U.S. v. Rigsby

• Decision Date: 19 January 1995
• Docket Number: No. 93-6594,93-6594
• Citation: 45 F.3d 120
• Parties: 41 Fed. R. Evid. Serv. 372 UNITED STATES of America, Plaintiff-Appellee, v. Danny M. RIGSBY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 120

45 F.3d 120

41 Fed. R. Evid. Serv. 372

UNITED STATES of America, Plaintiff-Appellee, v. Danny M. RIGSBY, Defendant-Appellant.

No. 93-6594.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 2, 1994.

Decided Jan. 19, 1995.

William Cohen, Asst. U.S. Atty. (argued), Debra Teufel Phillips, Asst. U.S. Atty. (briefed), Nashville, TN, for plaintiff-appellee.

Thomas W. Watson, Asst. Federal Public Defender (briefed), Isaiah Grant (argued and briefed), Nashville, TN, Danny M. Rigsby, Talladega, AL, for defendant-appellant.

Before: LIVELY, JONES, and DAUGHTREY, Circuit Judges.

LIVELY, Circuit Judge.

The question in this case is whether the district court abused its discretion in failing to conduct an inquiry into a suggestion of possible juror bias. After a thorough examination of the record, and upon consideration of the briefs and oral arguments, we conclude that the court did not commit reversible error. Accordingly, we affirm.

I.

On February 2, 1992, the defendant Danny Rigsby purchased a rifle from Clarence Dean Brown at a flea market in Dallas, North Carolina. As part of the sales transaction, Rigsby filled out ATF Form 4473, which is required upon the sale of firearms. On this form, Rigsby stated he was not under indictment or information. Actually, however, he had been charged with a felony offense in April 1991 and later pled guilty on February 25, 1992. Based on the theory that Rigsby became a convicted felon on February 25, 1992, and later possessed the rifle on March 3, 1992, the government charged the defendant with being a convicted felon in possession of a firearm that had been transported in interstate commerce, in violation of 18 U.S.C. Sec. 922(g)(1).

The defendant was tried by jury on September 1, 1993. Pursuant to local rules of the district court, the government filed a witness list with the court in advance of the trial. During voir dire, however, neither attorney inquired whether any of the jurors knew any of the witnesses even though the trial judge did not restrict the questioning by either attorney.

In her opening argument, the prosecuting attorney referred by name to several witnesses whom the government would call in support of its case. Immediately following opening statements, during a short recess, one of the jurors told a marshal that she thought she might know some of the witnesses. The marshal informed the trial judge. Defense counsel then suggested to the judge that "it might be appropriate for the court to inquire as to who she knows, and how well, and what connection." The court declined to make any inquiry, explaining that the witness "talked to the marshal about it. She said she thinks she knows some of the witnesses, and she said was that going to be a problem. So he told her nobody asked her about it, so it is no problem." Defense counsel made no objection to the ruling and requested no other action by the court.

After the jury was sworn and counsel made opening statements, the government called the witnesses on its list, some of whose testimony had been outlined in its opening statement. First, Kenneth Pack, Sheriff of DeKalb County, Tennessee, testified that a man named Eddie Taylor had given a statement in which Taylor claimed he saw the defendant firing a gun on March 2 or 3, 1992. The Sheriff also stated that he recovered the rifle in question from the defendant's family. Second, Eddie Taylor himself testified that on March 3, 1992, he saw Danny Rigsby fire a weapon several times. Third, State Probation Officer Brenda Reed testified that she advised Danny Rigsby that as a convicted felon, federal law prohibited him from possessing or owning a rifle. She also stated that Rigsby signed a probation order containing this and other rules of probation on March 3, 1992. Steve Johnson, Chief Deputy of DeKalb County, testified that he was present at an interview when the defendant admitted owning the rifle, stating he bought it in North Carolina and brought it home to Tennessee. Finally, Julian Bomar, an agent with the ATF, testified that the defendant purchased the rifle and notified his brother when he brought it to Tennessee. The defense presented no witnesses, but attempted to expose inconsistencies in the government's proof by cross-examination.

The defense argued that the government failed to prove that Danny Rigsby was a convicted felon on the date or dates he possessed the weapon. The argument related to the date of his guilty plea and testimony about the dates on which various members of the defendant's family possessed the rifle. The attorney contended that Eddie Taylor's testimony did not agree with other witnesses and that Eddie Taylor was the only witness who placed the gun in the defendant's possession after his conviction.

The entire trial consumed less than one day and concluded with a guilty verdict. The jury was polled and then dismissed. The court appointed trial counsel to prosecute this appeal.

II.

This case concerns the requirement that every defendant in a criminal case receive "a fair trial by a panel of impartial, 'indifferent' jurors," which is a "basic requirement of due process." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955)).

We have found no case exactly like the present one in which the only claim of jury "taint" arises from the fact that one juror thought she knew some of the witnesses and asked a court functionary if this would present a problem. Usually there has been some outside contact with one or more jurors or at least some extraneous information brought to the attention of jurors. The defendant seeks to bring this case within the rules formulated for, and applied to, those cases involving actual contact or extraneous information.

A.

The landmark case is Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954). In Remmer, the Supreme Court affirmed that juries in criminal cases must be free of outside influences and announced the procedure to be followed when a party alleges that a jury has been subjected to such influences:

In 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, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. 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. Mattox v. United States, 146 U.S. 140, 148-50 [13 S.Ct. 50, 52-53, 36 L.Ed. 917]; Wheaton v. United States, 133 F.2d 522, 527.

* * * * * *

The trial court should not decide and take final action ex parte on information such as was received in this case, but should 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.

Id. at 229-30, 74 S.Ct. at 451.

The facts in Remmer were far removed from those in the present case. During trial someone communicated with a juror who later became the foreman and suggested that the juror could profit by bringing in a verdict for the defendant. The juror related the incident to the judge who advised the prosecutor, but not defense counsel. Id. at 228, 74 S.Ct. at 450-51. When defense counsel learned of the contact, after trial, he made a motion for new trial and requested a hearing to determine the facts. The district court denied the motion and the court of appeals affirmed. The government confessed error in the Supreme Court and the Court reversed.

B.

This court has not limited the Remmer requirements to cases in which there is a deliberate attempt to subvert the jury process in some way. See United States v. Walker, 1 F.3d 423 (6th Cir.1993) (highlighted transcripts of video taped deposition that jury heard were inadvertently sent to jury room with exhibits); United States v. Cooper, 868 F.2d 1505 (6th Cir.) (prosecutor's handwritten notes found their way into jury room), cert. denied, 490 U.S. 1094, 109 S.Ct. 2440, 104 L.Ed.2d 996 (1989). Rather, we require a Remmer hearing in all cases involving an unauthorized communication with a juror or the jury from an outside source that presents a likelihood of affecting the verdict. Walker, 1 F.3d at 429.

In Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the Supreme Court stressed the fact that a court may inquire into juror conduct following a verdict only with respect to allegations that the jury has been subjected to "extraneous influence." Id. at 117, 107 S.Ct. at 2746. This limitation is based on an exception to the common law rule prohibiting all jury testimony to impeach a verdict. This exception is now codified in Federal Rule of Evidence 606(b):

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, except that a juror may testify on the question 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. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. (emphasis supplied).

We upheld a trial court's refusal to conduct an evidentiary hearing of the Remmer type in United...