Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 6510-James B. Zagel, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
ARGUED SEPTEMBER 21, 2010
Before BAUER, SYKES, and HAMILTON,Circuit Judges.
In 1995 a federal jury convicted Jesse Webster on cocaine-trafficking and tax-fraud charges, and his direct appeals were unsuccessful. Some-time after his trial, Webster discovered that a member of the jury had called in sick one day in the middle of deliberations. Webster filed a habeas petition under 28 U.S.C. § 2255 alleging that deliberations proceeded that day in the juror's absence, violating his right to trial by a jury of twelve. The government did not dispute that a juror was absent for a day but maintained that the rest of the jury was sent home and did not deliberate that day.
In response to the habeas petition, the district judge sent an investigator to interview all the jurors except the one who called in sick. The investigator later testified about the results of the interviews. After weighing this and other evidence, the judge denied § 2255 relief. The judge began by noting that if deliberations proceeded with only eleven jurors present, Webster's convictions would have to be vacated under this court's decision in United States v. Araujo, 62 F.3d 930 (7th Cir. 1995). But the judge held that Webster procedurally defaulted his twelve-person jury claim by failing to raise it in his direct appeal or in his § 2255 petition. Ultimately, how-ever, the judge reached the issue by a different route. Webster had argued in the alternative that the bailiff never told the court about the missing juror and instead instructed the jurors to continue deliberating in his absence. This, Webster contended, was a fraud on the court, justifying § 2255 relief. The judge rejected this argument, finding insufficient proof of improper deliberations.
We affirm, though we note several errors in the way the § 2255 petition was handled. First, Webster did not procedurally default his twelve-person jury claim. He could not have raised it on direct appeal because he did not know of the juror's absence, and he adequately raised it in his § 2255 petition by noting the fact of the juror's absence and generally alleging a violation of his right to a jury of twelve. On the merits, however, the claim is deficient. In rejecting Webster's alternative argument, the judge found that the evidence did not establish that the jury deliberated in the absence of the twelfth juror. This factual finding is not clearly erroneous, and it resolves Webster's appeal.
Although we are affirming the judgment, we have two cautionary comments regarding the district court's approach to the § 2255 petition: (1) For reasons we will explain, the judge read Araujo too broadly; and (2) under Rule 606(b) of the Federal Rules of Evidence, the investigator's testimony about the interviews with the jurors was inadmissible.
In 1995 Webster was indicted on five counts: conspiracy to possess with intent to distribute kilogram quantities of cocaine; possession with intent to distribute 15 kilograms of cocaine; attempt to possess with intent to distribute 25 kilograms of cocaine; and two counts of filing false tax returns. He pleaded not guilty and proceeded to trial on Wednesday, November 15.
The jury was selected on November 15, and counsel presented opening statements the next day. The evidentiary phase of the trial immediately followed and continued through Monday, November 20. Counsel delivered closing arguments on Tuesday, November 21, and the case went to the jury late that day. The jury deliberated on November 22 but did not reach a verdict. The next day was Thanksgiving, so the district court suspended deliberations through the following Tuesday. On Wednesday, November 29, a juror whom we will refer to as "M.J." called in sick. The jury attendance sheet for that day hows that only eleven jurors signed in and includes a handwritten note by the courtroom deputy clerk stating "M[.] J[.] absent." The jury administrator's diary page for that day also indicates that one juror called in sick. However, the trial court's docket entry for November 29 states "[j]ury trial held," as it had for every other day the court was in session since November 16. On November 30 all twelve jurors were in attendance for deliberations, and on that day the jury returned its verdict convicting Webster on all charges except for the possession count. The judge imposed a sentence of life in prison, and we affirmed the convictions and sentence on direct appeal. United States v. Webster, 151 F.3d 1034 (7th Cir. 1998).
At some point after the trial, Webster learned of M.J.'s absence on November 29. On October 5, 1998, the Supreme Court denied certiorari in Webster's direct appeal. On October 4, 1999, Webster filed a § 2255 habeas petition asserting multiple grounds for relief. The petition included an allegation that Webster was "denied the right to a jury of 12 peers" based on the absence of a juror during deliberations, but was not more specific about the legal basis for this claim. The petition did not, for example, invoke Rule 23(b) of the Federal Rules of Criminal Procedure or allege a violation of the Sixth Amendment or any other constitutional guarantee. Webster later amended his petition to make two additional claims related to the juror's absence: (1) his trial and appellate counsel were ineffective for failing to object to the absence of the juror and (2) the bailiff committed a fraud on the court by instructing the jury to deliberate with only eleven members.
In response to the petition and its amendments, the district court first attempted to locate the bailiff-a court security officer-who had been responsible for the safekeeping of Webster's jury. Six years had elapsed (it was now July 2001), so the judge asked the U.S. Marshal's office to assist in locating the officer. The court eventually determined that the officer was deceased. The judge then decided to send an investigator to track down and interview the jurors. Without input from the parties, the judge appointed an investigator employed by the U.S. Attorney's Office for the Northern District of Illinois. The judge chose this particular investigator because he had worked for the judge in a previous position and the judge had "great confidence" in "his capacity to do exactly what he was told to do, nothing more and nothing less." The judge instructed the investigator to interview all the jurors except M.J. The investigator used a list of questions that the parties jointly drafted.
The investigator apparently encountered some difficulty locating the jurors; the interviews were not completed until 2006. The results were a mixed bag, to say the least. The first question was: "The court records show that on one day one of the jurors did not appear.
Do you recall any such time when that might have occurred?" Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror's absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second ...