
    UNITED STATES of America, Plaintiff, v. Ahmad BISHAWI, Defendant.
    No. 97-40044.
    United States District Court, S.D. Illinois, Benton Division.
    Feb. 25, 2002.
    
      Patty Merkamp Stemler, U.S. Department of Justice, Criminal Div., Appellate Section, Washington, DC, for Plaintiff.
    Eric W. Butts, St. Louis, MO, for Defendant.
   OPINION

RICHARD MILLS, District Judge.

The late Paul E. Riley, United States District Judge for the Southern District of Illinois, had a penchant for communicating ex parte with jurors in cases in which he was the presiding judge.

Sometimes the communications involved benign subjects such as the weather or televisions programs, but sometimes he commented upon the evidence presented at trial. Such conduct reflects poorly, not only upon the judge who engages in ex paHe contacts with jurors, but upon the court in which that judge sits and upon the judicial system as a whole.

I. BACKGROUND

While Ahmad Bishawi’s appeal of his conviction and sentence was pending before the United States Court of Appeals for the Seventh Circuit, some information came to light that Judge Riley may have had ex parte communications with the jurors during Bishawi’s trial. Based upon this newly discovered evidence, Bishawi filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33.

After considering the parties’ briefing on the motion, the Court allowed Bishawi’s motion and granted his request for a new trial. United States v. Bishawi, 109 F.Supp.2d 997 (S.D.Ill.2000). The Government moved for reconsideration, and after the Court denied its motion, the Government appealed the Court’s ruling.

On appeal, the Seventh Circuit vacated and remanded for further proceedings. United States v. Bishawi 272 F.3d 458 (7th Cir.2001). Specifically, the Seventh Circuit opined:

The holding of an evidentiary hearing in this case would have afforded the parties an opportunity to interview jurors and determine “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. Once these factual determinations were made, the trial court would have been equipped to adequately assess the impact of any ex parte contacts on the juries before whom appel-lees’ cases were tried and decided whether or not such communications were harmless error.... The trial court abused its discretion in failing to hold such a hearing.

Id. at 462-63. Accordingly, the Seventh Circuit remanded Bishawi’s case “to hold an evidentiary hearing to determine what ex parte contact occurred and whether such contact was prejudicial to the appel-lees.” Id. at 463.

After receiving the mandate, the Court conducted an evidentiary hearing as directed by the Seventh Circuit. At this hearing, the Court heard testimony from the jurors who deliberated and found Bish-awi guilty of conspiring to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and § 846. In addition, the parties asked the Court to re-evaluate and re-consider the affidavits of court personnel which had been previously submitted to the Court.,

Bishawi argues that, after hearing the jurors’ testimony and reconsidering the affidavits of the court personnel, nothing has changed and that the Court should again allow his motion for a new trial. Bishawi contends that the jurors’ testimony clearly establishes that Judge Riley had ex parte communications with some, if not all, of the jurors in this case. Bishawi asserts that, when these improper contacts are combined with the fact that Judge Riley improperly responded to a question from the jury without first consulting counsel or him, the Court should find that an ex parte communication occurred and should presume that he suffered prejudice as a result. When the Court does this, Bishawi claims that it will have no other choice but to again allow his motion for a new trial.

On the other hand, the Government argues that the jurors’ testimony and the court personnel’s affidavits clearly establish that Bishawi is not entitled to a new trial. The Government notes that, although some of the jurors remembered having contacts with Judge Riley during the trial, none recalled having any communication with him while they deliberated. Moreover, the Government asserts that, the jurors testified that even the communications which they had with Judge Riley only involved “small-talk” and were not 'in any way related to the merits of the ease. As such, the Government contends that Judge Riley’s contacts with the jurors did not affect Bishawi’s substantial rights.

Likewise, the Government contends that, although Judge Riley did not follow proper procedures when he responded to the jury’s question, his error was harmless. Accordingly, the Government asks the Court to deny Bishawi’s 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. 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.

United States v. Woolfolk, 197 F.3d 900, 905 (7th Cir.1999).

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). Therefore, 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).

