United States District Court, Southern District of Illinois, Benton Division
February 20, 2002
UNITED STATES OF AMERICA, PLAINTIFF,
CARLAN D. HODGES, DEFENDANT.
The opinion of the court was delivered by: Richard Mills United States District Judge.
The late Paul E. Riley, United States District Judge for the Southern
District of Illinois, had a penchant for communicating ex parte with
jurors in cases in which he was the presiding judge.,*fn1
Sometimes the communications involved benign subjects such as the
weather or televisions programs, but sometimes he commented upon the
evidence presented at trial. Such conduct reflects poorly, not only upon
the judge who engages in ex parte contacts with jurors, but upon the
court in which that judge sits and upon the judicial system as a whole.
While Carlan D. Hodges' appeal of his convictions and sentence was
pending before the United States Court of Appeals for the Seventh
Circuit, some information came to light that Judge Riley may have had ex
parte communications with the jurors during Hodges' trial. Based upon
this newly discovered evidence, Hodges filed a motion for a new trial
pursuant to Federal Rule of Criminal Procedure 33.*fn2 After considering
the parties' briefing on the motion, the Court allowed Hodges' motion and
granted his request for a new trial. United States v. Hodges,
110 F. Supp.2d 768 (S.D.Ill. 2000). The Government moved for
reconsideration, and after the Court denied its motion, the Government
appealed the Court's ruling.
On appeal, the Seventh Circuit vacated and remanded for further
proceedings. United States v. Bishawi, 272 F.3d 458
(7th Cir. 2001).
Specifically, the Seventh Circuit opined:
The holding of an evidentiary hearing in this case
would have afforded the parties an opportunity to
interview jurors and determine "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."
Fed.R.Evid. 606. Once these factual determinations
were made, the trial court would have been equipped to
adequately assess the impact of any ex parte contacts
on the juries before whom appellees' cases were tried
and decided whether or not such communications were
harmless error. . . . The trial court abused its
discretion in failing to hold such a hearing.
Id. at 462-63. Accordingly, the Seventh Circuit remanded Hodges' case
"to hold an evidentiary hearing to determine what ex parte contact
occurred and whether such contact was prejudicial to the appellees." Id.
After receiving the mandate, the Court conducted an evidentiary
hearing as directed by the Seventh Circuit. At this hearing, the Court
heard testimony from the jurors who deliberated and found Hodges guilty
of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) and guilty of receiving stolen firearms in
violation of 18 U.S.C. § 922(j) and § 924(a)(2). In addition,
the parties asked the Court to re-evaluate and re-consider the affidavits
of court personnel which had been previously submitted to the Court.
Hodges argues that, after hearing the jurors' testimony and
re-considering the affidavits of the court personnel, nothing has changed
and that the Court should again allow his motion for a new trial. Hodges
contends that the jurors' testimony clearly establishes that Judge Riley
had ex parte communications with some, if not all, of the jurors in this
case. Specifically, Hodges points to the testimony of one juror who
recalled that Judge Riley entered the jury room during the jury's
deliberations and the testimony of two jurors who testified that Judge
Riley was present in the courtroom while the jury viewed the evidence
(i.e., the guns).
Furthermore, Hodges asserts that the Court should give him the benefit
of the doubt and grant him a new trial based upon the court personnel's
affidavits. Specifically, Hodges relies upon David Agay's (i.e., Judge
Riley's law clerk) affidavit in which he stated that Judge Riley entered
the jury room in three of the four cases to which he was assigned during
his tenure with Judge Riley. Hodges argues that, when the Court
considers the jurors' testimony along with the court personnel's
affidavits and Judge Riley's habit of communicating with jurors, the
Court should grant his request for a new trial in order to uphold the
integrity of the judicial system and to avoid the appearance of
The Government argues that Hodges did not meet his burden of
establishing that an ex parte communication occurred between the jury and
Judge Riley. As for Judge Riley's presence in the courtroom while the
jury viewed the guns, the Government notes that no juror testified that
Judge Riley said or did anything while they viewed the guns. In any
event, the Government contends that Hodges has waived any objection which
he might have had to Judge Riley's presence in the courtroom while the
jurors viewed the guns.
Moreover, as for the juror who testified that Judge Riley entered the
jury room during the deliberations, the Government asserts that he was
the only juror who recalled this incident. More importantly, the
Government notes that the juror testified that Judge Riley did not say
anything while he was in the jury room. Finally, the Government claims
that the court personnel's affidavits support the juror's testimony-no
improper communication occurred between Judge Riley and any juror in this
case. Accordingly, the Government asks the Court to deny Defendant's
motion for a new trial.
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. 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
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
United States v. Woolfolk, 197 F.3d 900
, 905 (7th Cir. 1999).
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 (1978). As the United States Supreme Court
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 (1954), citing Mattox v.
