GOODWIN, Circuit Judge.
Littlefield, Nicoladze, and Solomon appeal their convictions for conspiracy to violate the tax laws and for various tax-related criminal offenses arising from tax shelter activities. We remand for a new trial because a Time magazine article on similarly fraudulent tax shelters was carried by one of the jurors into the jury room during deliberations and was read and discussed by one or more of the other jurors.
Because defense counsel all knew of the publication of the Time article before the verdict was announced (although they did not know it had been carried into the jury room), the government argues that they have waived any right to seek a new trial. Defense counsel contend they were entitled to rely on the general cautionary instructions to the jury. We believe the case comes close to the disfavored practice of testing the verdict and then complaining if it goes against one’s side, but in this case there was no waiver in the technical sense.
The interest in fair administration of justice weighs against holding that defendants waived any opportunity to seek second trial [1431]*1431in this case, even though a second trial could perhaps have been avoided had the defense immediately notified the court of the publication of the article. See United States v. Rattenni, 480 F.2d 195, 197 (2d Cir.1973) (dereliction by defense counsel is not grounds to let tainted verdict stand). But see United States v. Dean, 667 F.2d 729, 732-34 (8th Cir.) (en banc 4-3 vote), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982) (defense waived right to seek a second trial because it did not report to the court its receipt of an anonymous note during trial indicating jury bias). We note that the article did not deal specifically with defendants, and defense counsel had no specific knowledge before the verdict that extrinsic material had been carried into the jury room. Supporting the Second Circuit’s position is the Sixth Amendment requirement that the evidence against an accused be subject to judicial control and the Rules of Evidence. Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 549-50, 13 L.Ed.2d 424 (1965). We accept that view.
Pursuant to Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981), the district judge determined that it could be concluded beyond a reasonable doubt that the extrinsic material did not influence the verdict. We reverse because this conclusion was based on factual findings that were clearly erroneous. See Fed. R.Civ.P. 52(a).
The government argues that Gibson is no longer good law, and cites the recent Sixth Circuit case of United States v. Pennell, 737 F.2d 521, 532-33 (6th Cir.1984), for the proposition that defendants rather than the government bear the burden of proving jury partiality in a hearing on the matter. We believe that this argument misinterprets the meaning of Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court placed the burden of proof on the government to overcome a presumption of prejudice where there is “any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury.” 347 U.S. at 229, 74 S.Ct. at 451. In a hearing to determine whether contact with a juror was harmless, “the burden rests heavily upon the Government to establish ... that such contact with the juror was harmless to the defendant.” Id. The government and the Sixth Circuit maintain that Phillips overruled Remmer by holding that the remedy for allegations of juror partiality is a hearing “in which the defendant has the opportunity to prove actual bias.” 455 U.S. at 215, 102 S.Ct. at 945; Pennell, 737 F.2d at 532. But, the Supreme Court expressly upheld the Remmer -type burden of proof; it held that determinations of jury partiality “may properly be made at a hearing like that ordered in Remmer and held in this case.” 455 U.S. at 217, 102 S.Ct. at 946. Quite simply, the government (and the Sixth Circuit) misread the Phillips “opportunity to prove actual bias” as a shifting of the burden of proof to the defendant. Recent decisions from a number of circuits, and the Supreme Court’s reliance in Phillips on Remmer, point clearly to the continued vitality of the rule that the government must bear the burden of proof in showing that jury partiality was harmless. Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984) (once the defendant has proved the extrajudicial contact with the jury, the government has the burden of rebutting a presumption of prejudice); United States v. Delaney, 732 F.2d 639, 642 (8th Cir.1984) (burden on the government to rebut a presumption of prejudice); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983) (a presumption of prejudice can be rebutted only by a showing that the information the jury received was harmless); United States v. Weiss, 579 F.Supp. 1224, 1237 (S.D.N.Y.1983) (government must make an affirmative showing of harmlessness); see also United States v. Flaherty, 668 F.2d 566, 602 (1st Cir.1981) (heavy burden on the government to show no prejudice).
