Appellate Case: 23-3109 Document: 53-1 Date Filed: 04/02/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 2, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3109 (D.C. Nos. 6:22-CV-01116-EFM & JASON P. BRISCOE, 6:18-CR-10031-EFM-1) (D. Kan.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges. _________________________________
Jason P. Briscoe moved to vacate his sentence under 28 U.S.C. § 2255 because
a court information-technology (“IT”) technician went into the jury room during
deliberations after jurors requested help in operating video equipment in the room.
The district court denied the motion but granted a certificate of appealability
(“COA”). See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal “the final order
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3109 Document: 53-1 Date Filed: 04/02/2025 Page: 2
in a proceeding under section 2255”). Exercising jurisdiction under 28 U.S.C.
§§ 1291 and 2253(a), we affirm.
I.
Officers arrested Briscoe one morning after he ran from a traffic stop through a
trailer park. Briscoe was a passenger in the car police pulled over. When caught,
Briscoe had two cell phones in his hand and a bullet in his pocket. Police recovered a
handgun where an officer thought Briscoe had thrown it—between two trailers, just
beyond and across from a hole in a trailer’s skirting. Back at the police department,
the car’s driver told detectives that Briscoe had a red duffel bag with drawstrings
when he picked him up. The detectives went back an hour after officers took Briscoe
into custody and searched his flight path, finding nothing of interest. After that, an
officer and the detectives reviewed dash-cam video of the traffic stop and concluded
that Briscoe carried something when he ran from the car. The detectives searched the
flight path again after officers took Briscoe into custody and found a maroon bag a
foot from where police recovered the handgun. The bag had drawstrings, white
lettering, and imagery, and contained a gun, ammunition, marijuana,
methamphetamine, and drug paraphernalia. The items had no useful fingerprints, and
police did not test them for DNA.
Prosecutors charged Briscoe with possession with intent to distribute 50-plus
grams of methamphetamine, firearm possession in furtherance of a drug-trafficking
crime, and felon ammunition and firearm possession. At his trial, the government
presented the evidence described above and a video extracted from one of the cell
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phones Briscoe had when he fled from officers. That video depicted a woman in a
room with a table on which there appeared to be two firearms and other objects. The
government also presented two photos from the video. Briscoe stipulated that his
legs appeared in one of them. A Bureau of Alcohol, Tobacco, Firearms, and
Explosives agent testified that the objects in the video—guns, ammunition, drugs,
and drug paraphernalia—were similar to those officers found in the maroon bag and
to the other gun Briscoe allegedly discarded as he fled.
Briscoe gave multiple reasons to doubt the bag was his: the driver said
Briscoe’s bag was red and testified he knew the difference between red and maroon;
it would have been very difficult to place the bag into the hole while running with
two cellphones, another gun, and a police officer close behind; if he had placed the
bag in the hole, officers would have found it sooner; and the item Briscoe held in the
photo from the dash-cam video did not appear to have drawstrings, white lettering, or
white imagery, and did not look like a bag at all.
The jury convicted Briscoe on all counts. On appeal, we granted the parties’
joint motion to remand to vacate multiplicitous counts and for resentencing. See
United States v. Briscoe, 822 F. App’x 863, 863 (10th Cir. 2020). On remand, the
district court amended its judgment and resentenced Briscoe to 220 months
imprisonment.
Three years after the trial, Briscoe filed his § 2255 motion with new counsel.
