In re Sittenfeld
| Decision Date | 23 September 2022 |
| Docket Number | 22-3694 |
| Citation | 49 F.4th 1061 |
| Parties | IN RE: Alexander SITTENFELD, aka P.G. Sittenfeld, Petitioner. |
| Court | U.S. Court of Appeals — Sixth Circuit |
49 F.4th 1061
IN RE: Alexander SITTENFELD, aka P.G. Sittenfeld, Petitioner.
No. 22-3694
United States Court of Appeals, Sixth Circuit.
Decided and Filed: September 23, 2022
ON PETITION FOR A WRIT OF MANDAMUS AND LETTER BRIEF: Gus J. Lazares, RITTGERS & RITTGERS, Cincinnati, Ohio, for Alexander Sittenfeld. ON RESPONSE AND LETTER BRIEF: Alexis J. Zouhary, Matthew C. Singer, UNITED STATES ATTORNEY'S OFFICE, Cincinnati, Ohio, for the United States.
Before: BATCHELDER, GIBBONS, and THAPAR, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court in which THAPAR, J., joined. GIBBONS, J. (pp. 1080–82), delivered a separate concurring opinion.
ALICE M. BATCHELDER, Circuit Judge.
Alexander Sittenfeld, a criminal defendant convicted by a jury in the district court, has filed a motion in this court to compel a forensic examination of a juror's cellphone, computer, or "any electronic device that [the juror] used to make electronic communications." Sittenfeld presented this same motion to the district court, which denied it. United States v. Sittenfeld , No. 1:20-cr-142, Dkt. 234 (S.D. Ohio, Aug. 3, 2022) (sealed). We construe Sittenfeld's motion as an appeal from that order.1
Sittenfeld's argument prompted a precursor question that had not been addressed, so we asked for additional briefing on this question: What legal authority empowers a court to order a juror to provide his or her cellphone, computer, or other electronic devices to the court for it to conduct—or permit a party to conduct—a search or forensic examination of the juror's devices?
Because a court's inherent or statutory authority in conducting a Remmer hearing does not include an unlimited, inquisitorial power to order jurors to surrender their personal possessions, such as their electronic devices, or to divulge their passwords, we hold that the district court had no power to order a forensic examination of the juror's devices. Therefore, we AFFIRM the district court's denial of Sittenfeld's motion and alert the district court that any further aspects of the Remmer hearing must comply with this opinion.
I.
In the criminal context, a Remmer hearing concerns a defendant's Sixth Amendment right to "a fair trial by a panel of impartial, indifferent jurors." United States v. Perry , 438 F.3d 642, 651 (6th Cir. 2006) (citation omitted). In Remmer v. United States , 347 U.S. 227, 229-30, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court held that "unauthorized invasions" on the jury proceedings can oblige the trial court to "determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." This is a Remmer hearing.
In this circuit, a Remmer hearing is required when a defendant presents a "colorable claim" that extraneous information or contact had an obvious or likely adverse effect on the jury. United States v. Harris , 881 F.3d 945, 953 (6th Cir. 2018) ; United States v. Gonzales , 227 F.3d 520, 527 (6th Cir. 2000). In the post-verdict scenario, after a conviction, the Remmer hearing is the prescribed method for investigating whether the outside influence affected the verdict in a way that deprived the defendant of a fair trial by impartial jurors, and thus necessitates a new trial.
But to justify a new trial, the defendant must prove at the Remmer hearing that the improper contact caused actual prejudice to the verdict.
Ewing v. Horton , 914 F.3d 1027, 1030 (6th Cir. 2019). The mere occurrence of juror misconduct, extraneous information, or improper contact is not, without evidence of actual prejudice, enough to warrant a new trial. United States v. Mack , 729 F.3d 594, 606 (6th Cir. 2013) ("[N]o presumption of prejudice arises merely from the fact that improper contact occurred."); United States v. Pennell , 737 F.2d 521, 532 (6th Cir. 1984).
If after the post-verdict Remmer hearing, the defendant has carried the burden of proving actual prejudice from an outside influence, the court must vacate the conviction and allow for a new trial. See United States v. Davis , 177 F.3d 552, 560 (6th Cir. 1999). If not, the conviction must stand. See id . Either way, the court's determination is subject to appeal, which we review for abuse of discretion. See United States v. Ford , 761 F.3d 641, 654 (6th Cir. 2014) ; United States v. Corrado , 304 F.3d 593, 605–06 (6th Cir. 2002) ; Ewing , 914 F.3d at 1033.
