Opinion
CIVIL ACTION NO. 03-30031-MAP.
August 31, 2007
David P. Hoose Katz, Sasson, Hoose Turnbull, Springfield, MA, representing, Wayne Blyth Healy Petitioner.
David M. Lieber Assistant Attorney General Criminal Bureau, Boston, MA representing, Luis Spencer Respondent, Thomas F. Reilly Respondent.
Maura D. McLaughlin Office of the Attorney General Criminal Bureau, Appellate Division, Boston, MA, representing, Luis Spencer Respondent.
Natalie S Monroe Attorney General's, Office, Boston, MA representing, Luis Spencer Respondent Thomas F. Reilly Respondent.
Susanne G. Reardon Office of the Attorney General Trial Division, Boston, MA, representing, Luis Spencer Respondent.
Wendy Sibbison, Greenfield., MA representing, Wayne Blyth Healy Petitioner.
MEMORANDUM AND ORDER REGARDING COUNT IV OF PETITION FOR WRIT OF HABEAS CORPUS (Docket No. 1)
At issue in this case is the one remaining claim (Count IV) in a petition for writ of habeas corpus brought by Wayne Blyth Healy ("Healy" or "Petitioner"). The count asserts a claim of jury taint. Petitioner alleges that third-party communications with the jury foreman violated his right to trial by an impartial jury. The court held evidentiary hearings on October 4, 2006, and November 3, 2006, and the final supplemental papers following the hearing were submitted on May 3, 2007.
The case is before the court on remand from the First Circuit.See Healy v. Spencer, 453 F.3d 21 (1st Cir. 2006). The claims set forth in all other counts have previously been disposed of.
For the reasons set forth below, the court will order entry of judgment for Respondent on Count IV.
I. FACTS
A. Proceedings Below.
On November 28, 1984, the Massachusetts Supreme Judicial Court decided Petitioner's direct appeal of his conviction.Commonwealth v. Healy, 393 Mass. 367, 471 (1984) ("Healy I"). The SJC relied on the following facts in its opinion.
Petitioner was accused of the August 8, 1980, murder of Richard Frank Chalue, who was found dead in his apartment in Holyoke, Massachusetts. The jury trial against Petitioner began on March 11, 1981. The Honorable Kent Smith, who was named to the Massachusetts Appeals Court shortly after the jury's verdict, presided. According to the Healy I court,
During the trial it came to the attention of the prosecutor that the foreman of the jury, Paul L. Briere, might have been subjected to extraneous influences in the form of improper communications by a third person. The third person was a law student, Paul [Ramey], who was employed by the same company as Briere. . . .
On April 2, 1981, just before closing arguments, the judge . . . examined [Ramey] under oath, and also questioned the foreman. These sessions were held separately in the judge's lobby in the presence of counsel. Counsel were permitted to question [Ramey] and apparently to suggest questions to the judge to ask the foreman.
[Ramey] testified that Briere had said that he had been made foreman; that many exhibits had been introduced and it had been a "very long day"; that it was a difficult case; that he hoped the jury would be able to bring a transcript to the jury room with them. When Briere was first empaneled, [Ramey] told him that he could not look at [Ramey]'s evidence books. Briere never commented to [Ramey] on the evidence, asked him about the admissibility of evidence, or talked to him about what was going on in the courtroom.
Briere stated that he had asked [Ramey] whether a jury were allowed to take a transcript of the trial into the jury room and that he had speculated to [Ramey] as to whether evidence was being questioned. He said, "The questions I asked were general in nature and have nothing to do with the specifics of the case." He denied having discussed the evidence, its admissibility or exclusion, or any other aspect of the case with [Ramey]. The judge instructed the foreman that he could consider only the evidence he heard in the courtroom and that he had to take the law from the judge. He told him to tell the rest of the jury that he had been in the lobby discussing scheduling with the judge. The judge also told Briere not to entertain a grudge against either side because he had been questioned. Briere resumed his seat on the jury. The record indicates no objection by either counsel.Healy I, 471 N.E.2d at 374-75.
Ramey's testimony at the April 2, 1981 hearing also established that an acquaintance of Ramey's, whom Ramey knew only as "Dick," had told Ramey that he had "sat in on the case and had observed some of the testimony and was not sure whether or not the defendant has actually helped or hindered his cause by taking the stand himself." (Mot. Hr'g Tr. 64-67, April 16, 1981.)
