(dissenting).
With respect, I dissent from the majority opinion because I believe that the district court’s response to the juror misconduct allegations in this case obliges us to grant defendants a new trial. With regard to this issue, the majority rests its affirmance on the well-established rule that district courts have discretion “to fashion an appropriate and responsible procedure to determine whether [juror] misconduct actually occurred and whether it was prejudicial.” Ante, at 442 (citing Boylan, 898 F.2d at 258). While I agree that a district court has broad discretion to determine the nature of its inquiry into allegations of juror misconduct, I do not think that that discretion is so broad as to permit a court to commit errors of constitu*445tional dimension while performing that inquiry.
Here, the district court, in its effort to assess whether juror misconduct had occurred, selected a method of inquiry which had the effect, in my opinion, of shifting the burden of proof from the government to the defendants. Moreover, the court’s failure properly to instruct the jurors of the government’s burden of proof compounded the error. As a result, I am of the opinion that the motions for mistrial should have been granted. For these reasons, I would reverse.
This case, in my view, cannot properly be resolved without a detailed summary of the events surrounding the court’s response to the juror misconduct allegations. I begin therefore with a recitation of these facts.
When the question of possible juror misconduct arose, the district judge immediately and correctly commenced an interrogation of a young woman, the daughter of Juror Gonzales, who had been seen conversing with a defendant’s girlfriend. During the inquiry, it became apparent to the court that the daughter and the defendant’s girlfriend had discussed that defendant’s innocence. It also became cléar that the daughter had discussed many aspects of the case with her mother, Juror Gonzales. As a result', the court then interrogated Ms. Gonzales.
Juror Gonzales admitted that she had engaged in discussions with her daughter about the case. She denied, however, having expressed any opinion as to the guilt or innocence of the defendants, and generally downplayed the extent and content of the discussions. She also stated that no juror had indicated an opinion as to the guilt or innocence of the defendants.
At the conclusion of Juror Gonzales’s interrogation, counsel for defendant Diaz Fernandez and counsel for defendant Ortiz Cameron moved for a mistrial. In response, the court first indicated that it did not intend to question any of the other jurors. The AUSA requested, however, that the court reconsider that decision. The court then indicated that it would take no action on the mistrial motions that evening but would decide what to do the following morning. Ortiz Cameron’s attorney then, for unexplained reasons, retracted his motion for mistrial.
The following morning, the court commenced interrogations of each of the remaining twelve jurors, beginning with the jury foreman. Counsel took no part in the formulation of the following four questions:
(1) At this point have you discussed with the other jurors or with anyone else the guilt or innocence of the defendants? (2) Have you discussed with the other jurors or with anyone the reputation of the defendants? (3) Have you discussed with the other jurors or with anyone else the credibility of the defendants? (4) At this point have you reached a decision regarding the guilt or innocence of the defendants?
■ The foreman and eight of the other jurors answered “no” to all four questions. One of those jurors, Mr. Luis Carrero Roman, however, answered question three with the statement: “Well, I can say it is hard for me to say yes or no because yes, we made comments between us but nothing that I can say yes or no.” Four other jurors (hereinafter referred to collectively as “the four jurors”) while answering “no” to the first three questions, answered “yes” to the critical fourth question.
At this juncture, the Court individually recalled the four jurors. The court then asked the four jurors one question, a question which, in my opinion, was seriously leading. Before asking the question, the court made the following statement:
As I instructed you before, the guilt or innocence of the defendants is decided after listening to all the evidence, to the final summations of the attorneys and after applying the instructions as to the law to be given by me.
The court followed this statement with:
And my question is, would you be able to keep an open mind and in the course of your deliberations with your fellow jurors, re-examine your own views and change your opinion if convinced it is erroneous?
Each of the four jurors answered this question in the affirmative. Juror Luis Carrero Roman, who admitted to having engaged in *446discussions with other jurors, was not recalled. At no time did the court allow counsel to speak or to propose follow-up questions. Indeed, throughout the inquiry, the court refused to allow defense counsel to utter so much as a word.
After the inquiry ended, however, the court entertained objections. Counsel for Diaz Fernandez objected both to the length of the court’s interrogations and the leading nature of the revised question. He also pointed out that some jurors had stated that they either had discussions with one another or had already made up their minds. Counsel then renewed his motion for a mistrial, stressing his belief that no instruction could cure the problem. Counsel for defendant Ortiz Cameron then joined the motion for mistrial, arguing that the presumption of innocence had been compromised. Counsel for defendant Ortiz Arrigoitia, while objecting to the court’s juror questions, nonetheless did not join the motion for mistrial.
