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999) ..

United States v. Estrada, 45 F.3d 1215 (8th Cir. 1995) ....

United States v. Gilsenan, 949 F.2d 90 (3d Cir. 1991) ....

United States v. Gomes, 177 F.3d 76 (1st Cir. 1999)....

Page |

TABLE OF AUTHORITIES - Continued

Page

United States v. Hornung, 848 F.2d 1040 (10th Cir.

DUD kv cdivnyvdeuediasibeths ieee 25

United States v. Ianniello, 866 F.2d 540 (2d Cir.

i Pree yr ary rete one fhe I aa oe 19

United States v. Littlefield, 752 F.2d 1429 (9th Cir.

ROG) a. a 5cne vanes ¥aeee eee eee 28

United States v. Maree, 934 F.2d 196 (9th Cir. 1991) ..26, 28

United States v. Martinez, 14 F.3d 543 (11th Cir.

SONG ick vccaekehswescensd 24000004 eee 28

United States v. Norton, 700 F.2d 1072 (6th Cir.

SOS vivian dink et ceaeeden casserole 22

United States v. O’Brien, 972 F.2d 12 (1st Cir. 1992) .... 25

United States v. Olano, 507 U.S. 725

3: rtp er et fer yee 16, 17, 19, 20, 21, 24

United States v. Pecora, 693 F.2d 421 (5th Cir. 1982) .... 23

United States v. Pennell, 737 F.2d 521 (6th Cir.

| Pr rrr Meer ry er Ch 23, 29

United States v. Pessefall, 27 F.3d 511 (11th Cir.

FIRE) hs 4 hain carne cee see eek apes eee rer

United States v. Sanders, 962 F.2d 660 (7th Cir. 1992) .... 25

United States v. Scisum, 32 F.3d 1470 (10th Cir.

i ee ee reer err tee yurpnn 28

United States v. Sylvester, 143 F.3d 923 (5th Cir.

| ee re Ren Tere er er ee ees. oa 27

United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998) .... 24

United States v. Weiss, 752 F.2d 777 (2d Cir. 1985) .... 25

United States v. Wiley, 846 F.2d 150 (2d Cir. 1988) .... 25

1 AFIT ED Reon eT ER REC sap,

LOR pK:

TABLE OF AUTHORITIES - Continued

Page

United States v. Williams-Davis, 90 F.3d 490 (D.C.

Rte CRP Sera RACERS Chee he axa youre kaa ak tens 24

Waldorf v. Shuta, 3 F.3d 705 (3rd Cir. 1993)....... 26, 28

STATE CASES

DeRonde v. State, 715 P.2d 84 (Okla. Ct. App. 1986) .... 23

RULES

POR The Ce EE oka hb kk AS EES eh 23

ee rT rer ree atom 26, 27

PE is. Sees ee IS ds Uwe oak ou baud Dae 12

STATEMENT OF THE CASE

Affirming the district court, the court of appeals

characterized the comment that is the sole subject of the

petition as nothing other than “a strikingly tasteless joke”

in reaction to a juror’s “conspicuous emotionality, depar-

ture from the jury room, and crying,” a joke that did not

“involve any communication bearing on the substantive

matters before the jury.” Pet. App. 8a. The court of

appeals thus endorsed the trial court’s finding that Exxon

had not been prejudiced:

[A]fter careful review of the extensive evidenti-

ary record and scrutiny of the district court's

findings, we conclude that the district court cor-

rectly categorized the bailiff’s conduct and

words as an inappropriate ex parte contact with

a juror that did not introduce extraneous infor-

mation into the deliberations and was not, in

context, actually coercive.

Pet. App. 1la. Exxon’s Statement of the Case, however,

argues the facts de novo, as if the two lower courts had

not examined the extensive hearing record in making and

affirming detailed findings of fact. Moreover, much of

Exxon’s Statement is devoted to overblown contentions

and editorializations that are both peripheral to the “bul-

let remark” and, in any event, irrelevant here because

they were rejected by findings of fact that Exxon does not

now challenge.

Unlike Exxon’s, this Statement of the Case will pre-

sent the pertinent facts in a manner consistent with the

findings of the two courts below. With respect to Exxon’s

assertions about matters other than the “bullet remark,”

this Statement will rely principally on the court of

appeals’ opinion (Pet. App. la-23a) and the district

court’s two opinions (Order 308, attached as Supp. App.

1-25, and Amended Order 339, Pet. App. 46a-67a).! This

Statement will, however, review the record relating to

Juror Wilson’s emotional condition and the trial court’s

careful efforts to deal sensitively with it, not because it is

material here but because it is appropriate to answer

Exxon’s distorted effort to create the impression — at odds

with the factual findings of the courts below - that there

was some kind of general conspiracy to coerce Juror

Wilson and thereby perpetrate a miscarriage of justice

against Exxon. On the facts found by the two courts

below, the result of this case would have been the same in

any circuit.

A. Pertinent Events During the Trial

Trial began on May 2, 1994, and concluded on Sep-

tember 16, 1994, when the jury returned its punitive

damages verdict against Exxon. During the three phases

of trial, several court security officers (CSOs) rotated as

bailiffs for the jury. SER 212:21, 279:17-280:9, 382:18,

1 Order 308, which followed the first hearing on Exxon’s

various complaints about the jury, was omitted from the

appendix to the petition. The petition does, however,

inexplicably reproduce both Order 339, which followed the

second hearing, and Amended Order 339, which corrected

certain typographical errors in the original Order 339.

(Amended Order 339 includes a footnote explaining the

corrections, but Exxon has omitted that note from its appendix.)

This Opposition refers to the Amended Order as “Order 339.”

I NE TIONS CAMO TIS 2m

383:10-12;? ER 266-267, 310. Exxon focuses on one CSO,

Don Warrick. Although a new CSO, the court of appeals

observed that “[h]e was experienced and much deco-

rated, as a police officer and before that in the military.”

Pet. App. 4a. As the courts below noted, Warrick did have

some questionable social contacts with jurors at a picnic

and on other occasions during the trial, but those contacts

were determined to be benign in findings that Exxon no

longer challenges. See Pet. App. 7a, 44a. The court of

appeals put the CSO’s juror contacts in perspective:

Long trials are especially vulnerable to ex parte

contacts, because people around the courthouse

get to know the jurors, and it becomes much

harder for jurors and others to preserve an arti-

ficial social isolation as days stretch into weeks.

Pet. App. 10a.

At about noon on Friday, September 2, 1994, the

fourth full day of the jury’s punitive damage delibera-

tions, Jurors Rita Wilson and Linda Hood came out of the

jury room into the adjoining anteroom. SER 265-268. Ms.

Wilson was sobbing. Supp. App. 10. CSO Warrick, who

was on duty, SER 265-268, summoned the court clerk,

who contacted the judge. SER 276. Ms. Hood remained

with Ms. Wilson throughout this time. SER 77, 179-181. To

2 “SER” refers to the Supplemental Excerpts of Record filed

by plaintiffs in the court below. (The remaining abbreviations in

this brief will follow the conventions adopted by Exxon in its

petition. See Pet. 4 n.1.) The complete transcript of the interview

of Juror Wilson appears only in the Supplemental Excerpts of

Record, SER 1-288, since Exxon included only fragments in its

excerpts of record below.

the extent Warrick spoke to Ms. Wilson, he was “consol-

ing” and “relaxed her.” SER 197:9-16, 240-241; see SER

251-252. On being alerted to the situation, the trial judge

approached Ms. Hood and Ms. Wilson, instructed them

not to tell him anything about the deliberations, and had

“diffuse conversation with both of them about what the

problem was, and frankly learned little or nothing about

what the problem was.” ER 408. See also ER 410 (“some

family difficulty with a child”). The judge promptly con-

sulted with counsel and thereafter excused the jury for

the Labor Day weekend. Supp. App. 10; ER 168, 386, 409.

The jury returned on Tuesday, September 6, 1994. ER

408. As Juror Doug Graham arrived at the courthouse

that morning, CSO Warrick motioned to him. ER 302; SER

141. Referring to Juror Wilson, Warrick pulled a bullet out

of his pocket (SER 320-324) or his revolver (ER 276), and

wisecracked that maybe Ms. Wilson should be put out of

her misery. Pet. App. 4a. Both Warrick and Graham

understood that Warrick was making a joke. Pet. App.

54a; ER 303-304; SER 320, 321, 324, 345-348. The fact that

Warrick made such a remark “really shook . . . up”

Graham, SER 142, but he did not take the substance of the

remark seriously. Pet. App. 4a; ER 276-277. Graham did

not tell any other juror (with the possible exception of the

foreman, who did not believe he was told) or the court

about the brief conversation.*

A few minutes later, after all the jurors had arrived,

the district court gave the jury Supplemental Instruction A, a

> Although Exxon suggests that other jurors became aware

of the conversation, Pet. 6-7, the district court found to the

contrary. Pet. App. 54a.

EEE RE he oe

variation on an Exxon-proposed instruction designed

to address whatever situation might have precipitated

Ms. Wilson’s sobbing on the previous Friday. Supp. App.

10; SER 289-290; ER 408-409. This instruction directed the

jurors to be courteous to one another and to listen care-

fully to and consider each other’s views, but not to sur-

render honest convictions for the mere purpose of

returning a verdict. Id. Several hours later, the jury sent

out a note stating:

After reviewing the Supplemental Jury Instruc-

tion No. A, the Jurors have consulted with each

other and we have reached a[n] impasse.

Supp. App. 11; ER 78. The note did not suggest that

further deliberations would be futile, but went on (ir a

passage that Exxon fails to mention when describing this

event, Pet. 7) to “request further instructions from the

Court at this point.” Id.

The next morning, after consulting with counsel, the

trial judge determined that an additional “very soft

instruction” was appropriate. Supp. App. 12; ER 410. He

shared with counsel his view “that the jury is into some

tough duty, some tough time as far as what they are

doing.” The judge continued:

At this time I decline to treat that note as a real

statement that we are at impasse, and I choose

to focus on the second sentence of the note,

which really says, give us some help.

Id. Supplemental Instruction B thus advised the jury that

“(given the complexity and duration of this case, as well

as the divergence of positions between the parties, it is

not surprising that individual jurors might, at this stage

of your deliberations as to Phase III [the punitive dam-

ages phase], have divergent views about the case.” Supp.

App. 11; SER 291-292; ER 410-411. It encouraged the jury

to use the “techniques which have served you well previ-

ously” in reaching verdicts in earlier phases of the trial,

to review the instructions and the evidence, and to “be as

leisurely in your deliberation as the occasion may

require.” Id.

