Jury Room Reference to Profiling Cited in Appeal

passage of time alters that initial disposition, that too is within protect a criminal defendant from a jury's lynch mob mentality in her side. according to the bank teller's testimony at trial, "outside influence[s]," but rather was more properly labeled an robbers was described as hispanic. perfection is an untenable goal," the safeguards noted in tanner the district court erred when it ruled that rule 606(b) prohibited but concluded that, because there were "several aspects of the trial matters is barred by the rule. see id. explaining that juror for the foregoing reasons, we remand for proceedings consistent 34 (1st cir. 2003) (quoting tanner v. united states, 483 u.s. 107, turned to the four protections the tanner court characterized as longer useful. since the amended definition, courts have instead stolen money. villar told scott that she would receive $3,000. of circuits that have analyzed this issue under the amended dire of deliberating jurors where the "religious prejudice displayed rights. see, e.g., shillcutt, 827 f.2d at 1159. the parties do is a substantial probability that the alleged racial slur many courts have recognized that rule 606(b) should not be all of the money. scott became upset because the police knew that of it,' . . . it necessarily must be inferred from surrounding decide the case solely on the evidence before it.'" mcdonough power hearing juror testimony to determine whether ethnically biased testimony to determine whether a defendant received a fair trial who is most familiar with the strength of the evidence and best able jury deliberations. in two habeas challenges involving state court that two jurors lied during voir dire about their experiences with incontrovertible evidence that a specific, nonspeculative may not be able to easily identify racist jurors through observation that the teller did not know it was a gun when she felt something statements made in jury deliberations is unconstitutional, violating jail before i ever serve on another jury. it was awful. amount to a constitutional violation. tanner, 483 u.s. at 126-27. after tanner, courts have struggled with its application to generally racist juror misconduct during deliberations, 101 harv. not err when it refused to hold an evidentiary hearing. id. at 125, under lafortune and the sentencing guidelines. therefore, the telling them to "get down"). see also united states v. cover, 199 during the trial, the ability of jurors to make pre-verdict reports 107 (1987)] give me the authority if i choose to because be excluded without `violating the plainest principles of justice.' primarily in the context of the sixth amendment. see, e.g., one black from another. they all look alike."); smith v. brewer, - 14 - 140, 149 (1892)). the "external/internal distinction" employed by mark l. stevens, esq., for appellant. timely appeal followed. we need not decide here what procedures the trial judge should matter about which the juror would be precluded from testifying. according to shauna harrington's testimony, planning for the 117 (1987)). there are important policy considerations underlying displayed in a threatening manner." u.s.s.g. � 1b1.1 cmt. n.1(c) "otherwise use" of the weapon); united states v. yelverton, 197 f.3d and harrington went to a hotel in manchester, new hampshire. while preclude evidence of racial slurs during jury deliberations, because counsel returned to his office and received an e-mail entitled this "specific" use of the weapon to make an unmistakably clear mail. concluding that an allegation of ethnically biased rule 606(b) based only on the juror e-mail. therefore, the 2b3.1(b)(2)(d), an argument that we find has no merit. the rule "that possible internal abnormalities in a jury will not procedures" but rather is "vested with the discretion to fashion an process, the ability of the court and counsel to observe jurors � i know the type."). see also anderson v. miller, 346 f.3d 315, more likely to report inappropriate conduct � such as alcohol or getting high on drugs, villar suggested to scott, gagnon, and giordano and melissa nichols separately observed two men acting juror to assent to or dissent from the verdict or remain quiet and no one would get hurt. eventually, the teller saw ethnicity may not work to a defendant's benefit where one of the of racial or ethnic bias during jury deliberations implicate a confine their deliberations to evidence presented at trial). with whom michael j. gunnison, acting united states attorney, was trial judge's application of rule 606(b). the district court's ethnically biased comments made during deliberations. while jury's verdict, to which the government objected. on october 2, villar instructed scott where to turn, and then he and gagnon - 3 - the trial of a native american defendant for assaulting an officer common-law rule' that prohibits admission of juror testimony to plainly erroneous reading of, that guideline." stinson v. united the due process clause of the united states constitution. defendant was prejudiced by the influence of racial bias in the jury - 2 - appellant as one of the men who robbed the bank. based on this position to make the initial judgment. if in this case he thinks in the event the trial court concludes that the jury verdict of money on the front seat. villar opened the bag and showed scott other courts have considered a challenge to bias in juror have stayed there for another week. their minds were clear error. see united states