Manuel Tarango, Jr. v. E. McDaniel ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL TARANGO, JR., No. 13-17071
Petitioner-Appellant,
D.C. No.
v. 3:10-cv-00146-RCJ-VPC
E. K. MCDANIEL; NEVADA
ATTORNEY GENERAL, ORDER AND
Respondents-Appellees. AMENDED OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted December 12, 2014
San Francisco, California
Filed March 3, 2016
Amended September 16, 2016
Before: Raymond C. Fisher, Johnnie B. Rawlinson, and
Mary H. Murguia, Circuit Judges.
Order;
Opinion by Judge Murguia;
Dissent by Judge Rawlinson
2 TARANGO V. MCDANIEL
SUMMARY*
Habeas Corpus
The panel filed (1) an order amending its opinion and
accompanying dissent and denying a petition for panel
rehearing and a petition for rehearing en banc and (2) an
amended opinion and dissent in a habeas corpus case.
In the amended opinion, the panel vacated the district
court’s denial of a habeas corpus petition, in which a Nevada
state prisoner claimed violation of his due process right to a
fair and impartial jury, where a police vehicle followed a
known hold-out juror, for approximately seven miles, on the
second day of deliberations in a highly publicized trial
involving multiple police victims.
The panel held that the Nevada Supreme Court’s decision
upholding the petitioner’s convictions was contrary to Mattox
v. United States, 146 U.S. 140 (1892), because the court
improperly limited its inquiry to whether the external contact
amounted to a “communication” and did not investigate the
prejudicial effect of the police tail. The panel therefore
reviewed de novo the question whether the extrinsic contact
could have influenced the jury’s verdict and prejudiced the
petitioner. Because the state trial court prevented the
petitioner from offering certain evidence to demonstrate
prejudice, the panel remanded for an evidentiary hearing and
further fact finding.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TARANGO V. MCDANIEL 3
Dissenting, Judge Rawlinson wrote that Mattox is far
afield from the dispositive issue, the majority gives no
deference to the decision of the Nevada Supreme Court but
engages in impermissible appellate fact finding, and no
Supreme Court case supports the majority’s conclusion.
COUNSEL
Ryan Norwood (argued), Assistant Federal Public Defender;
Rene Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada; for Petitioner-
Appellant.
Victor-Hugo Schulze, II (argued), Senior Deputy Attorney
General; Lawrence VanDyke, Solicitor General; Adam Paul
Laxalt, Attorney General; Office of the Attorney General, Las
Vegas, Nevada; for Respondents-Appellees.
ORDER
The opinion and accompanying dissent filed March 3,
2016 are hereby amended.
Judge Fisher and Judge Murguia vote to deny the petition
for panel rehearing and petition for rehearing en banc. Judge
Rawlinson votes to grant the petition for panel rehearing and
petition for rehearing en banc.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
4 TARANGO V. MCDANIEL
The petition for panel rehearing and the petition for
rehearing en banc are DENIED (Doc. 36).
No further petitions for rehearing and/or rehearing en
banc will be entertained.
OPINION
MURGUIA, Circuit Judge:
Petitioner Manuel Tarango, Jr. appeals the district court’s
denial of his petition for a writ of habeas corpus. He claims
violation of his due process right to a fair and impartial jury,
where a police vehicle followed Juror No. 2, a known hold-
out against a guilty verdict, for approximately seven miles, on
the second day of deliberations, in a highly publicized trial
involving multiple police victims. Tarango argues that the
Nevada Supreme Court’s decision upholding his convictions
“was contrary to, or involved an unreasonable application of,
clearly established federal law,” see 28 U.S.C. § 2254(d)(1),
because the court failed to consider whether the contact
between the juror and the police vehicle prejudiced the jury’s
verdict.
We hold that the Nevada Supreme Court’s decision was
contrary to Mattox v. United States, 146 U.S. 140 (1892),
because the court improperly limited its inquiry to whether
the external contact amounted to a “communication” and did
not investigate the prejudicial effect of the police tail. We
therefore review de novo the question whether the extrinsic
contact could have influenced the verdict and prejudiced
Tarango. Because the trial court prevented Tarango from
TARANGO V. MCDANIEL 5
offering certain evidence to demonstrate prejudice, we
remand for an evidentiary hearing and further fact finding.
BACKGROUND
On December 5, 1999, a rock band of off-duty Las Vegas
police officers, Metro Mike’s Pigs in a Blanket, was
performing at a local bar called Mr. D’s. The bar was filled
with off-duty police officers. A group of masked men
entered the bar announcing a robbery, and a shoot-out ensued.
Several patrons were shot, one robber was shot and killed,
and one police officer, Officer Dennis Devitte, was shot
several times. The surviving robbers escaped the scene and,
six years later, Tarango was brought to trial on seven felony
counts. The 2005 trial received considerable local media
attention, and numerous Las Vegas Metro police officers
attended as both witnesses and spectators.
After the jury began its deliberations, on November 1,
2005, the foreperson sent a note to the trial judge indicating
that the jury had “reached a stalemate” because of a “problem
juror” who had “made it very clear he does not want to be
part of [the] process [and] is refusing to discuss or interact
with the other jurors.” The “problem juror” separately wrote
to the judge indicating that he had “doubt of which [he]
feel[s] is beyond the limit of reasonable doubt,” and that
deliberations were “not curing [his] doubt.” In his note, the
“problem” juror identified himself as Juror No. 2.
6 TARANGO V. MCDANIEL
Over Tarango’s objection,1 the judge advised the jury to
continue deliberating. The next day, November 2nd, the jury
returned a verdict finding Tarango guilty of all seven felony
counts as charged: burglary with the use of a deadly weapon,
attempted robbery with the use of a deadly weapon,
conspiracy to commit robbery with the use of a deadly
weapon, three counts of battery with the use of a deadly
weapon, and attempted murder with the use of a deadly
weapon—all in violation of Nevada state law.
On November 3rd, the Las Vegas Review-Journal
reported the guilty verdict in an article titled Man Convicted
in 1999 Case. The article referenced “a juror who spoke to
the Review-Journal.” Discussing the jury’s deliberation
process, the interviewed juror mentioned the hold-out juror:
“the case was close to a hung jury because one juror seemed
unwilling to convict following nearly two days of
deliberations.”
On November 4th, prompted by the previous day’s
newspaper article, Juror No. 2 wrote a letter to the court
referencing the article:
I am the one Juror mentioned in the article. .
. . I am also the Juror that wrote you the note
during deliberations. It read: “I have doubt
beyond the limit of what I consider reasonable
doubt.” I also stated, “I did not believe
further deliberations would cure that doubt.”
1
Tarango argued that Juror No. 2’s note indicated that the jury was
hung, and moved for a mistrial, there being no alternate jurors left to take
Juror No. 2’s place.
TARANGO V. MCDANIEL 7
Further deliberations in fact, did not cure my
doubt.
However, when returning to re-deliberate
Wednesday November 2nd from the
Henderson area, a Metro squad car followed
me northbound on I-95 and into the
downtown area.
I found that action unnerving.
I realize the State has much time and money
invested in this case. There were [sic] no
alternate Juror. I concluded Metro somehow
knew who I was and knew of my
unwillingness to convict. I have never been in
trouble with the law. Therefore, I
relinquished my vote under duress. I only
ask, within the law, please show [Tarango]
leniency.
One week later, on November 11th, Juror No. 2 emailed
Tarango’s trial attorney, Marc Saggese, and attached a copy
of his “Letter to the Judge.” The juror told Saggese that he
felt “compelled to notify” Saggese of the letter. Saggese
promptly filed a motion to dismiss all charges with prejudice
or, alternatively, to grant a new trial on the ground of juror
misconduct, arguing that Juror No. 2’s communication
indicated that the deliberation process had been tampered
with in violation of Tarango’s right to due process. Under
Nevada law, juror misconduct refers to two categories of
conduct: (1) intrinsic misconduct, that is, “conduct by jurors
contrary to their instructions or oaths;” and (2) extrinsic
misconduct, or “attempts by third parties to influence the jury
8 TARANGO V. MCDANIEL
process.”2 Meyer v. State, 80 P.3d 447, 453 (Nev. 2003).
