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October 17, 2015
  United States v. Leung - Ninth Circuit
Headline: In a proceeding to set aside a verdict, Fed. R. Evid. 606(b) bars juror testimony that other jurors engaged in premature deliberations or made up their minds about the case before deliberations began when such testimony is offered to demonstrate that the jury engaged in flawed processing of the evidence.

Areas of Law: Criminal Procedure; FRE 606(b).

Issues Presented: Whether, in a proceeding to set aside a verdict, Fed. R. Evid. 606(b) permits juror testimony that other jurors engaged in premature deliberations or made up their minds about the case before deliberations began when: (1) the testimony is offered to demonstrate that the jury engaged in flawed processing of the evidence; (2) the juror who overheard the conversations failed to bring the issue to the trial judge during the trial; (3) the trial court had no notice of the conversations prior to verdict being rendered; and (4) nothing in the juror's affidavit contained any evidence of juror deceit or bias.

Brief Summary: Defendant-Appellant in a criminal proceeding challenged the district court's denial of its motion for a new trial on grounds that Fed. R. Evid. 606(b) did not bar admission of the affidavit of a single juror, which alleged that several jurors violated the court's instructions not to discuss the case before final deliberations by regularly talking about the evidence during breaks in the trial. The panel, relying on Tanner v. United States, 483 U.S. 107 (1987) and Warger v. Shauers, 135 S.Ct. 521 (2014), noted that several key principles emerged from the Supreme Court's interpretation of Fed. R. Evid. 606(b); specifically, Fed. R. Evid. 606(b): (1) applies in any proceeding that involves an inquiry into "the validity of the verdict;" (2) bars juror testimony about the jury's "internal processes," regardless whether the claimed irregularity took place inside or outside of the jury room; and (3) imposes a nearly categorical bar on juror testimony about statements or events "during the jury's deliberations." The panel then found that Leung's affidavit was analogous to the testimony presented in Tanner insofar that it attempted to parse how jurors considered evidence, which was exactly what Fed. R. Evid. 606(b) sought to prevent. As a policy matter, the panel also declined to open the door to a motion for a new trial at every instance of minor juror misconduct. The panel ultimately held that during a proceeding to set aside a verdict, juror testimony that other jurors engaged in premature deliberations or made up their minds about the case prior to beginning deliberations is inadmissible if offered to demonstrate that the jury engaged in flawed processing of the evidence because such testimony improperly implicates the internal affairs of the jury during an inquiry into the "validity of the verdict." Warger, 133 S.Ct. at 528.

Significance: Fed. R. Crim. P. 33(b)(2)'s fourteen-day period to file a motion for a new trial on grounds other than newly discovered evidence is "nonjurisdictional" and may be extended under Fed. R. Crim. P. 45(b)(2). In a proceeding to set aside a verdict, Fed. R. Evid. 606(b) bars admission of juror testimony that other jurors engaged in premature deliberations or made up their minds about the case before deliberations where such testimony is offered to demonstrate that the jury engaged in flawed processing of the evidence because such testimony improperly implicates the internal affairs of the jury during an inquiry into the propriety of the verdict.

Extended Summary:
Shiu Lung Leung (Leung), an executive at the Taiwanese company, AU Optronics Corporation, was charged in 2010 with violating the Sherman Antitrust Act, 15 U.S.C. § 1, for his role in fixing the prices of Thin Film Transistor, Liquid Crystal Display panels. Following a conviction after a second trial, Leung filed a motion for a new trial and a request for an evidentiary hearing.

Leung's motion was based solely on the affidavit of a single juror; the affidavit alleged that several jurors violated the court's instructions not to discuss the case before final deliberations by regularly talking about the evidence during breaks in the trial. The affidavit further alleged that prior to the beginning of jury deliberations, at least three other jurors "had already made up their minds that the defendant was guilty."

The district court found that the juror's affidavit was inadmissible under Fed. R. Evid. 606(b) and denied Leung's motion for a new trial without an evidentiary hearing. Leung was thereafter sentenced to twenty-four months' imprisonment.

On appeal, Leung argued that the juror's affidavit was admissible under Fed. R. Evid. 606(b) because juror testimony about the discussion of evidence before charging does not intrude on the internal affairs of the jury, but instead demonstrated juror dishonesty and bias during voir dire. The government opposed on grounds that: (1) Leung's motion for a new trial should have been rejected as untimely under Fed. R. Crim. P. 33(b)(2) and (2) even if Leung's motion for a new trial was timely, that the juror's affidavit was nevertheless inadmissible.

