The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Calvin Boender's "Motion for Permission of the Court to Communicate with Jurors" . For the reasons set forth below, Defendant's motion is denied.
On, March 18, 2010, a jury found Defendant guilty of five offenses under the laws of the United States . Of particular pertinence here was the jury's determination that Defendant violated 18 U.S.C. § 666 (federal program bribery) by corruptly giving things of value to former Chicago Alderman Isaac Carothers ("Carothers"). Unsurprisingly, Carothers was mentioned frequently by counsel and by witnesses at trial, though he had pled guilty to various charges prior to trial and was not called as a witness by either side during the trial.
After the jury rendered its verdict and was discharged, the Chicago Sun-Times published an article that included brief comments by two jurors. One juror's comments were anonymously given and have not been singled out by Defendant.*fn1 The other comments were made by Jennifer Melberg, Juror No. 26. The specific quotations of concern to Defendant were (1) "I was surprised Ald. Carothers wasn't there" and (2) "I thought he would be part of the story because he was part of the story." Def. Reply at 1; see also Natasha Korecki & Art Golab, Boender Guilty on all Five Counts: 'Difficult Decision' Based on Evidence, Juror Says of Case of Bribing Alderman, CHI. SUN-TIMES 4 (Mar. 19, 2010).
Defendant filed the instant motion based on Juror No. 26's quotations, as well as the fact that accounts of the proceedings were published and broadcast daily during the trial. Def. Mot. at 1. Defendant's motion seeks an order that would allow his attorneys and investigators to communicate with jurors-not only or even necessarily Juror No. 26, but any juror who proves willing. Defendant states that his motion was made pursuant to Local Criminal Rule 31.1, as well as the Fifth and Sixth Amendments to the United States Constitution. Local Criminal Rule 31.1 bars parties and their agents from engaging in post-trial communications with jurors "without first receiving permission of the court." The Sixth Amendment provides that an accused is entitled to a trial before an "impartial jury" and may confront the witnesses against him. See U.S. CONST. amend. VI; Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991) ("Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by 'impartial' jurors, and an outcome affected by extra-judicial statements would violate that fundamental right."); Parker v. Gladden, 385 U.S. 363, 363 (1966) (per curiam) (stating that the Sixth Amendment right to an impartial jury includes the requirement that the evidence against the accused "come from the witness stand in a public courtroom" so that witnesses may be confronted and cross-examined); see also Smith v. Phillips, 455 U.S. 209, 217 (1982) ("due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen").
Courts generally are reluctant to pull back the curtain on juror deliberations. See Tanner v. United States, 483 U.S. 107, 120-21 (1987). "[F]ull and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on decisions of laypeople would all be undermined by a barrage of post-verdict scrutiny of juror conduct." Id. The rule against jury testimony in an effort to impeach jury verdicts is well established. See, e.g., McDonald v. Pless, 238 U.S. 264, 265 (1915) (upholding in a civil case the trial court's refusal to allow inquiry into the jury's method of arriving at a damages award); Mattox v. United States, 146 U.S. 140, 148 (1892) (explaining in a criminal case the public policy considerations motivating the rule).
At common law, however, there were exceptions to the general bar on juror testimony. Thus, although matters intrinsic to jury deliberations almost always were off limits, extraneous influences could be explored. For example, in Mattox, the Supreme Court concluded that a defendant was entitled to a new trial where a bailiff made statements regarding the defendant's guilt and the jurors were presented with a newspaper article that similarly opined on the guilt of the defendant. 146 U.S. at 150-51 ("It is not open to reasonable doubt that the tendency of that article was injurious to the defendant."); see also United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir. 1972) (severity of the threat to Sixth Amendment rights from publicity depends on the nature of the publicity and the jury's degree of exposure to it); id. (concluding that the district judge, "when presented with evidence indicating that a prejudicial news article was actually present in the jury room and, more importantly, that it was in fact used by some jurors to persuade others, was at the very minimum required to investigate further");United States v. McKinney, 429 F.2d 1019, 1023 (5th Cir. 1970) ("it has been repeatedly recognized that newspaper publicity can so prejudice a jury's deliberations that a fair trial is unattainable").
Rule 606(b) of the Federal Rules of Evidence is "grounded in" the common law rule against impeaching verdicts through juror testimony. Tanner, 483 U.S. at 121. The rule creates an exception to the broad witness competency provision of Rule 601*fn2, providing that a juror is not competent to testify about matters intrinsic to the jury's decision-making. However, a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
Rule 606(b), like the common law rules that it followed, thus draws a distinction between matters intrinsic to juries' decision-making processes and "extraneous influences." United States v. Paneras, 222 F.3d 406, 411 (7th Cir. 2000) (collapsing, as many courts have done, the language of the first and second exceptions to Rule 606(b)'s general bar). For example, while a juror is not competent under the Federal Rules of Evidence to testify about a jury-room squabble (e.g., Jacobsen v. Henderson, 765 F.2d 12, 14-15 (2d Cir. 1985) (no inquiry into deliberations marked by "hysterical crying" and even chair-throwing)), allegations that a judge had prejudicial conversations with the jury (e.g., Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 488 (3d Cir. 1985); United States v. Davis, 109 F. Supp. 2d 991, 995-95 (S.D. Ill. 2000)) may be examined. See also 27 Charles Alan Wright & Victor James Gold, FEDERAL PRACTICE AND PROCEDURE § 6074, at 497-98 (2d ed. 2007) (noting the difficulties that may arise in distinguishing between a juror's (permissibly examined) perceptions and her (barred) inferences).
The issue raised by Defendant's motion, however, is distinct from the intrinsic-extraneous taxonomy of Rule 606(b). The Court agrees with Defendant (Def. Mot. at 1-2) that "[j]uror exposure to press coverage" during trial or deliberations may fall on the admissible side of the Rule 606(b) line. But the question for purposes of deciding the instant motion is whether the quotations in the Chicago Sun-Times story merit further inquiry, including hailing a juror into court*fn3 for purposes of further investigation.
In United States v. Moten, 582 F.2d 654 (2d Cir. 1978), the Second Circuit faced the precise legal issue that is presented here, although with starkly different facts. There, a defendant's sister alleged that she has been approached by a juror and corroborating evidence indicated that the juror's vote could be purchased. The juror was dismissed, but there was evidence that another juror had been standing with the dismissed juror just prior to his apparently corrupt attempt to sell his vote and that the other juror may have been someone who dined with and got along quite well with the dismissed juror. (The defendant learned the pertinent details after the trial, so there was no waiver issue.) On those facts, the Second Circuit held that the district court erred in "denying completely Moten's permission to conduct some form of inquiry" into a possible jury taint. Id. at 666-67. "When there has been a showing warranting an investigation, barring all interviewing, even under supervision of the court, is improper." Id. at 666.
In analyzing the threshold issue of whether an investigation was warranted, the Second Circuit noted that competing interests were ...