Case: 18-12653 Date Filed: 08/15/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12653 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-00144-KD-N-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN L. HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(August 15, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-12653 Date Filed: 08/15/2019 Page: 2 of 8
Calvin L. Harris appeals the district court’s denial of his motion for a new
trial. He says the jury was exposed to extrinsic evidence that prejudiced the verdict
against him. After careful review, we conclude the district court clearly erred in
finding that no exposure occurred. We vacate and remand for further proceedings
consistent with this opinion.
I.
Harris was tried and convicted of conspiracy to carjack, carjacking, use of a
firearm during a crime of violence, conspiracy to kidnap, and kidnapping. After
the verdict but before sentencing, the government learned from a co-worker of one
of the jurors about possible external influence on the jury. In an email to defense
counsel reporting what it learned, the government recounted what the co-worker
said:
One of the jurors told her co-worker: that the trial involved a carjacking; three jurors were holdouts while deliberating Wednesday and the jury was sent home Wednesday and would continue deliberations Thursday morning; there were three holdouts during the deliberations on Wednesday; when the jurors returned Thursday morning to continue deliberations, . . . [they] saw the defendant and his friend writing down the tag numbers of the jurors as they entered the court house to resume deliberations; after noticing this, the jurors were quick to vote guilty because of this conduct.
Harris brought the co-worker’s statement to the district court’s attention. He
moved for a new trial under Federal Rule of Criminal Procedure 33. Rule 33
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allows a defendant to seek a new trial if the jury was exposed to extrinsic evidence
that prejudiced the verdict. See United States v. Siegelman, 640 F.3d 1159, 1181–
82 (11th Cir. 2011) (per curiam); see also Fed. R. Crim. P. 33.
The district court interviewed the juror who discussed the external influence
with her co-worker by phone. The parties were not present. During the interview,
the juror, called D.F. to preserve her privacy, said two members of the jury told her
that Harris and a friend of Harris’s who had testified at the trial were wandering
around the parking lot where some jurors parked during deliberations. Those
jurors expressed concern to D.F. and other jurors that Harris and his friend might
have a way of finding out their identities based on their license plates. D.F. said no
one claimed to see Harris or his friend write anything down. The district court
provided a transcript of its interview of D.F. to Harris and the government. It did
not contact the jurors who actually witnessed Harris and his friend in the parking
lot.
Based on the interview, the district court denied Harris’s motion for a new
trial. The district court found as a fact that Harris “never wrote down anybody’s
. . . tag number,” finding instead the jurors only speculated that Harris might see
their license plate numbers and figure out who they were. The district court also
found that two jurors seeing Harris and his friend in the parking lot did not
3 Case: 18-12653 Date Filed: 08/15/2019 Page: 4 of 8
constitute extrinsic evidence. It therefore did not reach the issue of whether
extrinsic evidence prejudiced the verdict. This is Harris’s appeal.
II.
We review the denial of a motion for a new trial for abuse of discretion.
Siegelman, 640 F.3d at 1181. We review factual findings supporting the decision
for clear error. Id. at 1181 n.31. “For a factual finding to be clearly erroneous, this
court, after reviewing all of the evidence, must be left with a definite and firm
conviction that a mistake has been committed.” United States v. Rodriguez-Lopez,
363 F.3d 1134, 1137 (11th Cir. 2004) (quotation marks omitted). For the reasons
that follow, this is the rare case where we are left with such a conviction.
To prevail on a Rule 33 motion for a new trial based on outside influence on
the jury, the defendant “has the burden of making a colorable showing that the
exposure has, in fact, occurred.” Siegelman, 640 F.3d at 1182. The exposure must
involve “a matter pending before the jury.” United States v. Alexander, 782 F.3d
1251, 1258 (11th Cir. 2015) (quotation marks omitted). If the defendant carries the
burden of showing exposure has occurred, prejudice “is presumed and the burden
shifts to the government to show that the jurors’ consideration of extrinsic
evidence was harmless to the defendant.” Siegelman, 640 F.3d at 1182 (quotation
marks omitted). The verdict may be prejudiced even where only one juror learns
4 Case: 18-12653 Date Filed: 08/15/2019 Page: 5 of 8
of the extrinsic evidence. See United States v. Tucker, 137 F.3d 1016, 1031–32
(8th Cir. 1998).
We take our cue on what constitutes extrinsic evidence from Federal Rule of
Evidence 606(b), which governs juror testimony to impeach a verdict. See Tanner
v. United States, 483 U.S. 107, 116–27, 107 S. Ct. 2739, 2745–51 (1987)
(considering whether a district court erred in declining to conduct an evidentiary
hearing on a new trial motion based on whether Rule 606(b) would permit the
jurors to testify to allegations made in the new trial motion). Rule 606(b) bars
jurors from testifying to matters internal to deliberations, such as their mental
processes in reaching a verdict or conversations that occurred during deliberations.
