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March 5, 1956



Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton; Warren and Harlan took no part in the consideration or decision of this case.

Author: Minton

[ 350 U.S. Page 377]

 MR. JUSTICE MINTON delivered the opinion of the Court.

This case is here for the third time. Petitioner was convicted on four counts of wilfully attempting to evade and defeat federal income taxes. When this case was first here we knew nothing about the facts concerning the phase of the case now before us. It was alleged

[ 350 U.S. Page 378]

     in the petitioner's motion and affidavits supporting his motion for a new trial that during the trial one juror, Smith, had been approached by one Satterly, an outsider, with a suggestion that the juror could make some easy money if he would make a deal with petitioner Remmer. It was further alleged by the petitioner that the juror reported the matter to the trial judge, who in turn reported it to the district attorney, who, with the judge's approval, called in the Federal Bureau of Investigation -- all of which was unknown to the petitioner until he read about it in the newspaper after the jury had returned its verdict finding him guilty. The Government did not deny these allegations. We sent the case back to the District Court with directions to hold a hearing, with the petitioner and counsel present, to determine from the facts whether or not communication with the juror by the outsider and the events that followed were prejudicial and, therefore, harmful to the petitioner, and, if so, to grant a new trial. 347 U.S. 227. On remand, the District Court held a hearing and found the incidents to be free of harm. 122 F. Supp. 673. Thereafter, this Court remanded the entire record to the Court of Appeals for the Ninth Circuit to consider the whole case in the light of our recent net-worth decisions. 348 U.S. 904. The Court of Appeals reviewed the whole record and affirmed the petitioner's conviction in a per curiam opinion. 222 F.2d 720.

The case is here again on certiorari, limited to the question of the effect of the extraneous communications with the juror upon the petitioner's right to a fair trial. 350 U.S. 820. The District Court read our opinion and mandate to mean that "the incident complained of" to be inquired into at the hearing was the purpose and effect of the F.B.I. investigation. The District Court found that the purpose of the F.B.I. investigation was not to examine Smith's conduct, but rather to determine whether

[ 350 U.S. Page 379]

     Satterly had committed an offense. The court further found that the F.B.I. agent's discussion with Smith had "no effect whatever upon the judgment, or the integrity or state of mind" of Smith, whom the court found to be a "forthright and honest man." On the basis of these two findings, the court concluded:

"Consequently, the court finds that 'the incident complained of' was entirely harmless so far as the petitioner was concerned and did not have the slightest bearing upon the integrity of the verdict nor the state of mind of the foreman of the jury, or any of the members of the jury. Thus any presumption of prejudice is conclusively dispelled. . . ."

The District Court's limit of our mandate, it seems to us, is hardly warranted by the language of the opinion, even though the language might well have been more explicit. It was our intention that the entire picture should be explored and the incident complained of and to be examined included Satterly's communication with the juror and the impact thereof upon him then, immediately thereafter, and during the trial, taken together with the fact that the F.B.I. was investigating a circumstance involving the juror and the fact that the juror never knew all during the balance of the trial what the outcome of that investigation was. Thus we stated: "In a criminal case, any 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, if not made in pursuance of known rules of the court . . . with full knowledge of the parties." 347 U.S., at 229. We also pointed out that the record we had before us did not reflect what in fact transpired, "or whether the incidents that may have occurred were harmful or harmless." Ibid. It was the paucity of information relating to the entire situation

[ 350 U.S. Page 380]

     coupled with the presumption which attaches to the kind of facts alleged by petitioner which, in our view, made manifest the need for a full hearing. Nevertheless, there is sufficient evidence in the record relating to the total situation, including both the Satterly and the F.B.I. contacts, which makes it unnecessary to remand the case for further consideration. We will consider the ...

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