concurring.
I concur in the affirmance of the conviction but for a different reason. I would hold that prejudice inhered in the conduct of the bailiff, and that appellant is not required to show that he suffered prejudice in fact. Nevertheless, since his counsel elected to speculate about the jury’s verdict and did not call this incident to the attention of the trial judge until after the rendition of the ver*1131diet, I would not order a new trial because of the bailiff’s misconduct.
In Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1968), the Supreme Court considered a claim of constitutional violation arising out of an unauthorized communication by a bailiff to a sequestered jury committed to his care. It said, “ . . . the unauthorized conduct of the bailiff ‘involves such a probability that prejudice will result that it is deemed inherently lacking in due process’ . . . [and] ‘it would be blinking reality not to recognize the extreme prejudice inherent’ in such statements . . . ”. This holding recognized the official character of the bailiff as an employee of the court as well as of the government. A jury committed to his care might easily conclude that a bailiff speaks for the judge. Certainly the statement here, “It’s always some woman or something holding it up”, can be understood only as a rebuke to the three holdouts, and the return of a unanimous verdict of guilty by a jury which had already deliberated overnight within a few hours after the remark suggests the effectiveness of the rebuke.
The majority opinion gives emphasis to the juror’s assertion that his vote had not been affected by the comment and that he did not report this conversation to his fellow jurors. It would be remarkable if the juror admitted that he had been influenced because he would thereby admit that he violated his oath to consider only evidence admitted at the trial and the instructions of the court.
The same view may be confidently taken about his denial that he communicated the bailiff’s comment to his fellows. It is significant that the juror did not report the incident to the judge as he might have been expected to do if he believed it to have been irregular. If he saw nothing irregular about it, it is not unlikely that he communicated it to his fellows.
In any event, the probability of prejudice is great but the difficulty of proving it is almost insurmountable, and I would not place this burden on a defendant who is not permitted to pierce the secrecy of jury room deliberations to try to sustain it.
I also observe that Parker v. Gladden, supra, was an appeal from a state court conviction and that the Supreme Court therein announced a constitutional rule concerning the right to a trial by an impartial jury and the right to confront witnesses. Here we consider a direct appeal from a conviction in a United States District Court and we should state unequivocally that no bailiff within this circuit may make any inquiry of the status of deliberations of any jury committed to his care and that he may make no communications to the jury except as expressly directed by the district judge. Such a prophylactic rule should be announced here under our superintending powers.
However, it is the general rule that misconduct in connection with the jury will not be grounds for a mistrial after a verdict is returned if defendant or his counsel knew of the misconduct prior to return of the verdict and did not advise the court. United States v. Carter, 433 F.2d 874 (10th Cir. 1970); United States v. Coduto, 284 F.2d 464 (7th Cir. 1960), cert. den., 365 U.S. 881, 81 S.Ct. 1027, 6 L.Ed.2d 192 (1961); United States v. Evett, 65 F.Supp. 151 (D.C.Cal.1946); Anno., 96 A.L.R. 530 (1935). Whether expressed as waiver or estoppel, this rule is sound and requires my concurrence in the result of the majority opinion.