At that point, the AUSA also expressed concern with the court’s inquiry:
[0]ne thing concerns me, and it is a point brought up by [defense counsel] concerning the instructions that have been given by the Court to the petit jury to the effect that they should keep an open mind at all times until the end. And apparently these four jurors, at least, have not kept an open mind until the end of the proceedings.
As a result of these concerns, the AUSA urged the court to enter specific findings as to the “demeanor” of the four jurors:
... I would ask that the court make [ ] findings to the effect that [the four jurors] appeared] to be quite sincere.... The bottom line is, Your Honor, this is a due process issue, whether these defendants are being afforded due process by these jurors, and to that effect, I believe the Court would have to enter a finding that yes, they can, they are willing and able to keep an open mind and to reach a decision at the end of the case based upon the evidence and the instructions given by the court. I would think it is a close shot, but I think there is sufficient information received by the Court through the questioning to make a decision.
Immediately thereafter, the court entered the following statement for the record:
All right. This is a matter of deciding whether these jurors, especially the four jurors that we have questioned, are sincere and will be willing to give these defendants all due process. And I believef,] and I so find[,] that these jurors are sincere and in the same way they expressed an opinion that they have reached a decision as of now, they also sincerely are able to keep an open mind and re-examine their own views.... I was impressed by the sincerity of the answers and the expressions in the face of each juror when I asked the second part of the last question....
The court then denied the pending motions for mistrial. Subsequently, counsel for defendant Pedro Rivera joined the motions for mistrial.
The court then decided to excuse Juror Gonzales, whose discussions with her daughter had inspired the entire inquiry, a decision approved by all counsel. When the jury reconvened, the court instructed it as follows:
So, I again repeat my instructions to you, not to form or express an opinion regarding the guilt or innocence of the defendant, to keep an open mind. Don’t discuss the case among yourselves or with anyone else. Keep an open mind.
No one objected to this instruction.
The court’s final instructions to the jury contained the following:
The indictment or formal charge against the defendant is not evidence of guilt. Indeed the defendants are presumed by law to be innocent. The law does not require the defendant to prove his innocence or produce any evidence at all and no inference whatsoever may be drawn from the election of the defendant not to testify. Under the law a defendant may or may not testify as he elects since it is up to the government to prove them guilty beyond a reasonable doubt as I said before. The law does not require the defendant to take the witness stand and testify and no presumption of guilt may be raised and no inference of any kind may be drawn from defendant’s failure to testify.
*447In addition, the court gave several other “reasonable doubt” instructions in connection with various aspects of the case. At no time, however, did it unequivocally instruct that the burden of proof was always on the government.6
The majority concludes that the district court reached a reasonable conclusion about the impartiality of the jurors and that defendants Ortiz Cameron and Medina Vazquez:
present no compelling evidence to the contrary and we find nothing in the record that leads us to believe that the district court’s investigation was inadequate or his findings clearly erroneous.
Ante, at 443. Respectfully, my review of that same record leads me to the opposite conclusion.
When faced with four jurors who admitted that they had formed an opinion about the guilt or innocence of the defendants, the district court brought these four jurors into chambers again and, in my view, structured the “open mind” question in such a way that “yes” was the only acceptable response. Before asking the question, the court effectively admonished the four jurors, reminding them of its instruction at the beginning of the trial to determine guilt or innocence only after hearing all of the evidence. One does not need a degree in psychology to understand the effect that this statement had on the four jurors’ ability to answer this critical “question” in a calm and uninhibited manner.
At pages 442-43 of the majority opinion, my brethren offer five reasons why this question did not, in their estimation, shift the burden of proof. I do not think that any one of these five points sufficiently answers the problem. With the first four points, I am afraid that my colleagues have ceded analysis to semantics, and have exalted form over substance. I cannot join in such an approach, particularly where, as here, the fundamental right to a fair trial is at stake.