The Phillips case, contrary to the Sixth Circuit’s analysis, did not confront the issue of burden or proof but rather concerned the necessity for a hearing on the issue of jury partiality. It was on that issue that the Court discussed the relevance of Remmer; its conclusion that the state hearing was constitutionally adequate did not even address the burden of proof issue. Phillips, 455 U.S. at 215-18, 102 S.Ct. at 944-46.
[1432]*1432In light of Phillips, therefore, we reject the government’s assertion that Gibson and Remmer are no longer good law. The government had an obligation here to prove beyond a reasonable doubt that the juror’s reading of the Time magazine article was harmless. Remmer, 347 U.S. at 229, 74 S.Ct. at 451; Gibson, 633 F.2d at 854-55.
The court found that none of the jurors discussed the Time magazine article except for foreperson Graves and an unknown person. That finding incorrectly recalls the testimony.
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GOODWIN, Circuit Judge.
Littlefield, Nicoladze, and Solomon appeal their convictions for conspiracy to violate the tax laws and for various tax-related criminal offenses arising from tax shelter activities. We remand for a new trial because a Time magazine article on similarly fraudulent tax shelters was carried by one of the jurors into the jury room during deliberations and was read and discussed by one or more of the other jurors.
Because defense counsel all knew of the publication of the Time article before the verdict was announced (although they did not know it had been carried into the jury room), the government argues that they have waived any right to seek a new trial. Defense counsel contend they were entitled to rely on the general cautionary instructions to the jury. We believe the case comes close to the disfavored practice of testing the verdict and then complaining if it goes against one’s side, but in this case there was no waiver in the technical sense.
The interest in fair administration of justice weighs against holding that defendants waived any opportunity to seek second trial [1431]*1431in this case, even though a second trial could perhaps have been avoided had the defense immediately notified the court of the publication of the article. See United States v. Rattenni, 480 F.2d 195, 197 (2d Cir.1973) (dereliction by defense counsel is not grounds to let tainted verdict stand). But see United States v. Dean, 667 F.2d 729, 732-34 (8th Cir.) (en banc 4-3 vote), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982) (defense waived right to seek a second trial because it did not report to the court its receipt of an anonymous note during trial indicating jury bias). We note that the article did not deal specifically with defendants, and defense counsel had no specific knowledge before the verdict that extrinsic material had been carried into the jury room. Supporting the Second Circuit’s position is the Sixth Amendment requirement that the evidence against an accused be subject to judicial control and the Rules of Evidence. Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 549-50, 13 L.Ed.2d 424 (1965). We accept that view.
Pursuant to Gibson v. Clanon, 633 F.2d 851, 855 (9th Cir.1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981), the district judge determined that it could be concluded beyond a reasonable doubt that the extrinsic material did not influence the verdict. We reverse because this conclusion was based on factual findings that were clearly erroneous. See Fed. R.Civ.P. 52(a).