See Peña-Rodriguez v. Colorado, 580 U.S. __, 137 S. Ct. 855, 863–65 (2017). But
it expressly allows testimony about external influences on deliberations or extrinsic
evidence that came to the jury’s attention during deliberations. See Fed. R. Evid.
606(b)(2); cf. United States v. Perkins, 748 F.2d 1519, 1534 & n.15 (11th Cir.
1984) (noting Rule 606 allows a juror to testify about prior knowledge of a
defendant). A leading authority put it aptly when it explained Rule 606 permits
“juror testimony concerning the jury’s extra-record exposure to evidence not
subject to adversarial challenge.” 27 C. Wright & V. Gold, Federal Practice and
Procedure: Evidence § 6075 (2d ed. 2019); see also 3 C. Mueller & L. Kirkpatrick,
Federal Evidence § 6:18 (4th ed. 2019) (“The [Rule 606(b)] exception for
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Case: 18-12653 Date Filed: 08/15/2019 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12653 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-00144-KD-N-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN L. HARRIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(August 15, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-12653 Date Filed: 08/15/2019 Page: 2 of 8
Calvin L. Harris appeals the district court’s denial of his motion for a new
trial. He says the jury was exposed to extrinsic evidence that prejudiced the verdict
against him. After careful review, we conclude the district court clearly erred in
finding that no exposure occurred. We vacate and remand for further proceedings
consistent with this opinion.
I.
Harris was tried and convicted of conspiracy to carjack, carjacking, use of a
firearm during a crime of violence, conspiracy to kidnap, and kidnapping. After
the verdict but before sentencing, the government learned from a co-worker of one
of the jurors about possible external influence on the jury. In an email to defense
counsel reporting what it learned, the government recounted what the co-worker
said:
One of the jurors told her co-worker: that the trial involved a carjacking; three jurors were holdouts while deliberating Wednesday and the jury was sent home Wednesday and would continue deliberations Thursday morning; there were three holdouts during the deliberations on Wednesday; when the jurors returned Thursday morning to continue deliberations, . . . [they] saw the defendant and his friend writing down the tag numbers of the jurors as they entered the court house to resume deliberations; after noticing this, the jurors were quick to vote guilty because of this conduct.
Harris brought the co-worker’s statement to the district court’s attention. He
moved for a new trial under Federal Rule of Criminal Procedure 33. Rule 33
2 Case: 18-12653 Date Filed: 08/15/2019 Page: 3 of 8
allows a defendant to seek a new trial if the jury was exposed to extrinsic evidence
that prejudiced the verdict. See United States v. Siegelman, 640 F.3d 1159, 1181–
82 (11th Cir. 2011) (per curiam); see also Fed. R. Crim. P. 33.
The district court interviewed the juror who discussed the external influence
with her co-worker by phone. The parties were not present. During the interview,
the juror, called D.F. to preserve her privacy, said two members of the jury told her
that Harris and a friend of Harris’s who had testified at the trial were wandering
around the parking lot where some jurors parked during deliberations. Those
jurors expressed concern to D.F. and other jurors that Harris and his friend might
have a way of finding out their identities based on their license plates. D.F. said no
one claimed to see Harris or his friend write anything down. The district court
provided a transcript of its interview of D.F. to Harris and the government. It did
not contact the jurors who actually witnessed Harris and his friend in the parking
lot.
Based on the interview, the district court denied Harris’s motion for a new
trial. The district court found as a fact that Harris “never wrote down anybody’s
. . . tag number,” finding instead the jurors only speculated that Harris might see
their license plate numbers and figure out who they were. The district court also
found that two jurors seeing Harris and his friend in the parking lot did not
3 Case: 18-12653 Date Filed: 08/15/2019 Page: 4 of 8
constitute extrinsic evidence. It therefore did not reach the issue of whether
extrinsic evidence prejudiced the verdict. This is Harris’s appeal.
II.
We review the denial of a motion for a new trial for abuse of discretion.
Siegelman, 640 F.3d at 1181. We review factual findings supporting the decision
for clear error. Id. at 1181 n.31. “For a factual finding to be clearly erroneous, this
court, after reviewing all of the evidence, must be left with a definite and firm
conviction that a mistake has been committed.” United States v. Rodriguez-Lopez,
363 F.3d 1134, 1137 (11th Cir. 2004) (quotation marks omitted). For the reasons
that follow, this is the rare case where we are left with such a conviction.
To prevail on a Rule 33 motion for a new trial based on outside influence on
the jury, the defendant “has the burden of making a colorable showing that the
exposure has, in fact, occurred.” Siegelman, 640 F.3d at 1182. The exposure must
involve “a matter pending before the jury.” United States v. Alexander, 782 F.3d
1251, 1258 (11th Cir. 2015) (quotation marks omitted). If the defendant carries the
burden of showing exposure has occurred, prejudice “is presumed and the burden
shifts to the government to show that the jurors’ consideration of extrinsic
evidence was harmless to the defendant.” Siegelman, 640 F.3d at 1182 (quotation
marks omitted). The verdict may be prejudiced even where only one juror learns
4 Case: 18-12653 Date Filed: 08/15/2019 Page: 5 of 8
of the extrinsic evidence. See United States v. Tucker, 137 F.3d 1016, 1031–32
(8th Cir. 1998).
