Tanner v. United States, No. 86-177

CourtUnited States Supreme Court
Writing for the CourtO'CONNOR, J., delivered the opinion for a unanimous Court with respect to Parts III and IV and the opinion of the Court with respect to Parts I and II, in which REHNQUIST, C.J., and WHITE, POWELL, and SCALIA, JJ., joined. MARSHALL
Citation483 U.S. 107,107 S.Ct. 2739,97 L.Ed.2d 90
PartiesAnthony R. TANNER and William M. Conover, Petitioners, v. UNITED STATES
Docket NumberNo. 86-177
Decision Date22 June 1987

483 U.S. 107
107 S.Ct. 2739
97 L.Ed.2d 90
Anthony R. TANNER and William M. Conover, Petitioners,

v.

UNITED STATES.

No. 86-177.
Argued March 31, 1987.
Decided June 22, 1987.
Syllabus

Seminole Electric Cooperative, Inc. (Seminole), obtained a bank loan for a power plant construction project which included an access road. The loan was guaranteed by the federal Rural Electrification Administration (REA) which had the right to supervise the project, to approve certain contracts including the road construction agreement, and to require certain bidding procedures to be used. Petitioner Conover, Seminole's procurement manager, and petitioner Tanner were friends and had engaged in several business deals together. At about the time the contracts for construction of the road and for fill materials were awarded to Tanner's company upon favorable bidding specifications prepared by Conover's procurement department, Tanner paid Conover over $30,000, allegedly as payments on their personal transactions. Thereafter, Conover helped resolve problems between Seminole and Tanner on terms favorable to Tanner, and, after the REA complained that Tanner's bond was not from an approved company, Conover sent letters to a new bonding company that misrepresented the road's state of completion. On these facts, petitioners were indicted and 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. Before they were sentenced, petitioners filed a motion seeking permission to interview jurors, an evidentiary hearing, and a new trial based on a trial juror's statement that several jurors had consumed alcohol at lunch throughout the trial, causing them to sleep during the afternoons. The District Court concluded that juror testimony on intoxication was inadmissible under Federal Rule of Evidence 606(b) to impeach the jury's verdict, but invited petitioners to call nonjuror witnesses in support of their motion. The only such evidence introduced was defense counsel's testimony that he had observed one of the jurors "in a sort of giggly mood" at trial but did not bring this to anyone's attention at that time. The judge pointed out that, although he had discussed with counsel during the trial the possibility that jurors were falling asleep, neither counsel nor courtroom employees had thereafter alerted him to such a problem, and he had observed none himself. Thus, he denied the motion and subsequently denied a similar motion based on another juror's affidavit which alleged widespread juror use of alcohol and drugs during the trial, but which

Page 108

admitted that none of the jurors with whom the affiant drank were intoxicated and that his own reasoning ability was affected only one time. The Court of Appeals affirmed petitioners' convictions, holding that their actions constituted a conspiracy to defraud the United States under § 371, and that this conspiracy was sufficient to establish a § 1341 violation. Thus, the court did not reach the question whether the evidence established the use of the mails for the purpose of defrauding Seminole.

Held:

1. The District Court did not err in refusing to hold an evidentiary hearing at which jurors would testify on juror alcohol and drug use during the trial. Pp. 116-127.

(a) Such testimony is barred by Rule 606(b), which embodies the long-accepted common-law and federal rule on the subject, and which prohibits the impeachment of a verdict with a juror's testimony "as to . . . the effect of anything upon his or any juror's mind or emotions . . ., except that [such testimony is admissible on the question] whether any outside influence was improperly brought to bear on any juror." This Rule is supported by substantial policy considerations, including the need to assure full and frank discussion in the privacy of the jury room, to prevent the harassment of jurors by losing parties, and to preserve the community's trust in a system that relies on the decisions of laypeople. Petitioners' argument that substance abuse constitutes an improper "outside influence" about which jurors may testify under the Rule is without merit in light of contrary judicial interpretation of the common-law rule, as well as Rule 606(b)'s plain language and legislative history. Even if the Rule is interpreted to retain a common-law exception allowing postverdict inquiry into juror incompetence in cases of "substantial if not wholly conclusive evidence of incompetency," the record here falls far short of the extremely strong showing of incompetency that the exception requires. Pp. 116-126.

(b) An evidentiary hearing including juror testimony on drug and alcohol use was not required under petitioners' Sixth Amendment right to trial by a competent and unimpaired jury. That right is adequately protected by several aspects of the trial process, including voir dire, the fact that the preverdict conduct of jurors is observable by the court, by counsel, by court personnel, and by other jurors, and by the fact that, as here, the trial court may allow a post-trial evidentiary hearing to impeach the verdict by nonjuror evidence of juror misconduct. Pp. 126-127.

