U.S. v. Blumeyer

• Decision Date: 11 October 1995
• Docket Number: No. 94-3671,94-3671
• Parties: UNITED STATES of America, Appellant, v. Arthur A. BLUMEYER, III, and John W. Peckham, Jr., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1013

62 F.3d 1013

UNITED STATES of America, Appellant, v. Arthur A. BLUMEYER, III, and John W. Peckham, Jr., Appellees.

No. 94-3671.

United States Court of Appeals,

Eighth Circuit.

Submitted May 16, 1995.

Decided Aug. 4, 1995.

Rehearing and Suggestions for

Rehearing En Banc Denied

Oct. 11, 1995. ^*

Audrey Goldstein Fleissing, St. Louis, MO, argued, for appellant. In addition the names of Edward L. Dowd, Jr. (as U.S. Atty.), and Patricia A. McGarry, St. Louis, MO, appear on the brief of the appellant.

Lee Lawless, St. Louis, MO, argued, for appellee Peckham.

N. Stephen Marshall, St. Louis, MO, for appellee Blumeyer.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

BOWMAN, Circuit Judge.

The United States appeals an order of the District Court granting a new trial to Arthur Blumeyer and John Peckham on the basis of a juror's misconduct. We reverse, reinstate the jury's verdicts, and remand for sentencing.

After a four-week trial ending in six days of deliberations, a jury convicted Blumeyer and Peckham of wire fraud in violation of 18 U.S.C. Sec. 1343 (1988), mail fraud in violation of 18 U.S.C. Sec. 1341, and conspiracy to commit wire fraud and mail fraud in violation of 18 U.S.C. Sec. 371. The jury also convicted Blumeyer of multiple counts of money laundering in violation of 18 U.S.C. Sec. 1956. Upon the request of both defendants, the District Court conducted a poll of jurors. All of the jurors confirmed the verdicts. Juror 9, however, "paused for a long moment before announcing her agreement with the verdicts against Mr. Peckham, and she appeared close to tears," but "she clearly stated that the announced convictions were her 'true and correct' verdicts." United States v. Blumeyer, No. 4:93CR68, Mem. & Order at 3 (E.D.Mo. Aug. 30, 1994) (Mem. & Order).

The following day Juror 9 called Peckham to tell him that she regretted the verdicts against him. Peckham asked Juror 9 to contact his attorney, and Peckham's attorney notified the District Court of Juror 9's communications. On February 15, 1994, the court interviewed Juror 9. During the interview, Peckham's attorney asked Juror 9 whether any juror had consulted an outside source during the deliberations. Juror 9 said that the jury foreman had asked "an attorney friend of his, just on a question of law" and that the foreman mentioned the contact in the context of a discussion among the jurors. ¹ Sealed Transcript of Feb. 15, 1994, Interview at 12. She could not remember what the foreman had said about the contact and noted, "I didn't pay a lot of attention to him anyway." Id. Juror 9 also said that when the foreman started discussing his contact with an attorney some of the jurors were getting coffee and not listening to the foreman. Additionally, some of the jurors who were listening were apparently upset by the foreman's contact with an attorney and admonished the foreman for violating the District Court's instructions. Based on this interview the District Court granted Peckham's motion for leave to interview the other petit jurors.

Jurors 10, 11, and 12 largely corroborated Juror 9's statements regarding the foreman's contact with an attorney. Like Juror 9, they did not remember the subject of the question the foreman said he had posed. Juror 4's memory of the foreman's statement was similar to that of Jurors 10, 11, and 12 except that she believed that the comment related to the legality of starting a corporation with insufficient capital. Juror 4, however, also said at least ten times that she really couldn't remember the subject of the question. In response to a query from the court regarding the level of her certainty, she replied, "I'm uncertain about what it was that [the foreman] checked on [with the attorney]." Sealed Transcript of June 10, 1994 Hearing at 14. Jurors 4 and 11 described the subject of the foreman's conversation with the attorney as a "hypothetical question" or "things in general ... [n]ot specific to the case." Id. at 26, 15. Juror 3, while recalling that the foreman mentioned a conversation with an attorney, could not remember whether the foreman's comment related to the case at all. Jurors 1, 2, 5, 6, and 8 did not remember the foreman discussing a conversation with an attorney at any time during the deliberations. The court interviewed the foreman on two separate occasions, and the foreman denied having discussed with an attorney any of the substantive issues in the case, either directly or through hypothetical questions.

