FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-10539
v. D.C. No.
1:06-cr-00342-
RICARDO RUIZ MONTES, OWW
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 08-10559
Plaintiff-Appellee, D.C. No.
v. 1:06-vt-00342-
LUKE SCARMAZZO, OWW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
August 31, 2010—San Francisco, California
Filed January 4, 2011
Before: Betty B. Fletcher, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tallman
299
302 UNITED STATES v. MONTES
COUNSEL
Gary L. Huss, Esq., (argued), Law Offices of Gary Huss,
Fresno, California, for defendant-appellant Ricardo Montes;
Katherine L. Hart, Esq., (argued), Law Offices of Katherine
L. Hart, Fresno, California, for defendant-appellant Luke
Scarmazzo.
Kathleen A. Servatius, Assistant U.S. Attorney, (argued),
Office of the U.S. Attorney, Fresno, California, Elana Landau,
Esq., Office of the U.S. Attorney, Fresno, California, for
plaintiff-appellee United States of America.
OPINION
TALLMAN, Circuit Judge:
Upon a post-verdict allegation of juror misconduct, a dis-
trict court should ordinarily hold an evidentiary hearing to
UNITED STATES v. MONTES 303
determine the nature of the misconduct and whether or not
there was a reasonable possibility that it could have affected
the jury’s verdict. However, an evidentiary hearing is not
mandated every time there is an allegation of juror miscon-
duct. Because this is one of the cases where a district court
could adequately make its determination without the benefit
of an evidentiary hearing, we affirm the judgment of the dis-
trict court.
I
In 2006, Defendants-Appellants Ricardo Montes and Luke
Scarmazzo (“Appellants”) were charged with conducting a
continuing criminal enterprise, 21 U.S.C. § 848, manufactur-
ing marijuana, 21 U.S.C. § 841(a)(1), aiding and abetting, 18
U.S.C. § 2, and possessing marijuana with intent to distribute,
21 U.S.C. § 841(a)(1). At trial, the prosecution presented
overwhelming evidence that Appellants co-founded and
openly ran a marijuana dispensary in Modesto, California, and
that they made $9.2 million in sales over a two-year period.
Overwhelming evidence also indicated that during those two
years Appellants supervised and employed between eight and
fourteen individuals specifically to manufacture, package,
guard, and distribute marijuana. During the investigation, law
enforcement officials made ten controlled buys and seized
more than fifty pounds of marijuana and more than 1,100
marijuana plants. Many times during their two years in busi-
ness, Appellants openly admitted to law enforcement officials
that they ran a marijuana dispensary. At trial, Appellants
repeated these admissions on the witness stand.
Not surprisingly, the jury found Appellants guilty of violat-
ing 21 U.S.C. § 848, which requires the commission of a con-
tinuing series of at least three federal felony narcotic offenses
undertaken in concert with five or more other persons with
respect to whom the defendant occupies a position of orga-
nizer, supervisor, or any other type of management, and from
which the defendant obtains substantial income or resources.
304 UNITED STATES v. MONTES
The jury also found Appellants guilty of manufacturing mari-
juana, 21 U.S.C. § 841(a)(1), aiding and abetting, 18 U.S.C.
§ 2, and possessing marijuana with intent to distribute, 21
U.S.C. § 841(a)(1).
After the verdict, Appellants filed a motion for a new trial
on the basis of juror misconduct. Appellants later amended
their motion and submitted declarations from two jurors.
Appellants alleged that Juror No. 3 had read an online “sum-
mary” of an article in the May 12, 2008, edition of the San
Francisco Chronicle entitled “Next President Might Be Gen-
tler on Pot Clubs,” published shortly before deliberations
began. The juror declarations suggested that Juror No. 3 dis-
cussed the summary with Juror No. 5 during deliberations. It
is clear that Juror No. 3 had not read the entire article, only
the summary appearing on the San Francisco Chronicle’s
online front page, www.sfgate.com. Neither the summary nor
the article itself was introduced into the jury room.
The district court held a hearing at which it considered the
juror declarations in detail, eliciting argument from both
Appellants and the prosecution regarding the potentially inju-
rious impact of the purported misconduct. The court declined
to call Juror No. 3 as a witness, invoking Federal Rule of Evi-
dence 606(b), which prohibits inquiry into a juror’s subjective
thought processes in connection with the verdict.
