concurring:
I agree with the majority that the facts in this case reveal a sufficiently substantial likelihood of prejudice that a new trial is warranted. The district court, in a difficult situation, attempted to eliminate any possibility of prejudice. The responses he received from the jurors revealed that the jury was tainted. There was evidence that the jury had discussed the case prematurely, giving juror Leoni the opportunity to convince others to vote for acquittal. The jurors’ statements also showed that they believed the voir dire was necessitated by misconduct on the part of one of the parties. Because of these responses, a new trial was required. I believe that a narrower rule than that apparently announced by the majority would satisfactorily decide this ease and would be more consistent with other decisions. I therefore write separately-
I do not think that this case can be evaluated in terms of a presumption of prejudice. As this court has recently stated:
“In questions about jury incidents, we are ultimately not so concerned with their nature as with the prejudice they may have worked on the fairness of the defendants’ trial. See United States v. Klee, 494 F.2d 394 (9th Cir.), cert. denied, 419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974); Cavness v. United States, 187 F.2d 719 (9th Cir. 1951). Thus, having been presented with facts establishing a jury irregularity, whether or not we speak in terms of the rebuttable presumption of prejudice or of the fairness of defendants’ trial, we reach the same result.
*604In reviewing decisions on jury incidents, we recognize that the District Court is in a better position than we are to determine whether what happened was prejudicial. United States v. Klee. For this reason, we accord some deference to its decision when applying the abuse of discretion standard.”
United States v. Armstrong, 654 F.2d 1328, 1332 (9th Cir. 1981).
This approach is consistent with other recent decisions. The majority correctly notes that in United States v. Ferguson, 486 F.2d 968 (6th Cir. 1973) the Sixth Circuit held that dismissal of a tainted juror before deliberations does not eliminate the presumption of prejudice. The peculiar facts in that case clarify and explain this conclusion. It was clear in that case that one, and perhaps two, of the jurors had been tainted by contact with the excused juror. Both of these jurors were permitted to stay on the jury and deliberated on the verdict. 486 F.2d at 969-70. In excusing the juror, the district court specified that the reason for the juror’s dismissal was contact with one of the defendants. Id. at 969. The judge’s explanation thereby raised the spectre of misconduct on the part of one of the defendants. The court made clear that removal of the contacted juror “before he had the opportunity to discuss the case with other members of the panel would be some evidence that no prejudice occurred.” Id. at 971. Of course removal of the tainted juror would not completely eliminate the need to inquire into the fairness of the defendant’s trial because the jury could have been tainted by the judge’s remarks, as well as by the tainted juror’s.
This more limited reading of Ferguson appears consistent with the Sixth Circuit’s more recent decision in United States v. Brown, 571 F.2d 980 (6th Cir. 1978). In that case, an improperly contacted juror was excused before deliberations began. 571 F.2d at 989. In Brown, unlike Ferguson, the circumstances justified the district court in believing the jurors’ assurances that they had not discussed the case. Id. at 990-91. The district court did not dismiss the tainted juror “in a way that would arouse any suspicions that there had been an improper attempt to influence the jury.” Whatever presumption of prejudice arose was therefore rebutted. Id. In terms of the analysis prescribed by Armstrong, the dismissal of the tainted juror in Brown did not obviate the district court’s responsibility to ensure that the rest of the jury was not tainted. The court properly questioned the improperly contacted juror. Based upon the tainted juror’s statements, the district court did not abuse its discretion in deciding not to interrogate the other jurors. Because the court’s explanation for replacing the tainted juror did not improperly influence the jury that deliberated on the verdict, Brown received a fair trial.
This view is also consistent with United States v. Forrest, 620 F.2d 446 (5th Cir. 1980), aff’d after remand, 649 F.2d 355 (5th Cir. 1981). In that case, an improperly contacted juror was excused before deliberations. 620 F.2d at 456. The Fifth Circuit remanded the case for a hearing on whether prejudicial material reached the jury. Id. at 458-59. The court did not hold that any presumption of prejudice arose. The court apparently concluded that no presumption of prejudice arises at all unless one of the jurors deliberating on the verdict is imper-missibly contacted. 649 F.2d at 356-57. In terms of the Armstrong analysis, the district court was obligated once again to determine whether the defendant was denied a fair trial because improper material reached the jury deliberating on the verdict. The possibility that such extraneous material reached the jury necessitated this inquiry. Since the responses the district court received revealed that no improper material reached the jury, the district court was held not to have abused its discretion in denying the defendants’ request for a new trial.
In light of Armstrong, Forrest, and Brown, I would hold that in cases where an impermissibly contacted juror is excused before deliberations begin, the district court is obligated to determine whether the jurors deliberating on the verdict were also improperly contacted. The district court has discretion in determining what sort of investigation is necessary to uncover possible improper contact. The particular facts of *605each case will determine how extensive an investigation is warranted, and whether the court can believe a juror’s assurances. See, e.g., United States v. Brown, supra, 578 F.2d at 990-91. We will only reverse the district court’s conclusion for an abuse of discretion. If the district court’s investigation reveals that no improper material reached the jurors deliberating on the verdict, a declaration of mistrial is not warranted.
Because the facts of this case reveal that several of the jurors deliberating on the verdict were tainted, a declaration of mistrial was required. This is not because of any heavy presumption of prejudice which arises when an improperly contacted juror deliberates on the verdict, as happened in Remmer v. United States, 347 U.S. 227, 228, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). Rather, the necessary investigation revealed that the defendant did not receive a fair trial because its results showed a taint. I would therefore reverse the judgment of the district court but on the narrower ground which is consistent with the prior decisions of this and other courts.