U.S. v. Hall, s. 96-2930

• Decision Date: 07 July 1997
• Docket Number: Nos. 96-2930,96-1386,s. 96-2930
• Parties: UNITED STATES of America, Appellant, v. Everett Kyle HALL, Also Known as Eric, Also Known as Shorty; Roy Lee Hall; and Randall Joe Hall, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1253

116 F.3d 1253

UNITED STATES of America, Appellant, v. Everett Kyle HALL, Also Known as Eric, Also Known as Shorty;

Roy Lee Hall; and Randall Joe Hall, Appellees.

Nos. 96-2930, 96-1386.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1997.

Decided July 7, 1997.

Appeals from the United States District Court for the Western District of Missouri.

Michael Fagan, St. Louis, MO, argued, for appellant.

Thomas Carver, Springfield, MO, for Everett Kyle Hall.

Michael Baker, Springfield, MO, for Randall Joe Hall.

John H. Kizer, Springfield, MO, for Roy Hall.

Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The government appeals from an order granting a new trial to defendants Everett Kyle Hall, Roy Lee Hall, and Randall Joe Hall because the jury was exposed to prejudicial extrinsic matter. We find that the extrinsic matter was harmless beyond a reasonable doubt and thus reverse the order for a new trial. We remand for sentencing pursuant to the judgments of "guilty" originally entered.

I.

The trial court originally ordered a new trial in this case because, on the day that the defendants were to be sentenced pursuant to their conviction on drug offenses, defense counsel produced an affidavit of the jury foreman, William Snyder, stating that Mr. Snyder had "heard the Judge's comments concerning whether there would be evidence of chop shop, prostitution and murder admitted at the trial," and that these comments "were heard by other members of the jury and were discussed by the jury panel during recesses." On appeal from that order, see United States v. Hall, 85 F.3d 367, 369 (8th Cir.1996), we found that "one affidavit does not provide sufficient evidence on which to reach a fully informed decision," and remanded so that the district court could "explore the nature of the jury's exposure to extraneous, prejudicial information beyond what the single affidavit recount[ed]."

On remand, the trial court reinstated its order immediately after holding an evidentiary hearing. At that hearing, defense counsel called only one juror, Mr. Snyder, and he affirmed what he had said in his affidavit. He estimated that the subject of what was overheard from side-bar conferences was broached three or four times in the presence of a majority of the jurors. He said that it "wasn't any kind of serious deliberation of, you know, worldly matters or anything, [but] break room type discussion in the manner of, did you hear what he said or that kind of discussion." The government, on its part, called eleven jurors, none of whom testified to being able to understand anything that was ever said at a side-bar conference. One juror, Tammy Smith, testified that "a couple" of jurors approached her and indicated a desire to talk about matters overheard from bench conferences, but that she stopped the conversation before it began. None of the other jurors whom the government called had any recollection of any discussions among the jurors on these matters. Only two of the jurors did not testify: The government called a government agent to testify about a telephone interview of one of those, and the other one was not located.

The trial court found that Mr. Snyder's credibility had not "been disproven," and credited his testimony. In granting the motion for a new trial, the trial court commented that "certainly the case was not so strong or overwhelming on the part of the government that the jury would have returned a verdict such as it did, absent a hearing of the statements concerning chop shop, prostitution and murder."

II.

As we noted in the first appeal, we believe that prejudice might properly be presumed in this case because the comments alleged to have been overheard from side-bar conferences involved " 'factual evidence not developed at trial.' " Hall, 85 F.3d at 371, quoting United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir.1988). Once such a presumption arises, it becomes the government's burden to show that "the contact was harmless beyond a reasonable doubt." United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1263, 134 L.Ed.2d 212 (1996). We must ask, in other words, if a presumption of prejudice arises, whether the extrinsic evidence was "reasonably likely to affect the verdict, considering the strength of the government's case and whether [the strength of the government's case] outweighed any possible prejudice caused by the extrinsic evidence." Id. In light of our holding in United States v. Delaney, 732 F.2d 639, 643 (8th Cir.1984), quoting Stone v. United States, 113 F.2d 70, 77 (6th Cir.1940), that " '[i]f a single juror is improperly influenced, the verdict is as unfair as if all were,' " we believe that the appropriate inquiry is whether there is any reasonable chance...