USA v. Dutkel

• Decision Date: 07 December 1998
• Docket Number: No. 98-55338,98-55338
• Citation: 192 F.3d 893
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL VERNON DUTKEL, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 893

192 F.3d 893 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL VERNON DUTKEL, Defendant-Appellant.

No. 98-55338

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted December 7, 1998--Pasadena, California

Decided September 17, 1999

Daniel A. Horowitz, Oakland, California, for the defendant-appellant.

Ellyn Marcus Lindsay, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding. D.C. Nos. CV-97-01070-ER, CR-88-00374-ER

Before: Alex Kozinski and Diarmuid F. O'Scannlain, Circuit Judges, and Charles C. Lovell,^* District Judge.

Opinion by Judge KOZINSKI; Concurrence by Judge O'Scannlain

KOZINSKI, Circuit Judge:

Because impartial jurors are the cornerstone of our system of justice and central to the Sixth Amendment's promise of a fair trial, we "guard jealously the sanctity of the jury's right to operate as freely as possible from outside unauthorized intrusions purposefully made." Remmer v. United States, 350 U.S. 377, 382 (1956) (Remmer II). In Michael Dutkel's case, we didn't guard the jury jealously enough. During a joint trial on drug conspiracy and distribution charges, Dutkel's codefendant, Eugene Washington, bribed a juror and secured himself a hung jury. The same jury convicted Dutkel. We consider what recourse a criminal defendant has when he learns that his co-defendant has tampered with the jury.

I

During the original trial, Washington employed two henchmen, Brandt Ellis and Leslie Mumphrey, to bribe and/or intimidate Felton Johnson, one of Dutkel and Washington's jurors. Early in the trial, Ellis approached Johnson outside the courthouse and told him that "the White guy [Dutkel] was guilty and that the Black guy was not guilty." Explaining that Washington was in trouble with the government regarding his taxes, Ellis told Johnson, "[w]e cannot afford the Black guy to go to jail." Ellis and Mumphrey promised Johnson cash, a job and a new ecar if he voted to acquit Washington. They also mentioned Johnson's three-day-old daughter, intimated that they would follow him home and made it clear that they were monitoring his every move. As a consequence of these importunings, Johnson "freely talked about the case" with them. He spoke with them frequently during the trial, made daily reports about the jury's deliberations, gave them feedback for Washington's lawyers and assured them that he thought Dutkel was guilty and Washington was not. The jury eventually convicted Dutkel, and deadlocked as to Washington, with Johnson the lone holdout.

After serving more than half of his fifteen-year sentence, Dutkel learned of Washington's machinations when he stumbled across United States v. Washington , 66 F.3d 1101 (9th Cir. 1995), an appeal from Washington's sentence for bribery and obstruction of justice. Soon thereafter, he filed a habeas petition under 28 U.S.C. S 2255, which the district court denied. Dutkel appeals.

II

Because jury tampering cuts to the heart of the Sixth Amendment's promise of a fair trial, we treat jury tampering cases very differently from other cases of jury misconduct. Once tampering is established, we presume prejudice and put a heavy burden on the government to rebut the presumption. The Supreme Court has stated in categorical terms:

In a criminal case, any . . . 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 . . . that such contact with the juror was harmless to the defendant.

Remmer v. United States, 347 U.S. 227, 229 (1954) (Remmer I); see also Mattox v. United States , 146 U.S. 140, 150 (1892). If the government fails to meet this burden at an evidentiary hearing, the defendant is entitled to have the verdict set aside. See Remmer I, 347 U.S. at 229-30; United States v. Angulo, 4 F.3d 843, 846-47 (9th Cir. 1993).

