No Remmer Presumption for Court‑Authorized IT Help During Deliberations: United States v. Briscoe (10th Cir. 2025)

Introduction

This commentary analyzes the Tenth Circuit’s Order and Judgment in United States v. Briscoe, No. 23-3109 (10th Cir. Apr. 2, 2025), affirming denial of a federal prisoner’s motion to vacate under 28 U.S.C. § 2255. The appeal arose from an unusual Sixth Amendment challenge: during jury deliberations, a district court information-technology (IT) technician briefly entered the jury room to address playback problems so jurors could view a video exhibit frame-by-frame. Years later, after counsel learned of this post-verdict during attorney–juror consultations, the defendant claimed that the technician’s presence violated the right to an impartial jury and that trial counsel rendered ineffective assistance by not seeking a new trial.

The central questions were:

Does the Remmer presumption of prejudice apply when a court-authorized, disinterested IT technician briefly assists a deliberating jury with equipment to view admitted evidence?
On collateral review under § 2255, what harmless-error standard governs alleged Sixth Amendment jury-contact errors, and was any prejudice shown?
Did counsel render ineffective assistance by failing to move for a new trial once the IT assistance was revealed?

The panel (Judges Tymkovich, Bacharach, and Carson) affirmed. While not binding precedent, the decision is citable for its persuasive value and offers practical, detailed guidance on authorized technical assistance to juries and the standards for proving prejudice on collateral review.

Summary of the Opinion

The Tenth Circuit affirmed the denial of § 2255 relief on two Sixth Amendment theories:

Impartial jury claim: No Remmer presumption applied because the IT technician’s contact was “in pursuance of” the district court’s on-the-record instruction that someone would assist jurors in accessing electronically submitted evidence—i.e., not a “private” or unauthorized communication. Even assuming the Remmer presumption could apply in a § 2255 case, it did not apply on these facts. Applying collateral-review harmless-error principles, the court concluded the record showed no “substantial and injurious effect or influence” on the verdict under Brecht v. Abrahamson.
Ineffective assistance claim: The court affirmed on lack of Strickland prejudice. Given the absence of evidence that the technician discussed the case or was present during the repeated slow-motion review, there was no reasonable probability that a new-trial motion would have altered the outcome.

Key features of the record guided the court’s harmlessness analysis: the technician’s brief presence (5–20 minutes), disinterested status, purpose-limited assistance (to get equipment working), jurors’ operation of the equipment thereafter, and the absence of any evidence of case discussion with the technician. The court also distinguished cases involving unauthorized or “interested party” contacts.

Detailed Analysis

Precedents and Authorities Cited

Remmer v. United States, 347 U.S. 227 (1954) and 350 U.S. 377 (1956)

Remmer held that “any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury” is “presumptively prejudicial,” unless done in pursuance of court rules and directions made with the parties’ knowledge. Remmer also emphasized the law’s objective to guard against “unauthorized intrusions” into the jury’s deliberations. Briscoe leverages Remmer’s own carve-outs: where contact is authorized and known to the parties, the presumption does not attach. The panel assumed arguendo that the Remmer presumption could apply in a § 2255 case but held it inapplicable because the contact here was court-authorized and known.

Malicoat v. Mullin, 426 F.3d 1241 (10th Cir. 2005), and Crease v. McKune, 189 F.3d 1188 (10th Cir. 1999)

Both § 2254 habeas cases suggest the Remmer presumption “generally does not apply” on collateral review of state convictions due to comity and finality concerns. The panel noted it had not decided whether Remmer’s presumption applies in § 2255 cases and did not need to decide the point here because, even assuming applicability, the presumption did not attach given the authorization and notice.

United States v. Freeman, 634 F.2d 1267 (10th Cir. 1980)

Freeman involved an FBI agent who had testified for the government entering the jury room without notice to operate playback equipment during deliberations; the convictions were vacated. Briscoe distinguished Freeman on two grounds: (1) the FBI agent was an “interested party,” heightening the inherent risk of improper influence; and (2) the contact in Freeman was unauthorized. By contrast, Briscoe involved a disinterested IT employee acting under the court’s announced directions.

Little v. United States, 73 F.2d 861 (10th Cir. 1934)

Little set out broad admonitions against non-jurors being present in the jury room during deliberations and reversed where a stenographer read instructions to jurors. The Briscoe panel explained that Remmer later recognized an exception for contacts authorized by the court with the parties’ knowledge. It also distinguished the risk profile: a stenographer orally reciting instructions could misread or misemphasize, whereas a video exhibit “speaks for itself,” and the IT technician here had no demonstrated familiarity with the case.

