PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4312
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GERALD THOMAS JOHNSON, a/k/a Geezy, a/k/a Gzy Tha Prince,
Defendant - Appellant.
No. 18-4333
KENNETH JONES, a/k/a K-Slay, a/k/a Slay,
Appeals from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, Chief District Judge. (1:16-cr-00363-JKB-1; 1:16-cr-00363-JKB-5)
Argued: December 10, 2019 Decided: March 25, 2020
Before MOTZ and KEENAN, Circuit Judges, and TRAXLER, Senior Circuit Judge. Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion, in which Senior Judge Traxler joined. Judge Motz wrote a dissenting opinion.
ARGUED: Paul Francis Enzinna, ELLERMAN ENZINNA PLLC, Washington, D.C., for Appellants. Peter Jeffrey Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Ellicott City, Maryland, for Appellant Kenneth Jones. Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
2 BARBARA MILANO KEENAN, Circuit Judge:
Gerald Johnson and Kenneth Jones were convicted by a jury of several charges
related to their participation in the Black Guerilla Family’s (BGF) Greenmount Regime, a
violent street and prison gang in Baltimore. During the trial, the district court received
multiple reports that members of the jury were concerned about their personal safety. Most
notably, one juror reported that family members or friends of the defendants (the
defendants’ associates) had used cellular telephones to take photographs of the jurors in a
public area of the courthouse. Despite the jury’s concerns, the court did not conduct an
evidentiary hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954) (Remmer
hearing), to assess the jurors’ continuing ability to consider the evidence impartially.
Upon our review, we conclude that the district court abused its discretion in failing
to hold a Remmer hearing to determine whether the reported incident prejudiced the jurors
and affected their ability to impartially consider the evidence. We therefore vacate the
district court’s judgment and remand the case for the court to conduct an evidentiary
hearing in accordance with Remmer.
I.
Johnson, Jones, and seven co-defendants 1 were indicted on numerous charges
arising from unlawful activities committed by members of the BGF, of which Johnson was
a high-level leader. Johnson and Jones (collectively, the defendants) were both charged
1 Six of the co-defendants pleaded guilty before trial. The conviction of the seventh co-defendant, Marquise McCants, is not at issue in this appeal. 3 with conspiracy to participate in a racketeering enterprise, in violation of the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, as well as conspiracy to
distribute and possess with intent to distribute heroin, cocaine, and other controlled
substances, in violation of 21 U.S.C. § 841. Johnson also was charged with conspiracy to
commit murder in aid of racketeering and murder in aid of racketeering, in violation of 18
U.S.C. § 1959(a), and additional drug and ammunition offenses.
The government introduced evidence at trial showing that for more than a decade,
the defendants committed numerous crimes on behalf of the BGF. Johnson acted as a
leader of the gang, overseeing an extensive drug distribution operation and attendant acts
of violence. The jury heard evidence that Jones was involved in the murders and shootings
of several people, which were directed by Johnson and other BGF members.
The government recounted the gang’s many efforts to shield the gang’s illegal
activities “by terrorizing those who dared to cooperate with the police.” Multiple witnesses
detailed the gang’s strict rule against “snitching,” which the gang treated as punishable by
death. According to government witnesses, Johnson ordered the murders of two
individuals whom the gang believed were cooperating with law enforcement. Jones
committed one of these murders.
The murder of Moses Malone, a government cooperator, was the “heart of the
[government’s] case,” and formed the basis for Johnson’s charges of conspiracy to commit
murder in aid of racketeering and murder in aid of racketeering. Malone had been the
victim of a robbery and a non-lethal shooting allegedly committed by a BGF member.
Following that incident, Malone identified the perpetrator of the robbery in a photo array
4 compiled by law enforcement. Malone also identified Johnson as the person who likely
ordered the crime.
When the gang members learned that Malone had cooperated with the authorities,
Johnson ordered that Malone be killed. The Baltimore City Police Department took
Malone into protective custody, but Malone later was evicted from the witness-protection
program because of a rules infraction and was killed shortly thereafter. Notably, Malone’s
police department contact had received a tip that Malone was in imminent danger on the
night of his death, but the authorities were unable to intercept him in time to save his life.
