
    UNITED STATES of America, Plaintiff, v. Ahmad BISHAWI, Defendant.
    No. 97-40044.
    United States District Court, S.D. Illinois, Benton Division.
    Aug. 28, 2000.
    
      Kit R. Morrissey, Fairview Heights, Patty Merkamp Stemler, Washington, DC, for plaintiffs.
    Eric W. Butts, St. Louis, MO, for defendants.
   OPINION

RICHARD MILLS, District Judge.

Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.”

Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978).

I. BACKGROUND

On January 19, 1999, a jury found Ahmad Bishawi guilty of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 846. On October 1, 1999, United States District Judge Paul E. Riley sentenced Bishawi to 240 months of imprisonment.

That same day, Bishawi filed a notice of appeal of his conviction and sentence. While his appeal was pending before the United States Court of Appeals for the Seventh Circuit, Bishawi’s counsel received notification from Chief United States District Judge J. Phil Gilbert that Judge Riley may have had ex parte communications with the jury during its deliberations in Bishawi’s case. Based upon a motion by Bishawi’s attorney, the Seventh Circuit issued a general remand to the district court for further proceedings based upon the information subsequently learned regarding Judge Riley’s conduct during the trial.

Bishawi has now filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. Therein, Bishawi argues that, because he was unaware of the ex parte communications until after the jury had reached its verdict, Judge Riley’s ex parte communications with the jury constitute newly discovered evidence entitling him to a new trial. Moreover, Bishawi contends that because it is impossible to determine the exact nature and extent of the communications which occurred between Judge Riley, and the jury in his case, this Court should conduct an evidentiary hearing (including interviewing the jurors who deliberated in this case) and, thereafter, should grant him a new trial.

The Government argues that, because Bishawi has not proffered any concrete evidence that Judge Riley engaged in any ex parte communication with the jury, the Court should deny both his request for an evidentiary hearing and his motion for a new trial. Although the Government admits that Judge Riley committed error in this case by responding in writing to a question from the jury without first consulting counsel and Bishawi, it contends that this error was harmless and, therefore, does not entitle Bradley to an eviden-tiary hearing or a new trial.

Apart from this note, the Government claims that Bishawi has not met his burden of establishing that an ex parte communication occurred between Judge Riley and the jury. Because Bishawi has not met his initial burden, the Government asserts that no presumption of prejudice arises for it to overcome. Accordingly, the Government asks the Court to deny Bishawi’s request for an evidentiary hearing and his 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. “Probably the most frequent basis for a Rule 33 motion — and the only one specifically mentioned in the rule — is one ‘based on the ground of newly discovered evidence.’ ” United States v. Woolfolk, 197 F.3d 900, 905 (7th Cir.1999), quoting United States v. Kamel, 965 F.2d 484, 490 (7th Cir.1992). The United States Court of Appeals for 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 trial; (2) 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 retrial.

Woolfolk, 197 F.3d at 905.

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, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). As the United States Supreme Court has opined:

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, 74 S.Ct. 450, 98 L.Ed. 654 (1954), citing Mattox v. United States, 146 U.S. 140, 150, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Moreover, 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).

Before the Government is put to its burden of showing that an improper contact by an outsider with the jury is harmless, however, a defendant must first establish that an ex parte communication occurred. 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 moving defendant must meet this burden by a preponderance of the evidence. United States v. Caro-Quintero, 769 F.Supp. 1564, 1580 (C.D.Cal.1991); 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 communication occurred).

Furthermore, “[a] determination of jury prejudice is complicated in the federal courts by the proscription against questioning jurors directly about the effect of the outside contact on their deliberations.” Owen, 727 F.2d at 646. Federal Rule of Evidence 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question 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. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Id. Thus,

[rjather than question the jurors directly, a district court must make findings of fact at two separate levels. First, the district court must find the basic, or subsidiary, facts — e.g., the nature, content, and extent of the extra-judicial contact. Based on its findings of subsidiary facts, the district court must then make the ultimate factual determination: whether the contact likely affected the juror’s impartiality.

Owen, 727 F.2d at 646.

III. ANALYSIS

In the instant case, the Court finds that it is more likely than not that Judge Riley had an ex parte communication(s) with the jury during Bishawi’s trial. Tarpley, 945 F.2d at 811. The Court believes that it can make this finding without the necessity of conducting an evidentiary hearing as requested by Bishawi.

The Government is correct that a judge’s failure to consult with counsel and a criminal defendant in open court prior to responding to a jury’s communication can be considered “harmless error.” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985); United States v. Patterson, 23 F.3d 1239, 1254 (7th Cir.1994); Verdin v. O’Leary, 972 F.2d 1467, 1482 (7th Cir.1992). Moreover, the Government is correct that Judge Riley’s error in this case should, generally, be considered harmless because he correctly instructed the jury on the law and because it appears that nothing Bishawi or his counsel could have said, had they been present, would have altered Judge Riley’s response. United States v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir.1995).