The jury proceeded with its sixth full day of punitive

damages deliberations. While the jury was deliberating,

Juror Wilson’s husband visited the trial judge to express

concerns about her emotional health. ER 171; SER

255:5-256:13, 309. Mr. Wilson said nothing to suggest

there had been any inappropriate communications from

court personnel or anyone else. SER 233-242, 251-252.

At the close of that day’s deliberations, the jury sent

another note:

We have reviewed your supplemental Jury

instructions [A and B] from Tuesday, September

6th and Wednesday, September 7th. We have

also reviewed the Jury instructions from Phase I,

III. We have one Juror that we feel is emo-

tionally unable to deliberate within the Jury

instructions the court has provided. We have

reached a crucial stage in our deliberation that

has left us concerned about her emotional and

physical health.

Supp. App. 13; ER 79; SER 218-219. The court again

consulted with counsel. It was agreed that the next morn-

ing, the court, “with only the absolute minimum number

of counsel present,” would meet informally with the juror

at issue to determine “whether she is having some con-

tinuing health problem that is interfering with jury delib-

erations.” SER 306.4

At the meeting, the judge read Ms. Wilson the note

expressing concern about her health, told her that her

husband had paid a visit to express the same concern,

and advised her that she should not disclose the sub-

stance of the deliberations or how the jury stood numer-

ically on any issue. Supp. App. 14 & n.13; SER 308-309. In

the ensuing dialogue, Ms. Wilson acknowledged being

“stressed out” but expressed her personal desire to con-

tinue deliberating. She asserted that “I feel really strong

and I have to be there, I feel like I make a difference.”

Supp. App. 14-15; SER 309-10. The court then announced

that it was “satisfied” that Ms. Wilson could continue

deliberating, and Exxon’s counsel agreed on the record.

SER 310. After Ms. Wilson left, the court expressed its

view “that the only problem is that there is some tough

debating going on in there, and I don’t see any cause for

our doing anything other than let the deliberations take

their course, whatever that may be at this point.” Supp.

App. 15; SER 311.

4 The foreman had identified Ms. Wilson as the juror about

whom the jury had expressed concern. SER 308. (Exxon’s

assertion that the foreman identified Ms. Wilson as “the hold-

out juror,” Pet. 7, misstates the record; he identified her only as

the juror who was the subject of the note. Supp. App. 16 n.14;

SER 306-308.) At this time, Exxon asked the court “to consider”

interviewing all of the jurors. Contrary to Exxon’s statement

that the court “rejected” a “request” to interview other jurors,

Pet. 7, the court held that request in abeyance. SER 306-307.

Exxon never renewed the request after the meeting with Ms.

Wilson. See SER 311-314.

Ms. Wilson rejoined deliberations. Almost exactly an

hour later, however, she sent a note to the court, the full

text of which stated “I need to speak with you.” Supp.

App. 17; ER 80. The trial judge met Ms. Wilson at the jury

room door, where she “in substance ask{ed] to be

excused.” Supp. App. 17 n.15; SER 257:1-8; ER 175. Hav-

ing just been told by Ms. Wilson in the presence of

counsel that she felt capable of deliberating, the judge

told her that he “could do nothing further at this time

beyond telling her to follow the court’s instructions.”

Supp. App. 17; ER 80, 175; SER 257:6-7. He reported to

counsel on the substance of his encounter. ER 80. Exxon

requested no further action.

The jury continued deliberating for the remainder of

that week and all of the following week. Neither Ms.

Wilson nor her husband attempted to communicate with

the court, and there was no indication of problems in the

jury room. Indeed, the jury sent out several notes during

this period, all of which were unexceptional and showed

that the jury was going about its business. Supp. App. 21

(facts “indicative of a jury working carefully and deliber-

ately”); SER 294-296. On Friday September 16, 1994, the

thirteenth full day of deliberations and nine deliberation

days after the exchange between CSO Warrick and Juror

Graham that is the sole subject of Exxon’s petition, the

jury returned its punitive damages verdict against Exxon.

ER 81; SER 315-318. The jury was polled in open court

and each juror, including Ms. Wilson, affirmed that he or

she agreed with the verdict. Id.

oF TATRA ne sects 2

B. The District Court’s 1995 Investigation of the Jury

On January 22, 1995, the Anchorage Daily News pub-

lished an article about the jury’s deliberations. ER 87.

Relying upon the article, Exxon sought to question the

jurors or have the court hold an evidentiary hearing to

determine if the jury had been exposed to improper con-

tacts or excluded evidence in a number of respects. ER 83.

On June 13 and 14, 1995, with counsel present, the

court interviewed ten of the eleven jurors, Mr. Wilson,

CSO Warrick and the courtroom clerk.5 SER 1. The court

asked each juror open-ended questions about whether the

juror had received information regarding excluded evi-

dence and whether there had been any attempts to inter-

fere with the jury or inappropriate contacts from court

personnel or other third persons. Id. Counsel were per-

mitted to ask follow-up questions. Id. Juror Graham then

described, for the first time, his September 6 conversation

with CSO Warrick. SER 141-144. Warrick denied the con-

versation. SER 268-271. Mr. Wilson’s testimony men-

tioned no threats, inappropriate communications or

misconduct by CSO Warrick or anyone else. To the con-

trary, Mr. Wilson testified that the CSOs sometimes “were

> During trial, one juror was excused for health reasons,

leaving eleven. ER 386. The parties had stipulated that if jurors

were excused, a unanimous verdict from the remaining jurors

would be accepted, provided at least six remained. ER 10. The

court decided to interview Mr. Wilson instead of Ms. Wilson

because the “court has reason to believe that Mrs. Wilson’s

health may have been adversely affected by her jury duty. The

court will not expose Mrs. Wilson to additional stress unless a

more robust showing of need to do so is made.” ER 118. See also

ER 337.

trying to calm [Ms. Wilson] down or comfort her in some

way with words or sometimes hugs or whatever it took to

get her calmed down.” SER 240:15-24. In response to

questioning from Exxon’s counsel, Mr. Wilson affirmed

that his wife never mentioned anything about communi-

cations from court personnel concerning jury delibera-

tions. SER 251:2-252:9.

On September 6, 1995, nearly a year after the verdict,

Exxon filed a motion for new trial based on information

gleaned from the juror interviews. ER 136. Exxon’s

motion rested in part on the Warrick-Graham conversa-

tion and the district court’s supplemental instructions

and contacts with Ms. Wilson. ER 159-160. The court

denied Exxon’s motion in Order 308. See Supp. App. 1-25.

In so doing, the district court characterized much of

Exxon’s factual argument concerning Ms. Wilson (some

of which it repeats in its petition) as “melodrama” and

“an extraordinary and exaggerated account of the

events.” Supp. App. 19. With respect to the bullet conver-

sation, the court stated that it was “not convinced that the

incident ever occurred,” Supp. App. 22, but went on to

find that “[a]ssuming arguendo that it did occur, the inci-

dent does not warrant a new trial,” detailing its reasons

for finding the comment to have been harmless under the

circumstances. Supp. App. 22-24.

Judgment was entered, and Exxon appealed. ER 184,

187, 189. Exxon sought review of only_one part of Order

308, i.e., the rejection of its contention that the jury had

been exposed to certain excluded evidence. ER 160-162.

C. The Marshals Service Personnel Investigation of

CSO Warrick.

The June 16, 1995 Anchorage Daily News reported on

the district court’s jury interviews. After the district’s

marshal learned of the allegations concerning CSO War-

rick, he contacted the U.S. Attorney’s office in Anchorage,

the Marshals Service Internal Affairs Division and the

Office of Inspector General, all of which declined to pur-

sue the matter but gave permission for a local investiga-

tion.-SER 319-320, 326-327, 332-334. The marshal met with

the trial judge and advised him that while “there wasn’t

anything criminal there, I still felt the CSO had violated

some of our internal policies and that we were going to

do our own personnel investigation on it.” SER 327. He

determined that, if the personnel investigation revealed a

serious problem, he would brief the court on the results.

SER 329-330.

A deputy marshal reviewed the jury interview tran-

scripts and interviewed Juror Graham, the jury foreman

and two other jurors, as well as CSO Warrick. In addition,

both Graham and Warrick were given polygraph exam-

inations. Graham passed his examination, while War-

rick’s exams were inconclusive. SER 320, 338, 349-351.

When questioned further, Warrick admitted to the “bul-

let” conversation with Graham, stating that he had been

joking and that he had never threatened or tried to intim-

idate anyone on the jury. ER 301-304. Both the marshal

and the polygraph ex-.niner believed this explanation.

SER 320, 345, 347-348. Nonetheless, the marshal told War-

rick that because he had previously lied about the inci-

dent, he must either resign or be fired. Pet. App. 5a; SER

320, 338-340. Warrick resigned. Id.

In summarizing his investigation, the marshal con-

cluded:

Nothing in the investigation indicated that there

was any cause to believe that harm was done to

anyone involved in the Exxon Valdez trial, and

the matter was closed following Don Warrick’s

resignation.

SER 320. Because the marshal concluded that Warrick’s

conduct had no impact on the trial, he did not report the

results of his investigation to the court. SER 329:23-330:3,

342:2-5. Four months after resigning, Warrick died of a

heart attack. ER 217.

D. Exxon’s 1997 Rule 60(b) Motion for New Trial.

On September 23, 1997, the 364th day after entry of

judgment (and more than three years after the verdict),

Exxon moved for a new trial pursuant to Federal Rule of

Civil Procedure 60(b)(2) on the ground of newly discov-

ered evidence, i.e., the marshal’s determination that the

Warrick-Graham conversation had in fact occurred. ER

192-194. The district court indicated its willingness to

accept, and the Ninth Circuit granted, a remand “for the

limited purpose of considering Exxon’s Rule 60(b) motion

(and related request for discovery).” ER 254B.

Exxon then took depositions of the marshal, the

investigating deputy and the polygraph examiner, all of

whom discussed the personnel investigation in detail.

SER 325-379. Exxon also deposed Ms. Wilson in the pres-

ence of the court, her husband, and her therapist. Her

testimony is discussed in detail in the court of appeals’

opinion (Pet. App. 12a-23a), which concluded that “she

described events so unlikely, with a demeanor so

extreme, that a finder of fact could reasonably conclude

[as the trial court did] that she suffered [at the time of her

testimony] from a condition that would distort her per-

ceptions or recollections.” Pet. App. 20a. As to the War-

rick-Graham incident, Ms. Wilson asserted at some points

that she knew about Warrick showing a gun to Graham,

claiming Graham had told her in the presence of the jury

that he could get a gun from Warrick and put her out of

her misery, and that the other jurors discussed Graham's

statement. SER 384:20-385:22, 404:15-405:21, 419:21-421:5.