Tarango alleged both forms of misconduct, arguing that (1)
Juror No. 2 changed his vote under pressure, rather than
based on admissible evidence of Tarango’s guilt, because of
(2) an improper third party influence.
In support of the motion, Saggese submitted a declaration
indicating that, after the trial court read the juror notes into
the record and while deliberations were ongoing, Saggese
overheard Deputy District Attorney Marc DiGiacomo report
to Detective James Vacarro over the phone that one juror,
Juror No. 2, was holding out. Saggese thus indirectly
corroborated Juror No. 2’s stated belief that he was being
targeted as a hold-out juror by introducing evidence that
members of the Las Vegas police department both knew that
2
Meyer further clarifies the distinction:
The first category includes jurors failing to follow
standard admonitions not to discuss the case prior to
deliberations, accessing media reports about the case,
conducting independent research or investigation,
discussing the case with nonjurors, basing their
decision on evidence not admitted, discussing
sentencing or the defendant’s failure to testify, making
a decision on the basis of bias or prejudice, and lying
during voir dire. It also includes juror incompetence
issues such as intoxication. The second category
involves attempts to influence the jury’s decision
through improper contact with jurors, threats, or
bribery.
80 P.3d at 453. (internal citations omitted).
TARANGO V. MCDANIEL 9
Juror No. 2 favored acquittal and had knowledge of Juror No.
2’s identity.3
The trial court held a full hearing on Tarango’s motion the
following month. Juror No. 2, Defense Attorney Saggese,
Detective Vacarro, and Deputy D.A. DiGiacomo were all
called to testify regarding their knowledge of the alleged
events and communications in question. At the hearing, the
court limited the questioning of Juror No. 2 pursuant to a
provision of the Nevada Code of Evidence, Nev. Rev. Stat.
§ 50.065, which prohibits the admission for any purpose of
testimony, affidavits, or evidence of any statement by a juror
indicating an effect on the jury’s deliberative process. The
court also relied on the Nevada Supreme Court case of Meyer
v. State, which provides that “[u]pon an inquiry into the
validity of a verdict . . . , 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.”4 80 P.3d at 454 (quoting Fed. R. Evid.
3
During voir dire, the parties and the trial court learned various details
about Juror No. 2’s life. Juror No. 2 had served in the Air Force for four
years doing “flight instrument trainers [sic], [and] navigation.” He
completed both high school and also trade school in electronics. At the
time of his jury service, Juror No. 2 was employed as a network
administrator, was married, and had a daughter. He had lived in Clark
County, Nevada since 1991.
4
Meyer also observes, though, that where juror misconduct involves
“extrinsic information or contact with the jury, juror affidavits or
testimony establishing the fact that the jury received the information or
was contacted are permitted.” Meyer, 80 P.3d at 454. Meyer distinguished
extrinsic information about which a juror may testify from intrinsic
influences that are “generally not admissible to impeach a verdict” as
follows: “An extraneous influence includes, among other things . . . third-
party communications with sitting jurors. In contrast, intra-jury or
10 TARANGO V. MCDANIEL
606(b)). The trial court ultimately conducted all questioning
of Juror No. 2 itself. Juror No. 2 testified as follows:
[Right after getting on the freeway,] I was in
the center lane [of US-95]. I noticed a Metro
squad car behind me; fairly close behind me.
. . . He was close enough I couldn’t see his
front wheels or bumper. And I looked down
and I was not exceeding the speed limit.
...
I signaled and got over to the far right lane
anticipating being pulled over and he stayed
tight behind me.
...
I maintained under the speed limit
anticipating being pulled over. A couple
minutes and he never lit up, he never
indicated that he was . . . going to pull me
over. So I just maintained right lane position
under the speed limit. This continued on.
...
[At Eastern Avenue] there was a lot of traffic
entering the freeway . . . . [T]here was so
many cars trying to merge into the freeway
intrinsic influences involve improper discussions among jurors . . . ,
intimidation or harassment of one juror by another, or other similar
situations . . . .” Id. (footnotes omitted).
 TARANGO V. MCDANIEL 11
that the Metropolitan squad car actually
pulled up closer to prevent anyone from
pulling in between our vehicles.
...
And as soon as the . . . exit to Las Vegas
Boulevard came, I even slowed down under
50, and that’s a long exit there. It’s, um, a
quarter mile, half a mile, and even at that, he
maintained position.
And he’s not pulling me over. He’s not . . .
giving me a citation for nothing. He followed
me down the hill, and at the stoplight for Las
Vegas Boulevard. . . . He followed me, still
tight. And there’s several stop lights,
something, Stewart, and then Carson is where
the juror parking garage is. And we did get a
red light there. He was still behind me. I took
a right to enter the . . . jurors parking lot.
That’s when he relieved me from the escort or
whatever he was doing. That’s when he left
me alone.
When questioned, Juror No. 2 indicated that he could not tell
whether the driver of the vehicle was male or female, and he
could not report the squad car number. However, Juror No.
2 averred that the car behind him was “a Metropolitan black
and white vehicle.” When questioned a second time, Juror
No. 2 reiterated that the car remained “consistently” tight
behind him for the duration of his commute to the
courthouse—“[c]lose enough that [he] couldn’t see the
officer’s bumper.”
12 TARANGO V. MCDANIEL
At the end of the hearing, the court orally denied
Tarango’s motion to dismiss or to grant a new trial. The trial
court did not discredit Juror No. 2’s testimony, and made one
factual finding that Juror No. 2 “was followed closely, tightly,
however you want to state it from Tropicana on US-95 to Las
Vegas Boulevard and Carson.”5 The court went on to reach
the following legal conclusion:
I don’t think there’s any evidence of juror
misconduct. There were no attempts to
influence the jury. There’s no outside
influence on this particular juror. There’s no
communication or contact. The alleged
conduct is ambiguous, it’s vague and
nonspecific in content. I’m required to
consider this extrinsic influence in light of the
trial as a whole, and consider the weight of the
evidence against Mr. Tarango and with that,
and based on the [Meyer] decision, and the
reasonable person test that I’m required to
apply. I don’t think that Mr. Tarango has met
his burden. Therefore, the motion is denied.6
5
Having taken judicial notice of a roadmap of Las Vegas, Nevada, we
confirm that the distance from East Tropicana Avenue on US-95 to South
Las Vegas Boulevard and East Carson Avenue is approximately 7.5 miles.
6
Juror No. 2 wrote a second letter to the trial judge following the
hearing. The letter begins, “Your Honor; Please accept this letter as an
apology. I was given the privilege to serve as a Juror and I failed.” Juror
No. 2 went on to apologize to God, his fellow Jurors, the Las Vegas
Metropolitan Police Department, and the “Citizens of this Great State
Nevada.” He explained that his verdict was “untrue to [his] conscience,”
because he “let fear of reprisal enter into [his] mind and heart.” As a
result, Juror No. 2 expressed his desire “to nullify [his] verdict.” Juror No.
2 conceded that his request “may not be taken legally,” because he was
TARANGO V. MCDANIEL 13
Weeks later, at a televised proceeding on February 8,
2006, the trial court denied Tarango’s motion to reconsider on
the basis of jury misconduct and entered judgment against
him. The trial court sentenced Tarango to a 22–58 year term
of imprisonment. Tarango promptly appealed the denial.
In September 2007, the Nevada Supreme Court affirmed
the state trial court’s denial of Tarango’s motion for a new
trial. Tarango v. State, No. 46680 (Nev. Sept. 25, 2007). The
Nevada Supreme Court stated the relevant test as follows:
“For a defendant to prevail on a motion for a new trial based
on misconduct, the defendant must present admissible
evidence sufficient to establish (1) the occurrence of
misconduct, and (2) a showing that the misconduct was
prejudicial.”7 Id., slip op. at 2 (citing Meyer, 80 P.3d at 455).
