This comes before the Court on Defendant Tommy Edelin's motion for appropriate relief , the United States' Response , Edelin's reply , Bryan Bostick's Supplement  and memorandum , and Earl Edelin's  and Marwin Mosley's  motions to join. Also pending before the Court is Tommy Edelin's motion for a complete investigation [7/30/02], the government's response , and the motions to join of Marwin Mosley , Earl Edelin , Shelton Marbury , and Henry Johnson [8/1/03], and Johnson's memorandum in support . The final pending motion is Henry Johnson's motion for an evidentiary hearing , and the government's response . Upon consideration of the law, the facts, the parties' submissions, and the evidentiary hearings conducted by the Court, the motions for relief will be denied.
This post-verdict motion comes after a lengthy criminal trial in which the defendants were convicted on various narcotics and homicide offenses, and in which the jury declined to impose the death penalty. Tommy Edelin's counsel filed a motion after being approached at the dry cleaner by an alternate juror, Alternate Juror 2,*fn1 who had been released before deliberations began. Local Criminal Rule 24.2 prohibits a party or attorney from speaking with a juror after a verdict has been rendered "except when permitted by the court for good cause shown in writing." L.Cr.R. 24.2. Furthermore, Federal Rule of Evidence 606(b) provides for a very limited inquiry into outside influences on a jury, but not through an ex parte communication with an attorney. Despite these proscriptions, counsel spoke with the Alternate Juror 2 long enough to gather several allegations of jury bias from her, and included the substance of these allegations in a motion to the Court.*fn2 Alternate Juror 2 allegedly made three allegations that defense counsel for Tommy Edelin urges show improper jury bias: that Juror 7 had an inappropriate relationship with the Deputy Marshal in charge of the case, that Juror 7 revealed the tally of votes and the jury's split to the Deputy Marshal, and that the jurors improperly deliberated before being instructed.*fn3
A few weeks later, one of the attorneys for Bryan Bostick ran into Alternate Juror 2 at a community meeting. Bostick filed a supplement to Edelin's motion stating that Alternate Juror 2 had discussed the jury's conduct with him despite his request that she not do so.*fn4 The supplement alleges that Alternate Juror 2 stated that the jury panel discussed the case before deliberations, that the deliberating jurors communicated with the discharged alternate juror during deliberations, that the Deputy Marshal told Alternate Juror 2 that Bryan Bostick had confessed to a crime, that the jury panel suspected and discussed among themselves that Juror 7 had an inappropriate relationship with the Deputy Marshal, and that Juror 7 would remain in the van that returned the jury to its secure location at the end of the day with the Deputy Marshal.
To determine whether any of these alleged improprieties occurred and whether they affected the jury's impartiality, the Court held two evidentiary hearings. The first hearing was held June 27, 2003. At that hearing, the Court took the testimony of Alternate Juror 2 and Juror 7. Alternate Juror 2 testified that Edelin's counsel told her that some people, she believed it was the Marshals, were making negative statements regarding her character, which were that she was a violent person who did not get along with the other jurors. Tr. at 7-8. She recounted that she expressed frustration to counsel that the jury had deliberated with only 11 jurors, and that she should have been called back to deliberate,*fn5 and wondered if this had something to do with the fact that her "character was discredited." Tr. at 9. She stated that she had told Edelin's counsel that she believed that the Deputy Marshal had an inappropriate relationship with Juror 7. Tr. at 10. She said that Juror 7 and several other jurors had been taken to the bank by the Deputy Marshal, Tr. at 31, and that she had witnessed Juror 7 remaining in the van with the Deputy Marshal on two occasions and had heard rumors from other jurors "that they saw other things." Tr. at 35.
Alternate Juror 2 testified that after she was discharged, the Deputy Marshal asked her by telephone how she felt about the case, and that when she stated she did not believe the government had proven its case against Bryan Bostick, the Marshal said, "Do you know that he admitted he did that?" Tr. at 11, 15. Alternate Juror 2 testified that she responded, "Well as far as the instructions are concerned, I was told that I must see where they had proven that he was guilty beyond a believable [sic] doubt and I didn't see that." Tr. at 11. She said that she had a conversation with Juror 2269, a deliberating juror, while the jury was deliberating, and that Juror 2269 discussed the difference between the charges with her. Tr. at 12-13. She later stated that believed she had told Juror 2269 about the Deputy Marshal's comment regarding Bostick's alleged confession during this telephone call while the jurors were deliberating. Tr. at 30.