One of the implicit concerns regarding Ramey's reference to this friend "Dick" was, and is, that "Dick" was invented by Ramey to cover the fact that it was the foreman Briere, not the hypothetical "Dick," who made comments to Ramey about the trial.
On April 16, 1981, Justice Smith conducted further questioning of Briere, Ramey, and a law student who worked in the office of the district attorney.
On April 16 [Ramey] was extremely evasive, to put it charitably, about . . . during what period Briere was living with him; and whether he had told Briere about what had been said at [Ramey's] first visit to the judge's lobby. Furthermore, [Ramey] was unable to give any more information about "Dick" other that "Dick" was not a lawyer or a law student, that he had met "Dick" sixteen years before in a bowling league, and that he had had the conversation about the trial with him at a supermarket meat counter.Id. at 374-75. Justice Smith questioned "Dick's" existence and noted that defense counsel would be well within his rights in filing a motion for a new trial. He advised Ramey to retain counsel and have him appear on April 28, 1981. He also asked Ramey to try to locate "Dick" to have him appear before the court at that time.
Justice Smith said, "[T]he only thing I'm interested in is quite frankly to make sure the verdict was not tainted by the outside news, or by any members of the jury. . . . So, bring in this guy `Dick' . . . if there is such a person because I want to make sure the verdict was not tainted in any way, shape or manner." Healy I, 471 N.E.2d at 375.
On April 23, 1981, Justice Smith left the Trial Court to assume his new position with the Massachusetts Appeals Court. The hearing he had scheduled for April 28, 1981, never took place.
On July 15, 1981, Petitioner filed a motion for a new trial. The newly assigned judge denied Petitioner's motion, ruling that there was "no dangling matter" (Dkt. No. 53, Mot. Hr'g New Trial 23:23-24:1) and "no evidence that the jury verdict was tainted," (id. at 26:18-19). The same judge also denied Petitioner's subsequently filed motion requesting an evidentiary hearing.
Petitioner appealed both decisions to the SJC and simultaneously filed another motion for a new trial on numerous grounds, including jury taint. On November 28, 1984, the SJC denied Petitioner's motion and affirmed both his conviction and the denial of his initial motion for a new trial. In addition to other rulings, the SJC also stated that it saw "nothing in the record of the lobby conferences of April 2 and April 16 to necessitate a further evidentiary hearing." Id. at 375. Accordingly, after determining that "the motion judge acted within his discretion," id., the SJC denied Petitioner's "motion for permission to interrogate jurors and witnesses." Id. at 375 n. 17.
After renewed motions before the SJC were denied, Petitioner filed this habeas corpus petition on February 14, 2003. On December 1, 2003, Petitioner filed a motion for an evidentiary hearing on the issue of juror taint. Chief Magistrate Judge Kenneth P. Neiman, to whom this matter was referred, held a hearing on April 23, 2004, and issued a Report and Recommendation on September 9, 2004. Judge Neiman determined that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") did not prohibit Petitioner's request for an evidentiary hearing because he had been diligent in developing his jury claim in state court, and he found that Petitioner was entitled to a hearing under the test set out in Townsend v. Sain, 372 U.S. 293 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
In a November 8, 2005 decision adopting Judge Neiman's Report and Recommendation, this court noted that Justice Smith, "who began an independent investigation into third party communications with the juror foreman, suspended his inquiry and at no time `impliedly found material facts,' or decided the merits of a claim. . . . Indeed, he himself strongly implied that a further inquiry was necessary." Healy v Spencer, 397 F. Supp. 2d 269, 296 (D. Mass. 2005) ("Healy II") (citations and quotation marks omitted). The court held that "this petitioner never had access to . . . a state forum" to flesh out "any and all judicial bias allegations." Id. at 294-95. Based on this, the court granted Petitioner's motion for an evidentiary hearing as to "issues that remained unexplored at the end of the April 16, 1981 lobby conference — issues that the trial judge himself indicated had to be resolved at a future date in order to ensure `the verdict was not tainted.'" Id.
B. Applicability of AEDPA.
Evidentiary hearings were held before this court on October 4, 2006, and on November 3, 2006. The Commonwealth argues that the court should defer to the state court adjudication of Petitioner's jury taint claim, as required by AEDPA. Under AEDPA, a federal court must defer to a state court's resolution of a claim that has been "adjudicated on the merits." 28 U.S.C. § 2254(d). Conversely, where a state court has not considered a properly preserved claim on its merits, a federal court may assess the claim de novo. See Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003) ("[AEDPA] applies only when there is an antecedent state court decision on the same matter."); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) ("AEDPA deference does not apply to [a] claim [when] [e]vidence of the [claim] was adduced only at the hearing before the [federal] magistrate judge.").