II.
After charging Alexander "P.G." Sittenfeld, a former Cincinnati City Council member, on two counts each of honest-services wire fraud, bribery, and attempted extortion under color of official right, the federal prosecutor tried the case to a jury. The trial comprised nine days, spanning June 21 to July 6, 2022. The district court did not sequester the jurors but admonished them repeatedly against discussing the case or considering extraneous information. On the morning of the third day of jury deliberations, a court employee informed the judge that a juror ("Juror X") had been posting throughout her jury service to her private Facebook page, which was visible only to Juror X's Facebook friends, of whom the court employee was one.
The court obtained from the court-employee friend several printouts of Juror X's private—otherwise unavailable—posts and the associated comments. One of Juror X's posts expressed her opinion that another juror ("Juror Y"), "shouldn't be on the jury because [she] hates anyone that shares the same profession as our person on trial. Not cool!!!" None of Juror X's posts contained facts about the case, discussed any of the proceedings, or even named the defendant (Sittenfeld). Juror X's Facebook friends, however, added their own comments to her posts. When one friend identified Sittenfeld by name, Juror X hid that comment so that others could not see it. Another friend commented, on the first day of trial, with a link to a local newspaper's homepage that linked to an article about the case. And on the third day of trial, yet another friend wrote a lengthy comment that included thoughts on juror nullification, such as an assertion that, "A jury has the right and the power to return a not guilty verdict and add in, when reading the verdict, that the jury verdict is based on the jury deciding that the law is unfair."
The court immediately called the parties to chambers to inform them of Juror X's Facebook postings and discuss the situation. In the meantime, the jury reached a verdict, so the court considered whether to hear the verdict. After a brief recess, Sittenfeld moved for a mistrial, which the court denied without prejudice. Ultimately, the parties and court decided to accept the verdict with the possibility of a post-verdict Remmer hearing if the jury returned a guilty verdict.
The jury convicted Sittenfeld on two of the six counts: one count each of bribery and attempted extortion under color of official right. The court accepted the verdict, ended the trial, and discharged the jury. But the court had Jurors X and Y remain for questioning in chambers. Pursuant
to Federal Rule of Evidence 606(b), the court forbade counsel from asking about jury deliberations, except for whether the deliberations had included reference to any extraneous prejudicial information or other outside influences on the jury.
After Juror X was sworn in, Sittenfeld's attorney questioned her about the Facebook posts and comments. Under this questioning, Juror X reasserted her opinion that Juror Y should not have been on the jury because she hated politicians, which Juror X surmised from statements that Juror Y made throughout the trial. In answer to another question, Juror X explained that she had hidden Sittenfeld's name from one of the Facebook comments so that others would not see it. And she testified that she ignored the commenter's link to the newspaper site, did not click the link, and did not read any news about the case. During the questioning, Juror X shared her cellphone with Sittenfeld's counsel so that he could read all the posts and comments, including the full content of those that were truncated on the printouts. Finally, Juror X testified that she did not engage in any private messaging with anyone, including any other jurors, about the case. The government declined to ask her any questions and the court asked her no questions before excusing her.
After Juror Y was sworn in, and testified that she had no opinions about politicians and elected officials, Sittenfeld's attorney pressed her at least six times to confess to Juror X's accusation that she hated politicians. Juror Y denied the accusation repeatedly and emphatically. Juror Y also testified that she did not participate in social media, had followed all the court's instructions, and had no bias against the defendant. The government did not ask her any questions. The judge asked what kind of engineer she was (aerospace) and shared that he had been an electrical engineer before becoming a lawyer, but asked no questions about the issue.
The next day, the court obtained and provided the parties with complete screenshots of all of Juror X's posts and comments. Four days later, Sittenfeld moved the court, under seal, to order Juror X to "preserve any and all data on any and all electronic devices on which she was capable of accessing Facebook during the trial and [the jury's] deliberation," and for leave to subpoena Facebook, Inc. for Juror X's Facebook data during that same period. Sittenfeld's sole cited source of authority was United States v. Lanier , 988 F.3d 284, 296 (6th Cir. 2021) ("When there is evidence that, in the lead-up to a Remmer hearing, a juror has researched a case online or has electronically communicated with a third-party about the case, a district court must seek at minimum to preserve the relevant data and notify the defendants.").
The court ordered Juror X to preserve any electronic communications relating to "her service as a juror...
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