United States v. Thomas

Decided: May 20, 1997

UNITED STATES COURT OF APPEALS

For the Second Circuit

Nos. 23, 122, 22, 27, 109, 25, 20, 299, 72

United States of America,

Appellee,

v.

Grady Thomas, a/k/a Gates Thomas; Loray Thomas; Ramse Thomas,
a/k/a Rock Thomas; Tracey Thomas; Jason Thomas, a/k/a J Thomas; Lamont
R. Joseph, a/k/a Kool-Aid Joseph; Ceasare Thomas, a/k/a Chet Thomas;
Santo Bolden; Myron Thomas,

Defendants-Appellants,

Carrie Thomas; Terrence Thomas, a/k/a Ski Thomas; Shawne Thomas;
Douglas Stover; Stephon Russell, a/k/a Swanee Russell; Augustin Reyes,
a/k/a Gus Reyes; Lamont Pouncie; Chester Perkins, a/k/a Kazar Perkins;
Roy Pearson; Abdullah McKnight, a/k/a Sha-Wise McKnight; Monique McAdoo;
Robert Gibson, a/k/a Gary Childs; Raymond Eaddy, a/k/a Ramel Eaddy;
Michael Armstead; Andre Nunn,

Defendants.

August Term, 1996

Argued: November 14, 1996



Docket Nos. 95-1337, 1338, 1339, 1347, 1387, 1406, 1407, 1416,
1417

Before: Lumbard, McLaughlin and Cabranes, Circuit Judges.

Appeal from judgments of conviction on federal narcotics charges
following jury trial in the United States District Court for the
Northern District of New York (Thomas J. McAvoy, Chief Judge). The
defendants challenge, inter alia, the district court's decision to
dismiss one of the jurors during the course of jury deliberations
pursuant to Fed. R. Crim. P. 23(b). They urge that the district court
erred in finding that the juror was unwilling to follow the court's
instructions on the law. We hold that a juror's purposeful unwillingness
to apply the law, including stated intentions to (in effect) "nullify"
on the basis of racial, cultural or political affinities with the
defendants, is a proper basis for removal of a juror from a venire or
from a petit jury in the course of trial, and constitutes "just cause"
for dismissal of the juror from a deliberating jury under Rule 23(b). We
also reaffirm, however, the indispensability of secrecy to the proper
functioning of the jury system and conclude that, where a deliberating
juror is alleged to be engaging in "nullification," the principle of
secrecy in jury deliberations, coupled with the need to protect against
the dismissal of a juror based on his doubts about the guilt of a
criminal defendant, requires that the juror be removed only where the
record evidence leaves no doubt that the juror was in fact engaged in
deliberate misconduct-that he was not simply unpersuaded by the
Government's case against the defendants. We hold that, in the instant
case, the district court erred in relying, as the primary basis for a
deliberating juror's removal, on a finding that the juror refused to
follow the law as instructed by the court, where the court's interviews
with members of the jury raised the possibility that the juror was in
fact following the court's instructions, but was simply unpersuaded by
the prosecution's case. Accordingly, we conclude that, in the particular
circumstances presented here, the court erred in dismissing the juror
under Rule 23(b), and we vacate the judgments of the district court and
remand for a new trial.

Jos‚ A. Cabranes, Circuit Judge:

We consider here the propriety of the district court's dismissal
of a juror allegedly engaged in "nullification"-the intentional
disregard of the law as stated by the presiding judge-during the course
of deliberations. We address, in turn, (1) whether such alleged
misconduct constitutes "just cause" for dismissal of a deliberating
juror under Rule 23(b) of the Federal Rules of Criminal Procedure ("Rule
23(b)"), *fn1 so that a jury of only eleven persons may continue to
deliberate and return a verdict, and (2) what evidentiary standard must
be met to support a dismissal on this ground.

The appellants are two sets of defendants convicted of
violations of federal narcotics laws after two separate trials in the
United States District Court for the Northern District of New York
(Thomas J. McAvoy, Chief Judge). We have decided the appeals of
defendants convicted at the first of these trials in a summary order of
this date. We write here to consider only the appeals of Grady Thomas,
Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas, all of whom
were convicted in the second trial. On appeal, they argue, chiefly, that
the district court abused its discretion when it ordered the dismissal
of one of the jurors pursuant to Rule 23(b) during the course of jury
deliberations. The court based its decision to remove the juror, in
large part, on a finding that the juror was purposefully disregarding
the court's instructions on the law-in effect, that the juror intended
to acquit the defendants regardless of the evidence of their guilt.

We consider below whether a juror's intent to convict or acquit
regardless of the evidence constitutes a basis for the juror's removal
during the course of deliberations under Rule 23(b). We also consider
what constitutes sufficient evidence of that intent in light of the
limitations on a presiding judge's authority to investigate allegations
of nullification required by the need to safeguard the secrecy of jury
deliberations. We conclude, inter alia, that-as an obvious violation of
a juror's oath and duty -- a refusal to apply the law as set forth by
the court may constitute grounds for dismissal under Rule 23(b). We also
hold that the importance of safeguarding the secrecy of the jury
deliberation room, coupled with the need to protect against the
dismissal of a juror based on his doubts about the guilt of a criminal
defendant, require that a juror be dismissed for a refusal to apply the
law as instructed only where the record is clear beyond doubt that the
juror is not, in fact, simply unpersuaded by the prosecution's case. We
conclude that the district court erred in dismissing a juror, based
largely on its finding that the juror was purposefully disregarding the
court's instructions on the law, where the record evidence raised the
possibility that the juror's view on the merits of the case was
motivated by doubts about the defendants' guilt, rather than by an
intent to nullify the law. Accordingly, we vacate the judgments of the
district court and remand for a new trial.

I.

We have before us the consolidated appeals of ten criminal
defendants convicted of related conduct in two trials held in the
Northern District of New York. The named defendants in this case,
including those whose appeals we consider here, were arrested on May 5,
1994. In an indictment returned on May 13, 1994, they were charged with
conspiracy to possess and distribute cocaine and crack cocaine and
actual possession and distribution of these substances. A 30-count,
superseding indictment was returned on October 14, 1994, which added a
series of forfeiture counts against the defendants.

Ceasare Thomas, Myron Thomas, Lamont Joseph, Santo Bolden, and
Raymond Eaddy were tried on charges set forth in the superseding
indictment beginning on November 22, 1994. After a Government witness
apparently made certain prejudicial statements on the stand, a mistrial
was declared on November 28, 1994. A second trial of the same defendants
began two days later, on November 30, 1994, and the jury returned
verdicts of guilty for all defendants but Raymond Eaddy on December 14,
1994. We affirm these convictions in a summary order filed today. See
United States v. Thomas et al., Nos. 95-1337 et al. (2d Cir. May 20,
1997).

The remaining appellants, Grady Thomas, Ramse Thomas, Jason
Thomas, Tracey Thomas, and Loray Thomas, along with Terrence Thomas,
Shawne Thomas, Carrie Thomas, Stephon Russell, and Robert Gibson, were
the subject of a separate trial, which began on January 18, 1995. *fn2
Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray
Thomas appeal from judgments of conviction entered against them
following this trial, and we consider their appeals here. *fn3 We
confine our factual discussion of this trial to the events leading up to
and including the ultimate dismissal of one of the jurors. These events
provide the basis for the appellants' primary challenge to the
proceedings below.

* * *

During jury selection, the Government attempted to exercise a
peremptory challenge to a juror who would later be empaneled as "Juror
No. 5." Because the juror was black-indeed, the only black person
remaining as a potential juror in a case in which, as the record
indicates, all of the defendants are black-defense counsel objected to
the peremptory challenge under Batson v. Kentucky, 476 U.S. 79 (1986),
as racially motivated. The Government responded that it wished to
exclude the juror based not on his race, but on the fact that he failed
to make eye contact with the Government's counsel during the voir dire.
Although the district court explicitly found that the Government's
peremptory challenge was not motivated by race, the court, in a
misapplication of Batson, *fn4 nevertheless denied the challenge on the
ground that the juror's failure to make eye contact was an insufficient
basis for his removal. The court would later explain that Juror No. 5's
status as the only black juror in a case involving black defendants had
motivated his decision to deny the Government's challenge.

