U.S. v. Benally, 08-4009.

• Citation: 546 F.3d 1230
• Decision Date: 12 November 2008
• Docket Number: No. 08-4009.,08-4009.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kerry Dean BENALLY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

546 F.3d 1230

UNITED STATES of America, Plaintiff-Appellant, v. Kerry Dean BENALLY, Defendant-Appellee.

No. 08-4009.

United States Court of Appeals, Tenth Circuit.

November 12, 2008.

Trina A. Higgins, Assistant United States Attorney (Brett L. Tolman, United States Attorney; Diana Hagen, Assistant United States Attorney, with her on the briefs), District of UT, for Plaintiff-Appellant.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, with him on the brief), District of UT, for Defendant-Appellee.

Before KELLY, McCONNELL and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

On October 10, 2007, a jury convicted Kerry Dean Benally of forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon, in violation of 18 U.S.C. § 111(b). The next day one of the jurors came forward with a charge that the jury deliberations had been tainted by racial bias and other inappropriate considerations. The district court held that Federal Rule of Evidence 606(b)'s general rule against jurors testifying about jury deliberations did not apply and that the evidence of juror misconduct was sufficient to warrant a new trial. We disagree. Rule 606(b)'s prohibition covers juror testimony of racial bias in jury deliberations of the kind alleged in Mr. Benally's trial, and the Sixth Amendment does not require an exception. The original conviction is reinstated.

I. BACKGROUND

Mr. Benally, a member of the Ute Mountain Ute tribe, was charged with forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon. Prior to trial, he submitted several voir dire questions aimed at uncovering potential bias against Native Americans. The judge asked two of those questions at voir dire: "Would the fact that the defendant is a Native American affect your evaluation of the case?" and "Have you ever had a negative experience with any individuals of Native American descent? And, if so, would that experience affect your evaluation of the facts of this case?" No juror answered affirmatively to either question. The case proceeded to trial and the jury found Mr. Benally guilty.

The day after the jury announced its verdict, one juror approached defense counsel with unsettling information. This juror — "Juror K.C." — claimed that the jury deliberation had been improperly influenced by racist claims about Native Americans. The foreman, according to Juror K.C., told the other jurors that he used to live on or near an Indian Reservation, that "[w]hen Indians get alcohol, they all get drunk," and that when they get drunk, they get violent. Juror K.C. said that when she then argued with the foreman that not all Native Americans get drunk, the foreman insisted, "Yes, they do." Juror K.C. claimed that at that point a second juror chimed in to say that she had also lived on or near a reservation. While Juror K.C. could not hear the rest of this juror's statement, it was "clear she was agreeing with the foreman's statement about Indians." Juror K.C. continued to argue with the foreman, going back and forth several times.

She also told defense counsel about another discussion in which some jurors discussed the need to "send a message back to the reservation." During this second discussion, Juror. K.C. says that one juror told how he had two family members in law enforcement and had "heard stories from them about what happens when people mess with police officers and get away with it."

Juror K.C. signed an affidavit attesting to both of these discussions. A defense investigator then contacted another juror who seems to have corroborated some of Juror K.C.'s claims, but this second juror was unwilling to sign an affidavit. The defense investigator did, however, sign an affidavit saying that the second juror "indicated that the jury foreman made a statement regarding Indians and drinking" and "said something like he had seen a lot of Indians that drink."

The investigator also testified that the juror recalled a statement about "sending a message back to the reservation."

Armed with these two affidavits, Mr. Benally moved to vacate the verdict and receive a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. He argued that the jurors had lied about their racial bias on voir dire and had improperly considered information not in evidence. The government opposed the motion on the ground that Mr. Benally's only evidence of misconduct was inadmissible under Rule 606(b). That rule states, in relevant part:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith.

FED.R.EVID. 606(b). Rule 606(b) provides three limited exceptions to this general prohibition against jurors testifying about jury deliberations:

But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Id.

The district court admitted the juror testimony under the exceptions that allow jurors to testify about "whether extraneous prejudicial information was improperly brought to the jury's attention" or "whether any outside influence was improperly brought to bear upon any juror." Dist. Ct.Op. 2. Relying upon this evidence, the judge found that two jurors had lied on voir dire when they failed to reveal their past experiences with Native Americans and their preconception that all Native Americans get drunk and then violent. He also found that the jury had improperly considered extrinsic evidence when the juror whose family was in law enforcement related stories that showed the need to send a message. The judge viewed each of these as sufficient evidence of misconduct and granted a new trial. The government then appealed.

II. ANALYSIS

"When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what happened in the jury room." McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). This case illustrates the tension between those interests. A juror has offered testimony that the verdict may have been influenced by improper arguments predicated on racial stereotyping and a need to send a message; but Mr. Benally can obtain redress (in the form of a new trial) only if that juror's testimony is admissible. Rule 606(b) says it is not.

A. The History and Purpose of Rule 606(b)

The rule against impeachment of a jury verdict by juror testimony as to internal deliberations may be traced back to "Mansfield's Rule," originating in the 1785 case of Vaise v. Delaval, 99 Eng. Rep. 944 (K.B.1785). Faced with juror testimony that the jury had reached its verdict by drawing lots, Lord Mansfield established a blanket ban on jurors testifying against their own verdict. The rule was adopted by most American jurisdictions and "[b]y the beginning of [the twentieth] century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict." Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). This common-law principle, together with exceptions also developed by common law, was eventually codified into Federal Rule of Evidence 606(b).

Rule 606(b) is a rule of evidence, but its role in the criminal justice process is substantive: it insulates the deliberations of the jury from subsequent second-guessing by the judiciary. Jury decision-making is designed to be a black box: the inputs (evidence and argument) are carefully regulated by law and the output (the verdict) is publicly announced, but the inner workings and deliberation of the jury are deliberately insulated from subsequent review. Judges instruct the jury as to the law, but have no way of knowing whether the jurors follow those instructions. Judges and lawyers speak to the jury about how to evaluate the evidence, but cannot tell how the jurors decide among conflicting testimony or facts. Juries are told to put aside their prejudices and preconceptions, but no one knows whether they do so. Juries provide no reasons, only verdicts.

To treat the jury as a black box may seem to offend the search for perfect justice. The rule makes it difficult and in some cases impossible to ensure that jury verdicts are based on evidence and law rather than bias or caprice. But our legal system is grounded on the conviction, borne out by experience, that decisions by ordinary citizens are likely, over time and in the great majority of cases, to approximate justice more closely than more transparently law-bound decisions by professional jurists. Indeed, it might even be that the jury's ability to be irrational, as when it refuses to apply a law against a defendant who has in fact violated it, is one of its strengths. See John D. Jackson, Making Juries Accountable, 50 AM. J. COMP. L. 477, 515 (2002).

If what went on in the jury room were judicially reviewable for reasonableness or fairness, trials would no longer truly be by jury, as the Constitution commands. Final authority would be exercised by whomever is empowered to decide whether the jury's decision was reasonable enough, or based on proper considerations. Judicial review of internal jury deliberations would have the result that "every jury verdict would...