The jury was shown graphic photographs depicting Malone’s body after he was murdered.
On December 7, 2017, immediately after hearing testimony recounting the police
department’s frantic efforts to prevent Malone’s murder, members of the jury contacted the
courtroom deputy clerk. The jurors expressed concern that the defendants had been
exchanging notes with their attorneys and paralegal, and then had “looked up” at the jury.
The court observed that the jurors’ apprehension was the “potential [e]ffect on a reasonable
person of the sort of evidence” that had been presented.
Later the same day, “one or more” jurors approached the courtroom clerk with
concerns that the defendants had received access to the jurors’ personal information during
the voir dire process. After court adjourned for the day, the jurors gave a note to the
courtroom clerk, stating that they were “concerned about info the defendants may have
about us from a personal safety perspective.” The court concluded that the jurors’ concerns
were “of a generalized nature, not of such a level of severity and specificity as to warrant
individual voir dire to try to assess the depths of the jurors’ feelings.”
5 With respect to the three concerns raised by the jurors on December 7, 2017, the
district court denied the defendants’ requests for a mistrial or to conduct a voir dire of the
jury members. Instead, the court provided certain written assurances to the jurors regarding
the court’s standard practices and procedures.
On January 9, 2018, the nineteenth day of trial, a court security officer advised the
court that a juror had told him “in front of all the rest of the jurors” that some of the
defendants’ associates had attempted to take photographs of the jurors as they entered the
public hallway from the jury room. The court immediately asked the government whether
“there may be an effort afoot to tamper with or intimidate a juror,” because “[w]hy else
does somebody snap pictures of jurors going in and out of a jury room?” Government
counsel confirmed that the group of people who had congregated in the area in question
were family members of, or witnesses for, the defendants.
The defendants moved for a mistrial, arguing that the jury could not fairly evaluate
the testimony of these defense witnesses after the jurors had expressed concern that the
witnesses were dangerous. As a “preliminary” and “investigative” measure, the court
directed the courtroom deputy and law clerk (collectively, court staff) to interview each
juror individually, “off-the-record,” and outside the presence of the judge or counsel. The
court instructed the court staff to address each juror as follows:
[A] court security officer indicated that something might have happened as one or more of you were leaving the jury room. Did something happen?
The court staff did not ask whether the jurors felt intimidated by anything they observed,
or whether they could remain impartial in evaluating the case.
6 After conducting these interviews, the court staff informed the court and counsel
that a single juror, Juror #4, had reported seeing two women use their cell phones to take
photographs of the jurors. Juror #4 described the women as holding the phones chest-high
and pointing them outward, while looking at the jurors instead of at the phones. After
making this observation, Juror #4 reported her suspicion to some other jurors. Three jurors
reported seeing people holding phones in the hallway, but these jurors did not think that
those individuals were taking pictures. Another three jurors stated that Juror #4 reported
to them that someone, possibly the mother of one of the defendants, had been taking
pictures surreptitiously. According to one of these jurors, Juror #4 stated, “[G]uys, this is
really serious, they’re taking pictures of us.”
After considering these reports from the court staff, the district court determined
that there was no “corroboration for [Juror #4’s] concerns or observations in the statements
of any other jurors, any court security officers, or any other information that has been
brought to the [c]ourt’s attention. So my conclusion is that there is not evidence before the
[c]ourt at this point, [that] any actual photographing or image taking, was going on.” The
court nevertheless was “concerned” that Juror #4 “may well believe” that “something was
going on . . . that could influence [the juror’s] experience here and consequently [the
juror’s] judgment with respect to the case.” The court therefore dismissed Juror #4 from
service on the jury, but did not explain that juror’s absence to the remaining members of
the jury. The court declined the defendants’ request to conduct a voir dire of the other
jurors, concluding that there was “not a sufficient basis for concern.”