Problems regarding Juror No. 5 did not end with his selection
for the jury, however. During the course of defense summations on
Friday, February 17, 1995, following several weeks of trial, a group of
six jurors approached the courtroom clerk to express their concerns
about the juror. The six jurors complained that Juror No. 5 was
distracting them in court by squeaking his shoe against the floor,
rustling cough drop wrappers in his pocket, and showing agreement with
points made by defense counsel by slapping his leg and, occasionally
during the defense summations, saying "[y]eah, yes."

Chief Judge McAvoy met with counsel in chambers to discuss the
complaints about Juror No. 5. The judge raised the possibility of
conducting interviews with each member of the jury to determine the
extent to which Juror No. 5 was distracting them from their duties.
Alternatively, he considered dismissing Juror No. 5 in favor of an
alternate juror pursuant to Fed. R. Crim. P. 24(c). *fn5 While the
Government approved of the idea of interviewing the jurors, and
dismissing Juror No. 5 if the interviews revealed that his behavior was
disturbing other members of the jury, defense counsel generally opposed
both options, preferring that the court permit summations to continue
with only a general instruction to the jurors that they were not to form
any opinions before starting their deliberations. In the face of
conflicting recommendations from counsel on how to proceed, the judge
dismissed the jurors for the day, requesting that counsel submit
memoranda of law over the three-day weekend on an appropriate course of
action. The court did, however, instruct the jurors before dismissing
them that they should not yet "form any opinions or conclusions about
the case."

The court received letter briefs from the Government and from
counsel for Ramse Thomas, dated February 17 and 20, 1995, respectively,
on the proper course of action regarding Juror No. 5. The Government
recommended in its brief that the court conduct in camera, on-the-record
interviews with the jurors (outside the presence of counsel to promote
candid responses) to determine whether there were grounds to dismiss
Juror No. 5-specifically, to determine whether the juror "had been
disruptive to the point where the other jurors don't believe that they
can deliberate with him, . . . has formed opinions about the case that
he has communicated to the other jurors, or if there is some other
misconduct found which establishes that he is unable to render a fair
and impartial verdict." In his brief, counsel for Ramse Thomas argued
that the court should refrain from conducting any juror interviews,
urging that such an inquiry might bias members of the jury against the
defendants. He also objected to the dismissal of Juror No. 5.

When the jury returned from the three-day weekend on Tuesday,
February 21, the court followed the procedure recommended by the
Government. Without counsel present, the court conducted in camera,
on-the-record interviews with each juror to determine the extent of any
distraction resulting from Juror No. 5's behavior in the jury box. Quite
appropriately, the court began each interview with a general inquiry as
to whether anything had happened during the course of trial that would
interfere with the juror's ability to deliberate and decide the case
properly; the court did not ask about Juror No. 5's behavior unless the
interviewee first raised the issue. Although seven of the jurors
indicated that Juror No. 5 was a source of some distraction, all but
one, who "thought possibly" that she would experience problems during
deliberations because of Juror No. 5, anticipated nothing that would
interfere with their own ability to deliberate. For his part, Juror No.
5 explained to the court that he sometimes got "carried away" in
listening to the attorneys' arguments, but he stated that he would have
no difficulty in applying the law as set out by the court to the
evidence presented at trial. He also assured the court that he would
"restrain [him]self" from engaging in any further distracting behavior.

After completing his in camera interviews, Chief Judge McAvoy
met with trial counsel in chambers. He explained that he had interviewed
the jurors, briefly summarized the testimony he had received in the
interviews, and expressed his intention, based on these interviews, to
remove Juror No. 5 in favor of one of the alternate jurors. The judge
indicated that he was concerned that Juror No. 5's behavior, especially
in light of the court's own inquiries of the jurors, might place him in
an adversarial relationship with his fellow jurors as they began
deliberations. The judge then sought comments from each of the parties'
counsel. The Government agreed with the court's proposal to remove Juror
No. 5, but the proposed dismissal met with unanimous opposition from
defense counsel. Apparently persuaded by the defense's vigorous
objections, the judge reconsidered the matter and decided to retain
Juror No. 5 on the panel. Following the court's meeting with counsel,
summations concluded, and the court charged the jury that same day.

The jury deliberated throughout the day on February 22. On
February 23, the courtroom clerk reported to the court, and then on the
record to all counsel, that she had been approached on two separate
occasions earlier in the day by jurors expressing concern over the
course of their deliberations. Juror No. 1 reportedly had indicated to
the clerk that deliberations were likely to continue beyond February 23
because of a "problem with an unnamed juror." That same morning, Juror
No. 12 had also reported to the clerk that "there was a problem . . . in
the jury room [with] one of their number, and specifically . . .
indicated [that] juror number five, had, at each time a vote was taken,
voted not guilty and had indicated verbally that he would not change his
mind." The court concluded, after hearing argument from counsel for the
parties, that no action was immediately necessary; the court would "give
it a little more time to see what develops." Troubles in the jury room
seemed to escalate rapidly, however. On the following morning, February
24, the court received a note from Juror No. 6, apparently written only
on his own behalf. The note indicated that, due to Juror No. 5's
"predisposed disposition," the jury was unable to reach a verdict.
Following an off-the-record conversation with counsel for the parties,
the court again conducted in camera, on-the-record interviews with each
of the jurors outside the presence of counsel. This time, jurors focused
their comments more directly on Juror No. 5. Several mentioned the
disruptive effect he was having on the deliberations. One juror
described him "hollering" at fellow jurors, another said he had called
his fellow jurors racists, and two jurors told the court that Juror No.
5 had come close to striking a fellow juror. The judge was also informed
by a juror that, at one point, Juror No. 5 pretended to vomit in the
bathroom while other jurors were eating lunch outside the bathroom door.
The jurors, however, were not unanimous in identifying Juror No. 5 as a
source of disruption in the jury room. One juror informed the judge that
friction among the jurors had been "pretty well ironed out," and another
indicated that the other jurors were in fact "picking on" Juror No. 5.

Although the district court did not specifically inquire into
any juror's position on the merits of the case, at least five of the
jurors indicated that Juror No. 5 was unyieldingly in favor of acquittal
for all of the defendants. The accounts differed, however, regarding the
basis for Juror No. 5's position. On the one hand, one juror described
Juror No. 5 as favoring acquittal because the defendants were his
"people," another suggested that it was because Juror No. 5 thought the
defendants were good people, two others stated that Juror No. 5 simply
believed that drug dealing is commonplace, and another two jurors
indicated that Juror No. 5 favored acquittal because he thought that the
defendants had engaged in the alleged criminal activity out of economic
necessity. On the other hand, several jurors recounted Juror No. 5
couching his position in terms of the evidence-one juror indicated
specifically that Juror No. 5 was discussing the evidence, and four
recalled him saying that the evidence, including the prosecution's
witness testimony, was insufficient or unreliable. As for Juror No. 5,
he said nothing in his interview with the court to suggest that he was
not making a good faith effort to apply the law as instructed to the
facts of the case. On the contrary, he informed the court that he needed
"substantive evidence" establishing guilt "beyond a reasonable doubt" in
order to convict.

After interviewing the jurors, the judge met in chambers with
counsel for the parties. He had the record of the interviews read aloud
and permitted counsel to comment on the appropriate course of action.
The Government argued that the jurors' responses indicated that there
was "almost a jury nullification issue pattern with [Juror No. 5]," and
urged the court to order the juror's dismissal, while defense counsel
unanimously opposed his removal. Having heard argument from counsel, the
judge rendered his decision to remove Juror No. 5. He explained that he
believed Juror No. 5 had become a "distraction" and a "focal point" for
the jury's attention, and that his removal might "allow [the jury] to
deliberate in a full and a fair fashion." The court cited Juror No. 5's
failure to live up to his assurances regarding proper conduct, referring
in particular to the allegation that he nearly struck another juror and
to his feigned vomiting. Most importantly, however, the court found that
Juror No. 5 was ignoring the evidence in favor of his own, preconceived
ideas about the case: I believe after hearing everything that [Juror No.
5's] motives are immoral, that he believes that these folks have a right
to deal drugs, because they don't have any money, they are in a
disadvantaged situation and probably that's the thing to do. And I don't
think he would convict them no matter what the evidence was.