v. lafortune, 192 f.3d 157, 160 (1st appropriate and responsible procedure to determine whether trials, many defense attorneys have sound tactical reasons for not as we view it, a person may "brandish" a weapon to the jury room. to discover the extremely rare abuse that could exist this might occur in the gravest and most important cases . . . ." evidence, particularly the testimony of dedra scott and shauna 327-29 (2d cir. 2003) (raising constitutional concerns regarding by the jurors . . . is so shocking to the conscience and potentially violate `clearly established federal law' in refusing to consider "brandish[ing]" and "otherwise us[ing]" a weapon during a robbery: there is a substantial probability that any such comments made a because i attach relatively greater weight to the sixth no reference to the gun or explicit threats to shoot it. he adds should even be doing this but i don't care. i know it's offense level was 32, including a four-level enhancement for convey a threat directed at [a] specific teller which was intended with this opinion. testimony with an open mind. we tried to make the rest determined to lie."). the court rejected the defendant's attempt an e-mail message from one of the jurors disclosing that during influence was improperly brought to bear upon any juror, cases involving racial or ethnic prejudice that require hearing jury michael febonio, saw two men acting suspiciously and described one counsel present, into post-verdict allegations that jurors did not squarely within rule 606(b)'s prohibition of post-verdict juror "otherwise use" of a gun. in addition, with respect to the "conduct did not amount to a discharge but was more than government's key witnesses, shauna harrington and dedra scott, states v. dioguardi, 492 f.2d 70, 79 n.12 (2d cir. 1974) (stating after a sentencing hearing on january 22, 2008, the district at the time in nashua, new hampshire. according to harrington, testimony. see united states v. benally, 546 f.3d 1230, 1236-38 acknowledging, though, that the constitutional argument was the villar's inquiry, harrington told him that the black one looked under rule 606(b)'s exceptions); shillcutt v. gagnon, 827 f.2d 1155, party requested the court to ask the potential jurors voir dire external matter open to post-verdict inquiry, the district court rule against juror impeachment cannot be applied so inflexibly as consistent with the amended definition of "brandished." compare it is not at all clear, however, that the jury system of the e-mail. united states, 559 f. supp. 1139, 1151 (e.d.n.y. 1983) ("certainly, evidence and every witness. between us we pointed out - 8 - the court during trial, opportunities for jurors to report provide adequate safeguards in the context of racially and hampshire, was returning from her lunch break when a man wearing a there, they counted the money again, and gagnon and villar each intoxication does not fit within the exception to rule 606(b) for to the center of the bank. the tellers were later told to "get on verdict juror testimony, but nonetheless proceeded to address the arrogant demonstration of their presence, constitutes the appellant now challenges the conviction on the grounds that testimony may be appropriate in the rare case where due process and of the district of massachusetts, sitting by designation.* the appellant asserts violations of both his due process4 proof showed that there was a substantial likelihood that a criminal "based on the nature of the allegation." id. at 117-18. juror mcdonald v. pless, 238 u.s. 264, 268-69 (1915); see also united violent." benally, 546 f.3d at 1231. several jurors apparently - 9 - lack of physical evidence, such as fingerprints or dna, implicating (10th cir. 2008) (holding that it was an abuse of discretion for the made during deliberations, including the remark "[y]ou can't tell let me know. i don't believe i'm free to inquire simply to a trial by an impartial jury as guaranteed by the sixth 1159 (7th cir. 1987) (concluding that rule 606(b) was intended to general display of weaponry by specifically leveling a testimony of one bank teller, along with a surveillance photograph united states court of appeals brought to the jury's attention, (2) whether any outside 1234 (2d cir. 1983)). - 5 - protective of a defendant's sixth amendment rights: the voir dire on august 31, 2007, villar filed a motion to set aside the 1. evidence introduced at trial with respect to the motion to set aside the verdict, the trial - 20 - trial commenced on august 21, 2007. during jury selection, neither of verbal threats was "brandish[ing]" of a weapon). the majority applicable definition of "brandished" on november 1, 2000. under and immediately available. a general, or even pompous, sentencing hearing, a dangerous weapon is "otherwise used" if the undermined by post-judgment comments volunteered by (or in some isolated off-base statement made during deliberations requires a l. rev. 1595, 1597 (1988) ("although few courts have admitted juror the trial court judge seemed to be making a ruling of law, because known to another person"). nevertheless required to determine whether the ethnically-biased sixth amendment concerns are implicated. in shillcutt, the seventh constitution or a federal statute, or is inconsistent with, or a states v. mikutowicz, 365 f.3d 65, 74 (1st cir. 2004) ("[a] district harrington that they all rob a bank. the four shared an apartment were sufficiently protective. id. (noting, however, that a judge rights and his sixth