When pressed about her allegation that Graham and the

other jurors discussed the bullet incident, however, she

twice retreated and answered directly that she did not

know about the incident. SER 406:6-10 (“I didn’t know

that”), 420:23-42:5 (“I didn’t know anything about Don

showing bullets to Doug”).

The district court’s Order 339 denied Exxon’s motion.

Based upon his observations of the jurors over their

months of service, his interviews of all the jurors after the

verdict, and his review of the marshal’s investigation, the

trial judge concluded “that Graham treated this encoun-

ter as a bad joke.” Pet. App. 54a.

[T]he court finds that the incident did not

adversely affect Graham’s deliberations or

coerce any other juror. The court specifically

finds that Juror Graham was not coerced by the

incident and that, with the possible exception of

the jury foreman, the others did not learn ot the

incident during the time they deliberated.

Id. Accordingly, the court concluded that the incident

between Graham and Warrick “was reprehensible but

harmless” and that it “did not coerce a verdict.” Pet. App.

54a-55a. In evaluating Ms. Wilson’s testimony, the district

court described in detail her appearance and behavior,

Pet. App. 57a-60a, and then found that “her present mem-

ories do not reflect what really happened.” Pet. App. 64a.

The court specifically found that Ms. Wilson did not

know about Warrick’s remark during trial. Pet. App. 63a.°

As previously noted, a unanimous panel of the court of

appeals affirmed.

REASONS FOR DENYING THE PETITION

Exxon’s petition presents no issue requiring this

Court’s consideration. The decision below is consistent

with this Court’s most recent decisions concerning

improper contacts with jurors, and Exxon’s purported

6 The court noted that Ms. Wilson’s testimony to the

contrary was “absolutely inconsistent” not only with the

testimony of Graham, but also with that of all of the other jurors.

Pet. App. 6la. The court concluded that Ms. Wilson likely

learned of the Warrick-Graham exchange as a result of publicity

after the trial was over. Pet. App. 63a; see also Pet. App. 13a. This

is consistent with the facts that the local newspaper reported the

incident both immediately after the 1995 interviews and at the

time of Exxon’s 1997 motion for new trial, and that Mr. Wilson

kept a clippings file about the case and discussed the clippings

with Ms. Wilson. SER 231:2-10, 411:7-412:3, 414:4-415:18.

conflict among the circuits regarding rebuttable nresimn- -

tions involves, at most, variations in the words chosen to

explain substantively similar reviews of the facts of par-

ticular situations.

Here, the district court took measured steps to con-

firm Ms. Wilson’s ability to participate fully in the delib-

erations, to deal with the problems presented by her

various upsets, and to assure that the verdict reflected

full and fair deliberation and the free assent of all jurors.

When Exxon filed its several challenges to the jury over a

period of three years, the district court conducted two

extensive hearings, in which every witness with potential

knowledge of the events was examined under oath. Even

Exxon does not fault the trial court’s conduct of these

inquiries or the adequacy of the record to assess the

presence or absence of prejudice. Based on these hear-

ings, the trial court twice made detailed findings, deter-

mining that the CSO’s “bullet remark” — which is the sole

subject of Exxon’s petition - had no impact on any juror

and was harmless. The court of appeals carefully

reviewed the trial court’s findings and the record, and it

affirmed.

On the facts found by the courts below, the outcome

of this case would have been no different in any other

circuit. In substance, then, Exxon is asking this Court to

set aside the concurrent findings of no prejudice made by

the two courts below, a task that the Court consistently

and properly refuses to undertake. See Graver Manufactur-

ing Co. v. Linde Co., 336 U.S. 271, 275 (1949) (Court “can-

not undertake to review concurrent findings of fact by

two courts below in the absence of a very obvious and

exceptional show of error”); Goodman v. Lukens Steel Co.,

482 U.S. 656, 665 (1987). In view of this Court’s most

recent and comprehensive reiteration of the governing

principles, and given the absence of any outcome-deter-

minative conflict among the circuits, there is no reason

for the Court to revisit the subject of jury intrusions in

this case.

A. The Decision Below Is Consistent with This Court’s

Decisions Concerning Jury Intrusions, Which Focus

on the “Ultimate Inquiry” into Prejudice Rather

Than Attaching Decisional Significance to Any Pre-

sumption.

This Court’s decisions on jury contacts have not

turned on the application of any presumption of preju-

dice. Instead, the Court has focused on the need for a

thorough inquiry - such as that conducted here — when-

ever the integrity of a jury verdict has been threatened by

external influences. Once that inquiry has occurred, the

facts determine the outcome of the case, without refer-

ence to any presumption.

In the most recent of its jury intrusion decisions, this

Court declined to attach any significance to the presence

or absence of a presumption of prejudice in a federal

criminal case involving improper presence of alternate

jurors in the jury room after they should have been

discharged. As the Court explained, “a presumption of

prejudice as opposed to a specific analysis does not

change the ultimate inquiry: Did the intrusion affect the

jury’s deliberations and thereby its verdict?” United States

v. Olano, 507 U.S. 725, 739 (1993). In holding that the

intrusion there was not prejudicial, the Court summa-

rized the principles of what it called “ ‘intrusion’ juris-

prudence” as follows:

We generally have analyzed outside intrusions

upon the jury for prejudicial impact... . A

prime example is Remmer v. United States, 347

U.S. 227 (1954), where . . . [the Court] remanded

for the District Court to ‘determine the circum-

stances, the impact thereof upon the juror, and

whether or not it was prejudicial, in a hearing

with all interested parties permitted to partici-

pate.” Id., at 229-230.

This “intrusion” jurisprudence was summa-

rized in Smith v. Phillips, 455 U.S. 209 (1982):

“[D]ue process does not require a new trial

every time a juror has been placed in a

potentially compromising situation. Were

that the rule, few trials would be constitu-

tionally acceptable . . . . [I]t is virtually

impossible to shield jurors from every con-

tact or influence that might theoretically

affect their vote. Due process means a jury

capable and willing to decide the case solely

on the evidence before it, and a trial judge

ever watchful to prevent prejudicial occur-

rences and to determine the effect of such

occurrences when they happen.” Id., at 217.

Olano, 507 U.S. at 738.

The body of “intrusion jurisprudence” described in

Olano began with Mattox v. United States, 146 U.S. 140

(1892), where the intrusion was of the most egregious

sort. In Mattox, someone had read aloud to the jurors a

newspaper article that praised the prosecution, described

the defendant's prior trial for murder, and assessed the

strength of the evidence. 146 U.S. at 150-51. Further, the

bailiff told the jurors “that this was the third person

Clyde Mattox had killed.” 146 U.S. at 151. On these facts,

the Court required no further inquiry to assess the nature

and impact of the intrusion. Instead, the Court in effect

found prejudice inherent in the nature of the extraneous

contacts, based solely on post-judgment affidavits sub-

mitted by the defendant. Mattox thus laid down no rules

for hearings to examine external influences, since it

ordered no hearing at all.

The need for a hearing, on the other hand, lay at the

core of the Court’s decisions in Remmer v. United States,

347 U.S. 227 (1954) (Remmer I), and Remmer v. United

States, 350 U.S. 377 (1956) (Remmer II). In Remmer I, the

Court remanded to the district court for a hearing to

explore the circumstances and impact of an apparent

attempt at jury tampering, which had been followed by

an FBI investigation involving one of the jurors. In order-

ing a hearing on the allegation of prejudice, the Court

observed that the contacts were “presumptively prejudi-

cial” — the language upon which Exxon relies so heavily

in its petition. As the Court explained in Remmer II,

however, the remedy for such an allegation was a hear-

ing, so the presumption could be replaced with the facts:

It was the paucity of information relating to the

entire situation coupled with the presumption

which attaches to the kind of facts alleged by

petitioner which, in our view, made manifest the

need for a full hearing.

350 U.S. at 379-80. On remand, the lower court held an

unduly limited hearing, confining its inquiry to the

nature of the FBI investigation. Accordingly, in Remmer II

this Court itself conducted the ultimate inquiry into the

impact of the intrusion on the jury’s deliberations. With-

out purporting to apply any presumption, the Court

determined that the record made it “quite evident” that

the juror had been influenced, characterizing him as “dis-

turbed and troubled” by the events. 350 U.S. at 381. Thus,

the two Remmer decisions held only that prejudice in the

case of jury tampering will be presumed unless and until

the trial court determines otherwise after a full investiga-

tion of the pertinent circumstances. Exxon in effect con-

cedes that such an investigation occurred in this case.”

Between Remmer II and Olano, the Court decided

three other cases involving extraneous influences on

jurors, without once applying any presumption of preju-

dice as part of its analysis. In Parker v. Gladden, 385 U.S.

363 (1966), the trial court had conducted a hearing after

which it found prejudice based on a bailiff’s comments

that the defendant was a “wicked fellow” and that any

error im convicting him could be corrected by the

* Since Remmer, the courts of appeals have considered

dozens of cases involving post-trial hearings into potential jury

intrusions Or juror misconduct. Because of the “kaleidoscopic

variety of possible problems,” the lower courts uniformly

recognize the need to give district judges flexibility in

addressing and resolving jury intrusion issues. See, e.g., United

States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990), and cases cited

therein. In general, to avoid subjecting jurors “to undue

impositions,” id., the trial court in a “Remmer hearing” should

confine its inquiry “to only what is absolutely necessary to

determine the facts with precision.” United States v. lanniello, 866

F.2d 540, 544 (2d Cir. 1989). As explained in the Statement, the

district court here went the extra mile to determine what

happened.

Supreme Court. This Court reinstated the trial court’s

grant of a new trial, reversing the Oregon Supreme Court,

without mentioning any presumption of prejudice. In

Smith v. Phillips, 455 U.S. 209 (1982), and Rushen v. Spain,

464 U.S. 114 (1983), this Court considered the results of

lower court hearings (conducted as required by Remmer 1)

and determined that new trials would not be required.

Neither case referred to any presumption of prejudice.

Indeed, Smith v. Phillips clearly suggested the absence of a

presumption, stating that “[t]his Court has long held that

the remedy for allegations of juror partiality is a hearing

in which the defendant has the opportunity to prove

actual bias.” 455 U.S. at 215 (citing Remmer I).