The court found that Juror No. 5 was refusing to convict
"because of preconceived, fixed, cultural, economic, [or] social . . .
reasons that are totally improper and impermissible."

The court then called Juror No. 5 into chambers to inform him of
his dismissal and, that afternoon, announced the dismissal to the
remaining jurors. Jurors were instructed that they were "to draw no
inferences or conclusions whatsoever" from the removal and told that
they were to start over in their deliberations.

On the afternoon of the following Monday, February 27, 1995, the
remaining eleven jurors returned a verdict. They found the defendants
Grady, Ramse, Tracy, and Terrence Thomas guilty on all counts, Jason
Thomas guilty on three of the four counts against him, and Carrie and
Loray Thomas each guilty on a conspiracy count. The jury deadlocked on
the fourth count against Jason Thomas and acquitted Carrie and Loray
Thomas of possession with intent to distribute a controlled substance.
Stephon Russell was acquitted of conspiracy to distribute and to possess
with intent to distribute, the only count with which he had been
charged.

Ramse, Tracey, Loray, Grady, and Jason Thomas here appeal from
the judgment of conviction. As their chief argument on appeal, each of
these defendants challenges the dismissal of Juror No. 5.

II.

The district court dismissed Juror No. 5 pursuant to Fed. R.
Crim. P. 23(b), which provides, in pertinent part, that where "the court
finds it necessary to excuse a juror for just cause after the jury has
retired to consider its verdict, in the discretion of the court a valid
verdict may be returned by the remaining 11 jurors." We review the
district court's exercise of this authority for abuse of discretion.
See, e.g., United States v. Reese, 33 F.3d 166, 173 (2d Cir. 1994),
cert. denied, 115 S. Ct. 756 (1995); United States v. Casamento, 887
F.2d 1141, 1187 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990).

To determine whether the court erred in dismissing Juror No. 5,
we must first decide whether the district court's primary basis for the
dismissal-the juror's intention to disregard the applicable criminal
laws-constitutes "just cause" for his removal under Rule 23(b). In
holding that a presiding judge has a duty to dismiss a juror who
purposefully disregards the court's instructions on the law, we briefly
review the factors that courts have traditionally considered to be "just
cause" for dismissal pursuant to Rule 23(b), and discuss the dangers
inherent in so-called nullification. Having concluded that a
deliberating juror bent on nullification may be dismissed for "just
cause," we next consider whether the district court in this case had a
sufficient evidentiary basis for concluding that Juror No. 5 was
purposefully disregarding the court's instructions on the law.

A. Dismissal of a Juror During Deliberations: Rule 23(b) and
Factors that Traditionally Constitute "Just Cause"

In evaluating the district court's decision to remove Juror No.
5 pursuant to Rule 23(b), we must first decide whether the reasons that
the court cited as grounds for the removal constitute "just cause" as
that term is employed in the rule. We consider, in particular, the
district court's primary ground for dismissal-that Juror No. 5 refused
to apply the law as set out in the court's instructions. *fn6 Whether a
juror's defiance of the court's instructions on the law constitutes
"just cause" for that juror's removal under Rule 23(b) is apparently a
question of first impression in this Circuit.

Language was added in 1983 to Rule 23(b) to provide a court with
the unilateral authority to remove jurors during the course of
deliberations. Prior to that time, Rule 23(b) required the consent of
all parties in order for the trial court to dismiss one or more jurors,
and to allow the remaining jurors to proceed to a verdict. *fn7 As
explained in the Note of the Advisory Committee on the Federal Rules of
Criminal Procedure ("Advisory Committee"), the 1983 amendment was a
response to cases in which, after a trial of significant length and
involving substantial expense, a juror became "seriously incapacitated
or [was] otherwise found to be unable to continue service upon the
jury." Fed. R. Crim. P. 23(b) Advisory Committee's Note ("Advisory
Committee Note"); see United States v. Gabay, 923 F.2d 1536, 1543 (11th
Cir. 1991) (noting that, in that case, "a mistrial would have
necessitated a second expenditure of substantial prosecution, defense
and court resources . . . the outcome Rule 23(b) was designed to
alleviate"). The amendment provides an alternative short of mistrial in
such cases, and it does so without calling for the use of alternate
jurors once deliberations have begun, an option that the Advisory
Committee expressly rejected. Advisory Committee Note; see also United
States v. Gambino, 788 F.2d 938, 948-49 (3d Cir.), cert. denied, 479
U.S. 825 (1986).

Since the adoption of the 1983 amendment, federal courts have
exercised their unilateral authority to dismiss jurors during the course
of deliberations for a variety of reasons. Often, courts employ Rule
23(b) in cases, like those described in the Advisory Committee Note,
where a juror is incapacitated or has otherwise become unavailable
during the course of deliberations. See, e.g., Reese, 33 F.3d at 172-73
(juror leaving for business trip); United States v. Wilson, 894 F.2d
1245, 1249-51 (11th Cir.) (juror became ill), cert. denied, 497 U.S.
1029 (1990); United States v. Armijo, 834 F.2d 132, 134 (8th Cir. 1987)
(juror in car accident), cert. denied, 485 U.S. 990 (1988); United
States v. Molinares Charris, 822 F.2d 1213, 1222-23 (1st Cir. 1987)
(juror was "nervous and upset," had been crying during deliberations,
and had taken tranquilizer); United States v. Stratton, 779 F.2d 820,
830-31 (2d Cir. 1985) (juror unable to deliberate on religious holiday),
cert. denied, 476 U.S. 1162 (1986).

"Just cause" is not limited to instances of juror illness or
unavailability, however. Courts have also found "just cause" to dismiss
jurors who, although available and physically capable of serving, are
nonetheless found to be unable to perform their duties properly. In
particular, Rule 23(b) dismissals have been upheld repeatedly in cases
where the trial court found that a juror was no longer capable of
rendering an impartial verdict. These cases have involved instances of
jurors who felt threatened by one of the parties, see United States v.
Ruggiero, 928 F.2d 1289, 1300 (2d Cir.) (juror "disabled by fear" after
receiving what he thought was threat from defendant), cert. denied sub
nom. Gotti v. United States, 502 U.S. 938 (1991); Casamento, 887 F.2d at
1186-87 (juror fearful after daughter received threatening phone call),
who are discovered to have a relationship with one of the parties, see
United States v. Barone, 846 F. Supp. 1016, 1018-19 (D. Mass. 1994)
(juror who was informed that defense attorney had represented his cousin
deemed unable to "render a fair and impartial verdict"), or whose life
circumstances otherwise change during the course of deliberations in
such a way that they are no longer considered capable of rendering an
impartial verdict, see United States v. Egbuniwe, 969 F.2d 757, 762-63
(9th Cir. 1992) (juror "might not be able to be fair to both parties"
after learning that girlfriend had been arrested and mistreated by
police).

B. Nullification as "Just Cause" for Dismissal

In the instant case, the judge identified a different form of
bias as the primary ground for dismissing Juror No. 5-one arising not
from an external event or from a relationship between a juror and a
party, but rather, from a more general opposition to the application of
the criminal narcotics laws to the defendants' conduct. In the court's
view, Juror No. 5 believed that the defendants had "a right to deal
drugs." Based on what the court described as the juror's "preconceived,
fixed, cultural, economic, [or] social . . . reasons that are totally
improper and impermissible," the court concluded that Juror No. 5 was
unlikely to convict the defendants "no matter what the evidence was."
Essentially, the judge found that Juror No. 5 intended to engage in a
form of "nullification," a practice whereby a juror votes in purposeful
disregard of the evidence, defying the court's instructions on the law.

We take this occasion to restate some basic principles regarding
the character of our jury system. Nullification is, by definition, a
violation of a juror's oath to apply the law as instructed by the
court-in the words of the standard oath administered to jurors in the
federal courts, to "render a true verdict according to the law and the
evidence." Federal Judicial Center, Benchbook for U.S. District Court
Judges 225 (4th ed. 1996) (emphasis supplied). *fn8 We categorically
reject the idea that, in a society committed to the rule of law, jury
nullification is desirable or that courts may permit it to occur when it
is within their authority to prevent. Accordingly, we conclude that a
juror who intends to nullify the applicable law is no less subject to
dismissal than is a juror who disregards the court's instructions due to
an event or relationship that renders him biased or otherwise unable to
render a fair and impartial verdict.

