UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 3, 1975
GOVERNMENT OF THE VIRGIN ISLANDS
BEAUMONT GEREAU, ISHMAEL LA BEET, WARREN BALLENTINE, MERAL SMITH, RAFAEL JOSEPH BEAUMONT GEREAU, APPELLANT IN NO. 74-2019 ISHMAEL LA BEET, APPELLANT IN NO. 74-2020 WARREN BALLENTINE, APPELLANT IN NO. 74-2021 MERAL SMITH, APPELLANT IN NO. 74-2022 RAFAEL JOSEPH, APPELLANT IN NO. 74-2023
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX, CHRISTIANSTED JURISDICTION (D.C. Crim. No. 97-72).
Van Dusen, Rosenn and Weis, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
Defendants-appellants contend that the District Court of the Virgin Islands, Division of St. Croix, erred in denying their motion for a new trial.*fn1 Rejecting this contention, we affirm the district court.
On August 13, 1973, defendants were found guilty of first degree murder, first degree assault, and robbery.*fn2 The jury which returned the guilty verdicts had deliberated for nine days.*fn3 The jurors were polled individually and each acknowledged the verdict as his own. Two days later, defendants filed a motion requesting a new trial on the ground that the verdict had not been freely assented to by all the jurors. The motion was supported by the affidavits of two jurors, Rodgers and Allick, who represented that their verdict was the result of certain "pressures,"*fn4 but the trial judge found that these affidavits were "involuntarily made out of fear" engendered by the President of the Virgin Islands Senate (formerly related by marriage to Allick and "friendly with all of the defendants, save Raphael Joseph" - p. 24 of opinion cited at note 1), Mario Moorhead and John Ross, who were "sympathizers of the defendants." See I-B at page 8 below, and page 26 of Memorandum Opinion cited at note 1 above. These same two affidavits were presented to Chief District Judge Almeric Christian, who ordered a post-trial hearing to inquire into the allegations that the verdict was influenced by "unauthorized communications with the jury during its sequestration and deliberation." Report of the Special Master, Crim. No. 97/1972 at 1. Since neither the trial judge nor Chief Judge Christian was available to conduct the hearing,*fn5 the parties consented to the appointment of a special master.*fn6 Upon conclusion of the hearing,*fn7 the master submitted to the trial judge a report containing both findings of fact and conclusions of law. On September 24, 1973, the trial judge, determining that the special master's findings were not clearly erroneous, entered an order denying the motion for a new trial. The September 24, 1973, order was appealed, along with the judgments of conviction. Government of the Virgin Islands v. Gereau, et al., 502 F.2d 914 (3d Cir. 1974). This court then vacated the order denying a new trial and remanded so that the trial judge could review the record of the hearing de novo "and enter findings without reliance on those made by" the special master. Id. at 937. Pursuant to the mandate of this court, the trial judge proceeded to make his own findings from the record compiled at the hearing before the special master. No additional hearing was had.*fn8 On the basis of his de novo review, the trial judge entered an opinion and order which set forth his factual findings and again denied defendants' motion for a new trial. This appeal followed.
Defendants press two arguments in seeking to persuade us that the trial court's refusal to grant a new trial was an abuse of "its sound discretion."*fn9 First they attack certain of the trial judge's fact findings as unsupported by the evidence adduced before the special master.*fn10 Second they contend that the Government had the burden of proving that none of the incidents which formed the basis of the new trial motion was prejudicial to the defendants. This burden, they claim, was not sustained.
I. FINDINGS OF THE TRIAL JUDGE
A. Standard of Review
Where, as here, the findings of the trial court are based on non-demeanor evidence, there is a diversity of views as to the proper scope of appellate review. Some adopt the position that the "clearly erroneous" standard of F.R. Civ. P. 52(a) should apply to all findings of fact; others espouse the practice of de novo review on the theory that the trial court has no advantage over the appeals court in assessing inanimate evidence. Compare 9 C. Wright & A. Miller, Federal Practice and Procedure, §§ 2585-2587 (1971), with 5A J. Moore, Federal Practice, para. 52.04 (2d ed. 1974). Our circuit has not, however, taken either of these approaches.