Thus, Olano is consistent with its predecessors in

holding that “intrusion jurisprudence” has little to do

with presumptions and far more to do with the right to a

hearing in which “the ultimate inquiry” is to determine,

as a factual matter, whether a jury’s deliberations have

been prejudiced. The approach of the courts below in this

case fully satisfied that right.

B. Exxon’s Purported Conflict among the Circuits Is

Largely Semantic and Not Pertinent to the Outcome

of This Case.

Contrary to the premise of Exxon’s petition, every

circuit would have reached the same conclusion after

finding, as did the two courts below, that CSO Warrick’s

comment did not affect any juror’s deliberations.

Although different courts may use different language in

approaching jury intrusion issues, all courts (like the

courts below) engage in a fact-intensive analysis

designed to answer the “ultimate inquiry” set forth by

this Court in Olano: “Did the intrusion affect the jury’s

deliberations and thereby its verdict?” Olano, 507 U.S. at

739. Given the determination of the lower courts on that

“ultimate inquiry” here, the presumption that Exxon

advocates (and that it claims would have applied in some

circuits) would have no effect on the disposition of this

case. The supposed conflict is largely illusory, academic

at best, and does not require this Court’s attention.

1. The Supposed Conflict Makes No Difference

Here Because, Based on the Facts Found by the

Courts Below, Every Circuit Would Decide This

Case in the Same Way.

Like the courts below in this case, all circuits follow

Remmer’s admonition that a hearing generally is required

to investigate the circumstances and impact of an

improper jury contact. Even where a court formally

begins with a presumption of prejudice, the point of the

hearing is to replace the bare presumption with the facts

necessary to make the decisive determination whether, as

a factual matter, a particular intrusion has had an impact

on the jury’s deliberative process.

Here, the facts have been found by two lower courts

and are no longer subject to debate in this Court. See

Goodman, 482 U.S. at 665; Graver Manufacturing, 336 U.S.

at 275. Thus, it must be taken as given that Warrick’s

bullet remark was both made and understood as “a taste-

less joke,” that it “did not adversely affect Graham’s

deliberations or coerce any other juror,” that no other

jurors, with the possible exception of the foreman, even

learned of the incident, and that the remark “did not

influence the jury’s deliberations.”® Pet. App. 4a, 5a, 9a,

54a; Supp. App. 24 n.18. On these facts, there can be no

serious contention that the decision in this case conflicts

with any decision of any other court of appeals. Indeed,

courts (including those that recognize a presumption of

prejudice) have frequently denied motions for a new trial

when comments have been made to or by jurors in jest,

even when those comments have improperly suggested

the result the jury should reach or that the jury should

return a verdict quickly - neither of which happened

here.? Exxon has cited no case where any court of appeals

’ In rearguing these findings, Exxon relies (as it did below)

on the suggestion that Warrick’s comment contained an

improper implicit message that he was “not on Mrs. Wilson’s

‘side’ in the jury’s deliberations.” Pet. 28. The district court

specifically rejected Exxon’s interpretation of events, noting

that “neither the CSO, nor anyone else knew the opinion” of Ms.

Wilson. Supp. App. 23. Further, the testimony negates Exxon’s

suggestion. When Exxon’s counsel tried to lead Mr. Graham into

saying that Warrick was “disapproving” of Mrs. Wilson,

Graham responded: “Well, I really wouldn't say that. I really

wouldn’t say that.” SER 144:1-6.

* Such cases from circuits that, according to Exxon,

consistently apply a presumption of prejudice include Port

Terminal & Warehousing Co. v. John S. James Co., 695 F.2d 1328,

1340-41 (11th Cir. 1983) (purported bribe offer), United States v.

Caporale, 806 F.2d 1487, 1502 (11th Cir. 1986) (juror told jury he

received regular “reports” on case from “Mafia” friends), and

Evans v. Young, 854 F.2d 1081, 1082-84 (7th Cir. 1988) (“Hang

him”). Cases from other circuits involving misguided jokes

include United States v. DiSalvo, 34 F.3d 1204, 1225-26 (3d Cir.

1994) (juror joked that defendant “will put his men on you”),

United States v. Armstrong, 909 F.2d 1238, 1240, 1244 (9th Cir.

1990) (“He’s guilty”), United States v. Norton, 700 F.2d 1072, 1076

has ordered a new trial despite finding that an intrusion

had no impact on the jury’s deliberations.

Whether one regards the presumption advocated by

Exxon as merely operating “[iJn the absence of evidence

to the contrary,” United States v. Pennell, 737 F.2d 521, 539

(6th Cir. 1984) (Celebrezze, J., dissenting), so as to affect

only the burden of going forward with the evidence, see,

e.g., Fed. R. Evid. 301 (presumptions in civil cases affect

only the burden of going forward), or the burden of

persuasion, see, e.g., United States v. Cheek, 94 F.3d 136, 141

(4th Cir. 1996),1° any presumption would have been dis-

pelled by the evidentiary inquiry and subsequent factual

findings of the two courts below. The outcome of this case

thus would not be affected by refinement of the circum-

stances, if any, under which a presumption of prejudice

might apply prior to the entry of factual findings on a full

evidentiary record.

(6th Cir. 1983) (“Just be sure you make the right choice”), United

States v. Pecora, 693 F.2d 421, 424-25 (5th Cir. 1982) (prank call),

United States v. Albert, 595 F.2d 283, 290 (5th Cir. 1979) (“It

shouldn’t take you long to reach a verdict”), and DeRonde v.

State, 715 P.2d 84, 86 (Okla. Ct. App. 1986) (“you know they’re

guilty or they wouldn’t be there”).

10 Even where a trial court applies an erroneous burden of

persuasion, an appellate court will reverse only if the evidence

is “in sufficient balance so that the outcome would depend on

who had the burden.” Barth v. Gelb, 2 F.3d 1180, 1188 (D.C. Cir.

1993). Here, the emphatic findings of the two courts below make

clear that the evidence was not in balance.

2. Like This Court in Olano, the Circuits Have

Recognized the Practical Insignificance of the

Presumption Advocated by Exxon.

Whether they invoke a presumption of prejudice or

not, the cases in all circuits ultimately (and properly) turn

on the facts. As the D.C. Circuit has explained:

Although often referring to Remmer, this court

has in fact not treated the supposed “presump-

tion” as particularly forceful, but rather has

accepted the necessity of focusing on the speci-

fic facts of the alleged contact, and, as a result,

has found broad discretion in the trial court to

assess the effect of alleged intrusions.

United States v. Williams-Davis, 90 F.3d 490, 496-97 (D.C.

Cir. 1996). See also United States v. Armstrong, 654 F.2d

1328, 1332 (9th Cir. 1981) (“whether or not we speak in

terms of the rebuttable presumption of prejudice or the

fairness of the defendants’ trial, we reach the same

result”). Put another way, in practice the courts of

appeals heed this Court’s direction to focus their inquiry

not on presumptions or other legal constructs, but on the

ultimate factual determination of whether “the intrusion

affect[ed] the jury’s deliberations and thereby its verdict.”

Olano, 507 U.S. at 739. See United States v. Tucker, 137 F.3d

1016, 1030 (8th Cir. 1998) (“whether the presumption

shifts the burden of proof to the government or not, the

ultimate question is the same”) (citing Olano)."}

11 As Exxon concedes, some circuits that regularly invoke

the Remmer presumption have declined to apply the

presumption in some cases. Pet. 21-26 nn.7, 8, 9, and cases cited

therein. See also United States v. Gomes, 177 F.3d 76, 83 (1st Cir.

Thus, opinions in those circuits that, according to

Exxon, formally adhere to a presumption of prejudice

commonly begin with a citation to Remmer, proceed

through a recitation of the presumption, and then con-

clude with a fact-specific analysis in which deference to

the trial court (not the existence of a presumption) plays

the major role. See, e.g., United States v. Aguirre, 108 F.3d

1284, 1287 (10th Cir. 1997) (trial judge “uniquely able to

assess the likelihood” of prejudice); United States v. Butler,

822 F.2d 1191, 1195-96 (D.C. Cir. 1987) (burden to dispel

presumption “made less demanding by the trial judge’s

participation” in effort to ascertain extent of prejudice);

United States v. Weiss, 752 F.2d 777, 783 (2d Cir. 1985) (trial

judge did not abuse discretion in holding jury’s use of

accounting text to be harmless). In most of these cases,

the courts have concluded that the presumption of preju-

dice has been overcome on the particular facts. See, e.g.,

id.'2 Indeed, in some cases, courts applying the presump-

tion have found it overcome based simply on evidence of

the intrusion itself, without the need for further inquiry.

United States v. Day, 830 F.2d 1099, 1104 (10th Cir. 1987)

(despite presumption, “the trial court, armed only with

the undisputed content of the conversation . . . had an

1999); United States v. De la Vega, 913 F.2d 861, 870 (11th Cir.

1990); United States v. Bufalino, 576 F.2d 446, 451 (2d Cir. 1978).

These variations emphasize the fact-specific nature of the

ultimate inquiry in intrusion cases.

12 See also Schaff v. Snyder, 190 F.3d 513 (7th Cir. 1999);

United States v. O’Brien, 972 F.2d 12 (1st Cir. 1992); United States

v. Sanders, 962 F.2d 660 (7th Cir. 1992); United States v. Angiulo,

897 F.2d 1169 (1st Cir. 1990); United States v. Doherty, 867 F.2d 47

(1st Cir. 1989); United States v. Hornung, 848 F.2d 1040 (10th Cir.

1988); United States v. Wiley, 846 F.2d 150 (2d Cir. 1988).

adequate basis to find, as a matter of law, that no preju-

dice resulted”); United States v. Pessefall, 27 F.3d 511,

515-16 (11th Cir. 1994) (no hearing required where cir-

cumstances known to district court showed no reasonable

possibility of prejudice); Evans v. Young, 854 F.2d 1081,

1082-84 (7th Cir. 1988) (testimony of third party sufficient

when combined with polling of jury to dispel prejudicial

impact of “thoughtlessly poor” joke).

In the circuits that do not invoke a presumption of

prejudice (or that invoke a presumption only in certain

circumstances), serious jury intrusions receive no less

scrutiny than they do in other circuits. In United States v.