7 The United States Marshal’s Service, together with the United States Attorney’s
Office, conducted a further investigation of the reported photographing incident after the
court adjourned for the day. The deputy marshals searched the cell phone of one of the
individuals observed by Juror #4, but did not discover any photo images. When the deputy
marshals reported to the court the next morning the results of their inquiry, the court noted
that this information “further supports the [c]ourt’s conclusion” that the incident reported
by Juror #4 had been handled properly “with a minimum of fanfare,” and that neither
individual voir dire nor a mistrial was warranted. The court orally informed the jurors that
the reported incident had been investigated, and that no photographs had been found.
The jury returned verdicts of guilty on all charges. The defendants moved for a new
trial under Federal Rule of Criminal Procedure 33, arguing that their Sixth Amendment
right to a fair trial was violated because the court failed to conduct a Remmer hearing on
the question of juror bias. The district court denied the motions, and sentenced the
defendants to terms of life imprisonment without the possibility of parole. This appeal
followed.
II.
The defendants argue that the district court abused its discretion when it failed to
conduct a Remmer hearing to evaluate whether the jurors could remain impartial after the
reported cell phone incident. The defendants emphasize that this reported incident
occurred after the jurors already had expressed their fear of the defendants on more than
one occasion. According to the defendants, the jurors’ multiple reports regarding their fear
8 of the defendants, including the one juror’s concern that the defendants’ associates had
taken photographs of the jury, were “external influences” that under Remmer entitled them
to a presumption of prejudice and an evidentiary hearing.
In response, the government contends that although the district court declined to
conduct a Remmer hearing, the court nonetheless took adequate steps to ensure juror
impartiality. In the government’s view, the court acted within its discretion by dismissing
the single juror who had reported the alleged photographing, and by informing the
remaining jurors that, in fact, no photographs had been taken.
We review the district court’s decision declining to conduct a Remmer hearing under
a “somewhat narrowed modified abuse of discretion standard,” which “grants us more
latitude to review the trial court’s conclusion” in the context of all the evidence presented.
United States v. Basham, 561 F.3d 302, 319 (4th Cir. 2009) (citation and internal quotation
marks omitted). A defendant’s Sixth Amendment right to trial by an impartial jury is
violated if an influence outside the jury’s deliberative process, a so-called “external
influence,” affects the jury’s decision-making. Barnes v. Joyner, 751 F.3d 229, 240 (4th
Cir. 2014). “[I]f even a single juror’s impartiality is overcome” by such an external
influence, the defendant’s right to an impartial jury has been compromised. United States
v. Lawson, 677 F.3d 629, 648-49 (4th Cir. 2012) (citation omitted).
In Remmer v. United States, the Supreme Court established the procedures that a
district court must follow when there has been a direct or indirect “private communication,
contact, or tampering . . . with a juror during a trial about the matter pending before the
jury.” Remmer, 347 U.S. at 229. A defendant seeking a Remmer hearing must present a
9 “credible allegation” that “an unauthorized contact was made,” and that the contact “was
of such a character as to reasonably draw into question the integrity” of the trial
proceedings, constituting “more than an innocuous intervention.” Barnes, 751 F.3d at 242-
45 (citations and internal quotation marks omitted).
If the defendant makes this threshold showing, he is entitled under Remmer: (1) to
a rebuttable presumption that the external influence prejudiced the jury’s ability to remain
impartial; and (2) to an evidentiary hearing to determine “what actually transpired” and
whether the challenged contact was harmless. Remmer, 347 U.S. at 229; Barnes, 751 F.3d
at 242-44. At such evidentiary hearing, the government bears the burden of rebutting the
presumption of prejudice by showing that there was “no reasonable possibility” that the
jury “was influenced by an improper communication.” 2 Basham, 561 F.3d at 319 (citation
and internal quotation marks omitted); see also United States v. Small, 944 F.3d 490, 504
(4th Cir. 2019).
Applying these principles, we consider whether the district court received a
“credible allegation” of a non-innocuous external influence requiring that the court hold an
evidentiary hearing under Remmer. Barnes, 751 F.3d at 242, 244; Basham, 561 F.3d at
319. In conducting our analysis, we focus on the alleged photographing incident reported
by Juror #4, the most serious claim regarding the jurors’ ability to remain impartial.