We are mindful that the term "nullification" can cover a number
of distinct, though related, phenomena, encompassing in one word conduct
that takes place for a variety of different reasons; jurors may nullify,
for example, because of the identity of a party, a disapprobation of the
particular prosecution at issue, or a more general opposition to the
applicable criminal law or laws. We recognize, too, that nullification
may at times manifest itself as a form of civil disobedience that some
may regard as tolerable. The case of John Peter Zenger, the publisher of
the New York Weekly Journal acquitted of criminal libel in 1735, and the
nineteenth-century acquittals in prosecutions under the fugitive slave
laws, are perhaps our country's most renowned examples of "benevolent"
nullification. See United States v. Dougherty, 473 F.2d 1113, 1130 (D.C.
Cir. 1972) (Leventhal, J.); see also David Farnham, Jury Nullification:
History Proves It's Not a New Idea, Crim. Just., Winter 1997, at 4, 6-7.

More generally, the very institution of trial by jury in a
criminal case, as Judge Learned Hand observed, "introduces a slack into
the enforcement of law, tempering its rigor by the mollifying influence
of current ethical conventions." U.S. ex rel. McCann v. Adams, 126 F.2d
774, 776 (2d Cir.), rev'd on other grounds, 317 U.S. 269 (1942). This is
so because, as Judge Hand explained, "[t]he individual can forfeit his
liberty-to say nothing of his life-only at the hands of those who,
unlike any official, are in no wise accountable, directly or indirectly,
for what they do, and who at once separate and melt anonymously in the
community from which they came. . . . [S]ince if they acquit their
verdict is final, no one is likely to suffer of whose conduct they do
not morally disapprove . . . ." Id. at 775-76.

As courts have long recognized, several features of our jury
trial system act to protect the jury's power to acquit, regardless of
the evidence, when the prosecution's case meets with the jury's "moral[]
disapprov[al]." Since the famous opinion in Bushell's Case, 124 Eng.
Rep. 1006 (C.P. 1670), freeing a member of the jury arrested for voting
to acquit William Penn against the weight of the evidence, nullifying
jurors have been protected from being called to account for their
verdicts. Moreover, and in addition to the courts' duty to safeguard the
secrecy of the jury deliberation room (discussed in greater detail
below), the several rules protecting the unassailability of jury
verdicts of acquittal-even where these verdicts are inconsistent with
other verdicts rendered by the same jury in the same case, United States
v. Carbone, 378 F.2d 420, 423 (2d Cir.) (Friendly, J.) (recognizing link
between upholding inconsistent verdicts and protecting juries' power of
lenity), cert. denied, 389 U.S. 914 (1967)-serve to "permit[] juries to
acquit out of compassion or compromise or because of their assumption of
a power which they had no right to exercise, but to which they were
disposed through lenity." Standefer v. United States, 447 U.S. 10, 22
(1980) (internal quotation marks omitted).

But as the quotation from the Supreme Court's opinion in
Standefer indicates, in language originally employed by Judge Learned
Hand, the power of juries to "nullify" or exercise a power of lenity is
just that-a power; it is by no means a right or something that a judge
should encourage or permit if it is within his authority to prevent.
Indeed, although nullification has a long history in the Anglo-American
legal system, see Dougherty, 473 F.2d at 1130-33; Farnham, supra, at 4,
and the federal courts have long noted the de facto power of a jury to
render general verdicts "in the teeth of both law and facts," Horning v.
District of Columbia, 254 U.S. 135, 138 (1920); see, e.g., United States
v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983), courts have
consistently recognized that jurors have no right to nullify. See, e.g.,
United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) ("[J]ury
nullification is just a power, not also a right . . . ."); see also
Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while
juries are finders of fact, "it is the duty of juries in criminal cases
to take the law from the court and apply that law to the facts as they
find them"). As a panel of the Court of Appeals for the District of
Columbia Circuit-composed of Chief Judge Spottswood W. Robinson, III,
Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg-explained:
A jury has no more "right" to find a "guilty" defendant "not guilty"
than it has to find a "not guilty" defendant "guilty," and the fact that
the former cannot be corrected by a court, while the latter can be, does
not create a right out of the power to misapply the law. Such verdicts
are lawless, a denial of due process and constitute an exercise of
erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983)
(per curiam) (emphasis in original). Indeed, as we noted above, the
exercise of this de facto power is a violation of a juror's sworn duty
to "apply the law as interpreted by the court." United States v.
Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied, 397 U.S. 991
(1970). *fn9

Moreover, although the early history of our country includes the
occasional Zenger trial or acquittals in fugitive slave cases, more
recent history presents numerous and notorious examples of jurors
nullifying-cases that reveal the destructive potential of a practice
Professor Randall Kennedy of the Harvard Law School has rightly termed a
"sabotage of justice." Randall Kennedy, The Angry Juror, Wall St. J.,
Sept. 30, 1994, at A12. Consider, for example, the two hung juries in
the 1964 trials of Byron De La Beckwith in Mississippi for the murder of
NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam
and Roy Bryant for the murder of fourteen-year-old Emmett Till, see
David Halberstam, The Fifties 431-41 (1993); Juan Williams, Eyes on the
Prize: America's Civil Rights Years, 1954-1965, at 38-57, 221-25
(1987)-shameful examples of how "nullification" has been used to
sanction murder and lynching.

Inasmuch as no juror has a right to engage in nullification-and,
on the contrary, it is a violation of a juror's sworn duty to follow the
law as instructed by the court-trial courts have the duty to forestall
or prevent such conduct, whether by firm instruction or admonition or,
where permitted, by dismissal of an offending juror from the venire or
the jury. If it is true that the jury's "prerogative of lenity,"
Dougherty, 473 F.2d at 1133, introduces "a slack into the enforcement of
law, tempering its rigor by the mollifying influence of current ethical
conventions," Adams, 126 F.2d at 776, then, as part and parcel of the
system of checks and balances embedded in the very structure of the
American criminal trial, there is a countervailing duty and authority of
the judge to assure that jurors follow the law. Although nullification
may sometimes succeed-because, inter alia, it does not come to the
attention of a presiding judge before the completion of a jury's work,
and jurors are not answerable for nullification after the verdict has
been reached-it would be a dereliction of duty for a judge to remain
indifferent to reports that a juror is intent on violating his oath.
This is true regardless of the juror's motivation for "nullification,"
including race, ethnicity or similar considerations. A federal judge,
whose own oath of office requires the judge to "faithfully and
impartially discharge and perform all the duties incumbent upon [the
judge] . . . under the Constitution and laws of the United States," 28
U.S.C. Section(s) 453 (1994), may not ignore colorable claims that a
juror is acting on the basis of such improper considerations.

Accordingly, every day in courtrooms across the length and
breadth of this country, jurors are dismissed from the venire "for
cause" precisely because they are unwilling or unable to follow the
applicable law. *fn10 Indeed, one of the principal purposes of voir dire
is to ensure that the jurors ultimately selected for service are
unbiased and willing and able to apply the law as instructed by the
court to the evidence presented by the parties.

So also, a presiding judge possesses both the responsibility and
the authority to dismiss a juror whose refusal or unwillingness to
follow the applicable law becomes known to the judge during the course
for the substitution of alternates for "jurors who, prior to the time
the jury retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties." Surely a juror is
"unable or disqualified," for purposes of this rule, who is intent on
nullifying the applicable law and thereby violating his oath to "render
a true verdict according to the law and the evidence." Similarly, we
conclude that a juror who is determined to ignore his duty, who refuses
to follow the court's instructions on the law and who thus threatens to
"undermine[] the impartial determination of justice based on law,"
Krzyske, 836 F.2d at 1021, is subject to dismissal during the course of
deliberations under Rule 23(b). This conclusion reinforces the court's
inherent authority to conduct inquiries in response to reports of
improper juror conduct and to determine whether a juror is unwilling to
carry out his duties faithfully and impartially. The rule we adopt
applies with equal force whether the juror's refusal to follow the
court's instructions results from a desire to "nullify" the applicable
law or, for example, as in the cases described above, see supra p. 17,
from a perceived physical threat or from a relationship with one of the
parties.