The Nevada Supreme Court first concluded that Juror No.
2’s letters to the trial court were properly deemed
inadmissible to prove that Juror No. 2 had voted guilty in
violation of the jury instructions or contrary to his oath as a
juror, reasoning that “for misconduct to be proved it ‘must be
based on objective facts and not the state of mind or
deliberative process of the jury.’” Id., slip op. at 6 (quoting
Meyer, 80 P.3d at 454). Absent Juror No. 2’s letters, the
Nevada Supreme Court concluded that the “testimony of
ignorant of legal procedures, but that he “personally nullif[ies] [his]
verdict to all those that will forgive me.”
7
The Nevada Supreme Court did not cite any United States Supreme
Court authority in rendering its decision, but this is immaterial provided
the state law is not inconsistent with clearly established federal law. See
Early v. Packer, 537 U.S. 3, 8 (2002). Rather, as did the trial court, the
Nevada Supreme Court relied almost entirely on its 2003 decision in
Meyer.
14 TARANGO V. MCDANIEL
[Defense Attorney Saggese, Detective Vacarro, and Deputy
D.A. DiGiacomo] was insufficient to show by objective facts
that [Juror No. 2] committed misconduct.” Id. The Nevada
Supreme Court held that Tarango had thus failed to show by
admissible evidence that Juror No. 2 had committed
misconduct. Id.
The Nevada Supreme Court further held that there was no
evidence of an improper external influence on Juror No. 2.
Although the Nevada Supreme Court assumed “arguendo that
[Juror No. 2] was followed by a marked police car,” and
observed that “any unauthorized communication between law
enforcement and a juror about a matter pending before a jury
may be ‘presumptively prejudicial,’” the court concluded that
“[Juror No. 2] failed to show by objective facts that there was
an improper external communication between him and the
police.” Id., slip op. at 6–7. The Nevada Supreme Court
explained that “it is not clear whether being followed by a
marked car qualifies as a communication at all. It is even
more dubious as to whether such a ‘communication’ was
about a matter pending before the jury.” Id., slip op. at 7. In
other words, having found that no “communication” had
occurred, the Nevada Supreme Court determined that the
alleged influence of the non-communicative contact was “too
speculative” to sustain Tarango’s motion for a new trial and
did not reach the second prong of the misconduct
inquiry—whether the contact was prejudicial. Id.
Following state habeas proceedings, Tarango timely filed
his federal habeas petition on March 15, 2010. The federal
district court for the District of Nevada was “tempted to say
that the fact Juror 2 rendered his verdict based not upon the
law and evidence, but because of his perception of a threat, is
dispositive.” However, without citing authority, the district
TARANGO V. MCDANIEL 15
court concluded that “Supreme Court case law is clear that
objective proof of external contact is required.” It further
concluded that the state court did not err in concluding that no
external contact had occurred, although the court found that
determination “debatable.” The district court therefore
dismissed Tarango’s petition in September 2013, upholding
as reasonable the state court’s determination that Tarango had
failed to show any improper external contact.
On October 16, 2013, the district court granted Tarango
a Certificate of Appealability as to Ground One of his
amended petition, and Tarango filed a Notice of Appeal the
same day. Ground One reads as follows:
Tarango was convicted because one of the
jurors believed that the State was trying to
intimidate him, and not because he believed
Tarango was guilty. As such, Tarango is
incarcerated in violation of his right to a Fair
Trial, an Impartial Jury, and Due Process
under the 6th and 14th Amendments of the
United States Constitution.
Tarango raises only the certified issue in his appeal before us.
DISCUSSION
I.
We review de novo a district court’s denial of a habeas
corpus petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir.
2014). But where, as here, a state court has adjudicated a
claim on the merits, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) compels us to accord
16 TARANGO V. MCDANIEL
significant deference to the underlying state court decision.
See 28 U.S.C. § 2254(d)(1)–(2). This court may grant relief
only when the state court’s adjudication of that claim either
(1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States,” or
(2) was “based on an unreasonable determination of the facts
in light of the evidence presented at the State Court
proceeding.” Id.
Where a state court fails to apply the clearly established
federal law, applying an incorrect standard in reaching its
decision, “the state court’s adjudication [is] contrary to
clearly established law.” Lafler v. Cooper, 132 S. Ct. 1376,
1390 (2012) (holding that state court adjudication was
contrary to clearly established federal law because it failed to
apply Strickland to an ineffective-assistance-of-counsel
claim). And in that circumstance, federal habeas courts “can
determine the principles necessary to grant relief.” Id. (citing
Panetti v. Quarterman, 551 U.S. 930, 948 (2007)). In other
words, a state court’s failure to apply the proper standard
under clearly established federal law “allows federal-court
review . . . without deference to the state court’s decision”
and “unencumbered by the deference AEDPA normally
requires.” Panetti, 551 U.S. at 948; see also Castellanos v.
Small, 766 F.3d 1137, 1146 (9th Cir. 2014) (“If the state court
applies a legal standard that contradicts clearly established
federal law, we review de novo the applicant’s claims,
applying the correct legal standard to determine whether the
applicant is entitled to relief.” (citing Cooperwood v.
Cambra, 245 F.3d 1042, 1047 (9th Cir. 2001))).
In conducting this review, we look to the “last reasoned
decision” by a state court addressing the issue at hand. Miles
TARANGO V. MCDANIEL 17
v. Ryan, 713 F.3d 477, 486 (9th Cir. 2012) (citing Robinson
v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)). In this case,
we look to the Nevada Supreme Court’s September 2007
decision affirming the state trial court’s judgment on direct
appeal.
II.
The Nevada Supreme Court, after assuming that Juror No.
2 was followed by a police car, decided that such contact did
not implicate Tarango’s right to due process because it did
not amount to a “communication,” much less a
communication “about a matter pending before the jury.”
The court declined to consider whether the police tail could
have prejudiced the verdict. We hold that the Nevada
Supreme Court violated clearly established Supreme Court
case law, first by limiting its inquiry to whether the contact
amounted to a “communication . . . about a matter pending
before the jury” and, second, by failing to examine the
potential impact of the non-communicative contact on Juror
No. 2’s verdict.
A.
In criminal trials, well-entrenched Supreme Court
authority “absolutely” forbids “external causes tending to
disturb the [jury’s] exercise of deliberate and unbiased
judgment . . . at least until their harmlessness is made to
appear.” Mattox v. United States, 146 U.S. 140, 149–50
(1892). We have held that Mattox established a bright-line
rule: any external contact with a juror is subject to a
presumption that the contact prejudiced the jury’s verdict, but
the government may overcome that presumption by showing
that the contact was harmless. Caliendo v. Warden of Cal.
18 TARANGO V. MCDANIEL
Men’s Colony, 365 F.3d 691, 696 (9th Cir. 2004) (citing
United States v. Armstrong, 654 F.2d 1328, 1331–33 (9th Cir.
1981)).
Clearly established federal law provides that any
unauthorized “private communication, contact, or tampering
directly or indirectly, with a juror during a trial about the
matter pending before the jury is, for obvious reasons,
deemed presumptively prejudicial.” Remmer v. United States,
347 U.S. 227, 229 (1954) (emphasis added). However,
clearly established federal law also compels a criminal trial
court to consider the prejudicial effect of any external contact
that has a “tendency” to influence the verdict, irrespective of
whether it is about the matter pending before the jury.
Mattox, 146 U.S. at 150–51. Moreover, an external contact
need not amount to a “communication” to trigger some
judicial inquiry into possible prejudice. See Smith v. Phillips,
455 U.S. 209, 212–15 (1982) (requiring judicial inquiry into
possible prejudice arising from a juror’s job application in the
office of the prosecutor trying the case); Mattox, 146 U.S. at
150 (recognizing the prejudicial potential of “the reading of
newspapers”).
B.