The government argues that the categorical directive of Remmer has been undermined by subsequent cases which empower the district court to shift the burden of showing prejudice to the defendant. The cases on which the government relies do nothing of the sort, as none involved jury tampering as that term is normally understood: an effort to influence the jury's verdict by threatening or offering inducements to one or more of the jurors. The cases on which the government relies involve more prosaic kinds of jury misconduct. See United States v. Olano, 507 U.S. 725, 729-30 (1993) (presence of alternate jurors during jury deliberations); Rushen v. Spain, 464 U.S. 114, 116 (1983) (juror's recollection of unrelated crime committed by defendant's associate); Smith v. Phillips, 455 U.S. 209, 212 (1982) (juror's application for investigative position at District Attorney's Office during trial); United States v. English, 92 F.3d 909, 913-14 (9th Cir. 1996) (elevator encounter between juror and victims); United States v. Maree, 934 F.2d 196, 202 (9th Cir. 1991) (juror's contact with friends who encouraged her to convict defendant); United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir. 1988) (court clerk consoled juror after another juror swore at her). Jury tampering is a much more serious intrusion into the jury's processes and poses an inherently greater risk to the integrity of the verdict. While we presume that jurors will disregard the advice of friends and ignore other ex parte contacts, we can indulge no such presumption where jury tampering is involved. It is doubtless for that reason that the Supreme Court in Remmer announced a special rule dealing with jury tampering. We are in no position to second-guess the Supreme Court's judgment on this point, particularly in light of our own recent ruling in Angulo, 4 F.3d at 846, 848 (reaffirming Remmer presumption of prejudice in case where juror received threatening phone call).¹

Three other circuits have recently spoken on this issue. The Fourth Circuit unhesitatingly retained the Remmer presumption in cases of jury tampering. See United States v. Cheek, 94 F.3d 136, 142 (4th Cir. 1996). The D.C. Circuit in United States v. Williams-Davis, 90 F.3d 490 (D.C. Cir. 1996), held that the Remmer presumption was not applicable, but it did so in a case involving exhortations from a juror's husband that she "nail" the defendants. Id. at 495. This is a run-of-the-mill ex parte contact case, where the burden rests on the defendant to show prejudice; it has nothing to do with jury tampering. Williams-Davis is thus a correct statement of the lesser scrutiny afforded to ordinary ex parte contacts, not a retreat from the Remmer presumption of prejudice in cases of jury tampering. Nothing in Williams-Davis suggests that the D.C. Circuit would fail to apply the Remmer presumption in a case where there was jury tampering.

Finally, in United States v. Sylvester , 143 F.3d 923 (5th Cir. 1998), one juror received threatening phone calls and another was approached by a stranger seeking to talk about the case. The Fifth Circuit correctly identified this as jury tampering, but concluded that Remmer had been modified by Olano and Phillips. It therefore held that the district court had discretion to shift the burden of showing prejudice to the defendant. See id. at 934. For the reasons explained above, we do not believe that any of the Supreme Court's intervening opinions have spoken to the special case of jury tampering and we must therefore disagree with Sylvester .

III

Having concluded that the Remmer presumption applies if the case involves jury tampering, we must still decide whether what occurred here amounted to tampering. There is no doubt that, as to Washington, Johnson was tampered with. Johnson's status vis-a-vis Dutkel is less clear. The government argues that Johnson was not bribed or coerced to vote one way or another as to Dutkel. While Dutkel was mentioned, the point of the bribe/intimidation was to get Johnson to acquit Washington, with his vote as to Dutkel basically irrelevant. Indeed, during one of their encounters, Ellis told Johnson, "We don't care about Dutkel." We are also mindful of the presumption that jurors in joint trials will generally be able to "compartmentalize the evidence as it relates to separate defendants," and render a just verdict as to each. United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir. 1980). Seen in this light, the communications between Washington's henchmen and Johnson were ordinary ex parte contacts, like those in Olano or English, and the burden would rest on Dutkel to demonstrate that he suffered prejudice. See, e.g., Rushen, 464 U.S. at 120-21; Maree, 934 F.2d at 202.

We do not believe that this is the correct view of the matter. Remmer holds that "[i]n a criminal case, any . . . tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is . . . deemed presumptively prejudicial . . . ." Remmer I, 347 U.S. at 229. Dutkel's case falls squarely within the literal reading of this language: Ellis and Mumphrey tampered with Johnson, a juror, as to a matter pending before the jury--namely Washington's verdict. Our case differs from Remmer, however, because the object of the tampering was to influence the juror with respect to another defendant. This is a material difference, as there is no reason to believe that the Supreme Court had a situation like ours in mind when it used the broad language of Remmer .

We must therefore look to the concerns that animated the Remmer Court. Smith, a juror in Remmer's case, was approached during the trial by a third party, Satterly, who was acquainted with Remmer. Satterly mentioned to Smith-perhaps in jest, perhaps in earnest--that Remmer had obtained "about $300,000 under the table...