Our position in this respect is in accord with that of the
Eleventh Circuit. See United States v. Geffrard, 87 F.3d 448, 450-52
(11th Cir.), cert. denied, 117 S. Ct. 442 (1996). In Geffrard, a juror
submitted a letter to the court during the course of deliberations in
which she stated that she adhered to the Christian teachings of Emanuel
Swedenborg. Under Swedenborg's theology, the juror explained, she could
not "`live with a verdict of guilty for any of the accused on any of the
charges, as [she] believe[d] deep within [her] heart and soul and mind
that [the defendants] were unjustly led into this so called transaction
by a more intelligent and powerful figure.'" Id. at 451. The juror was
convinced, assertedly as a result of her religious beliefs, that the
defendants were the victims of governmental entrapment, notwithstanding
the fact that the court had earlier instructed the jury that entrapment
was not at issue in the case. Id. The juror in Geffrard thus was
prepared purposefully to disregard or ignore-to "nullify"-the law as set
forth in the court's instructions to the jury. The district court "saw
in the letter an inability of the juror to follow the court's
instructions on the law." Id. Accordingly, the court dismissed the juror
pursuant to Rule 23(b), and the remaining eleven jurors convicted the
defendants. The Court of Appeals upheld the dismissal, reasoning that
the juror's letter "[made] it a certainty that this particular juror
could not reach a verdict following the judge's instructions as applied
to the facts." Id. at 452.

We agree that a juror's purposeful refusal to apply the law as
set forth in a jury charge constitutes an appropriate basis for that
juror's removal. Nor is this conclusion any less valid, in the instant
case, in light of Juror No. 5's race. The rule authorizing dismissal of
a juror who disregards the law does not include an exception for jurors
who violate their sworn duty on the basis of racial or ethnic interests
or affinities. Accordingly, the district court's finding that Juror No.
5 was unlikely to convict the defendants "no matter what the evidence"
was a proper basis for the exercise of the court's dismissal authority,
provided that the court had a sufficient evidentiary basis for this
finding. As we explain below, however, the need to safeguard the secrecy
of jury deliberations requires the use of a high evidentiary standard
for the dismissal of a deliberating juror for purposeful disobedience of
a court's instructions, a standard that the record in the instant case
fails to meet.

C. Jury Secrecy and the Investigation of Alleged Juror
Impropriety

The extent to which a presiding judge may investigate alleged
juror bias or misconduct differs depending on when the investigation
takes place. In particular, and as we explain below, a district court's
authority to investigate allegations of juror impropriety necessarily
becomes more limited once the jury has begun to deliberate. Once a jury
retires to the deliberation room, the presiding judge's duty to dismiss
jurors for misconduct comes into conflict with a duty that is equally,
if not more, important-safeguarding the secrecy of jury deliberations.
This conflict is especially pronounced here, where the alleged
misbehavior is a purposeful disregard of the law, a particularly
difficult allegation to prove and one for which an effort to act in good
faith may easily be mistaken.

In the instant case, the defendants do not directly challenge
the proposition that a juror's refusal to follow the court's
instructions on the law may be a proper basis for removal under Rule
23(b), but they do contest the court's finding of fact that Juror No. 5
was unwilling to apply the law as instructed. The defendants contend
that the record provides ample evidence to demonstrate that Juror No. 5
simply remained unpersuaded by the Government's case. See Brief for
Defendant-Appellant Grady Thomas at 13, 16-17; Brief for
Defendant-Appellant Loray Thomas at 18, 20; Brief for
Defendant-Appellant Ramse Thomas at 26, 28; Brief for Defendant
Appellant Tracey Thomas at 11; Brief for Defendant-Appellant Jason
Thomas at 4-5. In addition, two of the defendants argue that the very
procedures employed by the district court to investigate reports of
Juror No. 5's misconduct-the two sets of in camera interviews with
members of the jury (in the absence of counsel and, on at least the
first occasion, over the objection of defense counsel)-are themselves
grounds for reversal insofar as they unduly intruded into the jury's
deliberative process. See Brief for Defendant-Appellant Grady Thomas at
18-21; Brief for Defendant-Appellant Ramse Thomas at 20-23. As these
claims are inextricably related, we consider them together below. First,
however, it is important to restate the importance of secrecy in jury
deliberations.

1. Safeguarding the Secrecy of Jury Deliberations

Courts face a delicate and complex task whenever they undertake
to investigate reports of juror misconduct or bias during the course of
a trial. This undertaking is particularly sensitive, where, as here, the
court endeavors to investigate allegations of juror misconduct during
deliberations. As a general rule, no one-including the judge presiding
at a trial-has a "right to know" how a jury, or any individual juror,
has deliberated or how a decision was reached by a jury or juror. The
secrecy of deliberations is the cornerstone of the modern Anglo-American
jury system. Courts and commentators alike recognize that the secrecy of
deliberations is essential to the proper functioning of juries. It is
well understood that disclosure of the substance of jury deliberations
may undermine public confidence in the jury system, see Note, Public
Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 889 (1983)
("Public Disclosures"), and poses a threat to adjudicatory finality.
Especially troublesome is the danger that such disclosure presents to
the operation of the deliberative process itself. As one commentator has
observed:

Juror privacy is a prerequisite of free debate, without which
the decisionmaking process would be crippled. The precise value of
throwing together in a jury room a representative cross-section of the
community is that a just consensus is reached through a thoroughgoing
exchange of ideas and impressions. For the process to work according to
theory, the participants must feel completely free to dissect the
credibility, motivations, and just deserts of other people. Sensitive
jurors will not engage in such a dialogue without some assurance that it
will never reach a larger audience.

Id. (footnotes omitted). "Freedom of debate," as Justice Cardozo
wrote, "might be stifled and independence of thought checked if jurors
were made to feel that their arguments and ballots were to be freely
published to the world." Clark v. United States, 289 U.S. 1, 13 (1933);
see also United States v. Antar, 38 F.3d 1348, 1367 (3d Cir. 1994)
(Rosenn, J., concurring) ("We must bear in mind that the confidentiality
of the thought processes of jurors, their privileged exchange of views,
and the freedom to be candid in their deliberations are the soul of the
jury system."); In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir.
1990) ("It is undisputed that the secrecy of jury deliberations fosters
free, open and candid debate in reaching a decision."); Abraham S.
Goldstein, Jury Secrecy and the Media: The Problem of Postverdict
Interviews, 1993 U. Ill. L. Rev. 295, 295 ("[J]urors must deliberate in
secret so that they may communicate freely with one another, secure in
the knowledge that what they say will not be passed along to others.");
Benjamin S. DuVal, Jr., The Occasions of Secrecy, 47 U. Pitt. L. Rev.
579, 646 (1986) ("The secrecy of the jury room, like that of the Supreme
Court conference, is designed to promote the free and candid interchange
of views.").

The history of Anglo-American law and common experience in our
own time lend little or no support to the occasional suggestion, see,
e.g., Mary Strauss, Juror Journalism, 12 Yale L. & Pol'y Rev. 389,
404-05 (1994), that public scrutiny of how jurors reach their decisions
may improve the quality of jury deliberations. In cases that generate
much attention or passion in the community, or which involve allegedly
dangerous persons or organizations, the suggestion that the views of
jurors may be conveyed to the parties and the public, even after the
trial is over, understandably may cause anxiety and fear in jurors, and
distort the process by which a verdict is reached; actually making such
information available to the public might invite the retribution that
jurors would rightly fear.

The jury system incorporated in our Constitution by the Framers
was not intended to satisfy yearnings for perfect knowledge of how a
verdict is reached, nor to provide assurances to the public of the
primacy of logic in human affairs. Nor was it subordinated to a "right
to know" found in the First Amendment. The jury as we know it is
supposed to reach its decisions in the mystery and security of secrecy;
objections to the secrecy of jury deliberations are nothing less than
objections to the jury system itself.

Because the rule of secrecy is fundamental to the effective
operation of the jury system, it is not surprising that courts have been
concerned to maintain the confidentiality of the process even after a
verdict has been returned and the jury has been formally discharged. It
is the historic duty of a trial judge to safeguard the secrecy of the
deliberative process that lies at the heart of our system of justice,
even in the face of relentless, and sometimes inappropriate, demands by
the news media and the public for post-verdict disclosure of what went
on behind the closed door of the jury room. See, e.g., Antar, 38 F.3d at
1364 (Rosenn, J., concurring) (noting "the historic efforts of the
courts to protect the confidentiality of a jury's deliberative
process"); id. at 1367 (stating that juror deliberations "must be
zealously guarded from any impermissible encroachment if the [jury]
system is to survive").