Some of the past decisions of this court have reviewed cases tried solely on papers, without oral testimony, differently, depending on whether the facts set forth in the papers are stipulated or disputed. In the former circumstance, it was recognized that "the Court of Appeals may, within certain limits, substitute its factual conclusions and inferences for those of the" trial court. Demirjian v. C.I.R., 457 F.2d 1, 4 (3d Cir. 1972). See also Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650, 659 n.34 (3d Cir. 1968), cert. denied, 393 U.S. 1050, 21 L. Ed. 2d 692, 89 S. Ct. 688 (1969). In the latter situation, the court has scrutinized facts not dependent on demeanor evidence according to the clearly erroneous standard. United States v. United Steelworkers of America, 271 F.2d 676, 685 & 688 (3d Cir.), aff'd, 361 U.S. 39, 4 L. Ed. 2d 12, 80 S. Ct. 1 (1959).*fn11
The present case is sufficiently distinct from both Demirjian and United Steelworkers that neither case is necessarily controlling.*fn12 Cf. Orient Mid-East Lines, Inc. v. A Shipment of Rice, 496 F.2d 1032, 1037-38 and n.8 (5th Cir. 1974); Gulf Shores Leasing Corp. v. Avis Rent-A-Car System Inc., 441 F.2d 1385, 1388 n.1 (5th Cir. 1971). On the basis of Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir. 1975), and Congoleum Industries, Inc. v. Armstrong Cork Co., 510 F.2d 334, 336 at n.3 (3d Cir. 1975), which are our two most recent decisions on this issue, we affirm all the challenged findings of the trial judge except two*fn13 on the ground that we are "in as good a position to determine the question as is the district court."*fn14
B. Affidavits of Allick and Rodgers
After careful review of the record, we have concluded that these findings of the trial judge are fully supported by the evidence:
"It is my findings that jurors Allick and Rodgers were coerced by Messrs. Ross and Moorhead into making the affidavits, that the affidavits were involuntarily made out of fear by which both Allick and Rodgers were possessed."
See trial judge at 26 and notes 4 and 13 above.
In evaluating the testimony of Allick, the trial judge made these comments, inter alia, concerning pressures on Allick to change his verdict and his fears about returning to the community at the end of the trial:
(1) ". . . I give considerable importance to Allick's post-verdict contacts with friends of the defendants. I find, as will be more fully discussed below, that Allick was subjected to pressures to change his verdict. His testimony must therefore be scrutinized, and I give considerable weight to his recently acquired interest to have the verdict changed."
(trial judge at 17)
(2) ". . . I find that Allick also had fears about returning to the community and particularly to his friends in Frederiksted."*fn15
(trial judge at 20)
With reference to Rodgers' credibility, the trial judge stated:
(1) "Throughout the hearing for a new trial, juror Rodgers displayed a poor power of recollection, and much of his testimony was either vague, incomprehensible, or inconsistent. For that reason plus the suspicious circumstances surrounding the taking of his affidavit (to be discussed later) I find him less than credible."
(trial judge at 11)
(2) "It is my finding that juror Rodgers did not understand what the affidavit was all about at the time he signed it and that he did not understand it at the time of the hearing."
(trial judge at 25) (footnote omitted)
C. Findings Without Adequate Support in the Record
Juror Agneta Cappin*fn16 testified that one of the jury attendants, Matron Foye, spoke to her about the case.
"She just asked me how everything is going and I tell her not so good. And I say two of them that don't understand, they don't come in yet. And she say to me she want them to hurry up so she can get to go home, that is all."
Matron Foye denied the conversation. H.T. 299. The trial judge, finding both women to be credible witnesses, chose to believe Foye rather than Cappin because he knew that Foye "was grateful for the opportunity to earn extra income as a jury matron." Trial judge at 19. We do not consider these credibility findings to lack adequate support in the record. However, we do hold that the trial judge's reliance on his personal, subjective belief about the needs and motives of Matron Foye was an improper ground for rejecting Cappin's concededly credible testimony.
In basing his fact-finding on personal knowledge, the trial judge was, in effect, taking judicial notice of extrarecord, adjudicative facts. See generally K. Davis, An Approach to Problems of Evidence in the Administrative Process, 55 Harv. L. Rev. 364, 404-07 (1942). "With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy." Advisory Committee's Notes to F.R.E. (Federal Rules of Evidence) Rule 201(b); cf. F.R.E. Rule 201(a) and (b). A second hallmark of facts properly the subject of judicial notice is that they be either matters of common knowledge or "capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy . . . ." Weaver v. United States, 298 F.2d 496, 498 (5th Cir. 1962); 9 Wright & Miller, supra, § 2410 at 339. Facts possessing these characteristics are entitled to be considered by a judge without first being proved through the routine processes of introducing evidence.*fn17 The necessary cachet is not, however, bestowed merely by a judge's knowledge of a particular fact.