It was, nevertheless, error for Judge Riley to have answered the jury’s question without first consulting counsel and Bishawi.

Furthermore, during an interview by Chief Judge Gilbert, David Agay (Judge Riley’s law clerk who was assigned to this ease) informed Chief Judge Gilbert that, during his tenure as Judge Riley’s law clerk, he assisted Judge Riley in only four trials: United States v. Bradley, 98-30149, United States v. Bishawi, 97-40044, United States v. Alexander, 99-30067, and United States v. Hodges, 99-40009. Of those four trials, Agay had a specific recollection that Judge Riley entered the jury room and spoke with the jury while they were deliberating in three of the four cases, although he could not specify in which of the three cases the improper contact had occurred. Thus, a 75% probability exists that Judge Riley had an ex parte communication with the jury in this case.

In addition, in his affidavit, Agay testified that “[o]n some occasions, I was not present in chambers when the jury sent a note. Sometimes, Judge Riley would receive the note, read it, go into the jury room, and close the door.” The Court believes that this testimony, in conjunction with Judge Riley’s error in answering the jury’s question, is sufficient to find that Bishawi has made a colorable showing that an ex parte communication occurred. Cousins, 842 F.2d at 1247.

The Court is not persuaded by Court Security Officer Tony Pona’s testimony that an ex parte communication did not occur. In his affidavit, CSO Pona testified that he “never saw Judge Riley himself deliver the answer to a jury note.” In addition, CSO Pona testified that he “never saw or heard Judge Riley speaking to the jurors outside the courtroom about the substance of a case.”

However, it is undisputed that Judge Riley frequently visited and communicated with deliberating juries in cases over which he presided. Several court personnel attested to this fact in affidavits which have been filed with this Court. Thus, the Court does not believe that CSO Pona’s testimony is sufficient to negate the Court’s finding of a likelihood that Judge Riley engaged in an ex parte communication(s) with the jury in this case.

The Court is mindful of and even sympathetic to the position in which the Government now finds itself, ie., having to rebut a presumption of prejudice without knowing, book and page, the specific instance of the ex parte communication which occurred between Judge Riley and the jury. Moreover, the Court is cognizant that mere speculation is insufficient to shift the burden to the Government. See United States v. Davis, 15 F.3d 1393, 1412 (7th Cir.1994)(holding that “[a] defendant’s mere allegations of taint or his unsubstantiated suspicions do not necessitate inquiry by the court.”).

However, Agay stated that Judge Riley entered the jury room in three of the four cases assigned to him as a law clerk, one of which was the instant case. The Court believes that Agay’s statement, the evidence that Judge Riley frequently entered the jury room during deliberations, and Judge Riley’s improper response to the jury’s question when considered in sum are sufficient to support a finding by a preponderance of the evidence that Judge Riley had an ex parte communication(s) with the jury in this case. Caro-Quintero, 769 F.Supp. at 1580. In making this finding, the Court is attentive to the Seventh Circuit’s opinion in United States v. Touloumis, 771 F.2d 235 (7th Cir.1985), in which that court opined:

notwithstanding the presence of a court reporter, a judge should not engage in a discussion with the jury in the jury room regarding the issues presented in the case after the jury has begun its deliberations. We noted that two important interests are undermined by such discourse between the judge and the jury during the jury’s deliberations: (1) the appearance of justice, and (2) allowing the parties to make a contemporaneous record as to the context in which the judge’s remarks are made.

Id. at 242, citing United States v. Burns, 683 F.2d 1056, 1058 (7th Cir.1982). This Court is thoroughly convinced that any finding other than that Judge Riley engaged in ex parte communications with the jury in the above-captioned case would forever taint Bishawi’s conviction and would do a disservice to the appearance of justice. Id.

Having determined that an improper contact occurred between Judge Riley and the jury, the burden shifts to the Government to prove that the contact was harmless to Bishawi. Remmer, 347 U.S. at 229, 74 S.Ct. 450. The Court finds that the Government has not met this burden.

The Government’s burden in this regard is a “heavy” one. Id.; Schaff v. Snyder, 190 F.3d 513, 533-34 (7th Cir.1999). The Government must demonstrate “that there exists no ‘reasonable possibility that the jury’s verdict was influenced by an improper communication.’ ” United States v. Cheek, 94 F.3d 136, 141 (4th Cir.1996), quoting Stephens v. South Atl. Canners, Inc., 848 F.2d 484, 488-89 (4th Cir.1988); see United States v. Carter, 973 F.2d 1509, 1515 (10th Cir.1992), quoting United States v. de Hernandez, 745 F.2d 1305, 1310 (10th Cir.1984)(holding that in order “[t]o avoid a new trial under the plain error analysis, the record must completely ‘negative[ ] any reasonable possibility of prejudice arising from such error.’ ”).