Under AEDPA, a state court judgment may be overturned on federal habeas review only if it: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
Here, the court in Healy II found that Petitioner never had an opportunity to develop material facts at the state-court hearing adequately. 397 F. Supp. 2d at 296. Healy II further concluded that the SJC's determinations were not findings of fact and did not obviate the need for an evidentiary hearing. Id. "The unavoidable reality is that Petitioner never received an opportunity to probe and develop relevant facts on this issue."Id.
The court consequently conducted a de novo review at the evidentiary hearing. See Holland v. Jackson, 542 U.S. 649, 653 (2004). The following are the court's findings of fact.
C. Evidentiary Hearing (Findings of Fact).
Paul Briere served as the jury foreman during Petitioner's trial. Prior to trial, Briere had been having marital problems, and he moved into Paul Ramey's apartment. The two men were also co-workers at Massachusetts Mutual Insurance Company ("MassMutual"). Briere lived with Ramey from before the time he was selected to serve as a juror throughout the evidentiary phase of the trial, except for several weekends, when he stayed with his wife. Throughout this period and continuing through the time of the verdict, Briere and Ramey saw each other every day at work. At the time of the trial, Ramey was in his fourth year of law school at Western New England College School of Law, attending as part of the evening program.
John Payne was also a law student and, like Ramey, was in his final semester. Payne knew Ramey as they had been in the same section for their first two years of law school and had been in some classes together during the next two years, including a class they were both attending during Petitioner's trial. At that time, Payne was employed by the Hampden County District Attorney's Office. Payne's job at the District Attorney's Office was as a Trial List Clerk in the Superior Court.
Justice Payne is now an Associate Justice of the Massachusetts District Court.
Before Briere was selected to serve on Petitioner's jury, Ramey had told Briere that some of his fellow law students were working in the District Attorney's Office.
At the evidentiary hearing before this court, Justice Payne testified that he remembered Petitioner's case well, as it was a high profile case and it involved forensic evidence, a new and interesting area of the law for him. Payne obtained permission from the prosecutor, Jack St. Clair, to go along on a view during the trial and whenever he had time he would observe the Petitioner's trial. He was present for at least part of Healy's testimony.
One evening after Payne had attended the trial, he was sitting in a classroom and talking with another law student, Ed Fogarty. Fogarty worked as a journalist covering the courts and had also been attending Petitioner's trial. Before class began, the two discussed recent events at the trial. While Payne could not recall the precise subject of their discussion, he was certain that it concerned "an important part of the case" and "a crucial part of the trial." (Hr'g Tr. 27:20-23, Oct. 4, 2006.) The general subject matter related to either a forensic witness or Healy's testimony. Payne recalled his opinions on both subjects at the time: that the forensic evidence had been helpful to the Commonwealth and that Healy had not been a good witness. Payne commented to Fogarty to the effect that he "did not think that the last day or two had gone well for the defense," and Fogarty agreed.
In 1981, Payne told Justice Smith that the conversation had taken place on the evening of a day when "Mr. Healy was on the stand and was being cross-examined."
At the time of this conversation, Ramey was sitting in the same classroom in the row of seats in front of Payne. He turned around and told Payne that he knew someone who had been in the courtroom during the past couple of days and that this person thought that the case had gone well for Healy.
Several days later, Ramey approached Payne in the hall of the law school and again began talking about the Healy trial, saying that the foreperson of the jury was Ramey's friend and co-worker at MassMutual and that this juror had been asking Ramey questions about trial procedures. Justice Payne testified that "[t]here was at least some sense that the law books were being discussed, if not opened and looked at. . . ." (Hr'g Tr. 32:23-25, Oct. 4, 2006.) Ramey did not mention to Payne that Briere, in fact, lived with him at the time.
Payne became concerned that Ramey and the juror were talking about the case and informed ADA St. Clair, who brought the matter to the attention of Justice Smith, who decided to question Ramey.
