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August 28, 2000


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

Therein, Quilling argues that, because he was unaware of the ex parte communications until after the jury had reached its verdict, Judge Riley's ex parte communications with the jury constitute newly discovered evidence entitling him to a new trial. Quilling contends that the ex parte communication occurred when Judge Riley improperly responded to a jury question without first consulting all counsel and him. Quilling claims that this improper contact between Judge Riley and the jury (along with any others which may have occurred) deprived him of his Sixth Amendment right to a fair trial and of his right pursuant to Federal Rule of Criminal Procedure 43(a) to be present at every stage of his trial. Quilling asserts that, because the Government cannot overcome its burden of showing that Judge Riley's contact with the jury was harmless, the Court should either grant him a new trial or dismiss the indictment against him based upon his Fifth Amendment right to be free from double jeopardy.


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 retrial.

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 ...

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