United States, 146 U.S. 140, 150 (1892). Therefore, 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." United States
v. Smith, 31 F.3d 469, 471 (7th Cir. 1994).
Nevertheless, "the mere occurrence of an ex parte conversation between
a trial judge and a juror does not constitute a deprivation of any
constitutional right. judge and a juror, nor is there a constitutional
right to have a court reporter transcribe every such communication."
Rushen v. Spain, 464 U.S. 114, 119 (1983) (Stevens, J., concurring in
judgment); see also Verdin v. O'Leary, 972 F.2d 1467, 1481-82 (7th Cir.
1992) (explaining that the constitutional right to presence is not
implicated per se by a judge's ex parte communication with a deliberating
jury). "Rather, the constitutional right to presence, which derives from
the Sixth Amendment's Confrontation Clause and the Due Process Clause of
the Fourteenth Amendment, exists where there is a reasonably substantial
relation to the fullness of opportunity to defend against the charge and
to the extent that a fair and just hearing would be thwarted by the
defendant's absence." Bishawi, 272 F.3d at 461-62, citing United States
v. Gagnon, 470 U.S. 522, 526 (1985), and citing Snyder v. Massachusetts,
291 U.S. 97, 105-06 (1934).
A defendant's broader, procedural right to be present pursuant to
Federal Rule of Criminal Procedure 43 is, likewise, not without
Rule 43 alleviates the presence requirement when the
proceeding involves only a conference or hearing upon a question of law.
Fed. R. Crim. Pro. 43(c)(3); see also United States v. Johnson,
859 F.2d 1289
, 1294 (7th
Cir. 1988) (holding that "a defendant's
presence is not required `[a]t a conference or argument upon a question of
law.'"), quoting Rule 43(c)(3).
The defendant bears the burden of proving the occurrence of an ex parte
contact with the jury. 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 defendant must meet this burden by a preponderance of the
evidence. See United States v. Caro-Quintero, 769 F. Supp. 1564, 1580
(C.D.Cal. 1991) (noting that a defendant must prove that the jury was
exposed to ex parte contacts with courthouse personnel by a preponderance
of the evidence); 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
"Once established, determination of whether the ex parte contact
violates either the defendant's constitutional or procedural right to
presence is subject to a harmless error analysis." Bishawi, 272 F.3d at
462, citing Rushen, 464 U.S. at 118-19 and citing Rogers v. United
States, 422 U.S. 35, 40 (1975). An error is harmless and does not
mandate reversal and/or a new trial unless it affects "substantial
rights." Fed. R. Crim. Pro. 52(a); United States v. Patterson,
23 F.3d 1239, 1255 (7th Cir. 1994). "Substantial rights are those that
affect the outcome of the case." Bishawi, 272 F.3d at 462; Patterson, 23
F.3d at 1255. Thus, a defendant is entitled to a new trial only if an ex
parte communication likely affected the jury's verdict. United States v.
Pressley, 100 F.3d 57, 60 (7th Cir. 1996).
Finally, a post-trial evidentiary hearing may be proper and necessary
in order to determine whether any such contact was merely harmless or in
fact prejudicial to the defendant. Remmer, 347 U.S. at 229-30; Rushen,
464 U.S. at 119-20. A defendant's absence from any trial proceeding
should be considered in light of the entire record. United States v.
Moore, 936 F.2d 1508, 1523 (7th Cir. 1991) (citations omitted).
In the instant case, the Court finds that Judge Riley had an improper
contact with the jury. As for Judge Riley's presence in the courtroom
while the jury viewed the evidence, although his presence may not have
been prudent, Hodges presented no evidence that Judge Riley said or did
anything while in the courtroom; on the contrary, the jurors who
testified that they recalled Judge Riley being in the courtroom while
they viewed the guns testified that Judge Riley did not do or say
anything, let alone say or do anything which would have affected their
Furthermore, Hodges has waived any objection which he might have had to
Judge Riley staying in the courtroom while the jury viewed the guns. At
the close of the trial, Judge Riley informed the parties
that he intended to bring the jurors back into the courtroom in order to
view the guns:
THE COURT: Counsel, my thoughts on the exhibits is
[sic] that they all should go to the
jury but for the fact that 1, 2, 3, 4
and 5 are firearms, and we will keep
those in the courtroom. We will bring
the jurors back into the courtroom to
view the firearms, to touch them, to see
them, to use them in whatever fashion
they deem appropriate. I just simply
don't like having firearms in the jury
MR. MOORE: I agree.
MS. SCHOOLEY: That's agreeable.
Accordingly, because Hodges did not object to Judge Riley's proposed
course of action, he has waived any objection which he may now have. See
Gagnon, 470 U.S. at 527-29(holding that a defendant's failure to invoke
his right to be present under Federal Rule of Criminal Procedure 43 at a
conference which he knows is taking place between the judge and a juror
constitutes a valid waiver of the Rule's right to the present).