Today, it is common-and entirely appropriate-for a conscientious
trial judge to advise jurors against disclosing the substance of their
deliberations after the end of a trial. See Globe Newspapers Co., 920
F.2d at 94-95 ("It has . . . been a common and, we believe, wise custom
for trial judges to advise jurors . . . that they are not only free to
refuse to disclose what went on in the jury room, but that they may well
think it better and more prudent to decline to discuss what has
occurred."). At times, courts quite properly go further than this to
protect the secrecy of deliberations, imposing strict limitations on
what jurors are permitted to disclose. See, e.g., United States v.
Harrelson, 713 F.2d 1114, 1118 (5th Cir. 1983) (upholding trial court
restriction on juror interviews, including requirement that "[n]o
interviewer may inquire into the specific vote of any juror other than
the juror being interviewed"), cert. denied sub nom. El Paso Times, Inc.
v. United States Dist. Ct. for the W. Dist. of Tx., 465 U.S. 1041
(1984). In addition, many federal judicial districts have enacted rules
that subject post-verdict juror interviews to judicial supervision. See
Public Disclosures, supra, at 901 & n.93 (citing rules from 26 federal
districts). While these rules often apply only to parties and their
counsel, some federal districts have adopted rules that extend the
court's supervisory authority to any post-verdict interviews of jurors.
Id. at 901 & n.95; see, e.g., D. Conn. R. Civ. P. 12(e)(1) (incorporated
by reference into criminal rules pursuant to D. Conn. R. Crim. P. 1)
("No juror shall respond to any inquiry as to the deliberations or vote
of the jury or of any other individual juror, except on leave of Court
which shall be granted only upon the showing of good cause." (emphasis
supplied)). None of this is to suggest that we cannot do more to protect
the secrecy of deliberations. One eminent authority, for example, has
proposed a statute imposing criminal sanctions on jurors who disclose
information about their deliberations, as well as on anyone who seeks
such disclosure, without permission of the court. See Goldstein, supra,
at 308-10.

2. Investigating Alleged Juror Misconduct During Deliberations

Protecting the deliberative process requires not only a vigilant
watch against external threats to juror secrecy, but also strict
limitations on intrusions from those who participate in the trial
process itself, including counsel and the presiding judge. A court must
limit its own inquiries of jurors once deliberations have begun. As the
district court observed in the instant case, the very act of judicial
investigation can at times be expected to foment discord among jurors.
See supra p. 10. In particular, a presiding judge is extremely limited
in the extent to which he may investigate the reasons underlying a
juror's position on the merits of a case. United States v. Brown, 823
F.2d 591, 596 (D.C. Cir. 1987) ("[A] court may not delve deeply into a
juror's motivations because it may not intrude on the secrecy of the
jury's deliberations."). The mental processes of a deliberating juror
with respect to the merits of the case at hand must remain largely
beyond examination and second-guessing, shielded from scrutiny by the
court as much as from the eyes and ears of the parties and the public.
Were a district judge permitted to conduct intrusive inquiries into-and
make extensive findings of fact concerning-the reasoning behind a
juror's view of the case, or the particulars of a juror's (likely
imperfect) understanding or interpretation of the law as stated by the
judge, this would not only seriously breach the principle of the secrecy
of jury deliberations, but it would invite trial judges to second-guess
and influence the work of the jury.

In many cases, a presiding judge is able to determine whether
there is "just cause" to dismiss a deliberating juror without any
inquiry into the juror's thoughts on the merits of the case. Evidence of
the nature and extent of a juror's unavailability, see Reese, 33 F.3d at
172-73 (business trip); Stratton, 779 F.2d at 830-31 (religious
holiday), or incapacitation, see Wilson, 894 F.2d at 1249-51 (juror
ill), for example, is ordinarily available without inquiring into the
substance of deliberations. In such instances, the judge is free to
conduct a thorough examination of the basis for removal-a basis that is
itself unlikely to be confused with a juror's views of the sufficiency
of the evidence-and to make appropriate findings of fact, including
determinations of the credibility of the juror in question.

The need to protect the secrecy of jury deliberations begins to
limit the court's investigatory powers where the asserted basis for a
deliberating juror's possible dismissal is the juror's alleged bias or
partiality in joining or not joining the views of his colleagues. As the
examples set forth in Section II.A reveal, however, claims of partiality
or bias often arise from some event, or from a relationship between a
juror and a party, that is both easily identifiable and subject to
investigation without intrusion into the deliberative process. In
Ruggiero, for example, the juror in question testified that he had
received what he took to be a physical threat from one of the
defendants. 928 F.2d at 1300. Likewise, in Casamento, a juror's daughter
had received a threatening phone call. 887 F.2d at 1186-87. Although the
jurors dismissed for bias in Barone and Egbuniwe had not been the
subject of threats, the source of their possible bias was similarly
subject to ready identification. See Barone, 846 F. Supp. at 1018-19
(defense attorney had represented juror's cousin); Egbuniwe, 969 F.2d at
762-63 (during course of deliberations, juror learned that girlfriend
had been arrested and mistreated by police).

In cases such as these, the presiding judge can make appropriate
findings and establish whether a juror is biased or otherwise unable to
serve without delving into the reasons underlying the juror's views on
the merits of the case. When an event or a relationship itself becomes a
subject of investigation, the trial court may consider the likelihood
that it will prejudice or otherwise disable the juror or jurors in
question. Moreover, to the extent that in some of these cases the court
is investigating whether a juror has become distracted or agitated
following a particular incident, the court is able to rely on its
assessment of the demeanor of the juror in question. Such cases may thus
come to resemble those involving juror incapacitation. See Ruggiero, 928
F.2d at 1300 (juror "disabled by fear"). In Casamento, for example,
Judge Leval, then sitting in the district court, quite appropriately
weighed the juror's assurance that the threatening phone call received
by her daughter had not "affected [her] ability to think or to judge in
any way," against both the nature of the incident and the juror's
observable agitation. United States v. Badalamenti, 663 F. Supp. 1539,
1540-41 (S.D.N.Y. 1987), aff'd, Casamento, 887 F.2d at 1187. Judge Leval
grounded his decision to dismiss her from the jury on the finding that
"[a] threat to the safety of one's child . . . cannot be put out of mind
or disregarded," and the fact that the juror "was obviously worried,
troubled and upset, and repeatedly said so." Id.

Where, however, as here, a presiding judge receives reports that
a deliberating juror is intent on defying the court's instructions on
the law, the judge may well have no means of investigating the
allegation without unduly breaching the secrecy of deliberations. There
is no allegedly prejudicial event or relationship at issue, nor is the
court being asked to assess whether a juror is so upset or otherwise
distracted that he is unable to carry out his duties. Rather, to
determine whether a juror is bent on defiant disregard of the applicable
law, the court would generally need to intrude into the juror's thought
processes. Such an investigation must be subject to strict limitations.
Without such an inquiry, however, the court will have little evidence
with which to make the often difficult distinction between the juror who
favors acquittal because he is purposefully disregarding the court's
instructions on the law, and the juror who is simply unpersuaded by the
Government's evidence. Yet this distinction is a critical one, for to
remove a juror because he is unpersuaded by the Government's case is to
deny the defendant his right to a unanimous verdict. See Brown, 823 F.2d
at 596. In a case involving a juror's own request to be dismissed from
duty because of what the prosecution understood to be an unwillingness
to apply the law as instructed, Judge Mikva, in an opinion joined by
Judge Bork and Judge Douglas H. Ginsburg, observed: [A] court may not
delve deeply into a juror's motivations because it may not intrude on
the secrecy of the jury's deliberations. Thus, unless the initial
request for [a juror's] dismissal is transparent, the court will likely
prove unable to establish conclusively the reasons underlying it. Given
these circumstances, we must hold that if the record evidence discloses
any possibility that the request to discharge stems from the juror's
view of the sufficiency of the government's evidence, the court must
deny the request.

Id. (emphasis supplied).