Maree, 934 F.2d 196, 202 (9th Cir. 1991), for example, a

friend of one juror discussed the case with the juror and

conveyed “strong opinions concerning the proper out-

come.” Although the Ninth Circuit held that no presump-

tion of prejudice applied, because the friend had not

communicated any facts concerning the case, a unani-

mous panel ordered a new trial. Other courts likewise

have ordered new trials based on the facts, even while

rejecting application of a presumption of prejudice. See,

e.g., Waldorf v. Shuta, 3 F.3d 705 (3rd Cir. 1993) (no pre-

sumption; new trial where jury saw media report of $30

million verdict in similar case); Johnson v. Armontrout, 961

F.2d 748 (8th Cir. 1992) (no presumption; new trial where

jurors had extraneous knowledge from related trial).!%

13 These cases refute Exxon’s claim that, without a

presumption, Fed. R. Evid. 606(b) would make it impossible to

prove prejudice, especially where the conduct at issue is

“objectively not likely to influence.the verdict.” Pet. 16-17

(emphasis in original). This Court has said that “[t]he substance

of the ex parte communications and their effect on juror

Further, in some circuits where the presumption does not

uniformly apply, it does arise if the court finds a likeli-

hood that the intrusion had an effect on the deliberations,

see, e.g., United States v. Sylvester, 143 F.3d 923, 933-34 (5th

Cir. 1998), or if the intrusion falls into a particularly

suspect category, see Pet. App. 7a-9a. Thus, because the

result of the ultimate inquiry is the same whether serious

jury intrusions are subject to an automatic presumption, a

presumption that arises upon a showing of likely preju-

dice, or simply close examination, it is not surprising that

several decisions have noted that, on the facts, applica-

tion of a presumption of prejudice would have no impact

on the disposition of the appeal.!4

impartiality are questions of historical fact,” to which a juror

may testify without running afoul of Rule 606(b). Rushen, 464

U.S. at 120-21 n.5. In any event, Exxon’s concern makes no

sense. Even with a presumption of prejudice, a new trial would

be highly improbable in the case of an objectively non-

prejudicial intrusion: as Exxon elsewhere admits, an inference

of prejudice properly can be dispelled by objective evidence,

sometimes without an evidentiary hearing. See Pet. 27 n.11.

Exxon points to no case in which the presumption has been

invoked to require a new trial where the intrusion was

“objectively not likely to influence the verdict.”

‘4 See, e.g., United States v. Blumyer, 62 F.3d 1013, 1017 (8th

Cir. 1995) (“even if the presumption of prejudice had been

warranted . . . the government overcame the presumption”);

United States v. Estrada, 45 F.3d 1215, 1228 (8th Cir. 1995) (district

court and court of appeals reached same conclusion using

different standards); United States v. Gilsenan, 949 F.2d 90, 95 n.7

(3d Cir. 1991) (“even if there was such a presumption, it was

rebutted by the overall facts here”); United States v. Boylan, 898

F.2d 230, 262 (1st Cir. 1990) (“even if a Remmer-type

presumption had come into play, it would be overcome by

cogency of the [trial court's] findings”); United States v. Angiulo,

The conclusion that a presumption has no outcome-

determinative consequences finds further support in

analysis of the forty cases that Exxon has cited to illus-

trate the supposed circuit split. Pet. 21-27. The courts

granted a new trial due to jury issues in only ten of those

cases, and not one such grant appears to have turned on

the application of any presumption of prejudice. The ten

include three cases from the court below, including Maree,

thus demonstrating that the Ninth Circuit’s approach to

jury intrusions accommodates new trials where the facts

warrant. See United States v. Dutkel, 192 F.3d 893 (9th Cir.

1999); United States v. Littlefield, 752 F.2d 1429 (9th Cir.

1985). See also Rinker v. County of Napa, 724 F.2d 1352 (9th

Cir. 1983) (cited at Pet. 15). Of the remaining seven cases,

one granted a new trial despite an express finding that no

presumption of prejudice applied, Waldorf, 3 F.3d at

710-11 n.6; two came from a circuit in which there must

be an initial show that the intrusion was “more than

innocuous” before a presumption is invoked, United

States v. Cheek, 94 F.3d 136 (4th Cir. 1996); Stephens v. South

Atlantic Canners, 848 F.2d 484 (4th Cir. 1988); and the

remaining four came from three different circuits that

generally invoke the presumption. Owen v. Duckworth,

727 F.2d 643 (7th Cir. 1984); Mayhue v. St. Francis Hospital

of Wichita, Inc., 969 F.2d 919 (10th Cir. 1992); United States

v. Scisum, 32 F.3d 1470 (10th Cir. 1994); United States v.

Martinez, 14 F.3d 543 (11th Cir. 1994). Exxon’s cases thus

provide no empirical basis for concluding that findings

on the ultimate inquiry differ depending on whether a

897 F.2d 1169, 1184-85 (1st Cir. 1990) (“resolution of defendant’s

allegation does not turn on” the presumption). ~

court invokes a presumption of prejudice before it begins

its factual analysis.

In the end, Exxon’s argument that the presumption

has substantive consequences rests on a single Sixth Cir-

cuit case, in which this Court denied certiorari. United

States v. Pennell, 737 F.2d 521 (6th Cir. 1984), cert. denied,

469 U.S. 1158 (1985), cited at Pet. 27. But Exxon exagge-

rates the impact of the presumption in Pennell. Although

the Pennell court did say that it would be “hard pressed

to affirm” “were Remmer, Ferguson and Stone [two rejected

Sixth Circuit cases] controlling,” it based that comment

largely on the fact that the Sixth Circuit cases had “exhib-

ited a distrust of juror assurances of impartiality.” 737

F.2d at 532. Pennell determined that this Court’s decision

in Smith v. Phillips gave it freedom to “rely upon such

assurances” in ascertaining the impact of a jury intrusion,

737 F.2d at 533, and therefore found that assurances of

impartiality provided by the potentially tainted jurors

were dispositive. 737 F.2d at 534.

In any event, the question presented by the petition

is not whether the Pennell court thought it was in conflict

with a presumption rule. Rather, the question is whether

there is a conflict as to an issue that could be dispositive

of this case, and there is none. A survey of the cases

shows that the circuits’ varying formulations of the so-

called “presumption of prejudice” make no difference in

the ultimate inquiries, which turn on the facts. Accord-

ingly, Exxon has presented no issue worthy of this

Court’s assertion of jurisdiction.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Davip W. OEssTING

(Counsel of Record)

STEPHEN M. RUMMAGE

Davip C. TARSHES

Davis WRIGHT TREMAINE LLP

Suite 800

701 W. Eighth Avenue

Anchorage, Alaska 99501

(907) 257-5300

BRIAN B. O'NEILL

FAEGRE & BENSON

2200 Norwest Center

90 South 7th Street

Minneapolis, Minnesota 55402-3901

(612) 336-3000

JAMES VANR. SPRINGER

DICKSTEIN SHAPIRO Morin

& OsHinsky LLP

2101 L Street N.W.

Washington, D.C. 20037-1526

(202) 785-9700

Attorneys for Respondents

DATED: August 14, 2000

Supp. App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

In re )

the EXXON VALDEZ )

: ) No. A89-0095-CV

This Order Relates ) (HRH) (Consolidated)

)

—

“to All Cases

ORDER No. 308

Exxon’s Motion for a New Trial

(Juror Misconduct and Coercion)

(Filed Feb. 20, 1996)

Exxon Corporation (D-1) and Exxon Shipping Com-

pany (D-2) (Exxon) have filed a motion for a new trial

based on possible juror misconduct and coercion.! Plain-

tiffs oppose the motion? and Exxon has replied. Exxon’s

request for oral argument is deemed unnecessary and is

denied.4

Exxon moves for a new trial on Phases I and III for

the following reasons:

(a) the jury improperly considered and

discussed extrinsic information relating to the

convictions of Captain Hazelwood for driving

under the influence of alcohol and/or the

revocation or suspension of his driver’s license,

! Clerk’s Docket No. 6448. Defendant Joseph Hazelwood

joins in Exxon’s motion. Clerk’s Docket No. 6449.

2 Clerk’s Docket No. 6476.

3 Clerk’s Docket No. 6512.

4 Clerk’s Docket No. 6540.

Supp. App. 2

despite the Court’s Order No. 207 excluding all

such materials from evidence;

(b) Juror Moor was improperly ap-

proached about the case by one of the commer-

cial fishing plaintiffs;

several jurors;

(d) the Court’s instructions and contacts

with Juror Wilson, taken in context and under

all the circumstances, had the effect of coercing

Juror Wilson into abandoning her honest convic-

tions;

(e) a Court Security Officer engaged in an

entirely improper course of conduct by commu-

nicating with Juror Graham concerning the

jury's deliberations and taking sides against

Juror Wilson;

(f) Juror Dean concealed material informa-

tion on voir dire which, had it been revealed,

would have provided a basis for a challenge for

cause;

(g) any or all or [sic] the foregoing

grounds, taken individually or collectively,

require a new trial.

Motion at 1-2.

he court will consider the arguments seriatim.

Extraneous Evidence

Exxon argues that the jury was exposed to extra-

neous prejudicial evidence of Captain Hazelwood’s DUI

convictions and resultant driver’s license revocations.

Supp. App. 3

According to the transcript of the jury hearings® each of

the jurors interviewed testified that they were not

exposed to extraneous information about Captain Hazel-

wood and his driving record.® The court is convinced that

the jurors were not exposed to extraneous information

about Captain Hazelwood.

The court is also convinced that the DUI information,

which the court excluded from the evidence, was not a

part of the evidence which came before the jury. Accord-

ing to the affidavit of Lois Soiffer, a legal assistant for

Bogle & Gates, none of the excluded information was in

either the daily trial transcripts or any exhibit admitted

into evidence.

The jury was not, during the trial or deliberations,

exposed to the excluded information through extraneous

sources or through the evidence. It is obvious, therefore,

that the jurors who testified that they knew of Hazel-

wood’s driving record during the trial were confused.”

* Clerk’s Docket No. 6381 and No. 6383.

® Jury Hearing Transcript at 9-10 (Dean); 47-48 (Moor);

74-75, 81 (Provost); 97 (Garrison); 109-10, 119 (Spann); 131-32

(Graham); 158-60 (Smith); 177, 184-85 (Hood); 193-94 (Johnson)

209-10 (Murray).

* The jurors’ knowledge of Hazelwood’s driving record can

be divided into three categories: (1) a few jurors were unaware

of Hazelwood’s driving record; (2) a few jurors were aware of

Hazelwood’s driving record but were uncertain about when

they learned of it; and (3) a few jurors testified that they learned

of Hazelwood's driving record from the evidence. As the Soiffer

affidavit proves, the latter scenario is impossible. Moreover, all

of the jurors testified that they did not learn of Hazelwood’s

driving record from extraneous sources. Hence, the only logical

Supp. App. 4

They may have learned of Hazelwood’s driving record

either before or after the trial, but the jurors’ testimony

and Soiffer affidavit verify that they were not exposed to

the excluded information during the trial.