The Supreme Court has not established a bright-line test
for determining what constitutes a possibly prejudicial
“external” influence on a jury. The Court has devoted more
recent attention to clarifying what “falls on the ‘internal’ side
of the line.” Warger v. Shauers, 135 S. Ct. 521, 529 (2014)
(holding that a juror’s dishonesty during voir dire is internal
to the deliberative process and not admissible to impeach a
verdict); see also Tanner v. United States, 483 U.S. 107,
118–25 (1987) (holding that jurors’ consumption of drugs and
TARANGO V. MCDANIEL 19
alcohol during trial is internal to the deliberative process and
not admissible to impeach a verdict). It is clearly established
that a juror’s physical or mental incapacity, substance abuse,
and dishonesty during voir dire all amount to internal—not
external—influences on a jury’s verdict. Tanner, 483 U.S. at
118–25; Warger, 135 S. Ct. at 529. On the other end of the
spectrum, the Court long ago explained that an “extraneous
influence” would include “something which did not
essentially inhere in the verdict,—an overt act, open to the
knowledge of all the jury, and not alone within the personal
consciousness of one.” Mattox, 146 U.S. at 149 (quoting
Perry v. Bailey, 12 Kan. 539, 545 (1874)).
In more recent decisions interpreting the Mattox rule, the
Court has clarified that an external contact need not be
intentional, Gold v. United States, 352 U.S. 985 (1957)
(granting a new trial where the FBI approached jurors about
a different but related case, even though “the intrusion was
unintentional”), nor verbal, Smith, 455 U.S. at 212–15, 221;
see also Mattox, 146 U.S. at 150 (noting that the presence of
an officer in the jury room during the deliberations would be
“fatal to the verdict”). Rather, an impermissible external
influence can arise where, for example, a juror is shown to
have a relationship with the office of the prosecutor trying the
case. Smith, 455 U.S. at 212. In addition, an external contact
need only have influenced one juror, because a defendant is
“entitled to be tried by 12 . . . impartial and unprejudiced
jurors.” Parker v. Gladden, 385 U.S. 363, 366 (1966).
The Supreme Court has identified an “extraneous
influence” requiring judicial inquiry into prejudice in cases
where the jury heard and read information about the
defendant’s propensity for murder, which was not admitted
into evidence, Mattox, 146 U.S. at 150–51; where members
20 TARANGO V. MCDANIEL
of a jury overheard the bailiff make disparaging comments
about the defendant, Parker, 385 U.S. at 363–65; where a
juror was contacted by an FBI agent after being offered a
bribe to acquit the defendant, Remmer, 347 U.S. at 228–30;
and where a juror had submitted an application for
employment at the office of the prosecutor trying the case,
Smith, 455 U.S. at 212, 216–17.
C.
Mattox requires a trial court to examine possible prejudice
when it is confronted with evidence of an external contact
that has a “tendency” to be “injurious to the defendant.”
Mattox, 146 U.S. at 150. Thus, an external contact with a
juror need only raise a credible risk of influencing the verdict
to be deemed possibly prejudicial. Mattox and its progeny
further establish that undue contact with a juror by a
government officer almost categorically risks influencing the
verdict. Indeed, Mattox observed that the mere presence of
a court officer or bailiff during the jury’s deliberations would
“absolutely vitiate the verdict . . . without regard to whether
any improper influences were actually exerted over the jury
or not.” Mattox, 146 U.S. at 150 (emphasis added); see also
Smith, 455 U.S. at 221 (holding that a juror’s pending job
application with the prosecutor’s office required a post-trial
hearing on juror bias); Parker, 385 U.S. at 365 (“[T]he
official character of the bailiff—as an officer of the court as
well as the State—beyond question carries great weight with
a jury . . . .”); Remmer, 347 U.S. at 229 (“The sending of an
FBI agent in the midst of a trial to investigate a juror as to his
conduct is bound to impress the juror and is very apt to do so
unduly.”).
TARANGO V. MCDANIEL 21
To be sure, “it is virtually impossible to shield jurors from
every contact or influence that might theoretically affect their
vote.” Smith, 455 U.S. at 217. “[D]ue process does not
require a new trial every time a juror has been placed in a
compromising situation.” Id. Threadbare or speculative
allegations, or allegations involving “prosaic kinds of jury
misconduct” do not trigger a presumption of prejudice.
United States v. Dutkel, 192 F.3d 893, 894–85 (9th Cir.
1999); see also Xiong v. Felker, 681 F.3d 1067, 1077 (9th
Cir. 2012) (noting that the Supreme Court jurisprudence
regarding juror misconduct “all involved . . . significant, and
in some cases deliberate interference with the deliberation
process”).
Mindful of this reality, and given the need to preserve the
finality of a jury’s verdict, courts universally prohibit jurors
from impeaching their own verdicts through evidence of their
internal deliberative process. See, e.g., Tanner, 483 U.S. at
117–20. However, regardless of the forms of evidence
admissible to demonstrate that a contact occurred, see United
States v. Rutherford, 371 F.3d 634, 644–45 (9th Cir. 2004),
the Supreme Court has unequivocally and repeatedly held that
due process requires a trial judge to endeavor to “determine
the effect” of occurrences tending to prejudice the jury when
they happen.8 Smith, 455 U.S. at 217; see also Parker, 385
U.S. at 365; Remmer, 347 U.S. at 229–30; Mattox, 146 U.S.
at 150–51.
8
In Smith, for example, the Court held that the district court properly
conducted a hearing that explored the “effect” of a juror’s relationship
with the prosecutor’s office before concluding that the defendant was not
prejudiced by that relationship. 455 U.S. at 217–18.
22 TARANGO V. MCDANIEL
D.
Once a defendant shows an external occurrence having a
tendency toward prejudice, federal law clearly requires a trial
court to investigate the harmlessness or actual prejudice of
the occurrence. Mattox, 146 U.S. at 150; Smith, 455 U.S. at
215 (“This Court has long held that the remedy for allegations
of juror partiality is a hearing in which the defendant has the
opportunity to prove actual bias.”). The Mattox Court
categorically mandated that “possibly prejudicial” external
contacts “invalidate the verdict, at least unless their
harmlessness is made to appear.” Mattox, 146 U.S. at 150.
This is required even if, as noted above, the contact did not
constitute a communication nor concern a matter pending
before the jury. See Smith, 455 U.S. at 215; Mattox, 146 U.S.
at 150. Supreme Court case law also requires this procedure
irrespective of whether or not the court knows “what actually
transpired” and when, as the dissent highlights, the influence
of that contact is speculative or uncertain.9 Remmer, 347 U.S.
9
The dissent incorrectly characterizes our holding as requiring an
inquiry into prejudice even where the alleged contact or communication
is unsubstantiated. Dissent at 41. To be clear, we agree that if the trial
court had discredited Juror No. 2’s testimony and found that no pursuit
occurred, then neither the trial court nor the Nevada Supreme Court would
have had any cause to examine prejudice. See Caliendo, 365 F.3d at 698
n.4. But this is not the record before us. The trial court did not discredit
the juror’s testimony. The trial court characterized the “content” of the
police tail as “ambiguous,” “vague,” and “nonspecific,” but the court did
not find that no police tail had occurred. Absent any clear finding with
respect to the alleged police tail, the Nevada Supreme Court prudently
assumed that the juror had been followed. Based on that assumption, in
order to determine whether jury tampering occurred, Supreme Court case
law requires the court to consider the prejudice or influence of that
contact. Contrary to clearly established Supreme Court case law, the
Nevada Supreme Court failed to conduct this inquiry.
TARANGO V. MCDANIEL 23
at 229; see also id. at 229–30 (mandating an evidentiary
hearing where “information . . . [about an external contact]
was received” by a trial court (emphasis added)). The
Supreme Court has further held that prejudice is more
probable where the record reflects that a jury could not agree
as to the defendant’s guilt. Parker, 385 U.S. at 365 (citing as
evidence of prejudice the fact that “the jurors deliberated for
26 hours, indicating a difference among them as to the guilt
of petitioner”).
III.