Alternate Juror 2 recounted that during the trial she believed that Bryan Bostick was looking at her, and that the other jurors expressed a belief that Bostick might have a romantic interest in her. Tr. at 13-14. She relayed an exchange between herself and the Deputy Marshal, that when the Marshal saw her ML 300 Mercedes he joked that she might need to be investigated. Tr. at 24. She also spoke of another exchange in which the Marshal assigned her and another juror seats in the van that transported the jury from their secret location to the courthouse; the incident happened when the two jurors squabbled over seats, and she noted that no other jurors had assigned seats. Tr. at 25. She commented that the jurors engaged in some form of discussion regarding the evidence before being charged, and that she did not believe the government had proven its case beyond a reasonable doubt. Tr. at 26-27. The only other type of discussion or outside evidence Alternate Juror 2 could recall was that one of the other jurors said that some of Tommy Edelin's relatives attended the school where that juror taught and the juror felt uncomfortable. Tr. at 30. She explained that she had attended the reading of the jury's verdict on the guilt/innocence phase. Tr. at 27-28. Finally, Alternate Juror 2 explained that she had seen one of the other jurors after the trial ended, and one of the prosecutors, but had not discussed the case with either one. Tr. at 33.
The next witness called at the June 27 hearing was Juror 7, the juror Alternate Juror 2 suspected had an inappropriate relationship with the Deputy Marshal. Juror 7 credibly testified that her relationship with the Deputy Marshal was professional, and that she had never had any social interaction with him outside the courthouse and jury context. Tr. at 41-43. She further recounted that she had never discussed the case, including the defendants' guilt or innocence, with the Deputy Marshal. Tr. at 42, 49. She stated that she had never gone anywhere in the jury van alone with the Deputy Marshal. Tr. at 43. She also testified that she never spent any time in the van alone with the Deputy Marshal, aside from a brief goodbye if she was the last juror to exit the van. Tr. at 47. She described the only outing she had attended with the Deputy Marshal, which involved going with two or three other jurors to pick up a pizza for the jury lunch while the trial was ongoing and before deliberations.*fn6 Tr. at 44, 46-47. She said that neither she nor any other juror, to her knowledge, had discussed the vote tallies with the Deputy Marshal. Tr. at 48.
The July 11 hearing was held to examine Juror 2269, the juror that Alternate Juror 2 testified she had spoken with while the jury was deliberating. Juror 2269 testified that she had spoken with Alternate Juror 2 in the courtroom the day after the verdict was read. Tr. at 6. Juror 2269 could not recall whether Alternate Juror 2 discussed her views of the case. Tr. at 7-8. She recounted that Alternate Juror 2 was upset about not being included in the deliberations. Tr. at 8. She testified that Alternate Juror 2 had not said anything about an alleged confession by Bryan Bostick. Tr. at 8-9. She credibly testified that while she may have had one or more phone conversations with Alternate Juror 2, these conversations did not occur during deliberations and she did not disclose any vote tallies to Alternate Juror 2. Tr. at 14-15. The Court questioned Juror 2269 regarding Juror 7 and the Deputy Marshal. Juror 2269 responded that she never witnessed any irregularity or unusual relationship between them. Tr. at 15-16, 19, 21. S
II. Analysis Federal Rule of Evidence 606(b) limits a juror from testifying on any matter related to deliberations and the verdict except as to "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(b). That is, nobody may inquire into so-called "inside" influences on the jury–such as pressure among jurors, misunderstanding of instructions, a compromise verdict, or a self-imposed time limit–but only into outside influences. United States v. Logan, 250 F.3d 350, 381 (6th Cir. 2001). A district court has great discretion in shaping the appropriate inquiry into an allegation of jury prejudice. United States v. Williams-Davis, 90 F.3d 490, 496-97 (D.C. Cir. 1996); United States v. Williams, 822 F.2d 1174, 1190 (D.C. Cir. 1987). Generally, the remedy is to hold a hearing to inquire into the alleged prejudicial contact. Williams-Davis, 90 F.3d at 496; but cf. United States v. Boney, 977 F.2d 624, 634 (D.C. Cir. 1992) ("We do not now hold that any false statement or deliberate concealment by a juror necessitates an evidentiary hearing.").