Briscoe focused on the fact that the district court permitted the attorneys to consult
with the jurors after the trial concluded. In a declaration attached to the § 2255
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motion, Briscoe’s trial counsel stated that she learned the jury asked for and received
assistance in viewing video evidence in slow motion, “frame-by-frame,” a viewing
method it did not have during trial. R., vol. I at 671. According to counsel, the
jurors said the slow motion helped them reach a unanimous verdict. Based on these
allegations, Briscoe asserted that the technician’s assistance with the video
equipment violated his Sixth Amendment right to an impartial jury. He also claimed
trial counsel’s failure to move for a new trial based on the post-verdict information
about the outsider’s presence violated his Sixth Amendment right to effective
assistance of counsel.1
After a hearing on the parties’ discovery proposals, the district court
authorized them to contact the law clerk who worked for the judge during Briscoe’s
trial, the district court’s sole information-technology employee (“IT technician” or
“technician”), and the six jurors who agreed to be interviewed.2 After conducting the
interviews, the parties stipulated that the video jurors sought help in viewing was the
video police extracted from Briscoe’s cell phone.3 The parties also stipulated to
1 In addition, Briscoe argued that the outsider’s presence in the jury room violated his constitutional right to due process and his right to be present during all stages of his trial under Federal Rule of Criminal Procedure 43. He also asked the district court to consider cumulative error. But he only requested a COA on his Sixth Amendment claims. We therefore do not address his other claims. 2 At a status conference on the § 2255 motion, the district court stated, “we pretty much just have one IT guy in the courthouse here.” R., vol. III at 47. 3 This stipulation clarified trial counsel’s recollection that the jurors had asked for help slowing down the dash-cam video. 4 Appellate Case: 23-3109 Document: 53-1 Date Filed: 04/02/2025 Page: 5
some agreed-upon facts about what happened in the jury room, the most salient being
that the IT technician was in the jury room for 5 to 20 minutes (although neither he
nor the law clerk had any helpful recollection of the event), the technician helped get
the video equipment working, a jury member operated the equipment, and the jury
viewed the video repeatedly frame-by-frame. R., vol. I at 748–51. It does not appear
the district judge was contemporaneously aware of what occurred.
After further briefing, the district court denied the § 2255 motion. As for the
impartial-jury claim, the district court concluded Briscoe had shown no constitutional
violation or, if there was a constitutional violation, that the IT technician’s presence
in the jury room had a “substantial and injurious effect or influence in determining
the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks omitted). As for the ineffective-assistance claim, the district court
determined that Briscoe’s trial counsel had not rendered objectively deficient
assistance because it would have been proper for the district court to deny any
request that Briscoe or his attorney attend the IT technician’s video equipment
demonstration and any objection to the jury playing the video in slow motion.
The district court granted Briscoe a COA on his Sixth Amendment claims.
II.
A.
“In considering the denial of a § 2255 motion for post-conviction relief, we
review the district court’s findings of fact for clear error and its conclusions of law
de novo.” United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011).
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B.
The Sixth Amendment guarantees “the accused . . . the right to a . . . public
trial, by an impartial jury.” U.S. Const. amend. VI. “If a defendant’s right to an
impartial jury has been violated, he is entitled to a new trial.” Stouffer v. Duckworth,
825 F.3d 1167, 1178 (10th Cir. 2016). As he did in the district court, Briscoe argues
that the IT technician’s presence in the jury room violated this right. Briscoe argues
that a presumption of prejudice outlined in Remmer v. United States, 347 U.S. 227
(1954), applies here and that the government failed to rebut it. Briscoe also contends
the government must show any error was harmless under Brecht’s “substantial and
injurious effect or influence” standard.
In Remmer, an unknown person allegedly told a juror during trial that the juror
“could profit by bringing in a verdict favorable to the [defendant].” 347 U.S. at 228.
After the jury convicted him, defendant moved for a new trial. The trial court denied
the motion without holding a hearing. The Ninth Circuit affirmed because the
defendant had not shown prejudice. Reversing, the Supreme Court held that a
presumption of prejudice applied:
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.
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Id. at 229. The Court further held that this “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.” Id.
Factually, Remmer differs from Briscoe’s case. Remmer’s bribe “went to the
heart of the trial’s integrity.” Howell v. Trammell, 728 F.3d 1202, 1214 (10th Cir.