In sum, the governing Supreme Court case law can be
distilled as follows: Where a court receives information,
Remmer, 347 U.S. at 229–30, about an unauthorized external
contact between a juror and a government agent whose
official position “carries great weight with a jury,”Parker,
385 U.S. at 365, that contact has a “tendency to . . .
influence” the verdict, and the trial court must presume the
external contact prejudiced the defendant unless the
government provides contrary evidence. Mattox, 146 U.S. at
150. This is true whether or not the contact was intentional,
Gold, 352 U.S. at 985, whether or not the contact involved a
verbal communication, Smith, 455 U.S. at 212; Mattox,
146 U.S. at 150, and whether or not the trial court or
defendant “know[s] . . . what actually transpired,” Remmer,
347 U.S. at 229.10 Once a potentially prejudicial contact is
10
The dissent suggests that Mattox “expressly” requires “proof that jury
tampering actually occurred,” Dissent at 41–42, but this argument misses
the point. The Nevada Supreme Court presumed an unauthorized external
contact with a juror had occurred. As Mattox and its progeny explain, a
court must examine the prejudice of such a contact as part of its
determination as to whether the contact amounted to jury tampering.
24 TARANGO V. MCDANIEL
alleged, the court should “determine the circumstances, the
impact thereof upon the juror, and whether or not it was
prejudicial, in a hearing with all interested parties permitted
to participate.” Id. at 230.
In this case, the Nevada Supreme Court assumed a
contact—albeit not a “communication”—occurred. Our case
law compels our conclusion that the contact in question had
enough of a tendency to influence the jury’s verdict so as to
necessitate judicial inquiry into prejudice. It was thus error
for the Nevada Supreme Court not to conduct a prejudice
analysis merely because Juror No. 2’s police tail did not
amount to a “communication . . . about a matter pending
before the jury.”
A.
Assuming the truth of Juror No. 2’s testimony that he had
been followed closely for seven miles on the second day of
deliberations,11 the Nevada Supreme Court concluded that
this conduct does not constitute a “communication.” On this
basis, the Nevada Supreme Court then concluded that any
influence was “too speculative” to warrant examination of
Here, the Nevada Supreme Court contravened clearly established federal
law by not evaluating whether the external contact was prejudicial.
11
The trial court specifically found that Juror No. 2 “testified he was
followed closely, tightly, however you want to state it from Tropicana on
US-95 to Las Vegas Boulevard and Carson.” The trial court did not
discredit Juror No. 2’s testimony, and appears to have accepted the
allegation as true, at least for the sake of its decision denying Tarango’s
motion to dismiss. In any event, our review is limited to the Nevada
Supreme Court’s decision, see Miles, 713 F.3d at 486, which assumed that
Juror No. 2 was in fact followed.
TARANGO V. MCDANIEL 25
prejudice. Thus, the Nevada Supreme Court declined to
consider whether the conduct in fact influenced the verdict.
As set forth above, this decision contravenes the standard
clearly established by Supreme Court case law, under which
a defendant need not prove a “communication . . . about a
matter pending before the jury,” or even a “communication”
about an unrelated issue. See Smith 455 U.S. at 212–15. Only
a threshold showing of any “contact,” Remmer, 347 U.S. at
229, with a “tendency to adverse influence” is required to
prompt the court to investigate whether that contact was, in
fact, prejudicial. Mattox, 146 U.S. at 150.
In light of this, we have little trouble concluding that the
contact that the Nevada Supreme Court assumed occurred had
enough potential for prejudice to cross Mattox’s low
threshold. Las Vegas police officers were deeply entangled
in this case as victims, witnesses, investigators, and trial
spectators. Juror No. 2 testified that he had been closely
followed by a marked police car for over seven miles. See
Parker, 385 U.S. at 365 (observing that government agents
“carr[y] great weight with a jury”). Juror No. 2’s testimony
indicates that the tail was maintained at a distance so close
that Juror No. 2 could not see the police vehicle’s front
wheels or bumper—if true, this conduct could have
reasonably been understood as an attempt to intimidate.
Moreover, Juror No. 2 was a known hold-out before the
contact occurred. The Supreme Court has clearly established
that the likelihood of possible prejudice increases where, as
here, the jury was previously deadlocked. See id.
B.
Thus, because the state court assumed that the contact did
in fact occur and clearly established case law demonstrates
26 TARANGO V. MCDANIEL
that the contact had a tendency to affect the verdict, the court
should have, at a minimum, investigated the prejudice or
harmlessness of the contact even if at the time the court was
unaware what exactly transpired or whether the impact was
harmful. See Remmer, 347 U.S. at 229. The Nevada
Supreme Court erred when it failed to do so.
Certainly, there may be circumstances in which a trial
court finds a juror’s allegations of an external contact are
unsupported by sufficient evidence, or in which the
allegations are so implausible or incredible that they may be
reasonably disregarded. There may also be cases in which an
alleged external contact suggests paranoia or some underlying
mental incompetence on the juror’s part. See Tanner, 483
U.S. at 118–19. Under those circumstances, a court will not
run afoul of the Constitution by refusing to consider whether
the alleged contact affected the verdict. But this is not the
case on the record before us.
Here, Juror No. 2’s testimony was not discredited. To the
contrary, crediting Juror No. 2’s testimony about a plausible
external contact with a juror reluctant to convict, the Nevada
Supreme Court declined to consider whether Juror No. 2 may
have been prejudiced by the police tail.12 This contravened
12
The dissent suggests that the cited Supreme Court cases are
insufficiently specific to support our holding. See Dissent at 41–42. To
the contrary, Mattox and its progeny set forth a standard that “clearly
extend[s]” to the case before us. See Wright v. Van Patten, 552 U.S. 120,
123 (2008). Where, as here, contact between a hold-out juror and a
government official is shown, a court must investigate possible prejudice.
The Nevada Supreme Court’s failure to reach the prejudice inquiry was
contrary to clearly established federal law.
TARANGO V. MCDANIEL 27
clearly established federal law.13 See Remmer, 347 U.S. at
229–30; Mattox, 146 U.S. at 150; Smith, 455 U.S. at 215.
IV.
Because the Nevada Supreme Court failed to consider the
prejudicial impact of the contact, in violation of the law
clearly established in Mattox, we may evaluate Tarango’s
claim “without deference to the state court’s decision” and
“unencumbered by the deference AEDPA normally
requires.”14 Panetti, 551 U.S. at 948; see also Castellanos,
766 F.3d at 1146. Reviewing de novo, we hold that the
Nevada trial court improperly restricted the scope of the
evidentiary hearing, effectively preventing Tarango from
proving prejudice.
Under our precedent, where an external contact with the
jury is shown, a trial court should determine whether the
contact “raises a risk of influencing the verdict.” Caliendo,
365 F.3d at 697. Under such circumstances, prejudice is
13
Meyer, which the Nevada Supreme Court relied upon, appears to
require the same of Nevada courts. Although Meyer rejects “the position
that any extrinsic influence is automatically prejudicial,” it does not limit
the occasions in which a court must consider the possibility of prejudice.
See 80 P.3d at 455. Rather, because prejudice is not presumed for less
egregious contacts, “the extrinsic information must be analyzed in the
context of the trial as a whole to determine if there is a reasonable
probability that the information affected the verdict.” Id. at 455–56.
Meyer does not, however, wholly foreclose a prejudice inquiry in the face
of credible allegations of juror misconduct. Id.
14
The dissent cites a number of Ninth Circuit AEDPA cases that were
reversed by the Supreme Court, and in which the Supreme Court
“chastised us” for ignoring AEDPA’s demanding standard. See Dissent
at 34. These cases have no bearing on the issue presented in this appeal.
28 TARANGO V. MCDANIEL
presumed and the government bears the burden of rebutting
the presumption of prejudice. Id. To be sure, “certain chance
contacts between witnesses and jury members—while passing
in the hall or crowded together in an elevator—may be
inevitable.” Id. at 696 (internal quotation marks and citation
omitted). Therefore, if the contact involves a “prosaic” or
“more common and less pernicious extraneous influence”
than jury tampering, the court should determine whether the
jury was “substantially swayed” by the contact.15 United
States v. Henley, 238 F.3d 1111, 1115–16 (9th Cir. 2001).