We adopt the Brown rule as an appropriate limitation on a
juror's dismissal in any case where the juror allegedly refuses to
follow the law-whether the juror himself requests to be discharged from
duty or, as in the instant case, fellow jurors raise allegations of this
form of misconduct. Given the necessary limitations on a court's
investigatory authority in cases involving a juror's alleged refusal to
follow the law, a lower evidentiary standard would lead to the removal
of jurors on the basis of their view of the sufficiency of the
prosecution's evidence.

Consider a case where, for example, a strong majority of the
jury favors conviction, but a small set of jurors-perhaps just
one-disagrees. The group of jurors favoring conviction may well come to
view the "holdout" or "holdouts" not only as unreasonable, but as
unwilling to follow the court's instructions on the law. The evidentiary
standard that we endorse today-that "if the record evidence discloses
any possibility that" a complaint about a juror's conduct "stems from
the juror's view of the sufficiency of the government's evidence, the
court must deny the request"-serves to protect these holdouts from
fellow jurors who have come to the conclusion that the holdouts are
acting lawlessly. *fn11

This evidentiary standard protects not only against the wrongful
removal of jurors; it also serves to protect against overly intrusive
judicial inquiries into the substance of the jury's deliberations. A
presiding judge faced with anything but unambiguous evidence that a
juror refuses to apply the law as instructed need go no further in his
investigation of the alleged nullification; in such circumstances, the
juror is not subject to dismissal on the basis of his alleged refusal to
follow the court's instructions. A lower evidentiary standard would
encourage the court faced with ambiguous evidence of such impropriety to
investigate further, eliciting testimony from jurors until enough
evidence surfaced to affirm or reject allegations of juror
nullification. One unavoidable consequence of imposing a lower
evidentiary standard would thus be to open up the possibility that
judges, in response to demands of counsel or otherwise, would wind up
taking sides in disputes between jurors on allegations of juror
nullification-in effect, to permit judicial interference with, if not
usurpation of, the fact-finding role of the jury. *fn12

We recognize that this standard-buttressing the core principle
of the secrecy of jury deliberations-leaves open the possibility that
jurors will engage in irrational activity that will remain outside the
court's powers to investigate or correct. It is an imperfect rule, no
doubt, but one fully consistent with our history and traditions, in
which the judge's duty and authority to prevent nullification and the
need for jury secrecy co-exist uneasily. We recall, too, that "[t]he
jury system has worked out reasonably well overall, providing `play in
the joints' that imparts flexibility and avoid[s] undue rigidity. . . .
acting as a `safety valve' for exceptional cases, without being a
wildcat or runaway institution," Dougherty, 473 F.2d at 1134, and that
our ultimate goal at trial is fairness and substantial justice-not
perfection. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)
("As we have stressed on more than one occasion, the Constitution
entitled a criminal defendant to a fair trial, not a perfect one.").
Where the duty and authority to prevent defiant disregard of the law or
evidence comes into conflict with the principle of secret jury
deliberations, we are compelled to select the lesser of two evils.
Achieving a more perfect system for monitoring the conduct of jurors in
the intense environment of a jury deliberation room entails an
unacceptable breach of the secrecy that is essential to the work of
juries in the American system of justice. To open the door to the
deliberation room any more widely and provide opportunities for
broad-ranging judicial inquisitions into the thought processes of jurors
would, in our view, destroy the jury system itself.

A similar choice-to protect deliberative secrecy at the risk of
leaving some juror misconduct beyond the court's power to
remedy-underlies the long-standing common law rule that "a juror may not
impeach his own verdict," McDonald v. Pless, 238 U.S. 264, 267-68
(1915), attributed originally to Lord Mansfield's decision in Vaise v.
Delaval, 99 Eng. Rep. 944 (K.B. 1785); see 8 John H. Wigmore, Evidence
2352 (J. McNaughton rev. ed. 1961), and now embodied, with
qualifications, in Rule 606(b) of the Federal Rules of Evidence ("Rule
606(b)"). *fn13 The Supreme Court has expressly recognized the choice
that is the basis of the rule: The rule is based upon controlling
considerations of a public policy which in these cases chooses the
lesser of two evils. When the affidavit of a juror, as to the misconduct
of himself or the other members of the jury, is made the basis of a
motion for a new trial, the court must choose between redressing the
injury of the private litigant and inflicting the public injury which
would result if jurors were permitted to testify as to what had happened
in the jury room.

McDonald, 238 U.S. at 267. Specifically, if post-verdict juror
testimony could be used to impeach a verdict, "the result would be to
make what was intended to be a private deliberation, the constant
subject of public investigation-to the destruction of all frankness and
freedom of discussion and conference." Id. at 267-68; see also Attridge
v. Cencorp Div. of Dover Technologies Int'l, Inc., 836 F.2d 113, 116 (2d
Cir. 1987) (listing as one of the rule's three purposes, "to promote
free and uninhibited discourse during deliberations"); S. Rep. No.
93-1277 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7060 ("[C]ommon
fairness requires that absolute privacy be preserved for jurors to
engage in the full and free debate necessary to the attainment of just
verdicts. Jurors will not be able to function effectively if their
deliberations are to be scrutinized in post-trial litigation."). The
standard that we adopt here with respect to inquiries of deliberating
jurors likewise recognizes the basic necessity of protecting the secrecy
of the jury room, even when this protection places some instances of
willful disregard of the applicable law beyond the reach of the court's
corrective powers.

* * *

We recognize that the standard that we endorse today had not
been articulated as part of the law of this Circuit when the district
court in the instant case ordered Juror No. 5's dismissal. But in view
of the risks, described above, inherent in the application of a lower
standard, we cannot uphold the dismissal. The only reports of Juror No.
5's alleged lawlessness came from fellow jurors, and Juror No. 5 said
nothing to the court to indicate that he was unwilling to follow the
court's instructions. On the contrary, he assured the court that his
vote was based on his view of the evidence: "I want substantive evidence
against them . . . and I want to know that it's clear in my mind beyond
a reasonable doubt." Nor was this statement without corroboration from
fellow jurors. Several of the jurors indicated in their interviews with
the court that Juror No. 5 justified his position during deliberations
in terms of the evidence-that he found the Government's evidence,
including its witness testimony, insufficient or unreliable. On this
record, we cannot say that it is beyond doubt that Juror No. 5's
position during deliberations was the result of his defiant
unwillingness to apply the law, as opposed to his reservations about the
sufficiency of the Government's case against the defendants.

In reaching the conclusion that the district court erred in
dismissing Juror No. 5, we note that Chief Judge McAvoy proceeded with
painstaking care and caution throughout this trial, with a clear respect
for the rights of the defendants to a fair trial. It bears recalling
that the judge on two separate earlier occasions leaned over backward to
retain Juror No. 5 on this jury-indeed, Juror No. 5 was not removed at
jury selection by a peremptory challenge of the Government only because
the judge, apparently hesitant to permit a challenge to the single
remaining black member of the venire, erred in the defendants' favor in
applying the teachings of Batson. *fn14 We are required to vacate these
judgments because the court dismissed Juror No. 5 largely on the ground
that the juror was acting in purposeful disregard of the court's
instructions on the law, when the record evidence raises a possibility
that the juror was simply unpersuaded by the Government's case against
the defendants.

We need not reach the question of whether the court's inquiries
were themselves sufficiently intrusive to constitute reversible error.
Moreover, we do not decide here whether it would have been within the
district court's discretion to dismiss Juror No. 5 for his distracting
behavior, pursuant to Rule 24(c), *fn15 after the first round of in
camera interviews but before the jury began its deliberations. Finally,
we do not suggest, much less hold, that a juror's disruptive
behavior-his reported "hollering," threatening to strike a fellow juror,
or feigned vomiting-could not serve as grounds for dismissal, but we
conclude that, in the circumstances presented here, the juror was
removed largely for his allegedly nullifying behavior.