Juror Moor

Exxon next argues that Juror Moor was improperly

approached about the case by one of the commercial

fishing plaintiffs. During the jury hearing, Juror Moor

testified as follows:

Q. ... During the course of the trial, did

anyone ever attempt to convey information to

you about the case outside of the courtroom?

A. No. I did have a young man who | later

found out was a fisherman come up to me one

night, this was a young man, say, Hey, honey how

we doing, and I said, I don’t know you. He went

on about his business. But other than that, that’s

— that’s the only - it was kind of a humorous

thing. And he meant it to be humorous at the

time, I feel.

Q. Did he know that you were one of the

Exxon jurors?

A. He knew I was on the jury, it was well

into the case. And they’re people that we meet

on occasion, but until that particular time I

didn’t realize this young man was a fisherman.

Q. Oh, this was someone you knew from

before?

conclusion is that a few jurors were confused about their

knowledge of Hazelwood’s driving record.

Supp. App. 5

A. He’s a personal friend - well, not a

personal friend. I know his wife. But I guess I

never really was too concerned about what he

did for a living. He was delivering our papers

for a while and that sort of thing.

Q. Did he endeavor to convey any infor-

mation?

A. Never a word, and he hasn't said any-

thing since. He hasn’t contributed anything

since, you know, as to what's going on.

Jury Hearing Transcript at 42 (emphasis added).

Exxon argues that the statement “Hey, honey, how

we doing”:

[W]as plainly calculated to curry favor with

Juror Moor and, perhaps more important, to

make sure she knew that one of her friends had

a financial interest in the outcome of the trial.

This presumptively prejudicial error was com-

pounded by Juror Moor’s own misconduct in

violating the Court’s instructions . . . and failing

to report the man’s wrongdoing until ques-

tioned by the Court a year or so later.

Memorandum in support of motion at 10 (citations and

footnotes omitted).

Exxon seeks to make much out of very little. Exxon

argues that the individual who spoke to Juror Moor was a

commercial fishing plaintiff or a commercial fishing class

member. Juror Moor, however, simply identified that

individual as a “fisherman.” There is no reason to specu-

late that the individual was a commercial fishermen [sic],

let alone a plaintiff or class member.

Supp. App. 6

Exxon argues that the fisherman was “friend” who

wanted to make sure that Juror Moor knew of his finan-

cial interest in the trial. Juror Moor testified that the

fisherman was “not a personal friend,” and there is no

evidence that the fisherman had any interest, let alone a

financial interest in the trial. Jury Hearing Transcript at

42 (emphasis added).

Exxon argues that Juror Moor committed misconduct

by not reporting the fisherman’s “wrongdoing” until “a

year or so later.” Memorandum in support of motion at 10

(emphasis added). Even if the fisherman had committed

“wrongdoing”, Juror Moor testified that she did not

know he was a fisherman until “later.” Jury Hearing

[Transcript at 42. Thus, there is nothing to suggest that

Juror Moor failed to notify the court of a “wrongdoing”

during the trial.

Finally, Exxon argues that the fisherman’s statement

“Hey, honey, how we doing” was “plainly calculated to

curry favor with Juror Moor. ... ” Memorandum in

support of motion at 10. Perhaps so, but not in the man-

ner which Exxon suggests. In any event, the entire con-

versation was completely and utterly harmless.§

* Exxon compares the statement made to Juror Moor with

Rinker v. County of Napa, 724 F.2d 1352 (9th Cir. 1983), in which

Rinker approached a juror as she returned to the jury room and

told her that if she had any questions about the case, he would

be glad to answer them for her. The situation in the case at bar

simply has no comparison to Rinker.

-Supp. App. 7

Acts of Intimidation

Next, Exxon argues that acts of intimidation were

directed against several jurors. According to Exxon, these

acts of intimidation include dead salmon found in Juror

Johnson’s yard the morning after the Phase IIA verdict.

Juror Johnson testified that the fish were left in her

driveway, not her yard, and she was uncertain as to when

it happened. She testified that the incident occurred:

Probably in part of Phase II, maybe. It was when

they were giving fish out on the street, you

know, the salmon they were giving, the free

salmon, and it was like a day after that. And |

thought, well, maybe they just got that for the

fishing and threw it out there. There was like

three of them out on my driveway and I thought

if anything else happened, I’d like — you know,

but that didn’t scare me.

Jury Hearing Transcript at 195.

Contact with a juror invalidates a verdict “unless the

harmlessness of the contact is shown.” Hobson v. Wilson,

737 F.2d 1, 47 (D.C. Cir. 1984) (citing Mattox v. United

States, 146 U.S. 140 (1892), cert. denied, 470 U.S. 1084

(1985). It cannot be determined whether anyone associ-

ated with the trial left the fish, or if they knew that Ms.

Johnson was a juror. Given that the event occurred at the

time when salmon was being given away, the incident

was probably random and not an attempt at intimidation.

Additionally, a review of the transcripts reveals that the

incident had no prejudicial effect on Juror Johnson or any

other juror. The court finds that the incident was harm-

less and not prejudicial.

Supp. App. 8

The second attempt at intimidation involved fish left

at the home of Juror Wilson. According to Juror Wilson’s

husband, a whole fish was left in the driveway and on

another occasion, a fish head and tail were found in the

yard. Mr. Wilson related the incident as follows:

I’m sure if you found that - it’s never happened

before and you’re having a trial about fish and

you end up with a fish in your driveway, you’ve

got to give some thought to maybe wonder, you

know, which way are they wanting, you know,

from what side is this pressure coming, but she

didn’t mention how she felt about it one way or

the other about that.

Jury Hearing Transcript at 235-36.

The court finds that the Wilson fish incident was

harmless. The fish cannot be attributed to either party,

had no bearing on the merits of the case, and, according

to the Jury Hearing Transcript, had no influential or

prejudicial effect on Juror Wilson or any other juror.

The next attempt at intimidation involved Juror

Wilson’s car. Mr. Wilson testified that someone had “rum-

maged around” in the car and left cigarettes in the ash-

tray. Id. at 236. Mr. Wilson testified that the incident

“didn’t have anything to do with the trial or any-

thing ... ” Id. The court finds that the incident was

harmless and had no prejudicial effect on Juror Wilson or

the other jurors.

Finally, Exxon argues that Juror Johnson reported

“weird phone calls” and the Juror Murray felt his family

was being watched. Id. at 200, 211.

Supp. App. 9

Juror Johnson testified to nothing more than “some-

body was getting weird phone calls.” Id. at 200. She knew

nothing more about the calls. The court finds that the

phone calls were harmless and had no prejudicial effect

on the jury.

Regarding Juror Murray’s feelings that he was being

watched, he testified as follows:

Well, the only other incidences for me per-

sonally for being; I perceived it, my family

under great scrutiny. I always saw people out,

parked outside my home or whenever I took a

walk, there were telephones. Fortunately, our

kids were out of school and my wife could

watch them. Otherwise I would have had a tre-

mendous concern, them in public school, being

watched. There were other people that were

there that had not been there that I noticed.

I live in a fairly quiet neighborhood, I know

everybody. I think there was a lot of restrain

[sic] on my time and mental capacity to make

sure that they were not being influenced by

anyone or anyone bothering them. So we had

some concerns as a family how everybody was

doing.

Id. at 211-12.

The court finds that the incident was harmless and

had no prejudicial impact on either Juror Murray or the

other jurors. If someone was watching Juror Murray, that

person or persons cannot be identified with either side

and the incidents did not interfere with the jury in any

manner.

Supp. App. 10

None of the incidents, whether taken separately or

together, had the slightest effect on the jury. None of the

incidents can be attributed to any person interested in the

litigation and all of the incidents were harmless and were

not prejudicial.’

Juror Wilson

Next, Exxon argues that Juror Wilson was coerced

into abandoning her sincere convictions. The court will

briefly discuss the relevant facts.

The trial began on May 2, 1994, and on September 2,

1995, “Juror Wilson was discovered outside the jury room

‘in some emotional distress . . . obviously quite dis-

traught .. . [and] sobbing.

,o”

Memorandum in support of

motion at 15 (citation omitted). The court then stepped

into the jury room and stated to the jurors that the court

“would try to take care of it after the long [Labor Day]

weekend. ... ” Jury Hearing Transcript at 82.

On the Tuesday following the Labor Day weekend,

the Court called the jury in and delivered Supplemental

Instruction A. The text of Supplemental Instruction A is

two pages long and need not be repeated here. In sub-

stance, the jury was instructed to impartially consider the

evidence, to decide the case based on their own convic-

tions, and to treat each other with common courtesy.

° Exxon argues that the jurors’ failure to report the

incidents to the court exacerbates the resulting prejudice. The

court finds, however, that incidents were so harmless and non-

threatening as to make it unnecessary for the jury to report them

to the court.

Supp. App. 11

A few hours later, the court received a note from the

jury stating: |

After reviewing the Supplemental Jury

Instruction No. A. The Jurors have consulted

with each other and we have reached a [sic]

impasse. We request further instructions from

the Court at this point.

Memorandum in Support of Motion, Exhibit B.

The court called the jury back in and delivered Sup-

plemental Instruction B. This instruction stated in perti-

nent part:

Given the complexity and duration of this

case, as well as the divergence of positions

between the parties, it is not surprising that

individual jurors might, at this stage of your

deliberations as to Phase III, have divergent

views about the case. .

.. . IT suggest that you review all of my

Phase III instructions and review all of the evi-

dence which these instructions suggest will be

relevant to a determination of the punitive dam-

ages issues before you. I suggest that you focus

upon the issues or matters which divide you. It

may very well be useful for purposes of your

deliberations to review each individual matter

and evaluate, to the extent possible, how each

matter might affect your answer to one or the

other of the two interrogatories posed as to each

of the two defendants.

You may be as leisurely in your delibera-

tions as the occasion may require, and should

take all the time which you may feel necessary.

Clerk’s Docket No. 5890.

Supp. App. 12

Exxon argues that Supplemental Instruction B was an

Allen charge which coerced Juror Wilson because it omit-

ted any reminder that jurors were to ‘be nice’ to ‘one

another and failed to remind the jurors that they were not

to surrender their sincere convictions. According to

United States v. Mason, 658 F.2d 1263, 1268 (9th Cir. 1981),

failure to remind the jurors of their duty not to surrender

their conscientiously held beliefs simply to secure a ver-

dict, might be construed by the jurors as coercive.