As to the majority’s fifth point^-ie., its reliance upon Nickens, 955 F.2d at 118-19, for the proposition that the judge’s “open mind” instructions cured any such shifting of the burden of proof — I am baffled. In Nick-ens, we upheld almost identical “open mind” instructions only after acknowledging that they were problematic. See id. at 118 (affirming instructions “[wjithout endorsing their form”). We were analyzing those instructions to determine whether they alone had the effect of negating the presumption of innocence. We reasoned that those instructions “would [not] normally suggest to the jury that the government’s burden of proving guilt is equal to defendant’s burden of proving innocence.” Id. (emphasis supplied). Finding nothing extraordinary in that case, we concluded that the instructions were not “so egregious as to constitute plain error.” Id.
Here, however, we are not reviewing this “open mind” instruction to determine whether it alone had the effect of negating the presumption of innocence. Rather, we must determine whether this otherwise problematic instruction cured the multi-layered burden of proof problems presented by this ease. I think it obvious that this instruction cannot and should not be viewed as curative.7 As such, my colleagues’ reference to Nickens as controlling “circuit precedent” is entirely unpersuasive.
In sum, it is my strong opinion that when he reconvened the jury, the trial judge had an obligation to cure any potential misper-ceptions his colloquy may have left in the minds of the four jurors on the fundamental *448question of who bears the burden of proof. Waiting until the very end of a lengthy trial to instruct the jury properly on this question does not alleviate the prejudice.8 Under any standard of review, I think these convictions should be reversed and that defendants should be granted a new and fair trial.9 Any other result denies these defendants a “ ‘basic protection’ ” afforded by the Constitution, a protection which reflects “‘a profound judgment about the way in which law should be enforced and justice administered.’ ” Sullivan v. Louisiana, —— U.S.-,-, 113 S.Ct. 2078, 2083, 124 L.Ed.2d 182 (1993) (quoting Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1450, 20 L.Ed.2d 491 (1968)). I therefore dissent.
. In its initial charge to the jury, the court instructed on the government’s burden as follows:
The indictment or formal charge against the defendant is not evidence of guilt. Indeed the defendants are presumed by law to be innocent. The law does not require the defendant to prove his innocence or produce any evidence at all and no inference whatsoever may be drawn from the election of a defendant not to testify.
The government, that is the prosecution has the burden of providing or proving them guilty beyond a reasonable doubt and if he (sic) fails to do so, you must acquit them. Thus, while the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant’s guilt be proved beyond all doubt.
. Moreover, I do not think that the court’s error should escape review merely because it entered into the record specific findings about the "demeanor” and visible "sincerity” of each of the juror’s answers to the question.
. To bolster its affirmance, the majority refers to the numerous occasions on which the district court, before the juror misconduct allegations surfaced, instructed the jury on the burden of proof. Those instructions are, however, utterly irrelevant in determining whether the district court, later in the trial, made statements or gave instructions that may have negated the presumption of innocence.
. I further note that the majority opinion does not adequately address the district court's failure to inquire into Juror Luis Carrero Roman’s admission that members of the jury had, in fact, conversed about the case. As we made clear in United States v. Richman, 600 F.2d 286, 295 (1st Cir.1979), a trial court should conduct the following four-part inquiry when faced with allegations that jurors may have acted improperly:
ascertain whether the misconduct actually occurred; [2] if it did, determine whether it was prejudicial; [3] if not clearly unprejudicial, grant a new trial; [and] [4] specify reasons if the court determines either that the misconduct did not take place or was not clearly prejudicial.
Id. (citing United States v. Doe, 513 F.2d 709, 711-12 (1st Cir.1975)). Here, after learning from Juror Carrero that members of the jury had discussed the case, the district court failed to-inquire further and refused to allow defense counsel to interject follow-up questions. As a result, the record contains no evidence about what types of discussions Juror Carrero may have had with other jurors, or may have overheard. We are left to speculate. In light of all the circumstances, I consider this error an alternative grounds for reversal.
Furthermore, I cannot agree with the majority's cavalier conclusion that "the judge essentially conducted a full-fledged inquiry when he asked the other jurors questions which would have revealed precisely the impropriety which Judge Stahl fears.” Ante, at 443 n. 2. First the record contains no such "full-fledged inquiry”; and, second, any inquiry of "the other jurors" could not possibly have revealed anything about what Juror Carrero did or did not know about the putative juror misconduct. It appears, therefore, that the once strict requirements of Rich-man have been relaxed to such an extent that a district court now has discretion, according to the majority, to conduct essentially no inquiry at all.