Nevertheless, “the mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.” Rushen v. Spain, 464 U.S. 114, 119, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983)(Stevens, J., concurring in judgment); see also Verdin v. O’Leary, 972 F.2d 1467, 1481-82 (7th Cir.1992)(explaining that the constitutional right to presence is not implicated per se by a judge’s ex parte communication with a deliberating jury). “Rather, the constitutional right to presence, which derives from the Sixth Amendment’s Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant’s absence.” Bishawi, 272 F.3d at 461-62, citing United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985), and citing Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

A defendant’s broader, procedural right to be present pursuant to Federal Rule of Criminal Procedure 43 is, likewise, not without limits. Rule 43 alleviates the presence requirement when the proceeding involves only a conference or hearing upon a question of law. Fed. R.Crim. Pro. 43(c)(3); see also United States v. Johnson, 859 F.2d 1289, 1294 (7th Cir.1988)(holding that “a defendant’s presence is not required ‘[a]t a conference or argument upon a question of law.’ ”), quoting Rule 43(c)(3).

The defendant bears the burden of proving the occurrence of an ex parte contact with the jury. 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 defendant must meet this burden by a preponderance of the evidence. See United States v. Caro-Quintero, 769 F.Supp. 1564, 1580 (C.D.Cal.1991)(noting that a defendant must prove that the jury was exposed to ex parte contacts with courthouse personnel by a preponderance of the evidence); 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).

“Once established, determination of whether the ex parte contact violates either the defendant’s constitutional or procedural right to presence is subject to a harmless error analysis.” Bishawi, 272 F.3d at 462, citing Rushen, 464 U.S. at 118-19, 104 S.Ct. 453 and citing Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). An error is harmless and does not mandate reversal and/or a new trial unless it affects “substantial rights.” Fed. R.Crim. Pro. 52(a); United States v. Patterson, 23 F.3d 1239, 1255 (7th Cir.1994). “Substantial rights are those that affect the outcome of the case.” Bishawi 272 F.3d at 462; Patterson, 23 F.3d at 1255. Thus, a defendant is entitled to a new trial only if an ex parte communication likely affected the jury’s verdict. United States v. Pressley, 100 F.3d 57, 60 (7th Cir.1996).

Finally, a post-trial evidentiary hearing may be proper and necessary in order to determine whether any such contact was merely harmless or in fact prejudicial to the defendant. Remmer, 347 U.S. at 229-30, 74 S.Ct. 450; Rushen, 464 U.S. at 119-20, 104 S.Ct. 453. A defendant’s absence from any trial proceeding should be considered in light of the entire record. United States v. Moore, 936 F.2d 1508, 1523 (7th Cir.1991) (citations omitted).

III. ANALYSIS

In the instant case, Judge Riley had at least two improper contacts with the jury. First, as the Court noted supra and in its previous Opinion, Judge Riley responded in writing to a question from the jury without first consulting with counsel and Bishawi. Second, several jurors testified that Judge Riley came into the jury room and/or into the jury’s break room and spoke with them about the weather, about television programs, and about why the trial had been cancelled one day.

Regardless of the reasons why or the justifications for Judge Riley’s ex parte contacts with the jury, the contacts were inappropriate and unbecoming a judicial officer. Juries tend to view judges as the embodiment of the law. See Monica V. Pennisi, Simmons v. Conger: The Illusive Nature of Judicial Accountability, 7 Wid-enee J. Pub.L. 177, 178 (1997)(noting that “these feelings of homage have resulted in an inevitable perception of judges as guardians and ultimate embodiments of the law.”); see also Linwood I. Rogers, Note, Míreles v. Waco: The Supreme Court Prescribes the Bitter Pill of Judicial Immunity and Summary Reversal, 26 U. Rich. L.Rev. 539, 544 (1992)(noting “the immense responsibility that judges have as the true guardians, oracles, and embodiments of the law.”). In fact, the Model Code of Judicial Conduct’s Preamble characterizes the judge as the very “symbol of government undei- the rule of law.”

