The opinion of the court was delivered by: Richard Mills, District Judge.
[I]t is the law's objective to 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, 76 S.Ct. 425, 100
L.Ed. 435 (1956).
On July 9, 1999, a jury found Gary Cortez Quilling guilty of
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Prior to the sentencing hearing, Quilling's
counsel received notification from Chief United States District
Judge J. Phil Gilbert that United States District Judge Paul E.
Riley may have had ex parte communications with the jury
during its deliberations in Quilling's case.*fn1 After an
investigation, Quilling filed a motion for a new trial pursuant
to Federal Rule of Criminal Procedure 33.*fn2
Federal Rule of Criminal Procedure 33 provides that "the court
on motion of a defendant may grant a new trial to that defendant
if required in the interests of justice." Id. "Probably the
most frequent basis for a Rule 33 motion — and the only one
specifically mentioned in the rule — is one `based on the ground
of newly discovered evidence.'" United States v. Woolfolk,
197 F.3d 900, 905 (7th Cir. 1999), quoting United States v. Kamel,
965 F.2d 484, 490 (7th Cir. 1992). The United States Court of
Appeals for the Seventh Circuit has explained:
To receive a new trial based on newly discovered
evidence, the defendant must demonstrate that the
evidence (1) came to their knowledge only after
trial; (2) could not have been discovered sooner had
due diligence been exercised; (3) is material and not
merely impeaching or cumulative; and (4) would
probably lead to an acquittal in the event of a
Woolfolk, 197 F.3d at 905.
However, when the basis for a new trial is newly discovered
evidence that the trial judge has had improper contact with a
juror or jurors, the test is somewhat different because "[a]ny
ex parte meeting or communication between the judge and the
foreman of a deliberating jury is pregnant with possibilities of
error." United States v. United States Gypsum Co.,
438 U.S. 422, 460, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). As the United
States Supreme Court has opined:
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.
Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98
L.Ed. 654 (1954), citing Mattox v. United States,
146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Moreover, the
Seventh Circuit has stated that "the unusual practice of a judge
entering the jury room to speak privately with jurors is almost
certain to run afoul of a defendant's right to be present during
trial proceedings."*fn3 United States v. Smith,
31 F.3d 469, 471 (7th Cir. 1994).
Before the Government is put to its burden of showing that an
improper contact by an outsider with the jury is harmless,
however, a defendant must first establish that an ex parte
communication occurred. See Owen v. Duckworth, 727 F.2d 643,
646 (7th Cir. 1984) (holding that the defendant bears the burden
of proving outside contact with the jury); see also United
States v. Wilson, 715 F.2d 1164, 1172 (7th Cir. 1983) (holding
that while "private communications between jurors and others are
presumptively prejudicial[,] [t]here can be no prejudice . . .
in the absence of any such communication."); see also United
States v. Heater, 63 F.3d 311, 321 (4th Cir. 1995) (holding
that the defendant bears the initial burden of demonstrating
that the improper juror contact occurred, and only if the
contact is established must the Government demonstrate
absence of prejudice). The moving defendant must meet this
burden by a preponderance of the evidence. United States v.
Caro-Quintero, 769 F. Supp. 1564, 1580 (C.D.Cal. 1991); see
also United States v. Tarpley, 945 F.2d 806, 811 (5th Cir.
1991) (holding ...