The district court considered the entirety of the article—
even though the jury never saw it—and concluded that it was
not prejudicial because, by suggesting that a new presidential
administration would be more accepting of marijuana use, it
had the effect of supporting the Appellants’ position. The
court then denied Appellants’ motion for a new trial. Appel-
lants timely appealed, arguing that (1) the district court erred
by failing to hold an “evidentiary hearing,” and (2) the district
court erred by denying the motion for a new trial.1
1
We resolve Appellants’ other challenges in an unpublished memoran-
dum disposition filed concurrently with this opinion.
UNITED STATES v. MONTES 305
II
Whether or not extraneous information could have affected
the jury’s verdict bears on the propriety of the district court’s
decision not to hold an evidentiary hearing. See United States
v. Duktel, 192 F.3d 893, 899 (9th Cir. 1999). We review the
district court’s decision not to hold an evidentiary hearing and
its denial of a motion for a new trial for abuse of discretion.
United States v. Bussell, 414 F.3d 1048, 1054 (9th Cir. 2005).
A district court abuses its discretion if it reaches a result that
is “illogical, implausible, or without support in inferences that
may be drawn from facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).
III
Fundamental to our judicial system’s administration of jus-
tice is a fair and impartial jury. United States v. Bagnariol,
665 F.2d 877, 884 (9th Cir. 1981). A jury should reach a ver-
dict that is based solely upon the evidence admitted at trial.
Id. A juror’s communication of extraneous information impli-
cates the Confrontation Clause. Sassounian v. Roe, 230 F.3d
1097, 1108 (9th Cir. 2000). “The juror in effect becomes an
unsworn witness, not subject to confrontation or cross exami-
nation.” Id. If a court determines that a juror has improperly
brought extraneous information to the jury’s attention, the
inquiry must then focus on whether “there is a reasonable pos-
sibility that the extraneous information could have affected
the verdict.” United States v. Keating, 147 F.3d 895, 900
(1998). This inquiry is an objective one: “we need not ascer-
tain whether the extraneous information actually influenced
any specific juror.” Id. at 901-02.
A
[1] Allegations of juror misconduct implicate grave inter-
ests. The Supreme Court has stressed that the remedy for such
allegations is a hearing at which “the trial court determines
306 UNITED STATES v. MONTES
the circumstances of what transpired, the impact on the jurors,
and whether or not it was prejudicial.” Dutkel, 192 F.3d at
899 (internal quotation marks omitted). Upon an allegation of
juror misconduct in this circuit, trial courts should ordinarily
hold an evidentiary hearing at which the court hears admissi-
ble juror testimony and determines “the precise nature of the
extraneous information.” Bagnariol, 665 F.2d at 885. While
such a hearing is preferable, “[a]n evidentiary hearing is not
mandated every time there is an allegation of jury misconduct
or bias.” United States v. Angulo, 4 F.3d 843, 847 (9th Cir.
1993). “Rather, in determining whether [an evidentiary] hear-
ing must be held, the court must consider the content of the
allegations, the seriousness of the alleged misconduct or bias,
and the credibility of the source.” Id. Based on the record
before us, we conclude an evidentiary hearing was unneces-
sary in this case.
[2] “There is no bright line test for determining whether a
defendant has suffered prejudice from an instance of juror
misconduct.” Sassounian, 230 F.3d at 1109. However, we
have identified five factors that are relevant to our inquiry:
(1) whether the extrinsic material was actually
received, and if so, how; (2) the length of time it was
available to the jury; (3) the extent to which the jury
discussed and considered it; (4) whether the extrinsic
material was introduced before a verdict was
reached, and if so, at what point in the deliberations
it was introduced; and (5) any other matters which
may bear on the issue of the reasonable possibility of
whether the introduction of extrinsic material
affected the verdict.
Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986).
While these factors guide our analysis, “no one of these fac-
tors is dispositive,” Dickson v. Sullivan, 849 F.2d 403, 406
(9th Cir. 1988), and the “ultimate question is whether it can
be concluded beyond a reasonable doubt that extrinsic evi-
UNITED STATES v. MONTES 307
dence did not contribute to the verdict,” Bayramoglu, 806
F.2d at 887 (internal quotation marks omitted). We have also
pointed to several factors that can “suggest that the potential
prejudice of the extrinsic information was diminished in a
particular case.” Jeffries v. Wood, 114 F.3d 1484, 1491 (9th
Cir. 1997) (en banc), overruled on other grounds by Lindh v.