Under this circumstance, the defendant bears the burden of
offering sufficient evidence to trigger a presumption of
prejudice. See Caliendo, 365 F.3d at 696–97 (collecting
authorities).
Although the anti-impeachment rule, codified as Federal
Rule of Evidence 606(b)(1), prohibits juror testimony
regarding “any juror’s mental processes concerning the
verdict,” an exception to the rule permits juror testimony
about whether “an outside influence was improperly brought
to bear on any juror.” Fed. R. Evid. 606(b)(2)(B). This court
has accordingly deemed admissible limited juror testimony to
determine “the impact [of an outside influence] upon the
juror, and whether or not [the outside influence] was
prejudicial.” Remmer, 347 U.S. at 230; see also Rutherford,
371 F.3d at 643–45 (considering juror affidavits including
claims that the jury felt intimidated by police officers’
glares); Caliendo, 365 F.3d at 699 (considering a juror’s
testimony that the jury’s external communication with a
15
The Nevada Supreme Court has identified a similar dichotomy in its
own construction of Supreme Court case law prohibiting external
influences on criminal juries. Meyer, 80 P.3d at 455–56.
TARANGO V. MCDANIEL 29
police officer left them with a favorable opinion of the
officer).
Unlike Nevada law, our precedent instructs that a court
should not limit juror testimony to “the existence of [an
external contact].” Rutherford, 371 F.3d at 644 (quoting the
district court in that case). Rather, a court “should [also]
consider the ‘effect of extraneous information or improper
contacts on a juror’s state of mind,’ a juror’s ‘general fear and
anxiety following’ such an incident, and any other thoughts
a juror might have about the contacts or conduct at issue.” Id.
(quoting United States v. Elias, 269 F.3d 1003, 1020 (9th Cir.
2001)). To that end, consistent with the anti-impeachment
rule, this court permits the introduction of limited evidence of
a juror’s state of mind to prove juror misconduct. A court
may not, consistent with the anti-impeachment rule, admit
testimony “regarding the affected juror’s mental processes in
reaching the verdict.” Id. (internal quotation marks omitted)
(quoting Elias, 269 F.3d at 1020). However, “a juror’s
testimony concerning his fear that individuals would retaliate
against him if he voted to acquit (or convict) would be
admissible, although his statement that he actually cast his
vote one way or the other because of that fear would not.” Id.
Consistent with the principles announced in Rutherford,
the district court should admit Juror No. 2’s statements about
how the police tail impacted him, although not how it
impacted his deliberations and verdict. Therefore, Juror No.
2’s statement that he found the police tail “unnerving” is
admissible, as are his statements that he “concluded Metro
somehow knew who [he] was.” By contrast, Juror No. 2’s
statements that he “relinquished his vote under duress,” and
“still [has] doubt as an X-Juror” are not admissible.
30 TARANGO V. MCDANIEL
V.
Because the scope of the evidentiary hearing was
narrowly circumscribed in the state trial court, the record
before us is insufficient to determine whether the police tail
influenced the verdict and prejudiced Tarango. We
accordingly remand for the district court to hold an
evidentiary hearing and apply the proper standard to
determine whether the Nevada courts violated Tarango’s due
process right to a fair and impartial jury by failing to
adequately consider allegations of a prejudicial external
influence on the jury. Following this court’s precedent, the
district court should permit Tarango to offer limited evidence
to show prejudice, see Caliendo, 365 F.3d at 696–97; Henley,
238 F.3d at 1115–16, including evidence of Juror No. 2’s
“general fear and anxiety” following the police tail, see
Rutherford, 371 F.3d at 644.
VACATED AND REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I agree with the majority that if a member of the Las
Vegas Metropolitan Police Department purposefully tail-
gated a holdout juror on the freeway for over seven miles,
because the juror was a holdout, such conduct might
constitute external jury contact requiring further inquiry from
the court. However, the Nevada Supreme Court determined
that the juror’s assumption that the police officer targeted him
TARANGO V. MCDANIEL 31
as the holdout juror was speculative and unsubstantiated.1 As
recognized by the majority, the Nevada Supreme Court
expressly found that “there was no evidence of an improper
external influence on Juror No. 2. . . .” Majority Opinion,
p. 14. We are bound by that factual determination absent a
showing of unreasonableness. See 28 U.S.C. § 2254(d)(2).
Appellant Manuel Tarango moved for a new trial in the
state court on the basis of an “outside influence on the jury
process.” Nevada Supreme Court Order, p. 1. According to
the Nevada Supreme Court, the holdout juror conveyed that
“he thought he had been followed by a police car.” Id., p. 2.
(emphasis added). Because he felt intimidated, the juror
changed his vote to guilty from not guilty.
The Nevada Supreme Court also noted that a recent
newspaper article attributed the juror’s change of heart to the
fact that “the other jurors were able to convince the holdout
1
The majority mischaracterizes my description of the state courts’
factual determination. See Majority Opinion, p. 22 n.9. The state court
did not discredit, and I did not describe the state courts’ finding as
discrediting, Juror No. 2’s statement that he “thought he was followed by
a police car.” Nevada Supreme Court Order, p. 2. What the state courts
did discredit, and what I did describe the state courts as finding, was a lack
of substantiation that the police car was following Juror No. 2 on the
freeway because he was a holdout juror. There was insufficient evidence
in the state courts’ view that a tail-gating police officer in rush-hour
morning traffic constituted an improper external influence. Rather than
focusing on whether Tarango submitted evidence of an external influence,
see, e.g., Mattox v. United States, 146 U.S. 140, 141–44 (inflammatory
newspaper article read to the jury); Remmer v. United States (Remmer I),
347 U.S. 227, 228 (1954) (juror told he could profit from favorable
verdict), the majority concludes that the existence of police tail-gating
during rush hour traffic, and nothing more, compelled the state court to
conduct a prejudice inquiry.
32 TARANGO V. MCDANIEL
to convict. . . .” Id., p. 4. After discussing the juror’s email
to the trial judge and the juror’s follow-up letter, the Nevada
Supreme Court concluded that the trial court properly
excluded from consideration the juror’s emails to the trial
judge and defense counsel under N.R.S. 50.065(2) and the
Nevada case of Meyer v. State, 80 P.3d 447 (Nev. 2003).
Nevada Revised Statute 50.065(2) provides:
Upon an inquiry into the validity of a
verdict or indictment:
(a) A juror shall not testify concerning the
effect of anything upon the juror’s 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.
(b) The affidavit or evidence of any
statement by a juror indicating an effect of
this kind is inadmissible for any purpose.
In Meyer, the Nevada Supreme Court interpreted N.R.S.
50.065. Initially, the court referenced Federal Rule of
Evidence 606(b), which it identified as an embodiment of
“the long-standing common-law rule against admission of
jury testimony to impeach a verdict . . .” 80 P.3d at 454 &
n.20 (citations and internal quotation marks omitted). The
court also noted that N.R.S. 50.065 was “substantially the
same” as the federal rule. Id. at n.20.
Importantly, the Nevada Supreme Court made a
distinction between juror misconduct and jury tampering. See
TARANGO V. MCDANIEL 33
id. at 454–55. Citing Supreme Court authority, the court
identified extraneous influence as jury tampering rather than
juror misconduct. See id. at 455 (citing Remmer I; see also
Remmer v. United States (Remmer II), 350 U.S. 377 (1956)).
Under this framework established by its precedent, the
Nevada Supreme Court ruled that, after excluding the
inadmissible evidence of the juror’s state of mind and of the
deliberative process of the jury, there was insufficient
evidence that the juror committed misconduct. See Nevada
Supreme Court Order, p. 6.
The Nevada Supreme Court then turned to the asserted
extraneous influence of a police car following the juror on the
freeway.2 Admittedly, the court couched its analysis in terms
of whether being followed by a police car constituted a
“communication.” Id., p. 7. Nevertheless, the court
ultimately concluded that “the alleged external influence in
the case at bar was far too speculative to sustain a motion for
a new trial.” Id. It is this conclusion that is reviewed under
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA).