When first questioned on April 2, 1981, Ramey admitted that he and Briere had had conversations about the case "over a period of a couple of weeks" since the jury was empaneled. He further stated that the only subjects discussed during the trial were Briere having been made foreman, the need for Briere to change seats, Briere commenting on the number of exhibits introduced on a particular day, "the gravity of the situation or the gravity of his position as Foreman of the jury," Briere mentioning "it was a difficult case," Briere hoping the jury would be allowed to have a transcript during deliberations, and Ramey telling Briere that he could not look at his law books. (Hr'g Tr. 3176-3183, April 2, 1981.) Ramey, however, conceded in the state court and in this court that, under oath, he "was evasive with [Justice Smith]." (Hr'g Tr. 74-77, Oct. 4, 2006.)
On April 2, 1981, when Justice Smith asked Briere whether he was "friendly" with Paul Ramey, he simply answered, "Yes." Like Ramey, he remained silent about the fact that he and Ramey were living together, and his answers to the judge's other questions were similarly guarded. Both men merely noted that they worked together and that they would occasionally interact in social settings. When asked if he had discussed the case with Ramey, Briere flatly answered, "No. We have been very careful not to."
On April 16, 1981, Briere disclosed additional information about his relationship with Ramey that he had omitted during the April 2, 1981 interview with Justice Smith. Briere stated that during the trial Ramey had repeated comments made by a spectator at Healy's trial, which had made it "very difficult" for Briere:
Paul [Ramey] had made a comment that he knew someone who was a spectator at the trial, he would come up to him and make a comment about the trial to him and sometimes at night he would repeat the comment but he knew I couldn't comment on it. I tried very hard to be stoic. I remember going to my room because it was becoming very difficult.
In explaining his statement, Briere stated: "What I believe I meant by that statement was in attempting to take my jury service as a juror very seriously and wall off any distractions to things I could not see or hear, I repeatedly ended up going to my room to avoid hearing those kinds of things." (Hr'g Tr. 33:15-19, Nov. 3, 2006.)
(Hr'g Tr. 25:9-15, Nov. 3, 2006.) Briere said he remembered one of the "comments" Ramey made — that he had "heard the defendant took the stand today." But when asked if Ramey "said anything about the defendant's performance on the stand, whether it was good, bad, indifferent," Briere said, "No, I don't recall." (Hr'g Tr. 11:4-6, April 16, 1981.)
The hearing again raised the specter of the elusive "Dick," whose existence Justice Smith had questioned during the lobby conferences. When asked in this court whether "Dick" really existed, Ramey continued to maintain that "Dick" had been an acquaintance from a bowling league. "Dick," a truck driver, had, according to Ramey, sat in on Petitioner's trial in his spare time. During a brief encounter at a grocery store, "Dick" had relayed to Ramey his impressions of the impact of Petitioner's testimony.
The following is an excerpt from Ramey's testimony on cross-examination on November 3, 2007.
Q. You told the judge that you knew [Dick] from bowling, is that correct?
A. Correct.
Q. By the way, you didn't know Dick's last name; is that correct?
A. No.
Q. You didn't know where he lived; is that correct?
A. I thought it was Enfield or in that general area, but to actually know his address, no.
Q. You didn't even give the town to the judge, did you?
A. No, I probably didn't. I wasn't sure.
. . .
Q. Do you know where Dick worked at all?
A. No.
Q. Do you know if he was married or single?
A. I believe he was married.
Q. Do you know if he had children?
A. No.
(Hr'g Tr. 87:18-89:3, October 4, 2007.)
Q. Since that day in 1981 when you bumped into Dick in the Big Y supermarket, you never encountered him again; is that correct?
A. Not to the best of my knowledge.
Q. You never heard from his, heard of him, or seen him to the best of your knowledge?
A. No.
(Hr'g Tr. 91:20-25.)
II. DISCUSSION
A. The Remmer Presumption of Prejudice.
The Sixth Amendment guarantees a criminal defendant's right to a fair trial and impartial jury. Moreover, "due process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment." Morgan v. Illinois, 504 U.S. 719, 727 (1992)."The integrity of jury proceedings must not be jeopardized by unauthorized invasions." Remmer v. United States, 347 U.S. 227, 229 (1954).
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 and hearing of the defendant, that such contact with the juror was harmless to the defendant.Remmer, 347 U.S. at 229 (citation omitted). Petitioner strenuously argues that a Remmer-type presumption of prejudice applies to his case. Id.