2 “When a serious, non-speculative question of juror impartiality arises” based on a factor internal to the jury’s deliberative process, the district court must evaluate “whether the affected jurors remain fair and impartial.” United States v. Smith, 919 F.3d 825, 834 (4th Cir. 2019). In such circumstances, however, the presumption of prejudice dictated by Remmer is inapplicable. See Barnes, 751 F.3d at 245-46 (explaining that the requirements of Remmer apply only to external influences). 10 We think it is beyond dispute that a juror’s report of jury members being
photographed by the defendants’ associates during a trial involving murdered witnesses,
and that juror’s act of conveying this information to other jurors, were “more than
innocuous interventions,” and constituted conduct “of such a character as to reasonably
draw into question” the ability of the jurors to remain impartial. Barnes, 751 F.3d at 244-
45 (citations omitted). The district court immediately recognized the seriousness of Juror
#4’s allegations. As noted above, after receiving Juror #4’s report of photographs being
taken, the court questioned whether “there may be an effort afoot to tamper with or
intimidate a juror,” because “[w]hy else does somebody snap pictures of jurors going in
and out of a jury room?” Given the plainly prejudicial nature of Juror #4’s allegation and
the court’s response reflecting its assessment that the report was credible, the criteria for a
Remmer hearing were met.
The district court’s management of this incident was flawed both procedurally and
substantively and, thus, failed to comply with the requirements of Remmer. Procedurally,
the district court erred in delegating to its staff members the responsibility of questioning
the jurors. A court confronted with a credible allegation of an improper external contact
may not rely on ex parte, third-party information. Instead, a judge must “determine the
circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in
a hearing with all interested parties permitted to participate.” Remmer, 347 U.S. at 229-
30 (emphasis added); Barnes, 751 F.3d at 242. Thus, the procedure employed by the
district court disregarded the fact-finding purpose of a Remmer hearing, which is based on
considerations of due process. See Barnes, 751 F.3d at 243-44, 251. As we emphasized
11 in Barnes, “without a hearing, a criminal defendant is deprived of the opportunity to
uncover facts that could prove a Sixth Amendment violation.” Id. at 250. This procedure
also deprived the defendants of the presumption of prejudice to which they were entitled
under Remmer. Remmer, 347 U.S. at 229; Barnes, 751 F.3d at 242-43.
The investigation directed by the district court also was substantively deficient. The
court engaged in an abbreviated consideration of Juror #4’s allegation and took an unduly
narrow view of the types of external contacts that would mandate a Remmer hearing.
Although Juror #4 had alleged that two persons had used their cell phones to take
photographs of the jurors, only one of those phones was examined to determine whether
such photographs were taken.
Moreover, by focusing on the question whether photographs, in fact, had been taken,
and in failing to consider whether the defendants’ associates had in any way intimidated
the jurors by displaying their cell phones, the district court failed to consider the effect on
the jurors of the perceived external contact. A third party’s threat or perceived attempt to
take a photograph of a juror may be no less intimidating to that juror than the actual taking
of such a photograph. Thus, the question whether a photograph was taken was not
dispositive of the prejudice inquiry, as one or more jurors may have felt intimidated
regardless. By limiting its inquiry to the actual existence of photographs, the district court
left key substantive matters unresolved, namely, whether anyone had attempted or
threatened to take photographs of the jurors, the identity of the alleged actors and their
relationship to the case, and the impact of Juror #4’s statement on other members of the
12 jury. Thus, the court’s attention to the question whether the reported incident, in fact, had
occurred was only the beginning of the inquiry. 3
We find no merit in the government’s contention that the dismissal of Juror #4, the
only juror who witnessed the alleged photographing, sufficiently addressed the reported
incident. The district court concluded that Juror #4 “may well believe that, in fact,
something was going on . . . and that that could influence [the juror’s] experience here and
consequently [the juror’s] judgment with respect to the case.” This problem could apply
equally to any jurors who heard Juror #4’s statement, regardless whether they witnessed
any photographing personally. The court security officer initially related that Juror #4 had
stated “in front of all the rest of the jurors” concerns about photographs being taken. Three
jurors later reported that Juror #4 had expressed suspicion regarding the alleged acts of
photographing. Under these circumstances, we cannot presume a prejudicial impact on
Juror #4 alone. Other jurors had the same information as Juror #4 and reasonably could
have reacted to it the same way. Without questioning each juror individually, the district
court could not know whether any remaining jurors were prejudiced by Juror #4’s stated
concerns, even if those jurors had not witnessed any of the alleged activity. See United
States v. Blitch, 622 F.3d 658, 665 (7th Cir. 2010) (the “widespread nature of the
discussions among the jurors” counseled in favor of individual voir dire of the entire panel).