amendment rights to a fair and impartial jury. 2007, the court issued an endorsed order denying villar's motion. his province. through non-juror evidence of misconduct. id. ("[i]n most if not reviewed de novo. united states v. rosario-diaz, 202 f.3d 54, 70 f.3d 16, 33-34 (1st cir. 2003) (citing united states v. ortiz- while the issue is difficult and close, we believe that the the government pointed out, voir dire using questions about race or cir. 2006). courts that have dealt with the issue of possible racial and ethnic - 27 - as the court said in tanner, "there is little doubt that - 17 - brandishing, displaying, or possessing a firearm or other dangerous scott and gagnon seemed interested in the idea. in addition, two while at first she only felt a hard object at her side, once inside concluded that it had no discretion to hold an inquiry into possible impartial jury."). 1197, 1205 (1st cir. 1988)) (alterations omitted). a "court should saris, district judge. after a jury trial, defendant- mahoney v. vondergritt, 938 f.2d at 1492 (upholding trial judge's native americans and that a new trial was warranted. id. the tenth more realistic. with a dangerous weapon. several days after the defendant was lafortune, 192 f.3d at 161-62 (finding that a defendant "otherwise those statements."). robbery in violation of 18 u.s.c. �� 371 and 2113(a), and he found he lacked "discretion to act" or make any inquiry under rule 606(b) barred any inquiry into the possibility of bias within interest of overall justice" to attempt to cure "defects" such as review may be necessary in the occasional case in order drug use � among jurors than racial statements uttered during i ultimately have to apply the rules of evidence and the 135 f.3d 1178, 1185 (7th cir. 1998) ("the fifth and sixth amendments hearing in which the juror was asked only to authenticate the e- lobby. later, he told the two tellers to get down on their knees every discr[e]p[a]ncy. they made up some story to commentators have highlighted, the need to protect a frank and i, for example, attach � i personally believe that ethnic (appellee's br. app. at 1 (emphasis added).) on august 27, 2007, jury, which was his fundamental right, cannot be ignored"). see harrington a backpack containing thousands of dollars. gagnon gave "[c]ommentary in the guidelines manual that interprets or6 exited the vehicle. a voir dire of jurors who made anti-semitic comments); wright v. robbery in a wooded area near st. mary's bank. eyewitnesses rino to intimidate her into complying with his demands"); united states janeiro v. urological surgery prof'l ass'n, 457 f.3d 130, 139 (1st - 4 - postverdict investigation into juror misconduct would in aspects of the trial process."); benally, 546 f.3d at 1240 ("we was otherwise used" during a robbery. u.s. sentencing guidelines states v. henley, 238 f.3d 1111, 1119-20 (9th cir. 2001) ("even appellant's criminal history categorization, the trial court that rule 606(b) precluded further juror inquiry. process" that could protect this right, the district court's "advise" those concerned that he possesses the general constitutional question: serious danger to the justice system than intoxicated jurors. the sentencing guidelines. its findings of fact are reviewable for possibly affecting their reasoning ability. 483 u.s. at 117. the court inquiry into the validity of the verdict, the court held a a threshold issue is the appropriate standard of review. the shillcutt approach, concluding on an appellate record that this was relevant to our analysis. we have warned that courts generally conclude that i am constrained from breaching the that a defendant has a sixth amendment right to an unimpaired jury, on november 27, 2007, the court sentenced defendant, and this guidelines, the parties do not argue that the november 1, 2000 before both men fled the bank. the two men stole a total of rule 606(b) contains three exceptions, two of which � would have gotten a different kind of jury the next time showing of weapons, involving what one would consider an section 2b3.1(b)(2)(d) of the sentencing guidelines provides i'm sorry we couldn't do anything. we finally decided to asserts that the district court erred in its legal conclusion that on april 18, 2006, a teller at st. mary's bank in hudson, new considered admissible as an extraneous matter under the state's non- ambulance in kagwa's light blue minivan. after learning that kagwa we are persuaded by the courts that have held that rule 606(b), late but i want you to know that there were at least 3 involved allegations, brought to light after conviction, that police cruiser with its lights on driving in the opposite or three days before the robbery, villar showed harrington two bb impeach a jury verdict." united states v. connolly, 341 f.3d 16, supreme court and first circuit case law applying those proposing specific voir dire questions regarding racial or ethnic accompanying the display of a weapon in order to distinguish bias because it might be viewed as insulting to jurors or as some of the details provided by these witnesses were2 mail. is valid, we address appellant's second argument. villar contends protection of jurors from subsequent harassment by a losing party," decision not to go beyond a preliminary inquiry, held without [hon. paul j. barbadoro, u.s. district judge] is all we have at this time to call into question the contending that the juror's e-mail created a possibility that conspirators, pleaded guilty to the charges prior to appellant's - 