2013). Here, according to the parties’ stipulations, two jurors reported that a juror
ran the video equipment multiple times, including the “frame-by-frame.” R., vol. I
at 750. There is no evidence the IT technician was present when the jurors
repeatedly viewed the cell-phone video in slow motion. Thus, nothing in the record
shows the IT technician’s assistance went to “the heart” of the “integrity” of
Briscoe’s trial. Remmer therefore does not direct a conclusion that the IT
technician’s actions violated Briscoe’s right to an impartial jury. Despite the
differences from Remmer, we must nevertheless consider whether its prejudice
presumption applies.
We first acknowledge that the presumption may not apply in § 2255 cases at
all. The government points to two cases declining to apply the presumption where
state prisoners sought habeas relief under 28 U.S.C. § 2254. See Malicoat v. Mullin,
426 F.3d 1241, 1250 (10th Cir. 2005) (“In habeas corpus proceedings, [the Remmer]
presumption generally does not apply.”); Crease v. McKune, 189 F.3d 1188, 1193
(10th Cir. 1999) (declining to presume prejudice under Remmer and instead applying
Brecht’s “more deferential standard of review” based on “[i]nterests of comity and
federalism, as well as ‘the State’s interest in the finality of convictions that have
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survived direct review within the state court system’” (quoting Brecht, 507 U.S.
at 635)). We have not yet addressed whether the Remmer presumption applies in
§ 2255 cases, and we need not do so today. Even assuming Remmer’s presumption
could apply in a § 2255 case, we conclude that it does not apply here.
The district court declined to apply the Remmer presumption, reasoning that
the IT technician’s jury communications were not “private” but “expressly authorized
pursuant to the ‘directions of the court made during trial,’ specifically” the district
court’s statement to the jury that “‘there will be someone in the jury room that will
instruct you how to’ access the evidence that was submitted in ‘an electronic
medium.’” R., vol. I at 793 (first quoting Remmer, 347 U.S. at 229, then apparently
quoting R., vol. I at 498).
Briscoe resists this conclusion, pointing out that during a status conference on
his § 2255 motion, the district court explained its “general practice” was to have an
“IT guy” go “into the jury after they retire to deliberate and say[], ‘Here’s how the
system works and here’s what you do.’” R., vol. III at 11. Briscoe argues that the
district court’s direction that someone would instruct the jury how to work the jury
room’s equipment “did not expressly contemplate or notify counsel that [an]
unsworn, uninstructed technician might enter the room after deliberations had begun
and remain there for 5–20 minutes to help the jurors examine a particular exhibit.”
Aplt. Opening Br. at 35.
We disagree. The district court’s statement to the jury in open court that there
would be someone in the jury room to instruct them how to access electronic
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evidence made the IT technician’s contact with the jury both pursuant to “the
instructions and directions of the court made during the trial” and “with full
knowledge of the parties,” Remmer, 347 U.S. at 229. The district court’s statement
put the jury, the parties, and counsel on notice that it would provide necessary
assistance with the technology so the jury could access evidence submitted
electronically. The district court’s later explanation that its “general practice” was to
have an “IT guy” provide initial instruction to the jury in all cases, R., vol. III at 11,
does not mean it limited its jury statement about technical assistance to an initial
tutorial. The district court’s statement reasonably implied that it would provide tech
assistance both initially and on an as-needed basis. Thus, the IT technician did not
intrude into the jury room unauthorized and there is no basis to presume prejudice.
As the Supreme Court observed, “it is the law’s objective to guard jealously the
sanctity of the jury’s right to operate as freely as possible from outside unauthorized
intrusions purposefully made.” Remmer v. United States, 350 U.S. 377, 382 (1956)
(emphasis added). We therefore conclude that Remmer’s rebuttable prejudice
presumption, even it applies in § 2255 cases, does not apply here.
Neither case Briscoe primarily relies on, Little v. United States, 73 F.2d 861
(10th Cir. 1934), and United States v. Freeman, 634 F.2d 1267 (10th Cir. 1980),
leads to a different conclusion.