The hearing "need not be conducted as a full evidentiary hearing," the inquiry "need only be sufficiently detailed to permit the judge to determine whether any prejudice is likely to result." United States v. Butler, 822 F.2d 1191, 1196 (D.C. Cir. 1987). The prevention of "juror harassment" through extensive questioning and cross-examination is a legitimate reason to curtail a hearing or not to call jurors in for questioning. Id. at 499; see also Williams, 822 F.2d at 1189 (declining to adopt a per se rule requiring individual questioning of jurors for a prejudice determination). Discretion in the trial judge is the hallmark in conducting post-verdict examinations of jurors. See, e.g., United States v. Logan, 250 F.3d 350, 378 (6th Cir. 2001) ("[T]rial judges are afforded considerable discretion in determining the amount of inquiry necessary, if any, in response to allegations of jury misconduct.").
Remmer v. United States, 347 U.S. 227 (1954), imposes a hearing requirement "whenever an encroachment upon the impartiality of the jury is threatened." United States v. Williams, 822 F.2d 1174, 1188 (D.C. Cir. 1987) (citing Smith v. Phillips, 455 U.S. 209 (1982)). The D.C. Circuit has interpreted this to require (1) notice to the accused of juror contact, and (2) an opportunity for the accused to participate in any proceeding to determine its impact. Williams, 822 F.2d at 1190. The trial court determines the level of participation that is appropriate by the accused. These requirements were fulfilled in this case. The defendants received notice of the juror contact through the motions of Tommy Edelin and Bryan Bostick. At the hearings, the Court conducted the questioning, with frequent interruptions to allow counsel to propose questions to be asked of the jurors. Each counsel was given the opportunity to suggest questions, and the only questions rejected were those that improperly inquired into the internal functioning of the jury. See Fed. R. Evid 606(b).
Several courts have endorsed the view that an examination of jurors need not rise to the level of a full adversarial hearing. See, e.g., United States v. Butler, 822 F.2d 1191, 1195 (D.C. Cir. 1987); United States v. Calbas, 821 F.2d 887, 896 (2d Cir. 1987) ("The court wisely refrained from allowing the inquiry to become an adversarial evidentiary hearing, so as to minimize intrusion on the jury's deliberations."). The D.C. Circuit has "clearly" stated that "the trial court has broad discretion over the 'methodology' of inquiries into third-party contacts with jurors," a latitude the court explicitly extends to "trial courts' choices as to the proper procedures for post-trial hearings." Williams-Davis, 90 F.3d at 498-99 (citation omitted). The risk of "massive examination and crossexamination" rising to the level of juror harassment is a permissible factor to consider in shaping the procedure for a hearing on juror issues. Id. at 499. All the court is required to do is "conduct an inquiry broad it enough to lead it to a reasonable judgment that there has been no prejudice on an assumption as to the facts favorable to defendant's claim." Id. The more "speculative or unsubstantiated" the allegation of misconduct, the less the burden to investigate. United States v. Bertoli, 40 F.3d 1384, 1395 (3d Cir. 1994) (quoting United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985)).
The D.C. Circuit upheld a district court's decision to itself question jurors on whether they were aware of a statement made by defendant to a juror in an elevator, and to refuse to ask more detailed questions suggested by counsel. United States v. Butler, 822 F.2d 1191, 1195, 1197 (D.C. Cir. 1995). The Second Circuit upheld a case in which the district judge conducted an inquiry by taking unsworn testimony in camera from jurors with an opportunity for defense counsel to submit questions beforehand. Calbas, 821 F.2d at 894; cf. also Bertoli, 40 F.3d at 1397 (no Fifth Amendment violation where Court examined jurors in camera for second round of examination). Here, the Court conducted the questioning in the defendants' presence and permitted them to suggest questions to be asked of the jurors.
A Court need not examine all jurors, only those relevant to the accusation. Leisher v. Conrad, 41 F.3d 753, 756 (D.C. Cir. 1994) ("[T]here is no per se rule that individual questioning is always required."); United States v. Williams, 822 F.2d 1174, 1189 (D.C. Cir. 1987) ("We are unwilling to adopt a per se rule that individual questioning is always required."); United States v. Bertoli, 40 F.3d 1384, 1395 (3d Cir. 1994) (no need for further investigation where court interviewed all jurors involved in alleged misconduct). Further, a Court has discretion to assess the credibility of jurors' testimony. Bertoli, 40 F.3d at 1395 ("[W]e cannot say that the court's decision to believe Juror Six over Juror Thirteen was clearly erroneous. The trial court had to believe one of the two jurors."); see also Smith v. Phillips, 455 U.S. 209, 217 n.7 (1982) (juror testimony is not "inherently suspect").