22 - although we conclude that the district court erred when it he concluded that based on the evidence he had available, rule conspiring with joshua gagnon and dedra scott to commit bank used" a weapon by pointing a gun at bank tellers and customers, least one juror based upon villar's hispanic ethnicity. the court if he had possessed the discretion to do so. court there recognized the common law exception to the bar against "juror no. 66." in the e-mail, the juror stated: - 10 - individual pre-trial voir dire of the jurors can help to disclose - 28 - richard villar, the floor" before the robbers exited the bank. the trial judge unconscious and comatose, she called 911. scott then followed the trouble." well i won't keep you longer. again i am could survive such efforts to perfect it." prejudiced, such evidence could not be ignored without trampling the a defendant.'" id. (quoting united states v. moon, 718 f.2d 1210, of misconduct, and the availability of post-verdict impeachment testimony of racist jury misconduct, most courts at least the rule of juror incompetency cannot be applied in such enhancement under united states sentencing guidelines manual � convicted, a juror reported to defense counsel that, during committing a bank robbery in violation of 18 u.s.c. � 2113(a). n.1(c) (2008) (defining "brandish[ing]" as the "display" of the hooded sweatshirt and a ski mask jumped over the nearby chain link 127. be inquired into except `in the gravest and most important cases'") (1961) (internal citations omitted). one touchstone of a fair trial jury."); tobias v. smith, 468 f. supp. 1287, 1289-90 (w.d.n.y. 1979) i felt compelled to send this to you. i don't know if i involved issues of juror competence. the supreme court recognized cause all the trouble." when defense counsel filed a motion for a although lafortune was decided under an earlier version of the or (3) whether there was a mistake in entering the focused on the "specific" as opposed to "general" use of the weapon convictions, two circuits have suggested that the use of juror during the last twenty minutes of six hour deliberations: "let's be made up from the first day. here's one example, a man another person as opposed to a "general display of weaponry" as the appear at a special hearing on august 28, 2007 to inquire about the as one that was "pointed or waved about") with u.s.s.g. � 1b1.1 cmt. as having darker skin than the other. nichols also described the court sentenced the appellant to 188 months imprisonment. the total - 23 - so damaging and dangerous, that if it were up to me, if harrington, "we just robbed an f-ing bank." villar then threw held that federal rule of evidence 606(b) precluded the court from when they returned to their shared apartment, scott told and saris, district judge.* found the tellers' versions of the event to be credible. 827 f.2d at 1159 (involving the following comment made by a juror in this case suggested that he might have conducted such an inquiry juror affidavit describing two racially charged statements allegedly evidence if, taken at face value, the evidence established a arrigoitia, 996 f.2d at 443 (noting that a trial judge is "not . . investigation required by a juror misconduct claim."); ortiz- at 1239, 1241. difficulty with prejudice in a judicial context is that it prevents deliberations to which they are not privy. drop them off in lowell, massachusetts, but villar burned her with robbery. hours following his conviction, defense counsel received is necessary to vindicate a criminally accused's constitutional due to bar juror testimony in those rare and grave cases where claims keep you safe. circuit reversed, asserting that it is "not necessarily in the 16 (1st cir. 2003)] or [tanner v. united states, 483 u.s. amendment. u.s. const. amends v, vi. constitutional issues are4 appropriate standard of review of that legal ruling is de novo. drew a distinction between explicit and implicit threats in order to intimidate that person, regardless of whether or the "outside influence" exceptions of rule 606(b), but does fall bias during jury deliberations have framed their discussions investigation exist,' i.e., `there is clear, strong, substantial and by counsel and the court during trial are unlikely to identify to determine the probability of prejudice from an inappropriate $17,429. of "other sources of protection" for a defendant's sixth amendment (1st cir. 1996)). by its express terms, precludes any inquiry into the validity of the - 7 - to use kagwa's minivan to drive him to villar's brother's house. denied the right to due process and the right to an impartial jury the bank. the man had a "hispanic accent." he told the teller to "extraneous prejudicial information" and "outside influence" � are using this framework, most courts have concluded that juror "brandished" meant that the weapon was "pointed or waved about, or concealing his own bias and partly because the juror may be unaware in violation of the fifth and sixth amendments to the constitution. the evidence incompetent. in short, although our scope departed downward one level from level vi to level v, resulting in the bank, she saw that it was a gun. the robber also pointed the paine, 407 f.3d 958, 963-64 (8th cir. 2005) (concluding that verdict based on juror testimony regarding racial or ethnic comments after a jury trial. hours after the verdict was delivered, defense appellant was convicted on both counts on august 24, 2007 influence." id. at 117 (quoting mattox v. united states, 146 u.s. demarcation between "brandish[ing]" and "otherwise us[ing]." 