In Little, the jury asked for a copy of the jury instructions, and the judge
“instruct[ed] the stenographer to attend in the jury room and read the instructions in
their entirety from beginning to end, with no repetition of any part, or emphasis on
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any part.” 73 F.2d at 864. We rejected the notion that the defendant had to prove
prejudice “where error occurs which, within the range of a reasonable possibility,
may have affected the verdict of a jury.” Id. at 866. We concluded such an error had
occurred because the court knew “nothing of what went on while the stenographer
was in the jury room,” and it was “entirely possible that a shorthand character was
misinterpreted” in a way that changed the case’s outcome. Id. at 867.
Here, it is not “within the range of a reasonable possibility” that the IT
technician’s presence in the jury room “may have affected the verdict.” Id. at 866.
The type of error that concerned the Little court is absent here. Unlike the
stenographer’s oral recitation of the written jury instructions in Little, which risked
misreading or improper emphasis, the video the IT technician enabled the jury to
view in slow motion spoke for itself. Furthermore, the stenographer in Little
presumably heard all of the trial testimony and conceivably could have formed an
opinion of the defendant. Here, nothing suggests the IT technician was at all familiar
with Briscoe, the case, or the significant role the cell phone video played in tying
Briscoe to the items in the maroon bag.4
Little had several absolute pronouncements, such as “no one should be with a
jury while it is engaged in its deliberations,” id. at 864; “[t]o permit various persons,
under one pretext or another, to be with the jury in its deliberations is to open the
4 We emphasize that we consider whether it was reasonably possible that the IT technician’s contact with the jury affected the verdict solely to determine whether that conduct warrants a prejudice presumption, not whether the contact in fact affected the verdict. 10 Appellate Case: 23-3109 Document: 53-1 Date Filed: 04/02/2025 Page: 11
door to grave abuse and to strike directly at the heart of the system,” id., (emphasis
added), and “[n]o outsider has any business in the jury room; much harm could
result, and that is enough,” id. at 867 (emphasis added). But it premised these
statements on the absence of any recognized exceptions to the general rule of
disallowing non-jurors to be present in the jury room after deliberations have begun:
“Without exception, as far as we are advised, such procedure has been held to be
error.” Id. at 864. Remmer’s later carve-out for private communications or contacts
with the jury that the trial court authorizes with the parties’ knowledge is one such
exception. And because we conclude that the district court met that exception here,
the IT technician was not an “outsider,” id. at 867, nor was his presence in the jury
room “pretext,” id. at 864. Consequently, we reject Briscoe’s view that Little
supports applying a presumption of prejudice here.
We likewise reject Briscoe’s Freeman argument. There, the district court sent
an FBI agent who testified for the government into the jury room during deliberations
to help operate audiotape equipment without notifying counsel. 634 F.2d at 1268–69.
Vacating the convictions, we rejected the government’s argument that the defendants
had shown no prejudice, noting that “[t]he sanctity of jury proceedings must be
preserved” and that “[t]he danger of improper influence adheres in every contact
between an interested party and a jury.” Id. at 1270 (emphasis added). Here, the IT
technician was not “an interested party.” In drawing this distinction, we do not
suggest that prejudice to a defendant can never arise where a disinterested party
contacts a juror or the jury without authorization. But because we hold that for
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presumption purposes the IT technician’s assistance in the jury room could not
reasonably have affected the verdict, we conclude that Freeman does not support
applying a prejudice presumption.5
When a § 2255 movant alleges a violation of his constitutional rights, we
apply harmless error. See United States v. Driscoll, 892 F.3d 1127, 1132 (10th Cir.
2018). Habeas petitioners cannot get relief for a constitutional trial error unless the
“‘error had substantial and injurious effect or influence in determining the jury’s
verdict’” akin to “‘actual prejudice.’” Brecht, 507 U.S. at 637 (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946); United States v. Lane, 474 U.S. 438, 449
(1986)). We grant relief only if we have ‘grave doubt about whether a trial error of
federal law had substantial and injurious effect or influence in determining the jury’s
verdict.’” Davis v. Ayala, 576 U.S. 257, 267–68 (2015) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995) (further internal quotation marks omitted)).