The Court has made a finding of fact that Bishawi has made a colorable showing that an ex parte communication occurred between Judge Riley and the jury in this cause, and the Government has offered no evidence or argument to rebut the presumption of prejudice or to establish that the improper contact was harmless to Bishawi. Therefore, the Court believes that this conduct likely affected the jury’s impartiality. Owen, 727 F.2d at 646. This is so because juries tend to view the presiding judge as the embodiment of the law; the jury could have interpreted even an innocuous comment by Judge Riley or his body language (either correctly or incorrectly) as revealing his view of the case, thus influencing its deliberations and/or verdict. At a minimum, the contact(s) tarnished the appearance of justice and deprived the parties of their ability to make a contemporaneous record as to the context in which Judge Riley’s remarks to the jury were made. Touloumis, 771 F.2d at 242.

In short, the Court cannot say, under the circumstances, that there exists no reasonable possibility that the jury’s verdict was not influenced by an improper communication. Cheek, 94 F.3d at 141. A criminal defendant has a right to a fair trial, U.S. Const. amend. VI, and a right to be present at every stage of the trial. Fed. R.Crim. Pro. 43(a); see United States v. Coffman, 94 F.3d 330, 335-36 (7th Cir.1996)(holding that “[t]he defendant is entitled to be present at all stages of his trial, ... and a judge’s response to a note from the jury is one of those stages.”); see also United States v. Pressley, 100 F.3d 57, 59-60 (7th Cir.1996)(holding that Rule 43(a)entitles a defendant to be present at all stages of his trial and that “[cjommuni-cation between the judge and the jury, or a single juror, is one of those stages.”). Judge Riley’s ex parte communication(s) with the jury deprived Bishawi of both of these rights, and therefore, he is entitled to a new trial.

Ergo, Defendant’s Motion for a New Trial Pursuant to Rule 33 of the Federal Rules of Criminal Procedure based on Newly Discovered Evidence is ALLOWED. 
      
      . In addition to sentencing Bishawi, Judge Riley presided over Bishawi’s trial. Judge Riley is no longer an active district judge due to a medical disability which renders him unable to efficiently discharge the duties of his office.
     
      
      . Chief Judge Gilbert assigned the above-captioned case to this Court — along with six other criminal cases in which Judge Riley allegedly had ex parte communications with the juries — after all of the district judges in the United States District Court for the Southern District of Illinois recused themselves.
     
      
      .During the jury's deliberations, the foreman sent Judge Riley a note asking to see an exhibit which had not been introduced as evidence at the trial. Judge Riley responded to the note in writing as follows: “You have everything that was introduced[.] The 302 was not introduced. Please continue your deliberations working towards a verdict.” /s Judge Riley. Judge Riley did not consult with either counsel or Bishawi before responding to the jury’s inquiry, nor did he make this note a matter of record with the attorneys.
     
      
      . A defendant's right under Federal Rule of Criminal Procedure 43(a) to be present at every stage of his trial is "more far-reaching than the right of presence protected by the Constitution.” United States v. Brown, 571 F.2d 980, 986 (6th Cir.1978).
     
      
      . Except for testimony regarding whether extraneous prejudicial information was improperly brought to the jury's attention, the Court cannot allow, authorize, or compel a juror to testify regarding anything which occurred during the course of the jury’s deliberations and/or to what effect anything had upon the juror's mind or emotions which might have influenced the jury's verdict. Fed.R.Evid. 606(b); Owen, 727 F.2d at 646.
     
      
      .In addition, Agay testified that he "observed Judge Riley speaking to jurors outside the courtroom on several occasions." Although Agay went on to say that the discussions merely concerned mundane matters such as the weather, given Judge Riley's improprieties with juries in other cases, the Court is'concerned that even these, perhaps, innocent contacts with the juries might have had an influence on the juries’ partiality despite Agay’s statement that he did not see or hear Judge Riley discuss the substances of any case during these contacts. At a minimum, given the circumstances surrounding these seven cases and Judge Riley's medical condition, it leaves one with the impression that "[s]ome-thing is rotten in the state of Denmark.” William Shakespeare, Hamlet, act I, sc. 4.
     
      
      . In fact, the Government has conceded that the defendants in United States v. Quilling, 99-30059, and United States v. Von Briggs, 99-30053, are entitled to a new trial based upon Judge Riley’s ex parte communications with the juries.
     
      
      . In addition, CSO Pona's testimony that Judge Riley did not comment on the firearms and ammunition evidence when the jury was viewing it outside the presence of the defendant and counsel in United States v. Davis, 99-30023, is contradicted by Sheila Hunsicker (Judge Riley's permanent law clerk) who testified that Judge Riley did make comments to the jury on that evidence.
     