Brecht v. Abrahamson, 507 U.S. 619 (1993); O’Neal v. McAninch, 513 U.S. 432 (1995); Davis v. Ayala, 576 U.S. 257 (2015)

These decisions supply the governing harmless-error framework on collateral review: the petitioner obtains relief only if the error had a “substantial and injurious effect or influence” on the verdict; if the reviewing court has “grave doubt” about whether the error affected the verdict, relief may be warranted. Briscoe applied Brecht’s standard and found no substantial and injurious effect.

United States v. Dominguez Benitez, 542 U.S. 74 (2004), n.7

Cited for the proposition that, on collateral review, the government may bear the burden to show harmlessness under the more lenient Kotteakos/Brecht standard. The Briscoe panel did not resolve who bears the burden in § 2255, concluding the outcome was the same even if the government bears it: harmlessness was shown on this record.

Stouffer v. Duckworth, 825 F.3d 1167 (10th Cir. 2016)

Reaffirmed that “surmise and suspicion” cannot impugn a verdict; courts presume jurors follow instructions. Briscoe applied this presumption to reject speculation that the technician’s presence infected deliberations.

United States v. Hornung, 848 F.2d 1040 (10th Cir. 1988)

Endorsed an objective test for assessing juror prejudice, focusing on the whole record and the content of the contact. Briscoe used this approach, constrained by Rule 606(b).

United States v. Scull, 321 F.3d 1270 (10th Cir. 2003) and United States v. Robertson, 473 F.3d 1289 (10th Cir. 2007)

The panel noted, without deciding, that later Supreme Court jurisprudence (Smith v. Phillips; Olano) may have reconfigured Remmer. Briscoe did not reach this issue because it found Remmer inapplicable for other reasons.

United States v. Monserrate-Valentín, 729 F.3d 31 (1st Cir. 2013)

Distinguished because there the technician remained in the jury room during playback; in Briscoe, the technician likely left before repeated viewing, and there was no evidence of case discussion.

The Court’s Legal Reasoning

1) Remmer’s Presumption Does Not Attach to Court-Authorized, On-the-Record IT Assistance

Remmer’s presumption attaches to “private” communications—contacts not made pursuant to court rules or directions with parties’ knowledge. Here, the district court had told the jury in open court that “there will be someone in the jury room that will instruct you how to” access evidence submitted electronically. This notice, given in the presence of the parties, authorized technical assistance. The panel held that the court’s statement was not limited to a one-time tutorial but reasonably implied initial and as-needed assistance. Consequently, the IT technician’s contact was neither “private” nor unauthorized, and there was no basis to presume prejudice.

2) Distinguishing Older and Factually Different Cases

Little (1934): Concerned the risk of misreading or emphasis when a stenographer orally delivered instructions and reflected then-prevailing absolutist language about “no outsiders.” Remmer later recognized exceptions for court-authorized contacts with party knowledge. The video at issue in Briscoe was an admitted exhibit; the technician merely facilitated access.
Freeman (1980): Turned on unauthorized contact by an “interested party” (a testifying FBI agent). Briscoe instead involved a disinterested court IT technician acting under the court’s directions and absent evidence of exposure to the case.

3) Harmless-Error Analysis Under Brecht on Collateral Review

Even assuming error, § 2255 relief requires showing the error had a substantial and injurious effect on the verdict. The panel did not decide who bears the burden (government or petitioner), because the outcome was the same either way: the record showed harmlessness.

Constrained by Rule 606(b), the court used an objective lens:

Time and purpose limited: the IT technician spent 5–20 minutes troubleshooting equipment, “showed the jury how to work the equipment and then left.”
Jurors then operated the equipment themselves and viewed the video repeatedly, including frame-by-frame.
There was no evidence of discussion about the case with the technician; jurors recalled they were not supposed to talk about the case with outsiders and the court had repeatedly so instructed.
The technician was not an “interested party” and did not recall the event; nothing suggested familiarity with the case or its stakes.

On this record, any claim of influence amounted to “surmise and suspicion”—insufficient under Stouffer and Brecht. The panel did not harbor grave doubt that the contact affected the verdict.

4) The Ineffective-Assistance Claim Fails on Strickland Prejudice

To prevail under Strickland, a defendant must show deficient performance and resulting prejudice. The district court had found no deficiency, reasoning that it could properly have denied any request to attend the technician’s demonstration and any objection to slow-motion playback. The Tenth Circuit affirmed on an alternative ground: no prejudice. Given the harmlessness analysis above and the absence of record support that the technician’s presence affected deliberations, the court found no reasonable probability that a new-trial motion would have changed the outcome.

5) Evidentiary Limits: Rule 606(b)

Inquiries into verdict validity cannot probe jurors’ mental processes or the effect of influences on their votes. Jurors may testify only to extraneous information, outside influence, or clerical mistakes in the verdict form. Briscoe adhered to these limits, assessing the objective circumstances rather than juror thought processes. This shaped the analysis and underscores why speculative assertions are inadequate to establish prejudice.