"There is a real but elusive line between the judge's personal knowledge as a private man and these matters of which he takes judicial notice as a judge. The latter does not necessarily include the former; as a judge, indeed, he may have to ignore what he knows as a man, and contrariwise.
.. . .
"It is therefore plainly accepted that the judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer outside of court. The former is in truth 'known' to him merely in the fictional sense that it is known and notorious to all men, and the dilemma is only the result of using the term 'knowledge' in two senses. Where to draw the line between knowledge by notoriety and knowledge by personal observation may sometimes be difficult, but the principle is plain."
J. Wigmore, Evidence, § 2569 at 539-40 (3d ed. 1940). It is apparent that the trial judge's knowledge about Matron Foye falls into this latter category of personal knowledge and, therefore, does not qualify for judicial notice. It follows that the trial judge erred in rejecting Cappin's testimony on the ground stated.
Similarly untenable is the trial judge's finding that juror Torres could not have heard any rumors while she was resting in the judge's chambers, since that finding was based solely on the judge's personal knowledge of the soundproofing in his chambers. Trial judge at 10.
As an antidote to these errors in the fact-finding process, our inquiry into the validity of the verdict will assume both that Cappin's testimony was accurate, see United States v. Brumbaugh, 471 F.2d 1128, 1130 (6th Cir.), cert. denied, 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2732 (1973), and that Torres could hear discussions outside the judge's chambers.*fn18
II. IMPEACHMENT OF THE VERDICT
Any attempt to impeach a jury verdict initially encounters two evidentiary obstacles: (1) producing evidence competent to attack the verdict, and (2) establishing the existence of grounds recognized as adequate to overturn the verdict. And even where both obstacles are cleared, there must be a finding that the party seeking to impeach the verdict has suffered prejudice from the misconduct of the jury.
A. The Evidentiary Obstacles: Competency and Sufficiency
1. Competent Testimony.
It is frequently said to be the rule that a juror may not impeach his own verdict once the jury has been discharged.*fn19 McDonald v. Pless, 238 U.S. 264, 267, 59 L. Ed. 1300, 35 S. Ct. 783 (1915). The rule was formulated to foster several public policies: (1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; (5) maintaining the viability of the jury as a judicial decision-making body. McDonald, supra ; United States v. Dioguardi, 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 829 (1974); Miller v. United States, 403 F.2d 77 (2d Cir. 1968). Courts applying the rule were, however, early aware that any flat prohibition against receiving such testimony contravened another public policy: that of "redressing the injury of the private litigant" where a verdict was reached by a jury not impartial. McDonald, supra 238 U.S. at 267. In order to accommodate these conflicting policies, Miller, supra, at 82, the courts, often continuing to recite the canon of "no impeachment," evolved a more flexible rubric. This latter rule interdicted reception of a juror's evidence only where it was offered "to show matters which essentially inhere in the verdict itself."*fn20 Hyde v. United States, 225 U.S. 347, 384, 56 L. Ed. 1114, 32 S. Ct. 793 (1912); Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245 (3d Cir.), cert. denied, 404 U.S. 883, 30 L. Ed. 2d 165, 92 S. Ct. 212 (1971). Such matters include both "the mental process of any juror or of the jury in arriving at a verdict," Capella v. Baumgartner, 59 F.R.D. 312, 315 (S.D. Fla. 1973), and the method by which the verdict is reached.*fn21 McDonald, supra ; Hyde, supra ; Domeracki, supra. See also Note: Impeachment of Jury Verdicts, 53 Marquette L. Rev. 258, 269 (1970). The same accommodation of policies produced the general rule's major exception, which provides that "'[a] juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.'"*fn22 Mattox v. United States, 146 U.S. 140 at 149, 36 L. Ed. 917, 13 S. Ct. 50 (1892), quoting Woodward v. Leavitt, 107 Mass. 453. "Extraneous influence" has been construed to cover publicity received and discussed in the jury room,*fn23 consideration by the jury of evidence not admitted in court,*fn24 and communications or other contact between jurors and third persons, including contacts with the trial judge outside the presence of the defendant and his counsel.*fn25 By contrast, evidence of discussions among jurors, intimidation or harassment of one juror by another,*fn26 and other intra-jury influences on the verdict*fn27 is within the rule, rather than the exception, and is not competent to impeach a verdict.