192 still, at the other extreme, there are certain rare and exceptional internal issue, the tanner court held that the district court did prejudice, it has shortcomings because some jurors may be reluctant id. � 1b1.1 cmt. n.1(c). a limited voir dire of the juror followed to authenticate the e- taken during the robbery, indicated that the hispanic robber was questioning the juror on the basis of the e-mail, which 371, 376 (1991) (concluding that, although juror bias could not be direction. when they stopped at a gas station, gagnon threw a bag scott eventually picked gagnon and villar up near a stop sign analysis. room, to ignore the evidence might very well offend fundamental "[w]e cannot expunge from jury deliberations the subjective opinions was asking tellers to place money inside a bag. the hispanic of "brandished," undermines this court's holding in lafortune. the longstanding concern about intruding into jury deliberations and the manual � 2b3.1(b)(2)(d) (2008) (hereinafter u.s.s.g.). under the future, used and not merely brandished. altering this several jurors had consumed alcohol and drugs during lunch breaks, cir. 1999) (citing united states v. nu�ez-rodriguez, 92 f.3d 14, 19 during deliberations that would violate a defendant's sixth the key case in this area is tanner v. united states, which the impartial decision-making that both the sixth amendment and sticking the gun into the bank teller's side amounted to no more lover," the court stated that tanner "implies that the constitution the sentencing guidelines were amended to reflect the f.3d 1270, 1278-79 (11th cir. 2000) (concluding that, under the pre- - 12 - fed. r. evid. 606(b). rule 606(b) codifies the "`firmly established effects on this appellant"); see also united states v. mcclinton, we stress that the policies embodied in rule 606(b) and underscored 444 f. supp. 482, 490 (s.d. iowa 1978) ("where . . . an offer of even after the court has applied the rule and determined i had a hint of juror bias based on a statement from one than a "brandish[ing]" of a dangerous weapon and warrants only a (requiring an evidentiary hearing when the petitioner presented a court maintains significant discretion in determining the type of done all of the talking and that he had carried a gun. that night, november 10, 2009 problems that would be caused if jury verdicts could be easily accordingly, we conclude that the district court here did have recently, the tenth circuit held that tanner precluded inquiry his "instinct as a trial judge" was to develop the record arrigoitia, 996 f.2d 436, 442 (1st cir. 1993); mahoney v. - 26 - a few blocks away from the bank. as they drove away, scott saw a lafortune court focused on the "specific[] leveling" of a weapon at impeachment rule (which is similar to fed. r. of evid. 606(b)), a de novo the district court's interpretation of the language used in united states of america, vehicle. rights. id. at 127. made "during the course of deliberations." as such, the trial judge the constitution guarantees a criminal defendant the right to testimony about a matter characterized as "external" to the jury is defendant "otherwise used" a weapon when he "employed the gun to court stated: on april 26, 2006, richard villar was indicted on charges of through the guarantees of due process of law and trial by an under the fifth and sixth amendments as well. at 1232. after considering juror affidavits, the trial court held getaway vehicle as a light blue minivan. discussed the need to "send a message back to the reservation." id. statement occurring during the course of the jury's explain it away. i want you to know that i will go to extraneous influences.'" id. (quoting neron v. tierney, 841 f.2d statements were made because the "possibility raised by the bias in jury deliberations, we emphasize that not every stray or states v. moerman, 233 f.3d 379, 380-81 (6th cir. 2000) (holding based on their drug use, criminal histories, prior lies and tanner, 483 u.s. at 127 ("petitioners' sixth amendment interests in the earlier version, this court drew the following line between7 justice, that we must act decisively to correct any possible harmful drive around the building to verify whether it had a second exit. the weapon was directly visible to that person. 2. due process and sixth amendment rights hearing at which jury testimony is taken. as courts and 531, 534 (d.c. cir. 1999) (stating the majority view that the "key testimony about race-related statements made by deliberating jurors counsel argued that under the fourteenth amendment, racial bias3 on the morning of the robbery, one of dedra scott's friends "most powerful" one, the court nonetheless was skeptical of the a cigarette, telling her that she was "not going anywhere." once [s]ixth [a]mendment's guarantee to a fair trial and an impartial under the sixth amendment. the determination of whether an inquiry defendant's right to due process and an impartial jury. in our police recovered the ski mask and the weapon used during the scope of rule 606(b)'s preclusion of juror testimony if there were not prolong that young man's hope any longer. we could to admit racial bias. in addition, visual observations of the jury5 they arrived at villar's brother's home, they all counted the this case that allows us to make this determination on appeal. logical; he's a black, and he sees a seventeen year old white girl verdict onto the verdict form. a juror's affidavit or no. 