5 Because of our holding we need not consider whether later Supreme Court cases affect the Remmer presumption. See, e.g., United States v. Scull, 321 F.3d 1270, 1280 n.5 (10th Cir. 2003) (collecting cases discussing whether Smith v. Phillips, 455 U.S. 209 (1982), and United States v. Olano, 507 U.S. 725 (1993), reconfigured or narrowed Remmer such that the presumption now may be a matter of district court discretion, but applying Remmer “[i]n the absence of Supreme Court authority to the contrary”); see also United States v. Robertson, 473 F.3d 1289, 1294 (10th Cir. 2007) (qualifying Remmer’s presumption of prejudice in case of contact with non-sequestered juror by requiring the defendant to “demonstrate ‘that an unauthorized contact created actual juror bias’” (quoting United States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997)). 12 Appellate Case: 23-3109 Document: 53-1 Date Filed: 04/02/2025 Page: 13
The district court required Briscoe to show prejudice under Brecht. The
parties contest whether this was proper. Briscoe contends that under United States v.
Dominguez Benitez, 542 U.S. 74, 81 n.7 (2004), “the Government has the burden of
showing that constitutional trial error is harmless because [when] it comes up on
collateral review, the heightened interest in finality generally calls for the
Government to meet the more lenient Kotteakos standard.” The government,
conversely, relies primarily on Brecht’s statement that habeas petitioners “are not
entitled to habeas relief based on trial error unless they can establish that it resulted
in ‘actual prejudice.’” 507 U.S. at 637 (emphasis added) (quoting Lane, 474 U.S.
at 449).
We need not resolve this issue. Even if Briscoe is correct that the government
must move the evidentiary needle to a point that shows an error was harmless under
Brecht (as opposed to a § 2255 movant having the burden), it has done so here for the
reasons stated below.
iii.
When a district court inquires into a verdict’s validity, Federal Rule of
Evidence 606(b)(2) permits jurors to testify only to “whether (A) extraneous
prejudicial information was improperly brought to the jury’s attention; (B) an outside
influence was improperly brought to bear on any juror; or (C) a mistake was made in
entering the verdict on the verdict form.” Otherwise, “a juror may not testify about
any statement made or incident that occurred during the jury’s deliberations; the
effect of anything on that juror’s or another juror’s vote; or any juror’s mental
13 Appellate Case: 23-3109 Document: 53-1 Date Filed: 04/02/2025 Page: 14
processes concerning the verdict or indictment.” Fed. R. Evid. 606(b)(1). Courts
therefore use an objective test to assess whether contact with a deliberating jury
prejudiced the defendant, taking into consideration the entire record, the contact’s
substance, and information of which the jurors were properly aware. See United
States v. Hornung, 848 F.2d 1040, 1045 (10th Cir. 1988).
“Not every incident involving [juror] bias requires a new trial. The test is
whether the misconduct has prejudiced the defendant to the extent that he has not
received a fair trial.” Stouffer v. Duckworth, 825 F.3d 1167, 1178 (10th Cir. 2016)
(brackets, ellipsis, and internal quotation marks omitted). “Surmise and suspicion
may not be used to assail the integrity of a jury” because we “presume[] that jurors
will be true to their oath and will conscientiously observe the instructions and
admonitions of the court.” Id. (internal quotation marks omitted). In even
potentially suspicious circumstances, we require “something more than unverified
conjecture.” Id. at 1179 (brackets and internal quotation marks omitted). As Brecht
stated, “[t]here must be more than a ‘reasonable possibility’ that the error was
harmful.” Davis, 576 U.S. at 268 (quoting Brecht, 507 U.S. at 637).
