O R D E R
Malcolm Whiteside appeals his conviction for possessing a firearm as a felon,
18 U.S.C. § 922(g)(1), on the grounds of juror misconduct. Two weeks after his trial, Whiteside learned that a juror had a brief discussion about the case with an unknown third party after the prosecution rested but before Whiteside put on his defense. During the discussion, the juror indicated his belief that Whiteside was guilty. The district court denied Whiteside's motion for a new trial, concluding there was no reasonable possibility that the juror's misconduct affected the verdict. Based on this conviction, the court also revoked Whiteside's supervised release in a separate case. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
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I
In August 2024, a silver Audi crashed into a semitruck while fleeing a traffic stop in Madison, Wisconsin. The semi driver told officers that the Audi was driven by a black man wearing a white tank top and gray or blue athletic shorts. He saw the man flee with his passenger (a woman), running in the general direction of a Home Depot. A police officer soon found Whiteside lying prone in a shed in the Home Depot parking lot. Whiteside was wearing a t-shirt and gray shorts, with a white tank top underneath the t-shirt. Officers recovered a .40 caliber Glock handgun from underneath the Audi's driver seat, and testing revealed Whiteside's DNA on the gun. In a recorded jail call the day after the chase and crash, Whiteside expressed regret for the "recent events" to his girlfriend Mariah Zachery—the fleeing passenger who also happened to be the Audi's owner. Whiteside, a convicted felon, was charged with possessing the Glock. See 18 U.S.C. § 922(g)(1).
Whiteside represented himself at trial. See Faretta v. California, 422 U.S. 806 (1975). His main theory was mistaken identity and, as a secondary theory, he insinuated that police had planted his DNA on the gun. He cross-examined the government's witnesses about these theories. During his case-in-chief, Whiteside recalled three government witnesses and essentially rehashed his cross-examinations. The jury convicted him after deliberating for just 30 minutes.
Two weeks after the trial, Whiteside (through newly appointed counsel) moved for a new trial based on juror misconduct witnessed by his mother, Lisa Blount. According to Blount's affidavit, a juror ("Juror 1") took a speakerphone call during the lunch break after the prosecution rested its case. Juror 1 said that the defendant was representing himself and talking more than the government's attorneys. Blount viewed these comments as "dismissive or critical" of Whiteside. The person on the other end of the call expressed his belief that the defendant was "probably guilty and would be headed to jail." Juror 1 agreed and ended the conversation by saying that "he had to return to the trial now, but that he did not expect the rest of the trial to take very long because the guy, the defendant, was guilty." Blount stated that Juror 1 "seemed irritated at how long the trial was taking."
Separate from the affidavit, Blount conveyed to Whiteside in a recorded jail call more details of the overheard conversation. Blount said that the Juror 1 said
"[Whiteside has] a background," "[Whiteside is] talking more than the lawyers do,"
"[Whiteside] represents himself," "It is just him and it's a lot of them," and "[T]hey got all these people. It's only just him." The government stipulated to the affidavit's facts, as
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well as the facts from the jail call. This made an evidentiary hearing and post-trial discovery unnecessary.
The district court denied Whiteside's motion for a new trial. The court explained that Juror 1's comments, while inappropriate, did not suggest that he was unable to consider the trial evidence or that he was impervious to persuasion during deliberations, especially since the prosecution had already rested and Whiteside had examined the witnesses on his theory of the case. The external communication, the court continued, was more serious and presumptively prejudicial to Whiteside. But that presumption was overcome because the communication conveyed no outside information, was a "casual expression of opinion" rather than a threat, and, most importantly, the evidence against Whiteside was overwhelming and his defense was feeble. The court concluded that there was no reasonable probability that other jurors, having been instructed to disregard outside information, were influenced by an opinion from an unknown third party—especially given the weight of the evidence against Whiteside.
The district court eventually held a combined sentencing-and-revocation hearing. For the felon-in-possession conviction, the court imposed a below-guidelines sentence of 96 months in prison followed by a three-year term of supervised release. During the revocation portion of the hearing, the court determined that the evidence it heard at trial proved by a preponderance of the evidence that Whiteside was guilty of possessing a firearm as a felon. Placing great weight on Whiteside's long history of violating the terms of his supervised release, the court imposed an 18-month sentence for the supervised release violations to run consecutively with his 96-month sentence. Whiteside appealed both the denial of his motion for a new trial and his revocation.
II
Whiteside challenges each of the district court's reasons for denying him a new trial, arguing that (1) Juror 1 improperly concluded Whiteside was guilty before deliberations began, and (2) Juror 1 was improperly influenced by outside contact. Whiteside further maintains that if we grant him a new trial, we must also vacate the revocation sentence.
We review the district court's handling of juror misconduct deferentially, reversing only for an abuse of discretion. United States v. Farmer, 717 F.3d 559, 564 (7th Cir. 2013); United States v. Vasquez-Ruiz, 502 F.3d 700, 704 (7th Cir. 2007). This
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standard applies even when, as here, the relevant evidence comes only from an affidavit. See Farmer, 717 F.3d at 563-64.