2. Grounds sufficient to overturn a verdict
Those incidents of jury misconduct which may be attested by the jurors and those which furnish a basis for setting aside a verdict overlap extensively. Indeed, courts often seem to treat the two concepts interchangeably in deciding whether a verdict may be successfully impeached. See Jorgensen v. York Ice Machinery Corp., 160 F.2d 432 (2d Cir. 1947); Comment, Impeachment of Jury Verdicts, 25 U. Chi. L. Rev. 360, 363 ff. (1958) [hereinafter Comment ]. For this reason, it is not possible to abstract from the cases any neat and comprehensive list of grounds upon which a verdict may be overborne. It is possible, however, to categorize roughly common fact patterns which have been held to call a verdict into question. Other than incompetency of a juror during jury service, see United States v. Dioguardi, supra at 79, and Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir. 1947), these are all incidents of "extraneous influence:"*fn28 (1) exposure of jury to news items "about the matter pending before the jury," Remmer v. United States, 347 U.S. 227, 229, 98 L. Ed. 654, 74 S. Ct. 450 (1954);*fn29 (2) consideration by the jury of extra-record facts about the case;*fn30 (3) communications between third parties and jurors where relevant to the case to be decided;*fn31 (4) pressures or partiality on the part of the court.*fn32 The first three types of jury conduct render a criminal verdict vulnerable because they are prima facie incompatible with the Sixth Amendment. See United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972); United States v. McKinney, 429 F.2d 1019 (5th Cir. 1970) cert. denied, 401 U.S. 922, 27 L. Ed. 2d 825, 91 S. Ct. 910 (1971). That Amendment guarantees, inter alia, "an impartial jury," the right to confront witnesses, and the assistance of counsel at every critical stage of the trial. Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970). Where jurors communicate with outsiders about the merits of the case they are deciding, their impartiality may be compromised unless the communication is tempered by "known rules of the court and the instructions and directions of the court made during the trial. . . ." Remmer, supra 347 U.S. 227 at 229. And where jurors consider evidence, in the form of either fact or opinion, which has not been introduced in court, the confrontation and counsel rights of an accused are obviated as regards the particular evidence received. Parker v. Gladden, 385 U.S. 363, 364, 17 L. Ed. 2d 420, 87 S. Ct. 468 (1966); Comment, Impeachment on Jury Verdicts by Jurors: A Proposal, 1969 Ill. L.F. 388.
The fourth category of cases - those in which an incident impugns the disinterestedness of the court - can also be viewed as turning on Sixth Amendment values. Thus, in Turner v. Louisiana, 379 U.S. 466, 13 L. Ed. 2d 424, 85 S. Ct. 546 (1965), the Court held that a new trial was required because the two principal prosecution witnesses were deputies who also had charge of the sequestered jury. The Court found that in a trial where credibility was a crucial issue, the status of the two witnesses lent a credibility to their testimony which was not developed by evidence at the trial. "In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Id. at 472-73.
In addition to the Sixth Amendment, however, the duty of the court "to protect the integrity of its own processes," McKinney, supra, Godbold, J., dissenting at 1032-33, requires that no verdict be the product of partiality, or its semblance, on the part of the court. This duty is the more binding because of the weight jurors are likely to accord information emanating from court personnel. See Quercia v. United States, 289 U.S. 466, 77 L. Ed. 1321, 53 S. Ct. 698 (1933); United States v. Pittman, 449 F.2d 1284 (9th Cir. 1971); Truscott v. Chaplin, 403 F.2d 644 (3d Cir. 1968).
As normal jury pressures and intra-jury influences may not be impeached by juror evidence, so also they constitute no grounds for overturning a verdict. See cases cited at notes 24 and 25, supra ; United States v. Grieco, 261 F.2d 414 (2d Cir. 1958), cert. denied, 359 U.S. 907, 3 L. Ed. 2d 572, 79 S. Ct. 582 (1959). Nor, indeed, is a verdict invalid merely because the jurors' generalized knowledge about the parties, or some other aspect of the case, is an ingredient of the decision. Though "the specific guarantees of an impartial jury and of confrontation," as well as "the more general one of due process," proscribe consideration of specific extra-record facts about the case on trial, it is not necessary that the jurors be "totally ignorant about a" case. United States ex rel. Owen v. McMann, 435 F.2d 813, 817 (2d Cir. 1970), cert. denied, 402 U.S. 906, 28 L. Ed. 2d 646, 91 S. Ct. 1373 (1971).