In Remmer, a third party offered money to a juror during the trial in exchange for a favorable outcome. The juror promptly reported the incident to the judge who, without informing defendant, referred the matter to the FBI. Following a guilty verdict, the defendant learned about the incident and sought a retrial. The district court held an evaluative hearing, deemed the FBI investigation adequate, and denied further relief. The Supreme Court remanded the case back to the district court with directions to hold a hearing to determine whether the incident complained of was harmful to the petitioner.
A report of improper contact with a juror requires careful scrutiny by the presiding judge. The Remmer Court concluded that a post-verdict inquiry "with all interested parties permitted to participate" was the appropriate vehicle for gauging the impact of an intrusion into the jury's deliberative process.
Subsequently in Smith v. Phillips, 455 U.S. 209 (1982), a case involving an alleged conflict of interest on a juror's part, the Court refused to apply a Remmer-type presumption and impute juror bias, commenting that:
The cases demonstrate that due process does not require a new trial every time a juror has been placed in a potentially compromising situation . . .; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer. . . .Smith, 455 U.S. at 217. While Smith requires a court to convene a hearing to investigate nonfrivolous claims of extraneous influence, as this court did on October 4, 2006, and November 3, 2006, it does not strictly require the use of a rebuttable presumption in every case.
Rather, the presumption is applicable only where there is an egregious tampering or third party communication which directly injects itself into the jury process. Put another way, the Remmer standard should be limited to cases of significant ex parte contacts with sitting jurors or those involving aggravated circumstances. . . .United States v. Boylan, 898 F.2d 230, 261 (1st Cir. 1990) (declining to apply the presumption of prejudice where a magazine left in jury room contained an article suggesting that counsel for one of the defendants was the attorney of choice for "[e]very troubled mobster" in Boston). The paradigmatic example of a significant ex parte contact "with a juror is a threat, bribe, or statement containing prejudicial information made directly to a juror by a third party stranger." United States v. Angiulo, 897 F.2d 1169, 1185 (1st Cir. 1990) (presumption applies to ex parte contacts by third party strangers, and not those of "intimate relations of a juror," such as juror's girlfriend).
In a recent opinion, the First Circuit noted the "ongoing debate in the circuits about the limits on and ongoing vitality of the presumption of prejudice rule announced in Remmer." United States v. Tejeda, 481 F.3d 44, 51 (1st Cir. 2007). In cases prior to Tejeda, the First Circuit, like its sister circuits, had rejected the proposition that the Remmer presumption should be automatically applied in all cases involving extraneous contacts with jurors regardless of their seriousness. See, e.g., United States v. Bradshaw, 281 F.3d 278, 288-89 (1st Cir. 2002) (declining to extend the Remmer presumption to a case where jurors were exposed to the text of the three severed counts from an unredacted indictment); United States v. Gomes, 177 F.3d 76, 82-83 (1st Cir. 1999) (no prejudice where juror discovered a copy of defendant's indictment from prior trial in the jury room, including a reference to a charge on which the defendant had been acquitted).
Compare United States v. Pennell, 737 F.2d 521, 532-33 (6th Cir. 1984) (presumption of prejudice no longer exists), with United States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998) (proper inquiry is whether likelihood of prejudice is high enough to assign to the government the burden of proving harmlessness),United States v. Williams-Davis, 90 F.3d 490, 497 (D.C. Cir. 1996) (same), United States v. Lloyd, 269 F.3d 893, 897 (3d Cir. 2001) (presumption applies "when the extraneous information is of a considerably serious nature," such as "when a juror is directly contacted by third parties"), United States v. Dutkel, 192 F.3d 893, 897 (9th Cir. 1999) ("[A] presumption of prejudice arises if a juror was subjected to coercion or bribery, and if this intrusion may have affected the juror in the exercise of his judgment."), United States v. Scull, 321 F.3d 1270, 1280 (10th Cir. 2003) (prejudice presumed "[w]hen members of a jury are exposed to extraneous information about a matter pending before [them]"), and United States v. Greer, 285 F.3d 158, 173 (2d Cir. 2000) (similar).
In fact, the Court's holding in Remmer has been cabined by two subsequent decisions: Smith, 455 U.S. at 213 (undisclosed juror application for employment as an investigator for the district attorney's office did not trigger the rebuttable presumption of prejudice) and United States v. Olano, 507 U.S. 725, 737-39 (1993) (declining to apply the Remmer presumption in a situation in which alternate jurors were present during jury deliberations).