We take our cue on what constitutes extrinsic evidence from Federal Rule of
Evidence 606(b), which governs juror testimony to impeach a verdict. See Tanner
v. United States, 483 U.S. 107, 116–27, 107 S. Ct. 2739, 2745–51 (1987)
(considering whether a district court erred in declining to conduct an evidentiary
hearing on a new trial motion based on whether Rule 606(b) would permit the
jurors to testify to allegations made in the new trial motion). Rule 606(b) bars
jurors from testifying to matters internal to deliberations, such as their mental
processes in reaching a verdict or conversations that occurred during deliberations.
See Peña-Rodriguez v. Colorado, 580 U.S. __, 137 S. Ct. 855, 863–65 (2017). But
it expressly allows testimony about external influences on deliberations or extrinsic
evidence that came to the jury’s attention during deliberations. See Fed. R. Evid.
606(b)(2); cf. United States v. Perkins, 748 F.2d 1519, 1534 & n.15 (11th Cir.
1984) (noting Rule 606 allows a juror to testify about prior knowledge of a
defendant). A leading authority put it aptly when it explained Rule 606 permits
“juror testimony concerning the jury’s extra-record exposure to evidence not
subject to adversarial challenge.” 27 C. Wright & V. Gold, Federal Practice and
Procedure: Evidence § 6075 (2d ed. 2019); see also 3 C. Mueller & L. Kirkpatrick,
Federal Evidence § 6:18 (4th ed. 2019) (“The [Rule 606(b)] exception for
5 Case: 18-12653 Date Filed: 08/15/2019 Page: 6 of 8
extraneous prejudicial information . . . allows proof that one or more members of
the jury” acquired specific personal knowledge about the parties “from sources
outside the courtroom during trial or deliberations.”).
The jurors in this case were exposed to extrinsic evidence. Two jurors
witnessed Harris and his friend walking through the parking lot where some jurors
parked during deliberations. Those jurors speculated in the hearing of some of
their fellow jurors about whether Harris and his friend could identify them based
on their license plates. This was not part of the evidence at trial; not a matter
internal to the deliberations; and not the sort of background information jurors are
expected to bring with them into the jury room. See Warger v. Shauers, 721 F.3d
606, 611 (8th Cir. 2013) (“[E]xtraneous information includes objective events such
as publicity and extra-record evidence reaching the jury room, and communication
or contact between jurors and litigants, the court, or other third parties.” (emphasis
added and quotation marks omitted)), aff’d 574 U.S. 40, 135 S. Ct. 521 (2014).
The district court clearly erred in concluding the jury was not exposed to extrinsic
evidence.
Indeed, the district court’s own recounting of the evidence is inconsistent
with its finding of no exposure. At the hearing on Harris’s new trial motion, the
district court explained its understanding of the evidence in this way: two jurors
“[s]aw [Harris and his friend] walking by and speculated that, oh, I guess he could
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see our car and get our tag number if he wanted to.” The district court then went
on to find “there [was] no extraneous information” because Harris “didn’t do
anything.” But walking through the parking lot in proximity to jurors and their
cars is a contact with the jurors, even if Harris did nothing wrong and did not
intend to provoke the contact. Cf. United States v. Simpson, 950 F.2d 1519, 1521
(10th Cir. 1991) (concluding jurors were exposed to extrinsic information when
they incidentally viewed a co-defendant in handcuffs). We think the district
court’s own understanding of the evidence makes plain that its finding of no
exposure was clear error.
In light of this conclusion, we remand for the district court to apply the
presumption of prejudice and hold the government to its burden of showing the
exposure was harmless. Cf. Siegelman, 640 F.3d at 1182. The district court did
not reach this step given its finding of no exposure. We think the district court
should decide the issue of prejudice in the first instance. See In re Prudential of
Fla. Leasing, Inc., 478 F.3d 1291, 1303 (11th Cir. 2007) (“When the district court
does not address an issue, the proper course of action is often to vacate the order of
the district court and remand.”).
We express no view about whether the exposure in this case warrants a new
trial. Neither do we foreclose the government from making any argument it has in
support of harmlessness on remand. We also do not reach Harris’s argument that
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the district court abused its discretion by declining to call the jurors who witnessed
Harris and his friend in the parking lot. The district court will have the opportunity
on remand to “conduct a full investigation” into the exposure that occurred if in its
discretion it believes further evidence is necessary. United States v. Brantley, 733
F.2d 1429, 1439 (11th Cir. 1984) (quotation marks and emphasis omitted).
VACATED AND REMANDED.