"We cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies. These involve the very human elements that constitute one of the strengths of our jury system, and we cannot and should not excommunicate them from jury deliberations."
McKinney, supra at 1022-23.
B. Misconduct Alleged By Defendants
The trial judge determined that several rumors were circulating among the jurors during their deliberations. He found that at least some of the jurors learned of killings which had occurred on St. Croix during the trial, and concluded that "the news must have come from the outside since it was true." Trial judge at 8. The judge further found that "general rumors of FBI investigations of jurors' families" were circulated among the jurors. Because a similar report was broadcast over a local radio station, the trial judge surmised that the rumor was common throughout the island and had "filtered into the jury room from outside."*fn33 Trial judge at 11, 10. Neither the actual source of these rumors nor the means by which the jury learned of them was found by the trial judge. Other rumors which he identified concerned the investigation of three jurors regarding specific events in their pasts. None of these specific rumors was credited with an outside source by the trial judge. Rather, he considered that the specific rumors were juror-generated. We find nothing in the record to refute this conclusion.
The defendants characterize all these rumors as threats. They point to the rumors and to the alleged conversations between certain jury attendants and jurors, see Part I and note 13, supra, as instances of impermissible outside influences on the verdict which require that it be set aside. We disagree.
The only rumors that can even qualify as outside influences are those which were assigned an outside source by the trial judge. The rumors about specific jurors are clearly in the category of intra-jury discussions which meet neither the competency nor the sufficiency criteria for overriding the verdict. The rumors concerning other killings on St. Croix and the FBI investigation of persons involved in the case are not so easily categorized. It is clear that they are not "extraneous influences" merely by virtue of having an outside source, however. See II-A, supra. It is also apparent that the rumors are dissimilar from the types of occurrences which were roughly categorized above as "extraneous influence" cases. Although it may appear, superficially, that they might qualify as communications between jurors and third parties, closer examination establishes that the rumors do not resemble that class of cases either.
The third-party communication cases break down, factually, into three major subclasses: (1) cases where jurors glean from non-jurors facts or opinions concerning the liability or guilt of a defendant; (2) cases involving attempts by outsiders to influence the verdict through intimidation or bribery of jurors; (3) cases where jurors come into personal contact with persons related to one side or another of the controversy before the jury. See generally Comment, supra at 366-69.
The trial judge made no finding that any contact, either direct or indirect, with any non-juror, brought the FBI investigation and murder rumors to the jury's attention. In fact, the trial judge was not able to discover the origin of these rumors. See pages 18-19 above. Absent a finding as to the rumors' origin, the element of bias, obvious in the types of third-party communications cases discussed above, is lacking here.*fn34 Perhaps more importantly, absent such a finding, the rumors themselves are, at most, only tangentially germane to the jury's decision-making. For the rumors are fundamentally unlike the communications typically found objectionable; they are not "pertinent to the disposition of an ultimate issue in the controversy, that is, to the jury's consideration of the guilt or innocence of the defendant." United States v. Burke, 496 F.2d 373, 377 (5th Cir. 1974). Only if the rumors carried the coercive force of threats or bribery would we be justified in treating them, factually, as "extraneous influences." Unlike a bribe or threat, however, the rumors did not represent either investigation or other killings as contingent upon any particular verdict outcome. Since the rumors were nebulous, had no identified source and since the jurors appeared to regard them as emanating from other jurors, we can discover no coercive or intimidating effect in these rumors.*fn35 As the Second Circuit observed in United States v. Gersh, 328 F.2d 460, 464 (1964), "something more than the mere fact of an unknown and here uncompleted contact with a juror is needed. . . ."*fn36
In determining that the rumors in this case do not qualify as "extraneous influences," we rely not only upon factual distinctions but upon our analysis of the rationale underlying the "extraneous influence" cases. No Sixth Amendment values are implicated by these rumors.*fn37 Where no coercive or biasing effect can be attributed to the statements, the impartiality of the jury is not impugned. Where the statements are in no sense "evidence developed" against the defendants, neither confrontation nor counsel rights are abused.