08-1154 connection therewith. but a juror may testify about (1) minimal standards of due process." irvin v. dowd, 366 u.s. 717, 722 inquiry based on the somewhat terse and perhaps ambiguous report of aixa maldonado-qui�ones, assistant united states attorney, and that "voir dire might be a feeble protection if a juror is amendment interest in a fair trial free from ethnic bias indictment, a juror may not testify as to any matter or deliberations as encompassing both due process and sixth amendment that a four-level adjustment is appropriate "if a dangerous weapon underlie the rule, i might balance that interest causing them to sleep through the afternoon sessions of a trial and appellant's motion to make an inquiry into the validity of the testimony."). acknowledging that at least two of tanner's listed took $7,000. they spent the evening at the hotel getting high. around and pick gagnon up from the apartment. after they had done when they drove by st. mary's bank, villar asked scott to turn post-verdict juror testimony in cases involving an "extraneous absolute. but, as we have said, the district judge is in the best (internal citations omitted); martinez v. food city, inc., 658 f.2d inconsistent statements. in addition, dedra scott was impeached2 integrity of the jury's deliberative process. 3. sentencing to be directly visible, the weapon must be present. and specific threat falls within the definition of "otherwise used" left the hospital and returned to the apartment she shared with regarding the possible subjective prejudices or improper motives of matters unrelated to the specific issues that the juror was called saw that her assailant was not alone. another man, who was white, there was the possibility of bias and prejudice on the part of at facilitate compliance with a demand, and ultimately to facilitate a "fair trial by a panel of impartial, `indifferent' jurors. the whether extraneous prejudicial information was improperly (quoting mcdonald, 238 u.s. at 269) (emphasis added). "the obvious cases involving the possibility of sixth amendment violations during consideration [about `otherwise use'] is whether a gun . . . was and as being shorter than his companion. a third eyewitness, sorry we couldn't do more. you know if i thought he id. at 1240 (quoting tanner, 483 u.s. at 120). the tenth circuit questions regarding bias based upon race or ethnicity. possible racial prejudice in the jury process: victim in order to constitute `otherwise used'"). nor the caselaw requires . . . a verbalized threat to harm the - 18 - conspirator, and shauna harrington, gagnon's girlfriend. neither1 without characterizing racial bias as `extraneous,' a powerful case underneath her desk and told her to stand in the middle of the bank appellant argues that the trial court should have applied the pay attention. we made them go through every piece of admissible under rule 606(b), while testimony about "internal" - 24 - district court to admit evidence of racial comments in the jury room three-level enhancement for "brandish[ing]" because the robbers made in doing so but for the bar of rule 606(b), which he deemed v. defendant, appellant. from victim's forehead in the course of a robbery constitutes implicit threat against a specific person constitutes the `otherwise fairness"); commonwealth v. laguer, 410 mass. 89, 97, 571 n.e.2d inquire into the matter further than verifying that the juror had, involving allegations that one juror called another a "nigger the commission of the crime"). acknowledge that [r]ule 606(b) could not be applied to exclude such united states v. dunigan, 555 f.3d 501, 505 (5th cir. 2009) - 11 - upon an inquiry into the validity of a verdict or facts and circumstances." (quoting smith v. phillips, 455 u.s. at u.s.s.g. � 1b1.1 cmt. n.1(c) (1999) (describing a brandished weapon bias is so reprehensible in the deliberative process and appellant richard villar, a hispanic man, was convicted of bank misconduct actually occurred and whether it was prejudicial"); that the district court incorrectly applied the four-level amendment right without breaching the ban on post-verdict juror customer, ordering them to move or be quiet according to view, the four protections relied on by the tanner court do not does not fall within either the "extraneous prejudicial information" i think [i] would have kept them there. these people are the tanner court is not a "locational distinction" but rather is for "otherwise us[ing]" a pellet gun. in his view, his conduct of "it would not be safe to lay down any inflexible rule because there applied dogmatically where there is a possibility of juror bias parties argue that the abuse of discretion standard governs the because . . . `[a] juror may testify concerning any mental bias in admissibility of non-juror testimony as to wrongdoing as examples ("because the bias of a juror will rarely be admitted by the juror district court properly concluded that appellant "otherwise used" harrington, the jury could reasonably find the following facts. an unimpaired jury, on the other hand, are protected by several vondergritt, 938 f.2d 1490, 1492 (1st cir. 1991)). here, however, alcohol, they all get drunk' and that when they get drunk, they get jurors harboring racial or ethnic bias. likewise, non-jurors are all or part of the weapon was displayed, or the presence ability to do violence and that violence is imminently the jury was racially or ethnically biased against him, appellant equip., inc. v. greenwood, 464 u.s. 548, 554 (1984) (quoting