Murphy, 521 U.S. 320 (1997). Among those factors is
“whether the statement was insufficiently prejudicial given
the issues and evidence in the case.” Id. at 1492 (footnotes
omitted).
[3] Upon an inquiry into the validity of a verdict, a trial
court and a court of appeals may consider only evidence
admissible under Federal Rule of Evidence 606(b). Under that
rule, a juror may testify as to “whether extraneous prejudicial
information was improperly brought to the jury’s attention,”
but not 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 con-
cerning the juror’s mental processes in connection therewith.”
Fed. R. Evid. 606(b) (emphasis added). Jurors therefore may
not be questioned about their deliberative process or the sub-
jective effects of extraneous information. Bagnariol, 665 F.2d
at 884. Neither the trial court nor the court of appeals may
consider such testimony. Id. at 884-85. In some cases, such as
this one, these constrictions can severely limit the utility of
holding an evidentiary hearing at which jurors may testify.
In this case, the district court held a hearing on the motion
for a new trial. At the hearing the district court heard argu-
ment from all parties and considered the juror declarations
and the San Francisco Chronicle article in detail. This hear-
ing, however, did not constitute a full evidentiary hearing as
contemplated by our precedent because the district court pre-
cluded live juror testimony. Nevertheless, because the district
court could conclusively find that “the seriousness of the
alleged misconduct or bias” was minimal, and because “the
308 UNITED STATES v. MONTES
content of the allegations” could not have prejudiced Appel-
lants, we see no abuse of discretion in the district court’s deci-
sion to preclude live juror testimony. See Angulo, 4 F.3d at
847. Nor do we see an abuse of discretion in striking those
portions of the proffered declarations that violated Federal
Rule of Evidence 606(b).
[4] The district court had any and all admissible informa-
tion it needed from the declarations, the San Francisco
Chronicle article itself, and written and oral argument from
the parties. The declarations conclusively answered whether
extraneous information had been improperly brought to the
jury’s attention. See Fed. R. Evid. 606(b). The San Francisco
Chronicle article established the nature of that information.
The only question left to be answered was how the summary
of that article could have influenced the verdict, and that is a
question that cannot be answered through juror testimony. See
id. Any testimony from Juror No. 3 either would have been
cumulative of the statements in his declaration or would have
impermissibly touched upon the subjective effect of the extra-
neous information on his mental processes. See id.
[5] In addition, the district court could evaluate all five
Bayramoglu factors without juror testimony. From the juror
declarations, the district court knew: (1) the information—i.e.,
the headline, “Next President Might Be Gentler on Pot Clubs”
and a juror’s recollection of a short summary of the article—
was actually received by the entire jury when Juror No. 3 and
Juror No. 5 discussed it openly, but that the article itself was
never received by the jury; (2) the jury had access to the sum-
mary information for the entirety of their deliberations, but
never had access to the article; (3) the summary information
was in fact discussed during deliberations, but the article was
not; (4) the summary information was introduced before a
verdict was reached, but the article was not; and (5) the nature
of the summary information and the nature of the article itself.
Therefore, the district court did not exceed the permissible
UNITED STATES v. MONTES 309
bounds of its discretion by denying Appellants an evidentiary
hearing.
B
Turning to the merits, even though the first four Bayra-
moglu factors seemingly weighed in favor of granting a new
trial, the district court ruled that the extraneous information
was “insufficiently prejudicial given the issues and evidence
in the case,” Jeffries, 114 F.3d at 1492, and that there was
therefore no “reasonable possibility” that the extrinsic mate-
rial affected the verdict, Dickson, 849 F.2d at 406. We agree.
[6] Our cases have stressed “the nature of the extraneous
information” when determining the possibility that the infor-
mation affected the verdict. Id. at 406-07. In fact, “we place
great weight on the nature of the extraneous information that
has been introduced into deliberations.” Sassounian, 230 F.3d
at 1109. Here, while we consider all relevant factors, it is the
non-prejudicial nature of the extraneous information that tilts
the scales against granting Appellants a new trial.