In the last ten years, the United States Supreme Court has
repeatedly rebuked this Circuit for attempting to make end-
runs around the formidable obstacles to review contained in
the AEDPA. As the majority acknowledges, habeas relief
2
The majority takes judicial notice of a roadmap of Las Vegas, Nevada
to approximate the distance involved as 7.5 miles. See Majority Opinion,
p. 12 n.5. The majority should have also taken notice that US-95 is the
only freeway that accesses downtown from east on Tropicana Boulevard,
and therefore it would not be unusual for a police officer to take that route
to police headquarters downtown.
34 TARANGO V. MCDANIEL
under the AEDPA is available only if the decision of the state
court decision “was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined
by the Supreme Court of the United States, or . . . was based
on an unreasonable determination of the facts in light of the
evidence presented at the State Court proceeding.” Majority
Opinion, p. 16 (quoting 28 U.S.C. § 2254(d)(1)–(2)) (internal
quotation marks omitted). Despite our recurring
acknowledgment of this demanding standard, the Supreme
Court has constantly chastised us for failing to take our
professed acknowledgment to heart. In Glebe v. Frost, 135
S. Ct. 429, 431 (2014), the Court observed that we
acknowledged its ruling, “but tried to get past it.” Similarly,
in Lopez v. Smith, 135 S. Ct. 1, 4 (2014), the Court chided
this Circuit for “attempt[ing] to evade [the] barrier”
established by the AEDPA.3
In Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013), the
Court reversed us for relying on a decision that was “very far
afield.” Unfortunately, the majority opinion again strays
from the narrow confines of appropriate habeas review.
Rather than reviewing the state court’s determination that
proof of the alleged external influence was too speculative to
constitute jury tampering, the majority grants habeas relief on
the basis that the Nevada Supreme Court “improperly limited
its inquiry to whether the external contact amounted to a
communication,” contrary to Mattox v. United States, 146
U.S. 140 (1892). Majority Opinion, p. 4 (internal quotation
marks omitted). The majority then proceeds to “review de
3
The majority makes light of the many rebukes we have received from
the Supreme Court for ignoring the demanding standard under which we
review habeas cases. See Majority Opinion, p. 27 n.14. I doubt the
Supreme Court will be amused.
TARANGO V. MCDANIEL 35
novo the question whether the extrinsic contact could have
influenced the verdict and prejudiced Tarango.” Id. at 4.
(emphasis added). Finally, the majority remands “for an
evidentiary hearing and further fact finding.” Id.
There are three problems with the majority’s analysis.
The first is that Mattox is “far afield” from the dispositive
issue in this case. Jackson, 133 S. Ct. at 1993. The second is
that the majority gives no deference to the decision of the
Nevada Supreme Court, but rather engages in impermissible
appellate factfinding. The third is that no Supreme Court
case supports the majority’s conclusion. I will address each
problem in turn.
1. Reliance on Mattox
Mattox, a case decided in 1892, is notable not only for its
age and obvious pre-dating of the AEDPA, but for its
unremarkable holding. In Mattox, the United States Supreme
Court addressed the denial of a motion for a new trial made
by a defendant who was tried in federal court. See 146 U.S.
at 141. The basis of the motion was the reading of an
inflammatory newspaper article to jurors during their
deliberations, as well as prejudicial comments made to jurors
by the bailiff. See id. at 143–44, 151.
The Supreme Court observed that the affidavits submitted
by the jurors were properly received because they refrained
from articulating “what influence, if any, the communication
of the bailiff and the reading of the newspaper had upon
them, but confined their statements to what was said by the
one [the bailiff] and read from the other [the newspaper].” Id.
at 147. The Court emphasized that the extraneous influences
36 TARANGO V. MCDANIEL
were “open to the knowledge of all the jury, and not alone
within the personal consciousness of one.” Id. at 149.
The Court held that “[p]rivate communications, possibly
prejudicial, between jurors and third persons . . . or the officer
in charge, are absolutely forbidden, and invalidate the verdict,
at least unless their harmlessness is made to appear.” Id. at
150 (emphasis added). However, the Court also provided that
any assertion of jury tampering was “subject to rebuttal by the
prosecution; or contingent on proof indicating that a
tampering really took place.” Id. at 149–50 (citations
omitted) (emphasis added).
In Mattox, the existence of the extraneous influence was
undisputed. The Supreme Court summarized the newspaper
article as stating:
that the defendant had been tried for his life
once before; that the evidence against him
was claimed to be very strong by those who
had heard all the testimony; that the argument
for the prosecution was such that the
defendant’s friends gave up all hope of any
result but conviction; and that it was expected
that the deliberations of the jury would not
last an hour before they would return a verdict
...
Id. at 150–51.
The Court described the extraneous statement from the
bailiff as informing the jury “that this was the third person
Clyde Mattox had killed . . .” Id. at 151.
 TARANGO V. MCDANIEL 37
Considering these facts, it is unremarkable that the
Supreme Court held that the undisputed evidence of jury
tampering warranted the grant of a new trial. However,
nothing in the holding or reasoning of Mattox supports the
majority’s disregard of the state court’s determination that
Tarango’s evidence of jury tampering was speculative. The
majority cites Mattox for the proposition that the trial court
was compelled to “consider the prejudicial effect of any
external contact that has a ‘tendency’ to influence the verdict.
. . .” Majority Opinion, p. 18. However, the majority’s
analysis conveniently omits the discussion in Mattox of the
undisputed evidence that established, without challenge, the
existence of the external contact. See Mattox, 146 U.S. at
150–51. The majority also elides the language in Mattox
explaining that relief is “contingent on proof indicating that
a tampering really took place.” Id. at 149–50 (citations
omitted) (emphasis added). Unlike in Mattox, the evidence
submitted by Tarango was disputed. Indeed, the prosecutor
denied providing the identity of the holdout juror to anyone
at the Police Department. Having reviewed the testimony
presented to the trial court, the Nevada Supreme Court agreed
with the trial court that the evidence of jury tampering was
speculative in the absence of evidence that the identity of the
holdout juror was provided to anyone in the Police
Department. This determination was entirely consistent with
the requirement in Mattox of proof that jury tampering
actually occurred.
It cannot be fairly said that Mattox compels consideration
of the prejudicial effect of speculative evidence of jury
tampering. Rather, as with other factual determinations, the
existence of jury tampering is a matter to be resolved by the
trial court. See Uttecht v. Brown, 551 U.S. 1, 17, 20 (2007)
(explaining that “it is the trial court’s ruling that counts” due
38 TARANGO V. MCDANIEL
to its ability to perceive the demeanor of the witnesses). The
trial court conducted an evidentiary hearing, and determined
that the allegation of jury tampering was “vague” and
“ambiguous” and “nonspecific.” The Nevada Supreme
Court’s affirmance of the trial court’s determination that the
evidence of jury tampering was “speculative” was not
contrary to Mattox because the holding of Mattox is “far
afield” from the facts of this case. Jackson, 133 S. Ct. at
1993.
The majority also relies on our decision in United States
v. Armstrong, 654 F.2d 1328, 1331–33 (9th Cir. 1981).
However, that case is more helpful to the dissent than to the
majority. In that case, a juror reported that her husband had
taken two calls using obscene language and directing the
husband to “[t]ell your wife to stop hassling my brother-in-
law at court.” Id. at 1331. On direct appeal, we determined
that an outside influence must be present to raise the
presumption of prejudice. See id. at 1332. That is where the
majority’s analysis falters, because the Nevada state courts
never found that an external influence was exerted upon Juror
No. 2. At most, the courts assumed the juror was followed,
but did not link the asserted tail-gating to Juror No. 2’s status
as a holdout juror. Tail-gating an individual who is not
known to be a holdout juror, or a juror at all, would not have
a “tendency” to influence the jury’s verdict, and would not
prompt a prejudice inquiry. Mattox, 146 U.S. at 150–51.4
4
Curiously, the majority opinion implies that a newspaper article is not
a “communication.” Majority Opinion, p. 18. Nothing could be further
from the truth. See Hillard v. Arizona, 362 F.2d 908, 909 (9th Cir. 1966)
(noting that the Judge admonished jurors “to avoid out of court
communications . . . including newspaper articles).