smith reflect racial bias, if i were balancing the of the bank tellers who testified could positively identify the defense counsel moved to set aside the jury's verdict, arguing that constitutes an exception to rule 606(b). however, there was no taller than mr. gagnon. appellant noted that villar is, in fact, accordingly, the court reverses the district court's order denying f.3d at 161. as such, the reasoning in lafortune is fully than does the supreme court or the drafters of the rule. on appeal he has recast the constitutional right as arising3 immediately "rather than waiting 18 months to do it." defense from a prolonged diabetic seizure. when she found kagwa "`should be hesitant to haul jurors in after they have reached a appellant's more powerful argument is that the application of circuit held that the intent of rule 606(b) was to preclude post- (1st cir. 2000). verdict, and remands to the trial court. appellant also argues discretion to conduct such an inquiry under the sixth amendment and the rule, including "finality, maintaining the integrity of the jury despite our view that there is a constitutional outer limit, a defendant's right to due process under the fifth amendment, and i don't believe that [united states v. connolly, 341 f.3d 2. postverdict juror inquiry the defense attacked the credibility of two of the (holding that "otherwise use[]" requires that "[t]he threat to the definition have noted that the explicit/implicit distinction is no rules to the facts of this case, and doing that i trial. that the man was holding a gun. once inside the bank, the teller robbery began a few days prior to april 18, 2006. while they were blind justice because she isn't. god bless you and mary differently. but it's not up to me. if you think it is, candid jury deliberation process is a strong policy consideration. reached after irresponsible or improper juror behavior. further inquiry appropriate, he is free to proceed; if he thinks the generalized warning that these weapons may be, in the raising an issue defense counsel does not want to highlight. as an unfair manner as to deny due process. thus, further inappropriate juror behavior prior to rendering a verdict, and the she had kagwa's minivan. she told gagnon and villar that she would to distinguish tanner on the grounds that racial bias is a more three-level adjustment. he argues that he should have only received any other juror's mind or emotions as influencing the to drunken) jurors, the benally court concluded that, because "jury of jurors, their attitudinal expositions, or their philosophies") - 16 - asked her to go to patrick kagwa's home because he was suffering - 6 - evidence of any statement by the juror may not be received on a guns: one black and the other silver and black. responding to might be instances in which such testimony of the juror could not one's direction, is a cessation of "brandishing" and the her $1,000, which harrington claimed she immediately returned to v. phillips, 455 u.s. 209, 217 (1982) (habeas case involving claims not a "case . . . where the verdict itself was shown to be based on statements within the jury room was not, as villar argued, an - 13 - corroborated by lay witnesses who saw the robbers and the getaway affidavit that the defendant did not receive a trial by an impartial into claims that racist statements were made in the jury room during so, the three returned to the bank, where villar told scott to verdict to probe for potential instances of bias, misconduct, or at trial, the government introduced testimony from fifteen invocation of a rule of evidence to bar juror testimony did not v. orr, 312 f.3d 141, 145 (3d cir. 2002) ("neither the guidelines 369, 373 (5th cir. unit a oct. 1981) (stating that "juror testimony 1524, 1527 (11th cir. 1986) (reversing jury verdict based on a voir does not require the admission of evidence that falls within rule between "brandish[ing]" and "otherwise us[ing]." see, e.g., united . shackled to a rigid and unyielding set [of] [sic] rules and - 19 - appeal from the united states district court a few hours after the robbery was committed, villar, scott, gagnon, accordingly, although the dangerous weapon does not have credible allegations that a juror's safety was threatened by fellow in fact, sent the e-mail to defense counsel, the trial judge held: mary's bank. they both described one of the subjects as hispanic commencement of "otherwise used." rule 606(b) to prevent juror testimony about racial or ethnic during the course of deliberations, and that the appellant was that "pointing the firearm in a threatening manner" without the use appellee, upon to decide.'") (quoting rushen v. spain, 464 u.s. 114, 121 n.5 use' of the firearm"); united states v. wooden, 169 f.3d 674, 676 witnesses, including dedra scott, villar's girlfriend and co- tanner did not address the issue of racial bias but instead the salt of the earth and there is no gray in their hearing on the question of ethnic slurs against hispanics was while we agree with the trial court that rule 606(b) precludes constitutional interests versus the interests that 2003) (alito, j.) (applying the narrow habeas standard in a case can be made that rule 606(b) is wholly inapplicable to racial bias (1983) (per curiam) and adding emphasis)). - 15 - on the brief for appellee. as a cooperating witness. appellant pointed out the government's of the weapon was otherwise made known to another person, 606(b)'s prohibition," and as such, "the state courts did not a three-level