United States District Court, Southern District of Illinois, East St. Louis Division
August 28, 2000
UNITED STATES OF AMERICA, PLAINTIFF,
GARY CORTEZ QUILLING, DEFENDANT.
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.
II. APPLICABLE LAW
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
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 that the defendant must show that "improper
communication of extrinsic information had likely occurred.");
see also United States v. Cousins, 842 F.2d 1245, 1247 (11th
Cir. 1988) (holding that a defendant must make a "colorable
showing" that an ex parte communication occurred).
Furthermore, "[a] determination of jury prejudice is
complicated in the federal courts by the proscription against
questioning jurors directly about the effect of the outside
contact on their deliberations." Owen, 727 F.2d at 646.
Federal Rule of Evidence 606(b) provides:
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.
[r]ather than question the jurors directly, a
district court must make findings of fact at two
separate levels. First, the district court must find
the basic, or subsidiary, facts — e.g., the nature,
content, and extent of the extra-judicial contact.
Based on its findings of subsidiary facts, the
district court must then make the ultimate factual
determination: whether the contact likely affected
the juror's impartiality.
Owen, 727 F.2d at 646.
In the instant case, the Government concedes that Quilling has
met his burden of establishing that an ex parte communication
occurred between Judge Riley and the jury and rightfully so. In
her affidavit, Brenda Osborn (Judge Riley's court reporter)
testified that she observed Judge Riley telling the jurors in
Quilling's case that "this is ridiculous." Osborn testified that
she is convinced that when Judge Riley was referring to "this",
he was referring to the merits of the above-captioned case.
Osborn also testified that Judge Riley made derogatory remarks
to the jury during this conversation regarding the Government's
attorney.*fn4 Based upon Osborn's affidavit, the Court finds
that Quilling has made a colorable showing that an ex parte
communication occurred between Judge Riley and the jury and that
a presumption of prejudice to Quilling has attached as a result.
Cousins, 842 F.2d at 1247.
The Government also concedes that it cannot overcome its
burden of establishing that this improper contact was harmless,
and the Court agrees. Remmer, 347 U.S. at 229, 74 S.Ct. 450.
The Government's burden in this regard is a "heavy" one. Id.;
Schaff v. Snyder, 190 F.3d 513, 533-34 (7th Cir. 1999). The
Government must demonstrate "that there exists no `reasonable
possibility that the jury's verdict was influenced by an
improper communication.'" United States v. Cheek, 94 F.3d 136,
141 (4th Cir. 1996), quoting Stephens v. South Atl. Canners,
Inc., 848 F.2d 484, 488-89 (4th Cir. 1988); see United States
Carter, 973 F.2d 1509, 1515 (10th Cir. 1992), quoting United
States v. de Hernandez, 745 F.2d 1305, 1310 (10th Cir. 1984)
(holding that in order "[t]o avoid a new trial under the plain
error analysis, the record must completely `negative any
reasonable possibility of prejudice arising from such error.'").
The Government admits that it cannot make such a showing, and
therefore, the Court finds that Judge Riley's ex parte
communication with the jury likely affected the jury's
impartiality. Owen, 727 F.2d at 646; see United States v.
Touloumis, 771 F.2d 235, 242 (7th Cir. 1985) (disapproving "of
a trial judge's procedure in entering a jury room, despite
agreement by both counsel and the presence of a court reporter,
to give a supplemental instruction after the jury had already
begun its deliberations.").
A criminal defendant has a right to a fair trial, U.S. CONST.
amend. VI, and a right to be present at every stage of the
trial. Fed.R.Crim.Pro. 43(a); see United States v. Coffman,
94 F.3d 330, 335-36 (7th Cir. 1996) (holding that "[t]he
defendant is entitled to be present at all stages of his trial,
. . . and a judge's response to a note from the jury is one of
those stages."); see also United States v. Pressley,
100 F.3d 57, 59-60 (7th Cir. 1996) (holding that Rule 43(a)entitles a
defendant to be present at all stages of his trial and that
"[c]ommunication between the judge and the jury, or a single
juror, is one of those stages."). Judge Riley's ex parte
communication with the jury deprived Quilling of both of these
rights, and therefore, he is entitled to a new trial.
However, the Court does not believe that Quilling's retrial is
barred by the Fifth Amendment's Double Jeopardy Clause. As the
Government notes, it is well established that "the Double
Jeopardy Clause `imposes no limitations whatever upon the power
to retry a defendant who has succeeded in getting his first
conviction set aside.'" Tibbs v. Florida, 457 U.S. 31, 40, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982), quoting North Carolina v.
Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1969). In fact, the Supreme Court has explained that a motion
for a new trial "obviates any later objection the defendant
might make on the ground of double jeopardy." United States v.
Smith, 331 U.S. 469, 474, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947),
citing Murphy v. Massachusetts, 177 U.S. 155, 160, 20 S.Ct.
639, 44 L.Ed. 711 (1900); see Rivera v. Sheriff of Cook
County, 162 F.3d 486, 487-88 (7th Cir. 1998) (holding that "if
after being found guilty the defendant seeks a retrial in the
interest of justice under 33 . . . the double jeopardy clause
does not prevent a court from fulfilling the accused's
request."). Accordingly, although Quilling is entitled to a new
trial, his second trial will not violate his Fifth Amendment
right against double jeopardy.
Ergo, Defendant's Motion for a New Trial is ALLOWED.