Impact and Prospective Significance

Persuasive clarification on IT assistance during deliberations: The decision solidifies a practical distinction: brief, court‑authorized technical assistance provided with notice to the parties does not trigger Remmer’s presumption. Courts and counsel can structure clear, on‑the‑record authorizations to facilitate juror access to admitted digital evidence without inviting reversal.
High bar for collateral relief on jury‑contact claims: On § 2255 review, Brecht’s substantial‑and‑injurious‑effect standard governs constitutional trial errors. Absent concrete evidence of improper discussion or influence, speculation will not suffice—especially where the contact is disinterested, purpose-limited, and authorized.
Distinguishing “interested party” contacts: The opinion reinforces that unauthorized contact by someone aligned with a party (e.g., a testifying agent) is categorically more problematic than brief assistance by a neutral technician.
Guidance for trial courts: The court’s reasoning rewards best practices: announce in open court that technical assistance will be available, limit help to functionality, keep the assistant’s presence brief, ensure jurors—not outsiders—operate the equipment, and repeatedly instruct jurors not to discuss the case with anyone outside the jury.
Scope of Remmer on § 2255 remains open: The panel acknowledged uncertainty about Remmer’s presumption on federal collateral review but found it unnecessary to decide. Future cases may further delineate whether and how Remmer applies in § 2255 proceedings after Smith v. Phillips and Olano.
Slow‑motion playback of admitted exhibits: While the panel did not announce a rule about playback speed, it treated the jury’s slow‑motion and frame‑by‑frame review as part of accessing admitted evidence—not as introducing new evidence—so long as jurors, not outsiders, controlled the playback.
Nonprecedential but instructive: Though designated an order and judgment, the decision may be cited for its persuasive value under Tenth Circuit Rule 32.1 and offers a practical roadmap for handling digital evidence during deliberations.

Complex Concepts Simplified

Remmer presumption: Normally, if a juror is contacted privately about a case during trial, prejudice is presumed and the government must prove harmlessness. But if the contact happened under the court’s directions and with the parties’ knowledge, it is not “private” under Remmer, so the presumption does not attach.
Authorized vs. unauthorized contact: “Authorized” means the court has expressly allowed it and told the parties (e.g., on the record). “Unauthorized” contacts—especially by persons aligned with a party—raise serious concerns and may warrant a presumption of prejudice.
Brecht harmless-error on collateral review: A petitioner gets relief only if an error had a “substantial and injurious effect” on the verdict. If the appellate court has “grave doubt” about the effect, relief may be appropriate. This standard is less defense‑friendly than harmless‑beyond‑a‑reasonable‑doubt on direct review.
Rule 606(b): Courts generally cannot ask jurors about what they thought or how influences affected their votes. Juror testimony is permitted only to show extraneous information, outside influence, or clerical error in recording the verdict.
Strickland prejudice: To prove ineffective assistance, it is not enough to show counsel could have done more; the defendant must show a reasonable probability that, absent counsel’s error, the result would have been different.
§ 2255 vs. § 2254: § 2255 is federal prisoners’ vehicle for collateral attacks; § 2254 is for state prisoners. In both, collateral review emphasizes finality and often applies Brecht’s harmless-error standard to trial errors.

Practice Pointers

Make the authorization explicit: Judges should announce on the record that neutral court personnel may enter the jury room to provide technical assistance in accessing admitted electronic evidence.
Limit scope and presence: Assistance should be confined to functionality; the assistant should leave promptly. Jurors—not outsiders—should operate equipment during substantive review.
Reinforce instructions: Reiterate that jurors must not discuss the case with anyone outside the jury and that any non-juror’s role is strictly technical.
Build a clear record: If issues arise, counsel should seek to memorialize the nature and scope of any assistance provided and, if needed, request appropriate curative instructions.
Assess collateral claims realistically: On § 2255, absent concrete, objective evidence of unauthorized or substantive contact, claims premised on technical assistance are unlikely to satisfy Brecht or Strickland.

Conclusion

United States v. Briscoe articulates a pragmatic, carefully cabined principle for the digital-evidence era: court‑authorized, on‑the‑record technical assistance by a disinterested IT technician to help jurors access admitted evidence does not trigger Remmer’s presumption of prejudice. On collateral review, alleged errors tied to such assistance will be assessed under Brecht’s substantial‑and‑injurious‑effect standard, with speculation and conjecture insufficient to unsettle the verdict. The ineffective‑assistance claim correspondingly fails where no reasonable probability exists that a new‑trial motion would have changed the result.

While nonprecedential, Briscoe offers persuasive guidance to trial judges and practitioners on structuring and documenting technical support for deliberating juries, and it underscores the stringent prejudice showings required to overturn convictions on collateral review for jury-contact allegations that are authorized, limited, and disinterested.