Exxon’s argument fails for several reasons. First,

Supplemental Instruction B was not an Allen charge. As

the court stated to counsel prior to giving the instruction,

“the prudent thing to do at this point is to ignore the

suggestion that there might be an impasse, to if you will,

save the Allen chip for a later time, and see what a very

soft instruction brings for us this morning.” Trial Tran-

script, Vol. 46 at 7688, Clerk’s Docket No. 5803.!° Second,

Supplemental Instruction B encouraged the jurors to

review the Phase III instructions, which instructed the

jurors not surrender their beliefs.!! Third, Supplemental

Instruction B was not even a “de facto Allen charge”,

Jiminez v. Meyers, 40 F.3d 976, 980 (9th Cir. 1993), cert.

denied, 116 S. Ct. 63 (1995), because it did not instruct the

10 A typical Allen charge speaks specifically to the minority

jurors and urges “the minority to consider the views of the

majority, and ask themselves whether their own views were

reasonable under the circumstances.” Lowenfield v. Phelps, 484

U.S. 231, 237 (1988).

11 In any event, instructing the jury not to surrender their

convictions is required only when necessary to counter-balance

“excesses” in the Allen charge. United States v. Mason, 658 F.2d at

1267. See also Jiminez v. Meyers, 40 F.3d at 981.

Supp. App. 13

jury to “work towards unanimity and the minority to

reexamine its views.” Id. (citation omitted). Fourth, the

court did not elicit any progression in the voting and was

unaware of which direction the jury was moving. Finally,

the court did not put any pressure on the jurors to reach a

verdict, but instructed the jury to deliberate “leisurely.”

For the above reasons, the court finds that Supplemental

Instruction B did not coerce Juror Wilson.!2

The next event regarding Juror Wilson occurred on

September 7, 1994, when the jury sent the following note

to the court:

We have reviewed your supplemental Jury

instructions from Tuesday, September 6th, and

Wednesday, September 7th. We have also

reviewed the Jury instructions from Phase I, III.

We have one Juror that we feel is emotionally

unable to deliberate within the Jury instructions

the court has provided. We have reached a cru-

cial stage in our deliberation that has left us

concerned about her emotional and _ physical

health.

Memorandum in support of motion, Exhibit C.

'2 “[T]he supplemental instruction . . . in no way suggested

that a verdict was necessary, nor did it suggest that the jurors

should surrender conscientious positions in light of the views of

other jurors. The instruction spoke more to the style rather than

to the substance of the deliberations. The charge at issue here

was simply not of the potentially intimidating Allen type... . ”

United States v. Knight, 58 F.3d 393, 396 (8th Cir. 1995), cert.

denied, No. 957218, 1995 WL 761800 (U.S. Jan. 22, 1996) (citations

omitted).

Supp. App. 14

The above note was sent at the end of the day after

Juror Wilson had left the jury room. The following morn-

ing, September 8, 1995, the court ascertained from the

jury foreman that Juror Wilson was the juror referenced

in the note. The court asked Juror Wilson to come to

chambers where she met with counsel and the court. The

court read the note to Juror Wilson and informed her that

on the previous day, her husband had visited the court to

express his concerns about Juror Wilson’s physical

health.!3 The court then stated “[w]hat I would like to

know at this point is other than how the jury stands on

anything, are you ok?” Trial Transcript, Vol. 46 at 7697

(emphasis added). Juror Wilson responded “{i]’m just

stressed out.” Id. The following exchange ensued:

The Court: Is there any concern from out-

side of this case or is there -

Juror Wilson: No. It’s just - it’s just what

happens in the jury room. I’ve never been in this

kind of position, and it’s — and I’m learning

something every day on how to deal with it, but

I tend - my health does go to pot when I get

stressed out, and people that I haven’t been

around me don’t realize that.

The Court: Our concern is whether you are

going to be okay continuing these deliberations.

Juror Wilson: I feel really strongly that if I

wasn’t there I’d feel worse.

13 Exxon argues that Juror Wilson was “shocked” that her

husband had been to visit the court. That Juror Wilson was

“shocked” was the impression of Juror Moor. Jury Hearing

Transcript at 63. Neither Juror Wilson, nor her husband,

expressed a similar sentiment.

Supp. App. 15

The Court: That if you weren’t there you’d

be worse?

Juror Wilson: Yeah.

The Court: Okay. Is it - and I don’t want to

- put words in your mouth now, but is it fair to

say that you feel up to going on with the delib-

erations?

Juror Wilson: -I feel like it’s my duty to. I

feel like I have to stick it out.

The Court: Will you let us know if there

should come a point where you are having some

kind of a health problem.

Juror Wilson: Yeah.

The Court: The last thing we want is for

there to be - you know, this process must not

physically or emotionally damage you; we don’t

want that to happen.

Juror Wilson: In some ways it’s too late. I

feel really strong and I have to be there, I feel

like that I make a difference.

Id. at 7697-98.

Juror Wilson was sent to the jury room and the court

expressed its satisfaction “that there is some tough debat-

ing going on in there, and I don’t see any cause for our

doing anything other than let the deliberations take their

course, whatever that may be at this point.” Id. at 7699.

Regarding the meeting of jurors after Juror Wilson

departed the previous day, the court stated, “[a]t this

point I don’t have any reason to believe that anything

happened other than that this note was written after

somebody, presumably Mrs. Wilson, left yesterday.” Id.

Supp. App. 16

Exxon argues that considering the totality of the cir- |

cumstances, there was a clear coercive effect on Juror

Wilson. Exxon argues that the jury met improperly, iden-

tified Juror Wilson as the source of its problems, and

implied that a minority juror prevented a verdict. Exxon

argues that Juror Wilson was singled out and the object of

implicit criticism in the court’s decision to interview her.

Exxon argues that Juror Wilson believed that the court

valued avoiding an impasse more than adherence to con-

victions. Exxon argues that the court approved of the

jurors meeting without her and that the court endorsed

the other juror’s [sic] view that Juror Wilson was “the

ee lt ce el at ll ee

problem.”'* Memorandum in support of motion at 19.

Pn bee

Exxon argues that based on the totality of the circum-

stances, the coercive effect of the above sequence is

obvious. Lowenfield v. Phelps, 484 U.S. at 237. In Lowenfield,

the Court stated that a “review of petitioner's contention

that the jury was improperly coerced requires that we .

consider the supplemental charge given by the trial court :

14 Exxon argues that identification of Juror Wilson as a

minority juror outside the privacy of deliberations is coercive

itself. Brasfield v. United States, 272 U.S. 448 (1926); Jordan v.

United States, 22 F.2d 966 (9th Cir. 1927). The cases upon which

Exxon relies refer to situations in which the court elicits “the

division of opinion among the jury.” Jordan, 22 F.2d at 967. Even

though the jury revealed that Juror Wilson was having

emotional problems, the jury did not reveal any jurors’ opinion.

One cannot be a minority juror unless the jurors’ opinions are

known, and the court never inquired into how or if the jury was

divided. In any event, the note regarding Juror Wilson did not

suggest that her deliberations caused a deadlocked jury, rather,

the note stated that she was “emotionally unable to

deliberate ...” Memorandum in support of motion, Exhibit C.

reese

Supp. App. 17

‘In its context and under all the circumstances.’ ” Id.

(citation omitted). Exxon has set out the factual circum-

stances in a dramatic flurry, yet the totality of the circum-

stances can be summarized as follows: The court issued

two supplemental instructions which essentially encour-

aged the jurors to be civil towards one another and to

keep working. The court investigated the jury’s subse-

quent concern that Juror Wilson was emotionally unsta-

ble, and was satisfied that she could continue to

deliberate. Nothing in the totality of the circumstances

establishes that Juror Wilson was the victim of coercion.

Exxon argues that when Juror Wilson returned to

deliberations, after her meeting with the court, “the

majority jurors no longer felt the need to treat Juror

Wilson fairly [and were surprised] that their improper

effort to get rid of Juror Wilson failed.” Memorandum in

support of motion at 19-20 (citation omitted). Exxon’s

argument fails for two reasons. First, as noted above at

note 13, a “majority” was never identified. Second, the

jury's concerns about Juror Wilson’s health should not be

considered an “improper effort to get rid of [her].” Mem-

Orandum in support of motion at 20 (citation omitted).

Shortly after Juror Wilson returned to deliberations,

she sent a note to the court stating, “I need to speak with

you.” Memorandum in support of motion, Exhibit D. The

court met with Juror Wilson at the jury room door and

told her that the court “could do nothing further at this

time beyond telling her to follow the court’s instruc-

tons.” /d.'* Exxon argues that the court failed to remind

At the jury hearing, the court stated that “in substance”

Supp. App. 18

Juror Wilson not to abandon her convictions. However, it

was unnecessary for the court to remind Juror Wilson not

to abandon her convictions, because the court did not

give Juror Wilson an Allen charge. See supra note 10. In

any event, the court did instruct Juror Wilson to follow

the court’s instructions, which included an instruction

not to abandon her convictions.

At this point, Exxon argues that Juror Wilson was

“boxed in.” Memorandum in support of motion at 20.

Exxon’s argument is based in the testimony of Juror

Wilson’s husband who stated:

Her impression was that —- that she felt some-

what penned up in all that, you know, felt,

everybody does, I suppose, that a lot of your -

some of your rights have been taken away and

whatnot; that if she —- if she chose not to come

back, that they would put her in the jail down-

stairs and bring her up to deliberation during

the day, house her down here, take her down-

stairs and bring her up during the day. She

wouldn’t have the freedom to go home at night.

And that was one of her releases, her reliefs,

was going home at night, so that — that was a

concern. That was one of her impressions, was

she would, you know, be here and she would

never get out of here until the deliberations

were over.

Jury Hearing Transcript at 254.

Juror Wilson asked “to be excused from the jury.” Jury Hearing

Transcript at 257.

Supp. App. 19

Exxon argues that the court, by giving Supplemental

Instruction B, “sent the message that fair treatment was

secondary to avoiding an impasse.” Memorandum in

support of motion at 21. Exxon argues further that the

court “sided with the other jurors in the view that (Juror

Wilson] was the problem. ... ” Id. As a result, Exxon

argues that Juror Wilson was afraid that she would be

“locked up” and “put in jail” because she believed that

the court “required” a verdict and did not want Juror

Wilson to “ ‘make a difference.’” Id. at 21 n.21. Exxon

argues that the court made it plain that Juror Wilson

“would get no further help, and could not leave the jury.”