The teaching in this Circuit, as in others, is that the Remmer presumption should be applied only in cases involving "deliberate misconduct attributable to a party" that exposes a jury to "substantively damaging information." Bradshaw, 281 F.3d at 288.
As will be seen, the court finds the facts insufficient to generate a Remmer-type presumption. Even if one were triggered, the court would find that it was rebutted.
B. Jury Taint Claim.
The First Circuit has "adopted the Second Circuit's exegesis of the beacon by which courts must steer" in approaching a motion for a new trial based on contamination of the jury. Boylan, 898 F.2d at 262. The criterion for a "post-verdict determination of extra-record prejudice must be an objective one, measured by reference to its probable effect on a `hypothetical average juror.'" Id. (citing United States v. Calbas, 821 F.2d 887, 896 (2d Cir. 1987)). As the Second Circuit observed in United States v. Gersh, 328 F.2d 460, 464 (2d Cir. 1964), "[s]omething more than the mere fact of an unknown and . . . uncompleted contact with a juror is needed. . . ."
A motion for mistrial or new trial will be granted only where it is shown that juror misconduct substantially prejudiced the losing party's right to a fair trial. Waldorf v. Shuta, 3 F.3d 705, 709 (3d Cir. 1993) (motion for mistrial based on exposure to publicity requires a showing of prejudice); see also Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1536-38 (4th Cir. 1986) (motion for new trial based on exposure to extraneous information requires a showing of prejudice). An extraneous influence on a juror's deliberative process is a species of juror "misconduct."
It is true that "extraneous influence" has been construed to cover communications or other contact between jurors and third persons. See Parker v. Gladden, 385 U.S. 363 (1966) (bailiff expressed opinion on case to jurors). Here, there is no question but that Briere was exposed to some sort or degree of "extraneous influence." The issue for the court, however, is whether any significant likelihood exists that this influence resulted in prejudice to Petitioner.
Prejudice is very much a question of degree. At one end of the spectrum is a direct attempt to influence a verdict as in Remmer, where a bribe was offered. At the other is the inadvertent exposure of the jury to extraneous information, such as the unredacted indictment in the jury room. See Gomes, 177 F.3d at 82-83.
Here, Ramey's comments to Briere fall well toward the less substantial end of the spectrum. At their worst, they may have conveyed to Briere a third party's unfavorable impression of Petitioner's performance as a witness. They would have brought nothing of an extraneous nature into the case. Briere after all had seen the Petitioner's testimony himself and would have formed his own impression of its weight and effect.
Apart from the insufficiency of the objective evidence of significant influence, Briere's own assurances of his subjective impartiality were strong and credible. A juror's assertion of impartiality is not "inherently suspect," for a juror is "well qualified to say whether he has an unbiased mind in a certain matter." Smith, 455 U.S. at 217 n. 7 (quoting Dennis v. United States, 339 U.S. 162, 171 (1950)); see also Angiulo, 897 F.2d at 1186-87 (trial court may rely on juror's statement of continued impartiality); United States v. Butler, 822 F.2d 1191, 1996 (D.C. Cir. 1987) (juror's statement that improper contact would have no bearing was deemed reliable). While there are some troubling aspects to the peripheral conduct of Ramey, who should have known to avoid discussing the case with the jury foreman at all, Briere's conduct was at the center. His testimony that he was unaffected by Ramey's comments was sincere, consistent, and compelling. His credible evidence combined with the thinness of any evidence supporting Petitioner's jury taint claim is fatal to Count IV.
In sum, the court finds that Petitioner has failed to meet his burden of demonstrating actual prejudice. United States v. Rosenthal, 454 F.3d 943, 949 (9th Cir. 2006) (the burden is on Petitioner to demonstrate "actual prejudice" absent which a new trial will not be ordered); see also Sea Hawk Seafoods, Inc. v. Alyeska Pipeline Service Co., 206 F.3d 900, 906 (9th Cir. 2000) (noting that where ex parte contacts are involved the defendant will receive a new trial only if the court finds "actual prejudice"). No presumption of prejudice may be found to arise on this record. If one did, the court would find it rebutted.
III. CONCLUSION
For the reasons set forth above, Respondent is entitled to judgment on Count IV of the petition. Since this ruling, along with the First Circuit's decision on appeal, disposes of all of Petitioner's claims, the clerk will enter judgment for Respondent. This case may now be closed.
It is So Ordered.