Thus, by engaging in ex parte communications with the jurors, Judge Riley provided a disservice to the United States District Court for the Southern District of Illinois, to the legal profession, and to the federal judiciary. More importantly, Judge Riley provided a disservice to Bish-awi. Regardless of the Court’s ruling on his motion for a new trial and the outcome of the Court’s ruling on the appeal which will inevitably be filed, Bishawi’s conviction and sentence will forever be tainted in the minds of some — including Bishawi himself.

Nevertheless, the Court is reminded that convictions are not to be set aside lightly. See United States v. Berry, 64 F.3d 305, 307 (7th Cir.1995)(holding that “[a] jury verdict is not lightly to be disturbed through a grant of a motion for a new trial.”); see also Herrera v. Collins, 506 U.S. 390, 443, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)(Blackmun, J., dissenting and noting that “an otherwise constitutionally valid conviction or sentence should not be set aside lightly.”). Again, “[t]he mere occurrence of an ex parte communication between a trial judge and a juror does not constitute a deprivation of any constitutional right.” Rushen, 464 U.S. at 119, 104 S.Ct. 453. Accordingly, although the Court finds that Judge Riley had ex parte communications with the jurors during Bishawi’s trial, the Court cannot say that the improper contacts affected the outcome of his case.

First, the evidence of Bishawi’s guilt presented by the Government at trial was strong.

Second, as the Court noted in its previous Opinion, although it was improper for Judge Riley. to have responded to the jury’s question without first consulting counsel and Bishawi, his error was 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. Bishawi, 109 F.Supp.2d at 1001; United States v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir.1995); United States v. Neff, 10 F.3d 1321, 1324-25 (7th Cir.1993).

Third, the evidence presented at the evidentiary hearing revealed that Judge Riley’s ex parte contacts with the jurors were harmless. All that the court personnel’s affidavits and the jurors’ testimony established was that ex parte communications occurred between the jury and Judge Riley. Bishawi has presented absolutely no evidence that Judge Riley’s contacts affected his substantial rights, i.e., he has presented no evidence that the contacts affected the outcome of the case. To a person, the jurors testified that the contacts were brief, that the conversations involved non-case related subject matter, and that nothing Judge Riley said or did had any effect upon their deliberations or their verdict. Likewise, although the affidavits (especially the affidavit of Judge Riley’s law clerk David Agay) lend support to the finding that an ex parte communication occurred, nothing in the affidavits indicates that Judge Riley’s conduct affected Bishawi’s substantial rights.

Accordingly, the Court cannot presume prejudice to Bishawi from Judge Riley’s improper contacts with the jury. As the Supreme Court has indicated, the presumption of prejudice is not conclusive. Remmer, 347 U.S. at 229, 74 S.Ct. 450. Rather, it is rebuttable if the Government can show that the ex parte communication constituted harmless error. Id. Here, the Court believes, based upon the evidence presented at the evidentiary hearing, that the Government has shown that Judge Riley’s error was harmless to Bishawi.

Judge Riley’s conduct in this cause is not to be countenanced; his actions reflect adversely upon the integrity of the judicial system. However, because Judge Riley’s errors were harmless to Bishawi, the Court has no other alternative than to deny Bishawi a new trial because he was not denied his Sixth Amendment right to a fair trial, his Fourteenth Amendment due process right, or his right to be present afforded by Federal Rule of Criminal Procedure 43.

Ergo, Defendant’s Motion for a New Trial is DENIED. 
      
      . E.g., United States v. Bishawi, 109 F.Supp.2d 997 (S.D.Ill.2000); United States v. Bradley, 109 F.Supp.2d 984 (S.D.Ill.2000); United States v. Alexander, 110 F.Supp.2d 762 (S.D.Ill.2000); United States v. Hodges, 110 F.Supp.2d 768 (S.D.Ill.2000); United States v. Quilling, 109 F.Supp.2d 1009 (S.D.Ill.2000); United States v. Von Briggs, 109 F.Supp.2d 1004 (S.D.Ill.2000); United States v. Davis, 109 F.Supp.2d 991 (S.D.Ill.2000).
     
      
      . 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.
     
      
      . 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).
     