Even assuming that the IT technician’s contact amounts to “potentially
suspicious circumstances,” Stouffer, 825 F.3d at 1179 (internal quotation marks
omitted), Briscoe’s argument fails. The interviews with the jurors and the IT
technician show nothing more than “[s]urmise and suspicion” that the technician’s
work had a substantial and injurious effect or influence on the jury’s verdict. Id.
(internal quotation marks omitted). Jurors recalled that the technician spent
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somewhere between 5 and 20 minutes in the jury room, showed the jury how to
“work the equipment and then left.” R., vol. I at 749 (emphasis added). The jurors
could not recall whether the technician said anything or whether the jury deliberated
in his presence. But one juror “thought the jury wasn’t supposed to talk about the
case.” Id. “The jurors watched the video many times, twenty times maybe,”
stopping and starting “it many times, and watched it frame-by-frame.” Id. at 750
(internal quotation marks omitted). Two jurors reported that another juror, possibly
the foreman, ran the video equipment after the IT technician fixed the problem. The
IT technician did not specifically recall the event.
This evidence strongly suggests the jurors did not discuss the case with the IT
technician and that the IT technician was not present when the jury repeatedly viewed
the video.6 There is simply no evidence that any juror discussed the case with the
technician, which is consistent with the district court’s repeated instructions that the
jury should not discuss the case with anyone outside the jury, see R., vol. I at 789–90
(quoting relevant oral and written trial instructions). The investigation here turned
up no evidence on the harmful side of the evidentiary scale. Thus, we have only
“unverified conjecture” that the jury’s verdict lacked integrity, Stouffer, 825 F.3d
at 1179 (internal quotation marks omitted), based largely on the lack of an
affirmative statement that the technician did not communicate or behave in any way
6 The likelihood that the IT technician left before the jury repeatedly viewed the video distinguishes this case from another case Briscoe relies on, United States v. Monserrate-Valentín, 729 F.3d 31, 57–60 (1st Cir. 2013), where it was clear the technician remained in the jury room during playback of an audio recording. 15 Appellate Case: 23-3109 Document: 53-1 Date Filed: 04/02/2025 Page: 16
that might have rendered Briscoe’s trial unfair. We therefore conclude that the
government moved the needle to the harmless side of equipoise, and we do not
harbor “grave doubt” that the IT technician’s presence in the jury room “likely
[a]ffect[ed]” the jury’s verdict. O’Neal, 513 U.S. at 435.
C.
In his other Sixth Amendment claim, Briscoe argued his trial counsel
ineffectively assisted him by failing to move for a new trial after learning of the
technician’s entry into the jury room during the post-verdict consultation with the
jurors. The district court rejected this claim, reasoning his trial counsel’s
performance was “not objectively deficient” because the district court could properly
have denied both Briscoe’s request that he or his attorney attend the technician’s
demonstration of how to operate the video equipment and Briscoe’s objection to the
jury playing the video in slow motion. R., vol. I at 807. We uphold the district
court’s conclusion, but take a different approach.
Defendants must show both “that counsel’s performance was deficient” and
that “the deficient performance prejudiced the defense” to prevail on an
ineffective-assistance-of-counsel claim. Strickland v. Washington, 466 U.S. 668, 687
(1984). To meet the prejudice prong, “the defendant [must] affirmatively prove
prejudice.” Id. at 693. To do that “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
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Briscoe has not affirmatively shown prejudice. Briscoe’s prejudice argument
depends in part on applying the Remmer presumption and the heavy burden it
imposes on the government to rebut the presumption, as opposed to the more lenient
Brecht standard that applies in the § 2255 context. But we concluded Remmer’s
presumption does not apply here. And as the foregoing shows, there is nothing more
than speculation that the IT technician’s presence in the jury room affected the
verdict. The evidence certainly does not suggest a reasonable probability the
outcome would have been different had trial counsel moved for a new trial based on
the assistance the technician provided in the jury room. We therefore affirm the
district court.
Entered for the Court
Joel M. Carson III Circuit Judge