2. To the extent the evidence established a conspiracy by petitioners to defraud Seminole, their actions did not violate § 371, which prohibits conspiracies "to defraud the United States, or any agency thereof." The Government's argument that Seminole, as the recipient of federal financial assistance, and the subject of federal supervision, must be

Page 109

treated as "the United States" under § 371 is untenable, in light of the statute's plain and unambiguous language and the Government's concession that Seminole is not an "agency" thereunder, and in the absence of any indication in the legislative history that § 371 should be expanded to cover conspiracies to defraud those acting on behalf of the United States. Given the immense variety of federal assistance arrangements, the Government's suggested requirement that there be "substantial ongoing federal supervision" of the defrauded nongovernmental intermediary before a crime against the United States occurs fails to provide any real guidance. However, to the extent that the evidence was sufficient to establish that petitioners conspired to cause Seminole to make misrepresentations to the REA, petitioners' § 371 convictions may stand. On remand, the Court of Appeals must consider the sufficiency of the evidence on this charge. Pp. 128-132.

3. If, on remand, the premise on which the Court of Appeals based its affirmance of the mail fraud convictions under § 1341 that petitioners' actions constituted a conspiracy to defraud the United States under § 371—is rejected, that court must consider whether the evidence established a scheme to defraud Seminole through the use of the mails. Pp. 133-134.

772 F.2d 765, (CA11 1985), affirmed in part and remanded.

O'CONNOR, J., delivered the opinion for a unanimous Court with respect to Parts III and IV and the opinion of the Court with respect to Parts I and II, in which REHNQUIST, C.J., and WHITE, POWELL, and SCALIA, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 134.

John A. DeVault, III, Timothy J. Corrigan, Jacksonville, Fla., for petitioners.

Richard J. Lazarus, for respondent.

Justice O'CONNOR delivered the opinion of the Court.

Petitioners William Conover and Anthony Tanner were convicted of conspiring to defraud the United States in violation of 18 U.S.C. § 371, and of committing mail fraud in

Page 110

violation of 18 U.S.C. § 1341. The United States Court of Appeals for the Eleventh Circuit affirmed the convictions. 772 F.2d 765 (1985). Petitioners argue that the District Court erred in refusing to admit juror testimony at a post-verdict hearing on juror intoxication during the trial; and that the conspiracy count of the indictment failed to charge a crime against the United States. We affirm in part and remand.

I

Conover was the procurement manager at Seminole Electric Cooperative, Inc. (Seminole), a Florida corporation owned and operated by 11 rural electric distribution cooperatives. Seminole generates and transmits electrical energy to the cooperatives.

In 1979, Seminole borrowed over $1.1 billion from the Federal Financing Bank in order to construct a coal-fired power plant near Palatka, Florida. The loan was guaranteed by the Rural Electrification Administration (REA), a credit agency of the United States Department of Agriculture that assists rural electric organizations by providing loans, guaranteeing loans from other sources, and approving other security arrangements that allow the borrower to obtain financing. REA, A Brief History of the Rural Electrification and Telephone Programs (1985). The loan agreement between Seminole and the REA provided for federal supervision of the construction project. Under the contract, the REA could supervise the construction and equipment of the electric system, and inspect, examine, and test all work and materials relating to the construction project. App. 61-62. REA Bulletins and REA memoranda required Seminole to obtain REA approval before letting out certain contracts, and required certain bidding procedures to be used depending on the type of contract. Id., at 83, 105-108.

Construction of the Palatka plant began in September 1979. To provide access to an area where a transmission line would be run, the plans called for the construction of a 51-

Page 111

mile patrol road. The road required materials that would support heavy trucks and resist flooding, and in March 1981, Conover was informed that Seminole's current construction contractor was having difficulty obtaining enough suitable fill material for the road. The contractor indicated that it had not attempted to locate alternative fill materials, and...