D. Removal to Break Jury Deadlock

Several of the defendants urge that there was a separate source
of error in the district court's decision to dismiss Juror No. 5. They
argue, specifically, that the court removed the juror as a means of
achieving a unanimous verdict. See Brief for Defendant-Appellant Grady
Thomas at 17; Brief for Defendant-Appellant Loray Thomas at 17-18, 21;
Brief for Defendant-Appellant Ramse Thomas at 23-24; Brief for
Defendant-Appellant Tracey Thomas at 9. Having concluded that the
district court erred by dismissing Juror No. 5 without the requisite
evidentiary basis, we need not decide whether the record reveals an
intention on the part of the court to remove Juror No. 5 as a means of
achieving jury unanimity. We address this issue briefly, however, merely
to note that, as the law of our Circuit makes clear, a district court
may under no circumstances remove a juror in an effort to break a
deadlock. See United States v. Hernandez, 862 F.2d 17, 23 (2d Cir.
1988), cert. denied sub nom. Quinones v. United States, 489 U.S. 1032
(1989) (finding error in decision to dismiss juror where, inter alia,
"[t]he record . . . seem[ed] to reflect that the cause of the removal
was as much to avoid a mistrial because of a hung jury as to excuse an
incompetent juror"); see also Wilson, 894 F.2d at 1250 (noting that
record lacked even "the slightest basis to believe that [the removed]
juror was a holdout juror or that the jury had reached any sort of
impasse in its deliberations"); Stratton, 779 F.2d at 832 (finding that
"the record [did] not present even the slightest basis to believe that
[the dismissed juror] was excused on a pretext to remove an obstacle to
reaching a unanimous verdict"). In fact, we subject a Rule 23(b)
dismissal to "meticulous" scrutiny in any case where the removed juror
was known to be the sole holdout for acquittal. Hernandez, 862 F.2d at
23.

* * *

Finally, in order to clarify the nature of the new trial
permitted by our decision, *fn16 we comment briefly on the defendants'
remaining claims, including Ramse Thomas's arguments that he was
prejudiced by being forced to wear leg irons during trial and that the
court erred in failing to suppress certain telephone communications and
Jason Thomas's claim that the Government presented the grand jury with
perjured testimony. We have reviewed all of the defendants' claims and
have found them to be without merit.

III.

For the reasons stated above, we conclude that:

(1) The district court properly determined that a juror's
purposeful disregard of the law as set forth in the court's instruction
may constitute "just cause" for that juror's removal under Rule 23(b).

(2) A court must not, however, remove a juror for an alleged
refusal to follow the law as instructed unless the record leaves no
doubt that the juror was in fact engaged in deliberate misconduct-that
he was not simply unpersuaded by the Government's case against the
defendants.

(3) The court in the instant case thus erred by dismissing Juror
No. 5, and permitting the jury of eleven to continue its deliberations,
based largely on Juror No. 5's alleged refusal to follow the court's
instructions on the law, where the record evidence raises the
possibility that the juror was attempting to follow the law as
instructed, but that he simply remained unpersuaded of the defendants'
guilt.

Accordingly, we vacate the judgments of the district court and
remand for a new trial.

***** BEGIN FOOTNOTE(S) HERE *****

*fn1 Fed. R. Crim. P. 23(b) provides:

Jury of Less Than Twelve. Juries shall be of 12 but at any time
before verdict the parties may stipulate in writing with the approval of
the court that the jury shall consist of any number less than 12 or that
a valid verdict may be returned by a jury of less than 12 should the
court find it necessary to excuse one or more jurors for any just cause
after trial commences. Even absent such stipulation, if the court finds
it necessary to excuse a juror for just cause after the jury has retired
to consider its verdict, in the discretion of the court a valid verdict
may be returned by the remaining 11 jurors. (Emphasis supplied.)

*fn2 The court subsequently declared a mistrial with respect to
Robert Gibson and granted Shawne Thomas's Rule 29 motion for a judgment
of acquittal.

*fn3 Terrence Thomas and Carrie Thomas have not appealed their
convictions.

*fn4 Under Batson, the Government's burden is to "come forward
with a neutral explanation for challenging black jurors." 476 U.S. at
97. In the instant case, the court found that the Government's
peremptory challenge was not motivated by the race of the challenged
juror. That finding should have been sufficient to sustain the
Government's request to exercise its peremptory challenge of the juror.
Juror No. 5 thus became a member of this jury as a result of the
district court's erroneous decision in favor of the defendants.

*fn5 Fed. R. Civ. P. 24(c) provides, in pertinent part, that
"[a]lternate jurors . . . shall replace jurors who, prior to the time
the jury retires to consider its verdict, become or are found to be
unable or disqualified to perform their duties."

*fn6 We wish to make clear that nothing in this opinion is
intended to suggest that jurors who deliberate under a good faith
misinterpretation of the law as instructed by the court are subject to
dismissal. In this case we address only the applicability of Rule 23(b)
where a juror is alleged to be acting in purposeful disregard of the
court's instructions.

*fn7 Rule 23(b) continues to provide for the elimination of one
or more jurors by stipulation. See supra note 1.

*fn8 This same language was included in the oath administered to
the jurors in the instant case.

*fn9 Accordingly, criminal defendants have no right to a jury
instruction alerting jurors to this power to act in contravention of
their duty. See United States v. Edwards, 101 F.3d 17, 19-20 (2d Cir.
1996) (citing cases); see also United States v. Sepulveda, 15 F.3d 1161,
1190 (1st Cir. 1993), cert. denied, 512 U.S. 1223 (1994); Dougherty, 473
F.2d at 1136-37. As the Court of Appeals for the Sixth Circuit
recognized, to instruct on nullification "would . . . undermine[] the
impartial determination of justice based on law." United States v.
Krzyske, 836 F.2d 1013, 1021 (6th Cir.) (finding no error in court's
response to jury inquiry on nullification that included the admonition
to the jury: "You would violate your oath and the law if you willfully
brought in a verdict contrary to the law given you in this case."),
cert. denied, 488 U.S. 832 (1988).

*fn10 The Federal Judicial Center's Benchbook for U.S. District
Court Judges includes the following among its list of standard voir dire
questions to prospective jurors:

If you are selected to sit on this case, will you be able to
render a verdict solely on the evidence presented at the trial and in
the context of the law as I will give it to you in my instructions,
disregarding any other ideas, notions, or beliefs about the law that you
may have encountered in reaching your verdict?

Benchbook for U.S. District Court Judges, supra, at 93 (emphasis
supplied).

A widely discussed example of the use of voir dire to eliminate
jurors likely to nullify the law is the selection of "death qualified"
juries in capital cases. Jurors are excluded whose responses at voir
dire indicate that their views on capital punishment "would prevent or
substantially impair the performance of [their] duties as . . . juror[s]
in accordance with [their] instructions and [their] oath." Adams v.
Texas, 448 U.S. 38, 45 (1980); see also Witherspoon v. Illinois, 391
U.S. 510, 513-14 (1968).

*fn11 We do not intend to confine the limitation set out in
Brown to cases in which the record evidence raises the possibility that
the juror's request to be discharged, or the allegations of his fellow
jurors, stems from the juror's doubts about the sufficiency of the
prosecution's case. The courts must in all cases guard against the
removal of a juror-who aims to follow the court's instructions-based on
his view on the merits of a case. See United States v. Hernandez, 862
F.2d 17, 23 (2d Cir. 1988) ("That a juror may not be removed because he
or she disagrees with the other jurors as to the merits of a case
requires no citation."). Accordingly, if the record raises any
possibility that the juror's views on the merits of the case, rather
than a purposeful intent to disregard the court's instructions, underlay
the request that he be discharged, the juror must not be dismissed.

*fn12 As we note below, see infra p. 40, we do not decide
whether, in this case, the court's inquiries of the jurors regarding
Juror No. 5's behavior were themselves sufficiently intrusive to
constitute reversible error. We decide this case, instead, on the
question of the adequacy of the evidentiary basis for Juror No. 5's
removal.

*fn13 Fed. R. Evid. 606(b) provides, in pertinent part:

Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring during the
course of the jury's deliberations or to the effect of anything upon
that or any other juror's mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or concerning the
juror's mental processes in connection therewith, except that a juror
may testify on the question whether extraneous prejudicial information
was improperly brought to the jury's attention or whether any outside
influence was improperly brought to bear upon any juror.

*fn14 See supra note 4, and accompanying text.

*fn15 See supra note 5.

*fn16 "The principle that [the Double Jeopardy Clause] does not
preclude the Government's retrying a defendant whose conviction is set
aside because of an error in the proceedings leading to conviction is a
well-established part of our constitutional jurisprudence." United
States v. Tateo, 377 U.S. 463, 465 (1964).

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