Once there has been a hearing, "[t]he judge then determines whether the exposure was prejudicial or harmless." United States v. Butler, 822 F.2d 1191, 1196 (D.C. Cir. 1987). In United States v. Williams-Davis, 90 F.3d 490 (D.C. Cir. 1996), the D.C. Circuit accepted the District Court's finding of no prejudice where the forewoman's husband allegedly told the jury to "nail" the defendant. The weight of the evidence against the defendants is relevant to the prejudice inquiry. Williams-Davis, 90 F.3d at 497. In Williams-Davis, the D.C. Circuit found no abuse of discretion by the trial judge in finding no prejudice in part because "the evidence against defendants was overwhelming." Id. This case comprised eight months of evidence and testimony, and resulted in multiple convictions. The evidence in this case can certainly be described as "overwhelming."
Not every contact is prejudicial, or "calls for the same investigative technique." Williams, 822 F.2d at 1190. Ultimately, "Where the court conducts an inquiry broad enough to lead it to a reasonable judgment that there has been no prejudice, on an assumption as to the facts favorable to defendants' claim, it has fulfilled its procedural as well as its substantive duty." Williams-Davis, 90 F.3d at 499.
Remmer placed the burden on the government to overcome the presumption that a contact was prejudicial. Remmer v. United States, 347 U.S. 227, 229-30 (presumption of prejudice when there is private communication with a juror). However, this standard was modified by the Supreme Court's subsequent decisions in Smith v. Phillips, 455 U.S. 209 (1982) and United States v. Olano, 507 U.S. 725 (1993). Smith v. Phillips states that the remedy for allegations of juror partiality "is a hearing in which the defendant has the opportunity to prove actual bias." Smith v. Phillips, 455 U.S. at 216; see also Williams-Davis, 90 F.3d at 496. The D.C. Circuit had interpreted Remmer and its successors as vesting "broad discretion in the trial court to assess the effect of alleged intrusions." Williams-Davis, 90 F.3d at 496-97. Only if there is a sufficient "likelihood of prejudice" from a particular intrusion will the government have the burden of proving harmlessness. Id. at 497. If the court finds that any particular intrusion poses enough of a "likelihood of prejudice," the burden shifts to the government to prove harmlessness. Williams-Davis, 90 F.3d at 497.
Due process, of course, "does not require a new trial every time a juror has been placed in a potentially compromising situation," Smith, 455 U.S. at 217, but only where actual bias has been proven and found to be prejudicial. In assessing juror bias the Court is to consider a number of factors, including: "the nature of the communication, the length of the contact,... and the impact of the communication on both the juror involved and the rest of the jury." United States v. Williams, 822 F.2d 1174, 1188-89 (D.C. Cir. 1987). The decision whether the jury was improperly influenced and biased by an outside communication depends "upon how the jury interprets and expectably will react to the communication made." Id. at 1189.
A. Allegations Made by Alternate Juror 2
Alternate Juror 2 described three different circumstances that could give rise to a possibility of juror bias: an inappropriate relationship between Juror 7 and the Deputy Marshal, the Deputy Marshal's alleged statement that Bryan Bostick had confessed to a murder and Alternate Juror 2's decision to tell this to Juror 2269 about this statement during deliberations, and jury deliberations before being charged. Alternate Juror 2 did not confirm the allegations she had allegedly made to counsel for Tommy Edelin and Bryan Bostick and presented by counsel to the Court that Juror 7 or any other juror disclosed vote tallies to the Deputy Marshal, nor did the other jurors testify that this occurred. Nevertheless, the Court will address this allegation.
1. Inappropriate Relationship
Alternate Juror 2 described the circumstances and rumors that led her to believe in the existence of an "inappropriate relationship" between Juror 7 and the Deputy Marshal: that she recalled the Deputy Marshal taking Juror 7 and several others to the bank on one occasion, June 27 Tr. at 31; that she witnessed Juror 7 speaking with the Deputy Marshal in the van on two occasions ("I have seen them twice where we all left and they were still communicating with each other, talking at the bus and on the bus, you know, stepping up to her or whatever," id. at 35); that she had heard "hearsay I was told by some other ...