In regard to the government's argument that Leung's motion for a new trial was untimely under Fed. R. Crim. P. 33(b)(2), the panel found that the government's position did not mesh with the Supreme Court's clarification in Eberhard v. United States, 546 U.S. 12, 19 (2005), which stated that Fed. R. Crim. P. 33(b)(2) is "nonjurisdictional." As a result, Fed. R. Crim. P. 33(b)(2)'s fourteen-day deadline was subject to extension under Fed. R. Crim. P. 45(b) (2) and the district court was permitted to grant an extension to file a motion for a new trial.

The panel then turned to the issue of whether the juror's affidavit entitled Leung to a new trial or an evidentiary hearing under Fed. R. Evid. 606(b), which states:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury's attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

In reaching its decision, the panel was guided by two Supreme Court cases: (1) Tanner v. United States, 483 U.S. 107 (1987) and (2) Warger v. Shauers, 135 S.Ct. 521 (2014).

In Tanner, the appellants were convicted of conspiring to defraud the United States in violation of 18 U.S.C. § 371, and of committing mail fraud in violation of 18 U.S.C. § 1341. 483 U.S. at 109. The Eleventh Circuit affirmed the convictions and appellants appealed to the Supreme Court on grounds that, inter alia, the district court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial. Specifically, the Tanner court addressed the admissibility of a juror affidavit, which asserted that various jurors drank alcohol, smoked marijuana, ingested cocaine, sold controlled substances, and took periodic naps throughout a complex criminal trial. The Supreme Court ultimately held that the district court's refusal to admit, at a post-verdict hearing, juror testimony as to alleged juror drug and alcohol intoxication during trial was proper because the most reasonable reading of Fed. R. Evid. 606(b) did not include juror intoxication as an outside influence about which jurors may testify to impeach their verdict.

The Tanner court first looked to the "near-universal and firmly established common-law rule in the United States [that] flatly [prohibits] the admission of juror testimony to impeach a jury verdict." Id. at 117. The Tanner court then noted that, while an exception to Fed. R. Evid. 606(b) permits inquiry into whether "extraneous influences" tainted the verdict, juror testimony regarding the jury's "internal processes" is categorically barred. Id. at 120-21. Thus the critical inquiry was the "nature of the allegation" as opposed to where the alleged irregularity took place.

In Warger, the Supreme Court considered a juror's allegations that, during deliberations, another juror admitted to harboring bias against one of the parties. Warger was a personal injury matter where the appellant, Gregory Warger (Warger), was involved in a motorcycle accident on a highway with Randy Shauers (Shauers) that ultimately resulted in Warger sustaining serious injuries that resulted in the amputation of his left leg.

After a jury trial that resulted in a judgment in Shauers' favor, a juror contacted Warger's counsel over concerns that the jury foreperson admitted to harboring bias against Warger. Warger then sought a new trial pursuant to Fed. R. Evid. 606(b) on the grounds that the jury foreperson deliberately lied during voir dire regarding her ability to be impartial. The district court denied Warger's motion and the Eighth Circuit affirmed on grounds that Fed R. Evid. 606(b) applied and Warger's proffered evidence did not fall within the "extraneous prejudicial evidence" exception set forth in Fed. R. Evid. 606(b)(2)(A).

The Supreme Court affirmed the district court and the Eleventh Circuit and held that Fed. R. Evid. 606(b) applies in any proceeding in which a party seeks to set aside a jury verdict and does not permit an exception for testimony about juror bias or dishonestly during voir dire.

Relying on Tanner and Warger, the panel noted that several key principles emerged from the Supreme Court's interpretation of Fed. R. Evid. 606(b); specifically, Fed. R. Evid. 606(b): (1) applies in any proceeding that involves an inquiry into "the validity of the verdict;" (2) bars juror testimony about the jury's "internal processes," regardless of whether the claimed irregularity took place inside or outside of the jury room; and (3) imposes a nearly categorical bar on juror testimony about statements or events "during the jury's deliberations."