[7] An article headline suggesting that the “Next President
Might Be Gentler on Pot Clubs” could have no impact on the
jury’s evaluation of Appellants’ guilt or innocence, no matter
how long the jury had access to this information. Overwhelm-
ing evidence of Appellants’ guilt was introduced at trial.
Appellants themselves openly admitted to running the mari-
juana dispensary in question during their testimony. The con-
duct to which Appellants admitted was made criminal under
federal law by the Controlled Substances Act. The possibility
that a future president might choose not to prosecute such
criminal conduct did not have any logical bearing on a deter-
mination of whether or not Appellants engaged in that crimi-
nal conduct.
[8] When finding reversible prejudice, we have described
“a direct and rational connection between the extrinsic mate-
310 UNITED STATES v. MONTES
rial and a prejudicial jury conclusion, as distinguished from a
connection that arises only by irrational reasoning.” Bag-
nariol, 665 F.2d at 885. Here, there is simply no rational con-
nection between the extraneous information and the jury’s
obligation to determine whether or not Appellants had oper-
ated a continuing criminal enterprise, manufactured mari-
juana, aided and abetted, or possessed marijuana with intent
to distribute. Appellants would have us reason that the extra-
neous information prejudiced them because it allowed the jury
to speculate that the sentence imposed after the verdict would
be lenient. Aside from the fact that the jury was prohibited
from considering any potential sentence at all in determining
guilt or innocence, this proposed connection is not “direct and
rational.” Id. Criminal sentencing was referenced neither in
the summary information introduced to the jury nor in the
entirety of the article itself, and there is no clear reason why
a potential future change in policy regarding which crimes to
prosecute should have any impact on the sentencing of a cur-
rent defendant.
This case is unlike those in which we have previously
found that there was a reasonable possibility that extraneous
information could have affected the jury’s verdict. See United
States v. Littlefield, 752 F.2d 1429, 1432 (9th Cir. 1985)
(holding that a new trial for tax fraud involving illegal shelters
was required where a juror brought into the jury room a Time
Magazine article highlighting fraudulent tax schemes as a
problem of national concern and deploring light sentences
imposed on participants); Gibson v. Clanon, 633 F.2d 851,
855 (9th Cir. 1980) (holding that reversal was required where
jurors obtained evidence regarding the rarity of defendant’s
blood type from a medical encyclopedia notwithstanding that
the trial court previously ruled that such evidence was inad-
missible at trial).
Instead, the facts in this case are much more like the facts
underlying our decision in Bagnariol. There, we concluded
that information gathered by a juror at a public library and
UNITED STATES v. MONTES 311
communicated to other jurors was not logically connected to
material issues in the case. Bagnariol, 665 F.2d at 888. The
juror had searched several business publications for refer-
ences to a nonexistent company created by government agents
as a front for a Federal Bureau of Investigation undercover
operation. Id. at 883. The juror found no such company and
told other jurors of his research finding. Id. The nonexistence
of the fictitious company was not in dispute and was irrele-
vant to any material issue in the case. Id. at 884. We con-
cluded that to find a material connection between the
extraneous information and the jury’s verdict “would require
an assumption that the jury members reached an irrational
conclusion, lacking in common-sense logic.” Id. at 888.
Because the research “merely confirmed what any reasonable
juror already knew,” we held that reversal was not required,
despite the fact that the extraneous information had been com-
municated to several jurors. Id.
[9] The same is true here. A future president’s posture
toward marijuana prosecutions was not relevant to any mate-
rial issue in the case. Presidents may choose which crimes to
prioritize in directing Executive Branch law enforcement
efforts. This fact was not in dispute at trial. The possibility
that a future president might choose not to devote federal
resources to the prosecution of a certain class of crimes would
merely confirm what any reasonable juror already knew. But
more to the point, to find a material connection between the
extraneous information in this case and the jury’s determina-
tion of guilt or innocence would require an assumption that
the jury members reached an irrational conclusion lacking in
common-sense. We are unwilling to make such an assump-
tion. Despite the fact that the extraneous information was
introduced during deliberations, we agree with the experi-
enced trial judge that it could not have affected the jury’s ver-
dict.
312 UNITED STATES v. MONTES
IV
The district court did not abuse its discretion by precluding
Juror No. 3 from testifying or by denying Appellants’ motion
for a new trial.
AFFIRMED.