Id. at 21. Finally, Exxon argues that Juror Wilson’s only

“way out” was for her to sacrifice her honest convictions

and to “ ‘join the crowd and sacrifice all her feelings

[because] it was the only way she knew how to survive.’ ”

Id. at 21-22 (quoting Exxon’s Exhibit A at 11). Accord-

ingly, Exxon argues that the verdict was not the result of

conviction, but the product of suffering. Arizona v. Wash-

ington, 434 U.S. 497, 510 n.27 (1978) (“if a jury cannot

agree . . . we ought not to coerce them by personal

suffering, nor ought we to expose parties to the danger of

a verdict which is not the result of conviction in the

minds of the jury, but produced by suffering of mind or

body.”) (internal quotation and citation omitted).

Exxon’s melodrama is an extraordinary and exagge-

rated account of the events. Supplemental Instruction B

simply cannot be read as sending a “message that fair

treatment was secondary to avoiding an impasse.” Mem-

orandum in support of motion at 21. The instruction

simply encouraged the jurors to review the previous

instructions and to continue leisurely deliberations.

Supp. App. 20

Exxon argues that the court “sided with the other jurors,”

yet nothing in the evidence lends the slightest specter of

support to Exxon’s extraordinary claim. Id. Exxon trans-

forms Juror Wilson’s impressions of the drudgery of

extended jury duty to a claim that she actually feared she

would be jailed for the duration. The jury, of course, was

not sequestered, and Juror Wilson went home at 2:00 p.m.

every afternoon and stayed home on weekends and holi-

days. The court does not doubt that the Exxon jury duty

was grueling and bears a comparison to being “somewhat

penned up,” but the rigors of prolonged jury duty do not

amount to coercion. Jury Hearing Transcript at 254.

Exxon argues that the court, in meeting with Juror Wilson

made it plain that she would get no further help and

could not leave the jury. The court, however, simply told

Juror Wilson that there was nothing it could do “at this

time.” Memorandum in Support of motion, Exhibit D.

The court did not inform Juror Wilson that she could get

no further help and could never leave the jury. Exxon

argues that Juror Wilson sacrificed her honest feelings

“because [i]t was the only way she knew how to survive.”

Id. at 22 (quoting Exhibit A at 11). Yet Juror Wilson stated

that it was her “duty” to continue deliberating, she felt

she had “to be there” and believed she could “make a

difference.” Trial Transcript, Vol. 46 at 7698. Moreover,

after the court told Juror Wilson, on September 8, 1994,

that she should review the instructions, she continued to

deliberate for another six days until the jury teached its

verdict.'* The length of deliberations demonstmtes a lack

16 Obviously, the fact that the jury continued to deliberate

belies Exxon’s assertion that the jury was at an imgasse.

Supp. App. 21

of coercion. See United States v. Cuozzo, 962 F.2d 945, 952

(9th Cir.), cert. denied, 506 U.S. 978 (1992) (deliberation of

six hours following an Allen charge “was not of such

short duration as to raise a suspicion of coercion.”).

After Juror Wilson returned to deliberations on Sep-

tember 8, 1994, the jury requested further evidence and

exhibits from the court. The facts of the case are indica-

tive of a jury working carefully and deliberately in reach-

ing its verdicts. Nothing in the record reflects that Juror

Wilson or any other juror was coerced or pressured into

returning the verdicts. As stated in United States v. Knight,

58 F.3d at 396, “[jJury duty can be unpleasant, but diffi-

cult, one-sided debate in the jury room does not require a

mistrial. ‘[I]ndividual jurors have no right to be released

from their colleagues’ efforts at persuasion.’ ” Id. (citation

omitted).17 -

The court finds that Exxon’s arguments regarding

coercion of Juror Wilson do not provide grounds for a

new trial.

Juror Graham and the Court Security Officer

Next, Exxon argues that coercive communication

between a Court Security Officer (CSO) and Juror

Graham requires a new trial. Juror Graham testified at the

17 Assuming an Allen charge had been given, the coercive

effect is evaluated on the basis of: (1) the form of the instruction;

(2) the period of deliberation following the Allen charge; (3) the

total time of jury deliberations; and (4) any indicia of

coerciveness or pressure upon the jury. United States v. Wauneka,

842 F.2d 1083, 1088 (9th Cir. 1988) (citation omitted). Here, all of

the factors demonstrate a complete lack of coercion.

Supp. App. 22

jury hearing that one morning when he arrived for delib-

erations, a CSO motioned to him and stated that he heard

the jury was having problems with Juror Wilson. Accord-

ing to Juror Graham, the CSO then pulled out his gun,

removed a bullet, and said “maybe if you put her out of

her misery or something.” Jury Hearing Transcript at 141.

The CSO then acted as if he wanted Juror Graham to take

the bullet. Jd. at 142. Juror Graham was “totally freaked

. out.” Id. He did not believe that he told anyone

except, perhaps, the jury foreman. Id. The CSO denied

involvement in the incident. Jury Hearing Transcript at

268-69. The court is not convinced that the incident ever

occurred. Assuming arguendo that it did occur, the incident

does not warrant a new trial.

Exxon compares this case with United States v. Maree,

934 F.2d 196 (9th Cir. 1991), in which a juror discussed all

the trial evidence with her friends who then recom-

mended that the juror find defendant guilty. The court

stated that such ex parte contacts warrant a new trial only

if the court finds actual prejudice to the defendant. Id. at

201. The court found that because the juror was presented

with strong and aggressive opinions about the outcome

of the case, the defendant suffered actual prejudice.

Exxon argues that:

There can be few situations where a juror is more

“aggressively” confronted with “opinions con-

cerning the proper outcome of [the] case,” than

when a court security officer calls a juror over

for an ex parte conversation, pulls out his gun,

offers the juror a bullet, and suggests to him that

a minority juror should be “put out of her mis-

a”

ery.

Mae eS ee a

Supp. App. 23

Reply at 19 (citations omitted).

Exxon’s argument fails for two reasons. First, the

CSO did not mention the case, did not mention Exxon or

commercial fishermen, and did not mention recklessness

or punitive damages. Simply put, the CSO did not

express an opinion about the outcome of the case. Sec-

ond, Exxon continues to labor under the misconception

that Juror Wilson was known to be a “minority” juror.

Juror Wilson was not a “minority” juror merely because

she was the only juror to exhibit emotional strain. A

minority juror, as noted above, is one whose opinion is

different from that of the other jurors. Here, neither the

CSO, nor anyone else knew the opinion of a single juror.

No one outside the jury room was ever aware of

Juror Wilson’s opinion, they only knew that she was very

upset during the final days of deliberations. Thus, the

CSO could not have “taken sides” against Juror Wilson,

because he had no idea what “side” she was on. Reply at

20. The CSO did not express his opinion about the trial or

deliberations, he did not actively discuss the case, and he

did not present extraneous evidence to the jury. The CSO

did not comment about Exxon or the commercial fisher-

men, he commented about a juror. If the incident took

place as Juror Graham testified, then the CSO exercised~

incredibly poor judgment, but such foolishness would not

warrant a new trial.!®

18 Exxon compares this case to several inapplicable cases.

The factual differences demonstrate why a new trial was

warranted in the cited cases, but not in the case at bar. In Parker

v. Gladden, 385 U.S. 363 (1966), in which a bailiff said to jurors,

“Oh, that wicked fellow [petitioner] he’s guilty . . . [i]f there is

Supp. App. 24

Juror Dean

Finally, Exxon argues that a new trial is warranted

because Juror Dean answered “no” to the following ques-

tion on the juror questionnaire: Have you, any member of

your family, or any close friend, ever had an alcohol or

drug abuse problem? See Order No. 295 at 2 n.4, Clerk’s

Docket No. 6431.

anything wrong [in finding petitioner guilty] the Supreme

Court will correct it.” Id. at 363-64. In Parker, it is obvious that

the bailiff expressed an opinion about the case; in the case at bar,

the CSO did not express his opinion.

In People v. Hedgecock, 51 Cal. 3d 395, 272 Cal. Rptr. 803, 795

P.2d 1260 (1990), the bailiff stated that sequestration was

expensive and that jurors should reach a quick verdict. The

bailiff provided alcohol to the jurors, asked one juror to take

notes on what unreasonable jurors were saying, and expressed

his opinion on the meaning of reasonable doubt. In United States

ex rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir. 1974) , the bailiff

made a comment ” ‘akin to an Allen charge’ ” when he told the

jurors to keep deliberating until they reached a decision,

without telling them not to relinquish their convictions. Id. at

238 (citation omitted). Similarly, in United States v. Dellinger, 472

F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973), the

marshal told the jury that the judge could make them deliberate

as long as he wanted and told the jury to remember the judge’s

instructions. The marshal also told the jury not to expect to

reach a quick verdict. In Scott v. Commonwealth of Virginia, 11 Va.

App. 516, 399 S.E.2d 648 (1990), the bailiff made several

comments about the leniency of juries in Richmond. Finally, in

State of Louisiana v. Duplissey, 550 So.2d 590 (La. 1989) , the bailiff

told the foreperson that the jurors were to show an illiterate

juror how to vote.

In each of the above cases, the bailiff had a direct and

prejudicial impact on deliberations. In the case at bar, however,

the CSO’s alleged actions were not directed toward and did not

influence the jury’s deliberations.

Supp. App. 25

Exxon argues that Juror Dean’s arrest for possession

of marijuana and frequent marijuana use is proof that he

had a drug abuse problem. Both Exxon and plaintiffs

have submitted expert opinions on whether Juror Dean

had a drug abuse problem. Exxon’s expert, of course,

states that Juror Dean had a serious drug problem. Plain-

tiff’s expert, on the other hand, states that there is insuffi-

cient data to assert whether Juror Dean had a drug abuse

problem.

The court finds that Juror Dean answered the ques-

tion correctly. Juror Dean has never been diagnosed with

a drug abuse problem and the court cannot reach a con-

trary conclusion based upon the experts’ affidavits.

Conclusion

For the above stated reasons, Exxon’s motion for a

new trial is denied.!9

DATED at Anchorage, Alaska, this 19 day of Febru-

ary, 1996.

/s/ H. Russel Holland

H. Russel Holland,

Chief Judge

District of Alaska

19 Plaintiffs’ motion to strike certain statements, exhibits,

and transcript citation is denied as moot. Clerk’s Docket No.

6517.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.