Nor is the integrity of the court put in jeopardy by the spread of such rumors among the jury. The rumors had no official source. See note 13, supra. Since "a complete sanitizing of the jury room is impossible," McKinney, supra at 1022, as well as unnecessary, McMann, supra at 817, the court has not failed in its duty to sequester the jury merely because rumors such as these managed to penetrate to the jury room. See also Rideau v. Louisiana, 373 U.S. 723 at 733, 10 L. Ed. 2d 663, 83 S. Ct. 1417, Clark, J., dissenting, (1963).
Finally, were we to set aside the jury verdicts because of these rumors, we would be defeating the purposes served by the competency-sufficiency rules in this area of the law. See II-A, supra. If rumors such as these, filtering into the jury from no known source, were held sufficient to impeach these verdicts, jury tampering and harassment would be encouraged and we "would add unduly to the already fragile state of criminal convictions." McMann, supra at 817. Particularly in a locale like the Virgin Islands, where the small area and population are conducive to the rapid spread of information about anything that occurs, and "where it might be impossible to find 12 jurors who were totally ignorant about a defendant," we find it difficult to imagine any verdict which would not be subject to challenge on the basis of claims like those raised here. McMann, supra at 817-18. In our view, we cannot allow impeachment by incidents of this type. United States v. Kafes, 214 F.2d 887, 889 (3d Cir. 1954).
Conversations between jurors and jury attendants, however, stand on a different footing than do the rumors just discussed. Numerous cases treat such communications as "extraneous influences." See cases cited note 23, supra. See also United States v. Brumbaugh, supra. Thus, the occurrence of the conversation between Matron Foye and juror Cappin, see Part I, supra, would require us to set aside the verdict, if that conversation were prejudicial to the defendants.*fn38
Even though a party establishes, by competent evidence, an act of jury misconduct sufficient to set aside a verdict, the verdict will stand unless the party has been prejudiced by the misconduct. Although there is normally a presumption that a verdict is valid, United States v. Robbins, 500 F.2d 650 (5th Cir. 1974), certain types of misconduct possess such a high potential of prejudice that they are considered prima facie prejudicial. Remarks by jury attendants to jurors, where those remarks relate to the jury's deliberations, are usually of this latter type. See Remmer, supra ; Mattox, supra ; United States ex rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir. 1974). Thus, we will assume, as defendants contend, that the Government has the burden of proving that Foye's remark to Cappin was not prejudicial.*fn39 We conclude that the Government carried this burden.
In United States v. Brumbaugh, supra at 1129, the following exchange took place between a juror and a court bailiff:
"Q During this time that you were with the bailiff, was there any conversation between you and him concerning the deliberations of the jury and the state of those deliberations?
"A If I recall right, he asked me how it was going? and I answered, '9 to 3.'
"Q Was there any other conversation between you concerning the matter I mentioned?
"A He said 'For or against?' And I didn't say nothing. I didn't even answer him. And then he said -
"Q Just one minute, please. Can you tell me, please, in terms of where you were when this conversation occurred?
"A On the elevator - at the elevator door.
"Q You say he said to you, 'For or against?' and you said you did not answer?
"A I did not answer.
"Q Then what further followed; any further conversation?
"A Well, he said that, 'It's always some woman or something holding it up,' to that effect, or something like that, and I still did not answer. I didn't say no more.
"Q Can you tell me whether this conversation in any way influenced you one way or the other as to your own participation in this case?
"A No, it did not influence me in no way.
"Q Did you report this to your fellow jurors, the fact that you had this conversation with the bailiff?
Although the juror involved was voting not guilty at the time, the trial court's determination that no prejudice resulted from the incident was upheld on appeal. The trial court's finding was based, in part, upon the juror's averment that he had not been affected by the bailiff's remarks.
In the present case, Cappin did not indicate whether she considered herself influenced by the matron's statement.*fn40 However, the trial judge found that she had voted guilty from the first ballot to the last.*fn41 Trial judge at 6; see also H.T. 152. Since Cappin did not mention the incident to any of the other jurors, no juror could have been moved by the remark to change his vote. See Bailey v. United States, 410 F.2d 1209, 1215 (10th Cir.), cert. denied sub nom., Freeman v. United States, 396 U.S. 933, 24 L. Ed. 2d 232, 90 S. Ct. 276 (1969).
It thus appearing that no prejudice accrued to the defendants from the only occurrence which was both legally cognizable and sufficient to impeach the jury verdict, we find no abuse of discretion in the trial judge's refusal to order a new trial. The judgment of the district court will be affirmed.