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889 practice notes
  • Bowers v. Walsh, No. 00-CV-6459L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • July 22, 2003
    ...was "quite negligible." Id. at 189 (citing, e.g., United States v. Calbas, 821 F.2d 887, 896 n. 9 (2d Cir.1987); Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)). The Court proceeded to note that only three or four jurors actually heard the rumors and that t......
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...States, or any agency thereof " (emphasis added). The Supreme Court held in Tanner v. United States, 483 Page 422 U.S. 107, 128-132, 107 S.Ct. 2739, 2751-54, 97 L.Ed.2d 90 (1987), that in order to establish a conspiracy to "defraud the United States," under the second clause of Sec. 371, th......
  • United States v. Johnson, CRIMINAL ACTION NO. 2:13-cr-00091-7
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 9, 2017
    ...judicial inquiry . . . ." United States v. Moore, 763 F.3d 900, 913 (7th Cir. 2014) (citing Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107, 116-27 (1987); Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir. 1993)). Thus, a finding of guilt as to the conspiracy in Count One may be prop......
  • U.S. v. Stewart, Docket No. 04-3953(L)-CR.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 6, 2006
    ...to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople." Tanner v. United States, 483 U.S. 107, 120-21, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). Accordingly, probing jurors for "potential instances of bias, misconduct or extraneous influ......
  • Request a trial to view additional results
881 cases
  • Bowers v. Walsh, No. 00-CV-6459L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • July 22, 2003
    ...was "quite negligible." Id. at 189 (citing, e.g., United States v. Calbas, 821 F.2d 887, 896 n. 9 (2d Cir.1987); Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987)). The Court proceeded to note that only three or four jurors actually heard the rumors and that t......
  • U.S. v. Brandon, Nos. 92-1447 and 92-1465
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 7, 1993
    ...States, or any agency thereof " (emphasis added). The Supreme Court held in Tanner v. United States, 483 Page 422 U.S. 107, 128-132, 107 S.Ct. 2739, 2751-54, 97 L.Ed.2d 90 (1987), that in order to establish a conspiracy to "defraud the United States," under the second clause of Sec. 371, th......
  • United States v. Johnson, CRIMINAL ACTION NO. 2:13-cr-00091-7
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • June 9, 2017
    ...judicial inquiry . . . ." United States v. Moore, 763 F.3d 900, 913 (7th Cir. 2014) (citing Fed. R. Evid. 606(b); Tanner v. United States, 483 U.S. 107, 116-27 (1987); Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir. 1993)). Thus, a finding of guilt as to the conspiracy in Count One may be prop......
  • U.S. v. Stewart, Docket No. 04-3953(L)-CR.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 6, 2006
    ...to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople." Tanner v. United States, 483 U.S. 107, 120-21, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). Accordingly, probing jurors for "potential instances of bias, misconduct or extraneous influ......
  • Request a trial to view additional results
4 books & journal articles
  • ICEBERG AHEAD: WHY COURTS SHOULD PRESUME BIAS IN CASES OF EXTRANEOUS JUROR CONTACTS.
    • United States
    • Case Western Reserve Law Review Vol. 72 Nbr. 2, December 2021
    • December 22, 2021
    ...of the Common Law Tradition, 38 S. III. U. L.J. 403, 406 (2014). (81.) Id. at 406-07. (82.) Id. at 406; see also Tanner v. United States, 483 U.S. 107, 121 (83.) Hull, supra note 80, at 407 (quoting S. Rep. No. 93-1277, at 13-14 (1974)); see also Fed. R. Evid. 606 note (Subdivision (b)) ("T......
  • Recent Legal Developments
    • United States
    • Criminal Justice Review Nbr. 43-2, June 2018
    • June 1, 2018
    ...424 U.S. 319 (1976).McWilliams v. Dunn, 581 U.S. --- (2017).Strickland v. Washington, 466 U.S. 668 (1984).Tanner v. United States, 483 U.S. 107 (1987).Tennessee v. Garner, 471 U.S. 1 (1985).Trevino v. Thaler, 567 U.S. --- (2013).United States v. Newman, 574 U.S. --- (2014).United States v. ......
  • THE LIVING RULES OF EVIDENCE.
    • United States
    • University of Pennsylvania Law Review Vol. 170 Nbr. 4, March 2022
    • March 1, 2022
    ...or the law is also typically considered internal and therefore subject to Rule 6o6(b)'s bar."). (49) See Tanner v. United States, 483 U.S. 107, 120-22 (1987) (holding that a juror is barred from testifying to drug or alcohol use among jurors by (50) Notably, Peria-Rodriguez v. Colorado crea......
  • Runaway Jury: An Analysis of State Laws Concerning Juror Impeachment
    • United States
    • Criminal Justice Policy Review Nbr. 31-3, April 2020
    • April 1, 2020
    ...-statements-dont-matter-to-the-supreme-courts-conservatives.htmlTanner v. United States, 483 U. S. 107 (1987).Thompson, P. N. (1984). Challenge to the decisionmaking process–Federal Rule of Evidence 606(b) and the constitutional right to a fair trial. Southwestern Law Journal, 38, 1187-1229......

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