After interviewing all of the jurors, the court found "the Foreperson posed a hypothetical question to an attorney about substantive issues in the case" that "were material to Defendant's guilt or innocence." Mem. & Order at 10, 15. The court declined to characterize the "substantive issues" as either legal or factual. Id. at 13 n. 4. The court further found that the admonitions of the other jurors "prevented the Foreperson from relating fully the information he had received." Id. at 10. Based on these findings, the court held that the law required it to presume that the contact was prejudicial to the defendants. Id. at 13. The court concluded that the government had not rebutted the presumption and granted Blumeyer's and Peckham's motions for a new trial. We will reverse a district court's decision to grant a new trial only when that decision constitutes an abuse of discretion. United States v. Estrada, 45 F.3d 1215, 1225 (8th Cir.1995), petition for cert. filed, No. 94-8972 (April 24, 1995). A discretionary decision based on a clearly erroneous finding of fact constitutes an abuse of the trial court's discretion. Waible v. McDonald's Corp., 935 F.2d 924, 926 (8th Cir.1991) (per curiam).

The District Court's order relies on Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954), and United States v. Bassler, 651 F.2d 600, 603 (8th Cir.), cert. denied, 454 U.S. 944, 102 S.Ct. 485, 70 L.Ed.2d 254 (1981), and cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 305 (1982), as authority for imposing the rebuttable presumption of prejudice in this case. In Remmer, the Supreme Court stated that

[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.

Remmer, 347 U.S. at 229, 74 S.Ct. at 451. The presumption of prejudice does not apply unless the extrinsic contact relates to "factual evidence not developed at trial." United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir.1988). Extrinsic contacts that relate to the facts of a case are presumptively prejudicial "because the jury is the final arbiter of factual disputes." Id.

The government argues that in this case there is no evidence to support the District Court's finding of an extrinsic contact on a substantive matter in the case, either factual or legal. We agree. The juror interviews revealed absolutely nothing that would warrant a finding that the improper contact between the foreman and an attorney related to a substantive issue in the case. It is telling that the District Court made no firm finding of fact regarding the subject matter of the hypothetical question posed to the attorney. At most, the testimony of the jurors tends to show that the foreman contacted an attorney and asked a hypothetical question about something. One juror described the question as a question of law. The District Court's finding that "the Foreperson posed a hypothetical question to an attorney about substantive issues in the case," is unsupported by the testimony of the jurors, which is the only evidence in the record on this issue. We hold that the court's finding is clearly erroneous, and thus the factual predicate necessary for the court to presume prejudice was absent.

Even if the extrinsic contact related to a substantive issue in the case, the government argues that the improper contact concerned only a point of law. In response to the government's argument, Blumeyer and Peckham argue that the "use of the labels 'legal' or 'factual' is not helpful" in determining whether an extraneous contact is presumptively prejudicial. Blumeyer's Brief at 31; Peckham's Brief at 33. This Court, however, has found the distinction between factual and legal issues to be legally significant as well as helpful. See Cheyenne, 855 F.2d at 568. The District Court recognized that Cheyenne supports the government's position, Mem. & Order at 13 n. 4, but refused to apply Cheyenne because the court disagreed with this Court's reasoning in that decision. We are bound, as is the District Court, by the prior decisions of this Court, United States v. Rodamaker, 56 F.3d 898, 903 (8th Cir.1995), and we must either apply Cheyenne or distinguish it from the instant case. We agree with the government that Cheyenne applies to this case.

The government argues that the only available evidence of the foreman's improper contact with an attorney shows that the contact related to a question, or questions, of law. Blumeyer and Peckham, on the other hand, contend that the extrinsic contact relates to factual issues to be decided by the jury and, therefore, forms the proper predicate for the invocation of the presumption of prejudice. They cite the District Court's finding that the contact related to "substantive issues in the case," Mem. & Order at 13, in support of their argument that the contact was related to factual issues. We note, however, that the District Court specifically refused to "classify the extrinsic information obtained by the Foreperson as clearly factual or legal in nature." Mem. & Order at 13 n. 4.

Having reviewed the record, we...