A
The presumption of innocence is fundamental to criminal trials. Id. at 564. For that reason, jurors are instructed to keep an open mind throughout the entire trial and not deliberate until after closing arguments. See id. So when a juror decides the defendant's guilt before that point, it is misconduct and may warrant a new trial. See id. But it is "impossible for a human being serving as a juror not to form preliminary opinions about a case while the evidence is presented." Id. at 565. To determine whether a new trial is warranted, a court must exercise its judgment, based "on precedent, experience, and common sense to gauge whether the statements or conduct should be presumed prejudicial." Id. (emphasis omitted).
The district court reasonably concluded that Juror 1's premature deliberation in and of itself should not be presumed prejudicial. We agree that the timing of the statement strongly undercuts any presumption of prejudice. As the district court explained, the jury had heard nearly all the relevant evidence and arguments by the end of the prosecution's case-in-chief, and Whiteside's own case-in-chief was brief and merely cumulative of his cross examinations. As the court noted, in Farmer we upheld the denial of a new trial where jurors commented aloud that the defendant was guilty before the prosecution rested its case. Id. at 563, 566. We concluded that although such comments were improper, they expressed a relatively normal practice of forming views as the evidence was presented rather than waiting until the end of trial. See id. at 565. The same is true here. Juror 1's comments suggest that he formed a preliminary opinion based on the evidence as it was presented, not that he was unwilling to fairly consider the evidence.
Whiteside faults the district court for saying that Juror 1's commentary on his guilt and trial performance did not reflect a "snap judgment reflecting pure prejudice."
He argues that the court's use of the word "pure" suggests it would not grant him a new trial unless Juror 1 was entirely biased, which is a higher burden than the law requires. But in context, the court's reference to "pure prejudice" means only that Juror 1's comments did not suggest bias against criminal defendants or the self-represented. Whiteside's gloss requires us to "adopt the least charitable reading possible," which we routinely refuse to do. See United States v. Vizcarra-Millan, 15 F.4th 473, 491 (7th Cir.
2021).
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B
Any external communication with a juror about the matter before the jury is presumptively prejudicial. Remmer v. United States, 347 U.S. 227, 229 (1954). The government has the burden to prove there is "no 'reasonable possibility' that the verdict was affected by the contact." Whitehead v. Cowan, 263 F.3d 708, 726 (7th Cir. 2001) (quoting United States v. Sanders, 962 F.2d 660, 668 (7th Cir. 1992)); accord United States v. Jordan, 958 F.3d 331, 335 (5th Cir. 2020). Helpful factors to consider are the nature of the contact, the availability and effect of any curative statements, and the strength of the government's case. Hall v. Zenk, 692 F.3d 793, 807 (7th Cir. 2012). Whiteside argues that the district court abused its discretion in denying him a new trial because, in his view, "extra-jury expressions of guilt," categorically warrant new trials. We have emphasized, however, that there are no categorical approaches for assessing the prejudicial impact of external contact with jurors: "Each case turns on its own facts, and on 'the degree and pervasiveness of the prejudicial influence possibly resulting.'" United States v. Paneras, 222 F.3d 406, 411 (7th Cir. 2000) (quoting United States v. Solomon, 422 F.2d 1110, 1118 (7th Cir. 1970)).
Whiteside also contends that the district court erred by considering the weight of the evidence against him. But this was no error. We have explicitly endorsed considering the weight of the evidence against the defendant. E.g., United States v. Coney, 76 F.4th 602, 608 (7th Cir. 2023) ("Several factors persuade us there was no abuse of discretion here … [including the] overwhelming evidence of Coney's guilt."); Paneras,
222 F.3d at 411 (overwhelming evidence of guilt was "a factor which militates against" a new trial after jury saw arguably prejudicial information).
Whiteside further suggests that Juror 1 "adopted" the unknown caller's opinion of his guilt, thus abdicating a juror's adjudicative duties. This overstates the evidence. Blount's affidavit says only that the caller expressed that Whiteside was "probably guilty and would be headed to jail," and Juror 1 agreed that Whiteside was guilty. It is not plausible that the mere statement "I agree" means Juror 1, having already heard the overwhelming evidence against Whiteside, abandoned his own view of the case and adopted the caller's.
The remainder of the district court's analysis was far from an abuse of discretion. Although a juror's contact with an external source over a defendant's guilt can be a
"grave" concern, Vasquez-Ruiz, 502 F.3d at 704, any concern here is mollified by the nature of the speakerphone call, which involved a casual expression of opinion rather
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than a threat or command, cf. id. at 702, 706 (threats and hints of racial bias), and the overwhelming evidence against Whiteside. By the time of the phone call, the jury had heard that Whiteside was a convicted felon found hiding a short distance away from the spot where a man matching his description was seen running from his girlfriend's car, with his DNA on the gun found in the car. Nothing in the call suggested that Juror 1 learned any outside information about the case or Whiteside. To the limited extent that Whiteside asserts that other jurors were influenced by Juror 1's speakerphone call, these same considerations apply with equal force. Moreover, the timing of Blount's affidavit, although no fault of Whiteside, cuts against providing him a new trial: "Allegations of juror misconduct … raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process." Farmer, 717 F.3d at 566 & n.3 (quoting Tanner v. United States, 483 U.S. 107, 120 (1987)).
C
At oral argument, the parties agreed that if we affirm Whiteside's conviction there is no reason to question the revocation of his supervised release. We thus discuss the issue no further.
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We commend the district court for its handling of this case. The court carefully considered the serious allegations and ably exercised its judgment when weighing the competing factors. At no point did it abuse its discretion, so the judgments are
AFFIRMED.
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