The government argues that Gibson is no longer good law, and cites the recent Sixth Circuit case of United States v. Pennell, 737 F.2d 521, 532-33 (6th Cir.1984), for the proposition that defendants rather than the government bear the burden of proving jury partiality in a hearing on the matter. We believe that this argument misinterprets the meaning of Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
In Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), the Supreme Court placed the burden of proof on the government to overcome a presumption of prejudice where there is “any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury.” 347 U.S. at 229, 74 S.Ct. at 451. In a hearing to determine whether contact with a juror was harmless, “the burden rests heavily upon the Government to establish ... that such contact with the juror was harmless to the defendant.” Id. The government and the Sixth Circuit maintain that Phillips overruled Remmer by holding that the remedy for allegations of juror partiality is a hearing “in which the defendant has the opportunity to prove actual bias.” 455 U.S. at 215, 102 S.Ct. at 945; Pennell, 737 F.2d at 532. But, the Supreme Court expressly upheld the Remmer -type burden of proof; it held that determinations of jury partiality “may properly be made at a hearing like that ordered in Remmer and held in this case.” 455 U.S. at 217, 102 S.Ct. at 946. Quite simply, the government (and the Sixth Circuit) misread the Phillips “opportunity to prove actual bias” as a shifting of the burden of proof to the defendant. Recent decisions from a number of circuits, and the Supreme Court’s reliance in Phillips on Remmer, point clearly to the continued vitality of the rule that the government must bear the burden of proof in showing that jury partiality was harmless. Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984) (once the defendant has proved the extrajudicial contact with the jury, the government has the burden of rebutting a presumption of prejudice); United States v. Delaney, 732 F.2d 639, 642 (8th Cir.1984) (burden on the government to rebut a presumption of prejudice); United States v. Hillard, 701 F.2d 1052, 1064 (2d Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983) (a presumption of prejudice can be rebutted only by a showing that the information the jury received was harmless); United States v. Weiss, 579 F.Supp. 1224, 1237 (S.D.N.Y.1983) (government must make an affirmative showing of harmlessness); see also United States v. Flaherty, 668 F.2d 566, 602 (1st Cir.1981) (heavy burden on the government to show no prejudice).
The Phillips case, contrary to the Sixth Circuit’s analysis, did not confront the issue of burden or proof but rather concerned the necessity for a hearing on the issue of jury partiality. It was on that issue that the Court discussed the relevance of Remmer; its conclusion that the state hearing was constitutionally adequate did not even address the burden of proof issue. Phillips, 455 U.S. at 215-18, 102 S.Ct. at 944-46.
[1432]*1432In light of Phillips, therefore, we reject the government’s assertion that Gibson and Remmer are no longer good law. The government had an obligation here to prove beyond a reasonable doubt that the juror’s reading of the Time magazine article was harmless. Remmer, 347 U.S. at 229, 74 S.Ct. at 451; Gibson, 633 F.2d at 854-55.
The court found that none of the jurors discussed the Time magazine article except for foreperson Graves and an unknown person. That finding incorrectly recalls the testimony. Juror Brown testified that there was a discussion among the jurors about the article, and juror Jeffrey testified that juror McGovern told her that she had gotten the magazine from her mother. Juror Jeffrey also testified that the article was examined by other jurors and was “kind of looked at, and opened, and amidst the conversations in there [the jury room].” Juror Brown testified that she saw McGovern reading the article and that McGovern was “engrossed” in it. She remembered McGovern reading parts of the article on tax evasion to other jurors.
Even accepting the court’s rejection of Brown’s testimony as not credible, the jury was clearly more conversant with the article than the district court’s findings would indicate.
The article on tax cheating was the cover story in the magazine. It not only discussed fraudulent schemes that were very similar to the one the defendants were charged with, but described the problem as a growing national concern and deplored the light sentences frequently associated with such schemes. No juror could have brought the magazine into the jury room, nor could have read the magazine in the jury room, without instantly receiving the message that here was something important related to the very case they were trying.
Because of the error in the district court’s factual findings, we are forced to hold that the district court’s conclusion about the contribution of the extrinsic material to the verdict was wrong. The testimony at the hearing created at least a reasonable doubt about the magazine’s influence on the jury’s verdict. Because we remand for a new trial on account of the jury misconduct issue, we do not reach defendants’ other contentions of error.
Although possible jury bias is ground enough for reversal, we must also address appellants’ claims that the evidence was constitutionally insufficient to convict. United States v. Bibbero, 749 F.2d 581, 585 (9th Cir.1984). If the evidence was insufficient, double jeopardy would preclude retrial. Id.
We cannot conclude that the evidence was insufficient to show willfulness. See United States v. Dahlstrom, 713 F.2d 1423, 1426-27 (9th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984). Viewing the evidence in the light most favorable to the government, the evidence was sufficient for the jury to conclude that the defendants acted not merely negligently, but willfully, as required by 26 U.S.C. §§ 7206(1), 7206(2).
We accordingly remand this case for a new trial. Any subsequent appeal of the matter will be referred to this panel.