3 We likewise disagree with the government’s assertion that any prejudice was cured when the district court informed the jury, after Juror #4’s dismissal, that no photos had been taken. As discussed above, an attempt or threat to take a photo could prejudice the jury, regardless whether an actual photo was taken.
13 This potentially widespread taint of the jury compelled the district court to conduct a
Remmer hearing. 4
Our decision in United States v. Hines, 717 F.2d 1481 (4th Cir. 1983), further
illustrates the need for holding a Remmer hearing when a district court is presented with a
credible allegation involving an external contact with jurors. There, a juror had observed
a law enforcement agent taking photographs of persons leaving the courthouse. Id. at 1491.
Although the court informed the juror that “the photographs were not being made of jurors,
that there was no cause for concern, and that the matter should be disregarded,” the court
nevertheless conducted a Remmer hearing to determine whether the juror’s impartiality had
been compromised. Id. We agreed with the district court that the defendants were entitled
to a Remmer hearing under such circumstances. Id.; see also United States v. Hall, 877
F.3d 800, 805-07 (8th Cir. 2017) (district court conducted Remmer hearing when a juror
thought that a defense witness had followed her home after trial, though the court ultimately
determined that the incident was a coincidence and that the juror could remain impartial).
By conducting a Remmer hearing, the district court in Hines effectively eliminated any
concerns that the juror’s ability to remain impartial may have been compromised by his
4 We respectfully disagree with our dissenting colleague’s assertion that we would require a Remmer hearing based only on the “commonplace action[]” of holding a cell phone. Dissent Op. at 3. Our colleague does not address the reasonable possibility that Juror #4’s expression of concern to the other jurors itself impacted the jury’s impartiality, regardless whether anyone else witnessed the alleged photographing. Nor does our colleague suggest why a threat to take a photograph, in a case involving retaliation against witnesses, should not be evaluated as a standalone external influence on the jury. 14 perceptions and conclusions regarding the activity observed. We have no basis for
reaching a similar conclusion here that the jurors remained impartial.
Our decision is not altered by our recent holding in United States v. Small, 944 F.3d
490 (4th Cir. 2019). There, two jurors had reported to a courtroom deputy that they were
concerned that certain individuals had been “watching” them as the jurors left the jury room
after the first day of trial. Id. at 497. The two jurors also reported that one of the individuals
was carrying a cell phone, but the jurors did not know whether that person was using the
phone to take a photograph or video recording. Id. The district court denied the
defendant’s motion to question the two jurors who had reported their concerns. Id. at 505.
We concluded that “a vague report of ‘watching,’ without more,” was not evidence
of an extrajudicial “communication” or “contact” sufficient to invoke the protections of
Remmer. Id. Further explaining, we stated that the terms “communication” and “contact”
“imply an active exchange of information of some sort,” an exchange that does not
encompass the act of “watching,” which “may be done passively and, unless context
indicates otherwise, conveys little information.” Id. And, notably, we observed that
“[t]here was no reason for the jurors to associate the unknown individuals with [the
defendant].” Id. In clear contrast, the case before us involves a report of actions taken by
the defendants’ associates, creating a direct concern of potential or actual juror intimidation
and resulting bias.
We do not “casually invoke[]” the requirements of Remmer. Stockton v. Virginia,
852 F.2d 740, 745 (4th Cir. 1988). And we acknowledge that the district court was required
to manage a challenging and lengthy trial with jurors who understandably were unsettled
15 by the violent acts allegedly committed by the defendants and others. Nevertheless, we
reach the firm conclusion that the defendants were entitled to an evidentiary hearing under
Remmer to determine whether all the jurors remained impartial throughout the case, as
guaranteed by the Sixth Amendment.