TARANGO V. MCDANIEL 39
The other cases cited by the majority as clearly
established Federal law are similarly “far afield.” In Remmer
I, 347 U.S. at 228–29, unlike in this case, the allegations of
jury tampering were unchallenged by the prosecution, yet the
district court denied the motion for a new trial. On direct
appeal, the United States Supreme Court remanded the case
for a hearing on prejudice. See id. at 229–30. Not only is this
case “far afield” because it did not involve habeas review.
See Cullen v. Pinholster, 131 S. Ct. 1388, 1410 (2011)
(clarifying that a case offers no guidance for habeas review
under the AEDPA if the court did not apply AEDPA
deference); see also Harrington v. Richter, 562 U.S. 86, 101
(2011). The allegations were also unchallenged, and the trial
court failed to conduct a hearing. See Remmer I, 347 U.S. at
228–29; see also Parker v. Gladden, 385 U.S. 363, 364–65
(1966) (allegations unrefuted).
In Smith v. Phillips, 455 U.S. 209, 215 (1982), the
Supreme Court held that “the remedy for allegations of juror
partiality is a hearing in which the defendant has the
opportunity to prove actual bias. . . .” That is precisely what
occurred in the state court. Tarango had the opportunity to
prove the allegations, and the state courts determined that his
proof was inadequate. That should be the end of the matter
under habeas review. See Premo v. Moore, 562 U.S. 115, 131
(2011).
2. Failure to defer to the Nevada Supreme Court
The Supreme Court has consistently and repeatedly
stressed our obligation on habeas review to defer to the
rulings and factual determinations made by the state courts.
See Uttecht, 551 U.S. at 10 (“By not according the required
deference, the Court of Appeals failed to respect the limited
40 TARANGO V. MCDANIEL
role of federal habeas relief in this area prescribed by
Congress and by our cases.”); see also Jackson, 133 S. Ct. at
1994 (referencing the “substantial deference” required by
AEDPA); Cavazos v. Smith, 132 S. Ct. 2, 7 (2011)
(mentioning Supreme Court opinions “highlighting the
necessity of deference to state courts in § 2254(d) habeas
cases”); Pinholster, 131 S. Ct. at 1398 (describing the “highly
deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the
doubt”) (citation omitted); Richter, 562 U.S. at 104 (reversing
this Circuit for “a lack of deference to the state court’s
determination and an improper intervention in state criminal
processes, contrary to the purpose and mandate of AEDPA
and to the now well-settled meaning and function of habeas
corpus in the federal system”).
The trial court determined that Tarango failed to
adequately establish that jury tampering occurred, due to the
speculative, vague, ambiguous and disputed nature of the
allegations that a police officer identified Juror No. 2 as the
holdout juror and tail-gated that juror for over seven miles.
Although the trial court could have credited the juror’s
version of events over the prosecution’s rebuttal, it did not do
so. Rather than deferring to the state court’s determination,
the majority engaged in its own factfinding, stating that:
“[W]e have little trouble concluding that the contact that the
Nevada Supreme Court assumed occurred had enough
potential for prejudice to cross Mattox’s low threshold. . . .”
Majority Opinion, p. 25.5
5
The majority completely ignores the fact that the state court never
found that the police officer was aware of the identity of the holdout juror.
For that reason, the state court merely assumed that there was a tail-gating,
TARANGO V. MCDANIEL 41
The majority’s disregard of the state court’s determination
and substitution of its alternate conclusion strays from our
appointed role on habeas review. See Richter, 562 U.S. at
104.
3. No supporting Supreme Court authority
Under the rule expressed by the majority, a trial court
would have to conduct a prejudice analysis whenever an
allegation of jury tampering is made, even if the trial court
ultimately determines that the allegation is unsubstantiated.
See Majority Opinion, p. 22 n.9 (discounting the trial court’s
determination that the allegation of jury tampering was
“ambiguous, vague and nonspecific”) (internal quotation
marks omitted).
No Supreme Court precedent supports the majority’s
rationale. As previously noted, Remmer I and Mattox
involved undisputed evidence of extraneous influence. See
Remmer I, 347 U.S. at 229; see also Mattox, 146 U.S. at 151.
Smith merely stands for the proposition that the defendant
asserting jury tampering must be afforded a hearing. See 455
U.S. 215. It is without question that Tarango was afforded a
hearing. So we are left with the majority’s premise
untethered to any controlling Supreme Court authority.
Rather, Mattox expressly points in the other direction,
not that there was “external contact.” The assumption of “external
contact” is made by the majority.
42 TARANGO V. MCDANIEL
requiring proof that jury tampering actually occurred. See
146 U.S. at 149–50.6
The Supreme Court has addressed the tendency of this
Circuit to reach beyond the confines of Supreme Court
precedent. In Lopez, 135 S. Ct. at 4, the Supreme Court
scolded us for relying on “older cases that stand for nothing
more than [a] general proposition.” Here, the majority
similarly cites older cases standing for the general proposition
that a defendant is entitled to a hearing when jury tampering
is asserted, and a determination of prejudice when jury
tampering has been established. See Remmer I, 347 U.S. at
228–29; see also Smith, 455 U.S. at 215. Just as in Lopez,
“[n]one of [the Supreme Court] decisions that the [majority]
cited addresses, even remotely, the specific question
presented by this case.” 135 S. Ct. at 4 (citations omitted).
The specific question in this case is whether the trial court is
required to conduct a prejudice inquiry when that court has
determined that the allegations of jury tampering are
“ambiguous, vague and nonspecific.” The majority has cited
no Supreme Court case addressing this specific question.7
6
The majority accuses me of missing the point, see Majority Opinion,
p. 23 n.10, but it is the majority that is off-base. The state courts NEVER
“presumed an unauthorized external contact with a juror had occurred.”
Id. The most the state courts assumed was that a police car tail-gated
Juror No. 2 during morning rush-hour traffic on the only freeway that
accesses downtown from east Tropicana Boulevard. The majority
presumes the rest.
7
The majority takes issue with, and in the process implicitly concedes,
my point that the Supreme Court cases relied upon by the majority “are
insufficiently specific.” Majority Opinion, p. 26 n.12. In the very next
sentence, the majority seeks to “extend” the standards set forth in “Mattox
and its progeny.” Id. However, the Supreme Court has expressly
instructed us against extending its precedent beyond its specific holdings.
TARANGO V. MCDANIEL 43
Consequently, the Nevada Supreme Court decision could not
have been contrary to federal law under the AEDPA. See
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“With no
Supreme Court precedent establishing [the standard adopted
by the panel], habeas relief cannot be granted pursuant to
§ 2254(d)(1) based on such a standard. . . .”).
CONCLUSION
I have no quarrel with the notion that we must faithfully
adhere to the panoply of procedural protections afforded the
criminal defendant. However, on habeas review, we are
cabined by the deference owed to state court decisions and by
the requirement that relief be granted only if the decision of
the state court was contrary to established Supreme Court
authority. Mattox is not that authority in this case.
The Supreme Court has repeatedly reminded us that the
standard for relief on habeas review “is difficult to meet . . .
because it was meant to be. . . .” Richter, 562 U.S. at 102.
Federal habeas review “is a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal. . . .”
Id. (citation and internal quotation marks omitted) (emphasis
added). Rather than applying the “difficult” habeas standard,
at best the majority engages in “ordinary error correction.”
Id.
See White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (“[I]f a habeas court
must extend a rationale before it can apply to the facts at hand, then by
definition the rationale was not clearly established . . .”) (citation and
internal quotation marks omitted).
44 TARANGO V. MCDANIEL
Because the majority cites no applicable Supreme Court
authority to support its grant of habeas relief, because the
majority completely disregards the findings of the state
courts, and because the majority fails to adhere to the
confines of habeas review, I respectfully dissent.