enhancement for "brandish[ing]" a weapon. we review gun at another teller, ordering her to get up from her desk and move deliberations, the foreman insisted that "`[w]hen indians get version of the sentencing guidelines in effect at the time of the 606(b) did not give him "discretion to act." he also noted that statements were made during jury deliberations and, if so, whether in determining which enhancement is appropriate. see generally if a criminal defendant could show that the jury was racially protections might not be effective at identifying racist (as opposed villar, gagnon, and harrington. at that time, villar asked scott inquiry into juror prejudice, we hold that the court has the is an impartial trier of fact � "`a jury capable and willing to not distinguish between the two rights for purposes of the the defendant's race rather than on the evidence and the law." id. do not say that we would necessarily have pressed for further in tanner are extremely important; the rule itself is rooted in a follow if he decides to make such an inquiry on remand. see united only for abuse of discretion. see united states v. connolly, 341 of denial of due process due to juror bias)). when questions of weapon." id. � 1b1.1 cmt. n.1(i). a weapon is "brandished" if6 engaging in any further examination beyond the mere authentication failure to accord an accused a fair hearing violates even the 221-22 (o'connor, j., concurring))). as the trial judge in this fence, stuck something against her side, and told her to get inside individual jurors" is inadmissible under the rule). but see united juror that another juror made a comment which could cases) coaxed from jurors with second thoughts. in this case, we discussion subsequently summoned the juror who contacted defense counsel to racial or ethnic comment. there is nothing about the evidence in a guideline range of 188 to 232 months. (1999) (amended nov. 1, 2000). under that definition, some courts 2000 guidelines, "the use of a firearm to make an explicit or a single juror if the district judge had not indicated his interest impropriety has occurred which could have prejudiced the trial of whether prejudice pervaded the jury room, whether there background and ensuring public confidence in the justice system. id. made a difference in the outcome of the trial. him in the robbery. finally, defense counsel argued that the of review is narrow at this stage, we must consider e-mail. amendment rights. see, e.g., heller, 785 f.2d at 1527 (involving jurors); but see williams v. price, 343 f.3d 223, 225-35 (3d cir. states, 508 u.s. 36, 38 (1993). juror bias are raised, the supreme court has long recognized that weapon, or whether "the presence of the weapon was otherwise made - 25 - confidentiality of the deliberative process in for the district of new hampshire him. later, villar told harrington that during the robbery, he had a weapon for the purposes of enhancing the sentence. joshua gagnon and dedra scott, the appellant's co-1 must remember that the sixth amendment embodies a right to a fair shorter than gagnon. appellant also introduced alibi witnesses. had suffered permanent brain damage and would not wake up, scott torruella and boudin, circuit judges, deliberations another juror said, "i guess we're profiling but they only conduct such an inquiry when `reasonable grounds for that he did not have the authority or power under the rule to response to an allegation of juror misconduct is generally reviewed it from taking juror testimony about ethnically biased comments fundamental fair play require." united states v. heller, 785 f.2d explains a guideline is authoritative unless it violates the process and sixth amendment rights is best made by the trial judge, before amendment of the sentencing guidelines, which changed the definition that the trial court erred in enhancing his sentence by four levels difference in the outcome of the trial. the experienced trial judge federal rule of evidence rule 606(b) states: the court listed voir dire, observations of the jury by counsel and pointed at a specific person in an effort to create fear so as to deliberations or to the effect of anything upon that or robber holding the gun pointed it at another teller who was hiding separate discussion about the constitutional issues. concluding for the first circuit people on that jury who actually listened to the 1. rule 606(b) case pointed out based on his many years of dealing with jury system, encouraging frank and honest deliberations, and the cocked firearm at the head or body of a bank teller or some instances lead to the invalidation of verdicts himself, `partly because the juror may have an interest in victim must be specific rather than general"); united states v. trial but not a perfect one, for there are no perfect trials."). suspiciously around the time of the robbery in the vicinity of st. - 21 - see mcdonough, 464 u.s. at 558 (brennan, j., concurring)5 all cases [these protections] serve to protect the defendant's sixth indictment or concerning the juror's mental processes in the discretion to inquire into the validity of the verdict by did not abuse his discretion or commit an error of law when he held lives. i really hope they never get into the scales of so damaging to public confidence in the equity of our system of prior to november 1, 2000, the guidelines provided that7 (11th cir. 1999) (holding a semi-automatic handgun one-half inch said "i guess we're profiling but they cause all the constitutional violation.").