The panel also noted that, while the proposition that egregious juror misconduct will not necessarily result in relief from the verdict may seem antithetical to notions of due process, Fed. R. Evid. 606(b) exists to protect jurors from harassment and maintain the integrity and finality of jury verdicts. Thus, while persistent inquiry into the internal jury process may lead to the invalidation of some verdicts reached as the result of improper jury behavior, the trial by jury system may not survive efforts to perfect it.

The panel then analogized Leung's proffered affidavit to the juror's testimony in Tanner on the ground that, in both instances, the testimony attempted to shed light on the jury's internal affairs and sought a new trial on the ground that jurors prematurely made up their minds and discussed evidence before deliberations began. Since parsing how jurors considered evidence is exactly what Fed. R. Evid. 606(b) plainly sought to prevent, the panel declined to intrude upon the jury's mental processes concerning the verdict.

Leung then argued that the affidavit supports the inference that jurors deliberately lied during voir dire when the jurors represented that they could promise not to communicate about the case until it was over. However, the panel found Leung's argument meritless on grounds that: (1) it was nothing more than a revival of the sentiment in the now-abrogated case of Hard v. Burlington Northern Railroad, 812 F.2d 482 (9th Cir. 1987) (holding that "statements" made during deliberations "which tend to show deceit during voir dire are not barred by [Fed. R. Evid. 606(b)]) and (2) the affidavit contained no evidence of bias or deception. The panel found that nothing in the affidavit supported the inference that any of the jurors lied or concealed bias; rather, the affidavit, at most, suggested that some jurors might not have complied with each instruction.

Furthermore, the panel stated that, as a policy matter, Leung's insistence that every instance of juror misconduct should be admissible evidence of dishonesty or bias would be untenable because even trivial missteps would become fair game for a motion for a new trial. There would, therefore, be staggering consequences on the finality of jury verdicts because common, trivial mistakes of mere human fallibility would leave jury verdicts open to a motion for a new trial.

The panel held that, during a proceeding to set aside a verdict, juror testimony that other jurors engaged in premature deliberations or made up their minds about the case prior to beginning deliberations is inadmissible if offered to demonstrate that the jury engaged in flawed processing of the evidence because such testimony improperly implicates the internal affairs of the jury during an inquiry into the "validity of the verdict."

The panel concluded that a trial court has many remedies available within its broad discretion to correct jury misconduct when that misconduct is brought to the trial court's attention during trial and that, even when evidence of misconduct comes to light after the trial, a party may nevertheless attempt to produce non-juror testimony about alleged irregularities. However, once a jury pronounces its judgment, Fed. R. Evid. 606(b) protects jurors and, in light of Fed. R. Evid. 606(b)'s prohibition on juror testimony regarding the internal affairs of the jury, Leung was not entitled to a new trial or evidentiary hearing on the basis of the post-verdict juror affidavit. Leung's post-verdict affidavit was "too little, too late."

To read full opinion, please visit:

http://cdn.ca9.uscourts.gov/da...15/08/06/13-10242.pdf


Panel: Sidney R. Thomas, Chief Judge, M. Margaret McKeown, Circuit Judge, and Virginia M. Kendall, District Judge, sitting by designation.

Argument Date: February 11, 2015

Date of Issued Opinion: August 6, 2015

Docket Number: 13-10242

Decided: Affirmed the District Court's denial of Defendant-Appellant's motion for a new trial and evidentiary hearing on ground that Fed. R. Evid. 606(b) barred admission of a juror's affidavit, which alleged that: (1) several jurors violated the District Court's instructions not to discuss the case before final deliberations by regularly talking about the evidence during breaks in the trial and (2) before the jury began deliberations, at least three other jurors "had already made up their minds that the defendant was guilty."

Case Alert Author: Ryan Arakawa

Counsel:

Dennis P. Riordan (argued) and Donald M. Horgan, Riordan & Hogan, San Francisco, California, for Defendant-Appellant.

Adam D. Chandler (argued), James J. Fredericks, and Kristen C. Limarzi, Attorneys; Brent Snyder, Deputy Assistant Attorney General; William Baer, Assistant Attorney General; Peter K. Huston and Micah L. Wyatt, Attorneys, United States Department of Justice, Washington, D.C., for Plaintiff-Appellee.

Author of Opinion: Judge McKeown

Circuit: Ninth Circuit

Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/17/2015 06:04 PM     9th Circuit  

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