However, one juror specifically testified that he recalled Judge Riley
entering the jury room during the jury's deliberations! Although the
other jurors could not recall this incident (one juror testified that he
thought Judge Riley may have entered into the jury room), this juror's
testimony regarding Judge Riley's entrance into the jury room was clear
and unequivocal. As such, the Court finds that an improper contact
between Judge Riley and the jury occurred in this case. See Smith, 31
F.3d at 471 (holding 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.").
Regardless of the reasons why or the justifications for Judge Riley's
ex parte contact with the jury, the contact was inappropriate and
unbecoming a judicial officer. Juries tend to view judges as the
embodiment of the law. See Monica V. Pennisi, Simmons v. Conger: The
Illusive Nature of Judicial Accountability, 7 WIDENER J. PUB. L. 177,
178 (1997) (noting that "these feelings of homage have resulted in an
inevitable perception of judges as guardians and ultimate embodiments of
the law."); see also Linwood I. Rogers, Note, Mireles v. Waco: The
Supreme Court Prescribes the Bitter Pill of Judicial Immunity and Summary
Reversal, 26 U. RICH. L. REV. 539, 544 (1992) (noting "the immense
responsibility that judges have as the true guardians, oracles, and
embodiments of the law."). In fact, the Model Code of Judicial Conduct's
Preamble characterizes the judge as the very "symbol of government under
the rule of law."
Thus, by engaging in this ex parte communication with the jury, Judge
Riley provided a disservice to the United States District Court for the
Southern District of Illinois, to the legal profession, and to the
federal judiciary. More importantly, Judge Riley provided a disservice
to Hodges. Regardless of the Court's ruling on his motion for a new
trial and the outcome of the Court's ruling on the appeal which will
inevitably be filed, Hodges' conviction and sentence will forever be
tainted in the minds of some-including Hodges himself.
Nevertheless, convictions are not to be set aside lightly. See United
States v. Berry, 64 F.3d 305, 307 (7th Cir. 1995) (holding that "[a] jury
verdict is not lightly to be disturbed through a grant of a motion for a
new trial."); see also Herrerra v. Collins, 506 U.S. 390, 443 (1993)
(Blackmun, J., dissenting and noting that "an otherwise constitutionally
valid conviction or sentence should not be set aside lightly."). Again,
"[t]he mere occurrence of an
ex parte communication between a trial judge
and a juror does not constitute a deprivation of any constitutional
right." Rushen, 464 U.S. at 119. Accordingly, although the Court finds
that Judge Riley had an ex parte communication with the jurors during
Hodges' trial, the Court cannot say that the improper contact affected
the outcome of his case.
First, the evidence of Hodges' guilt presented by the Government at
trial was strong.
Second, the evidence presented at the evidentiary hearing revealed that
Judge Riley's ex parte contact with the jurors was harmless. All that
the court personnel's affidavits and the jurors' testimony established
was that an ex parte communication occurred between the jury and Judge
Riley. Hodges presented absolutely no evidence that Judge Riley's
contact affected his substantial rights, i.e., he has presented no
evidence that the contact affected the outcome of the case. Even the
juror who testified that Judge Riley entered the jury room during
deliberations stated that Judge Riley was only in the jury room briefly
(about a minute or as long as it takes to walk into the kitchen to get a
soft drink out of the refrigerator), that Judge Riley did not say
anything or make any unusual gestures, and that, although he thought it
peculiar for Judge Riley to be in the jury room during the deliberations,
Judge Riley's presence did not affect the verdict. Likewise, although
the affidavits (especially the affidavit of Judge Riley's law clerk David
Agay) lend some support to the finding that an ex parte communication
occurred, nothing in the affidavits indicates that Judge Riley's conduct
affected Hodges' substantial rights.
Accordingly, the Court cannot presume prejudice to Hodges from Judge
Riley's improper contact with the jury. As the Supreme Court has
indicated, the presumption of prejudice is not conclusive. Remmer, 347
U.S. at 229. Rather, it is rebuttable if the Government can show that
the ex parte communication constituted harmless error. Id. Here, the
Court believes, based upon the evidence presented at the evidentiary
hearing, that the Government has shown that Judge Riley's error was
harmless to Hodges.
Judge Riley's conduct in this cause is not to be countenanced; his
actions reflect adversely upon the integrity of the judicial system.
However, because Judge Riley's errors were harmless to Hodges, the Court
has no other alternative than to deny Hodges a new trial because he was
not denied his Sixth Amendment right to a fair trial, his Fourteenth
Amendment due process right, or his right to be present afforded by
Federal Rule of Criminal Procedure 43.
Ergo, Defendant's Motion for a New Trial is DENIED.