III.
For these reasons, we vacate the district court’s judgment. We remand the case for
the district court to conduct an evidentiary hearing in accordance with the requirements of
Remmer, and for such other proceedings consistent with the principles expressed in this
opinion.
VACATED AND REMANDED
16 DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
With respect, I dissent. The majority provides criminal defendants the power to
demand new trials for what we ordinarily would consider innocuous conduct.
Against the backdrop of gruesome, but certainly admissible, evidence, the jury
became concerned that the defendants “looked at the jury,” communicated with their
attorneys and a paralegal, and accessed voir dire information about the jurors in accordance
with routine procedures. None of this conduct triggers a presumption of prejudice under
Remmer v. United States, 347 U.S. 227 (1954). See United States v. Small, 944 F.3d 490,
505 (4th Cir. 2019) (watching jurors); United States v. Ford, 761 F.3d 641, 654–55, 654
n.9 (6th Cir. 2014) (access to juror’s personal information); United States v. King, 627 F.3d
641, 650–51 (7th Cir. 2010) (evidence at trial). The district court properly exercised its
“broad discretion” in managing these concerns, see United States v. Smith, 919 F.3d 825,
835 (4th Cir. 2019), and the majority does not appear to seriously contend otherwise.
But the majority and I disagree about the consequences of a single juror’s belief that
two women holding cellphones were photographing jurors. No other juror who saw these
women interpreted their actions as photographing or attempting to photograph the jury.
The majority apparently believes that the district court found a credible allegation
of external conduct that could affect “the ability of the jurors to remain impartial” and so
triggered the need for a Remmer hearing. Maj. Op. at 11. It seems to me that the record
does not bear that out. The district court recognized only that counsel had “concerns that
there may be an effort afoot to tamper with or intimidate a juror” (emphasis added).
Concluding that it did not have “enough information,” the court sought to explore “how much of an investigation [was] necessary” at that “very preliminary, very early” stage. By
conducting this preliminary inquiry, the court carefully sought to determine if the threat
was credible.
Such a preliminary exploration is entirely proper. As the majority acknowledges, a
court invokes the Remmer presumption only upon a credible allegation of jury tampering.
Maj. Op. at 9–10 (quoting Barnes v. Joyner, 751 F.3d 229, 242–45 (4th Cir. 2014)). The
Remmer “presumption is not one to be casually invoked.” Stockton v. Com. of Va., 852
F.2d 740, 745 (4th Cir. 1988). Rather, “the defendant must first establish both that an
unauthorized contact was made and that it was of such a character” as to require corrective
action. Id. at 743; accord United States v. Baptiste, 596 F.3d 214, 221 (4th Cir. 2010);
United States v. Heater, 63 F.3d 311, 321–22 (4th Cir. 1995).
After its preliminary inquiry, the district court found that the allegation of jury
intimidation was not credible. * I would not hold that finding was clear error or that the
court abused its discretion in declining to hold a Remmer hearing, particularly given the
district court’s firsthand view of the atmosphere at trial and among the jurors. See, e.g.,
Heater, 63 F.3d at 321–22 (holding that a “bald assertion” of improper jury contact was
insufficient to require a Remmer hearing); United States v. Gravely, 840 F.2d 1156, 1159
(4th Cir. 1988) (finding no abuse of discretion in the district court’s declining to interview
* The district court’s care in conducting this preliminary inquiry reflects its understanding that it needed to avoid creating unwarranted jury fears. See Smith, 919 F.3d at 834 (“This trial judge made reasoned judgments in walking the line between detecting bias and creating bias.”). 18 jurors where defendants failed to make “a threshold showing of improper outside
influence”).
By watering down what constitutes a credible threat and substituting its judgment
for that of the district court, the majority’s holding unfortunately provides defendants a
valuable tool to disrupt their trials. I fear we are on a slippery slope where commonplace
actions, such as the mere holding of a cellphone, could bring significant delay in criminal
trials. In my view, an alleged threat of jury tampering must have stronger indicia of
credibility to overcome a district court’s considered contrary view and mandate a Remmer
presumption and evidentiary hearing.
Accordingly, I respectfully dissent.