Enrique Godoy v. Domingo Uribe, Jr.

Filing

FILED OPINION (SIDNEY R. THOMAS, KIM MCLANE WARDLAW, RAYMOND C. FISHER, RONALD M. GOULD, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, MILAN D. SMITH, JR., N. RANDY SMITH, PAUL J. WATFORD, ANDREW D. HURWITZ and MICHELLE T. FRIEDLAND) REVERSED AND REMANDED. Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [10493434]

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 1 of 29

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ENRIQUE ANTHONY GODOY,
Petitioner-Appellant,
v.
MARION SPEARMAN,
Respondent-Appellee.

No. 13-56024
D.C. No.
2:10-cv-07927R-AGR
OPINION

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted En Banc March 22, 2017
San Francisco, California
Filed June 30, 2017
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw, Raymond C. Fisher, Ronald M. Gould, Marsha
S. Berzon, Johnnie B. Rawlinson, Milan D. Smith, Jr.,
N. Randy Smith, Paul J. Watford, Andrew D. Hurwitz and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Fisher

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 2 of 29

2

GODOY V. SPEARMAN
SUMMARY*

Habeas Corpus
The en banc court reversed the district court’s judgment
denying a habeas corpus petition in which Enrique Anthony
Godoy, who was convicted of second-degree murder, claimed
improper outside influence on the jury.
The en banc court held that the California Court of
Appeal – which acknowledged juror misconduct and a
presumption of prejudice, but concluded that the presumption
was rebutted and refused to hold an evidentiary hearing –
acted contrary to clearly established law:
(1) by never requiring the state to rebut the presumption
of prejudice, as required by Mattox v. United States, 146 U.S.
140 (1892), and Remmer v. United States, 347 U.S. 227, 229
(1954);
(2) by relying on the same statement from a juror’s
declaration both to raise the presumption of prejudice and to
rebut it; and
(3) by requiring Godoy to show a “strong possibility” of
prejudice in order to have an evidentiary hearing, contrary to
the Remmer requirement of a hearing whenever, as here, the
presumption attaches but the prejudicial effect of the
improper contact is unclear from the record.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 3 of 29

GODOY V. SPEARMAN

3

The en banc court remanded with instructions that the
district court hold a hearing to determine the circumstances
of a juror’s misconduct, the impact upon the jury, and
whether or not it was prejudicial.

COUNSEL
Stephanie Adraktas (argued), Berkeley, California, for
Petitioner-Appellant.
James William Bilderback II (argued), Stephanie A. Miyoshi,
and Colleen M. Tiedemann, Deputy Attorneys General;
Lance E. Winters, Senior Assistant Attorney General; Gerald
Engler, Chief Assistant Attorney General; Office of the
Attorney General, Los Angeles, California; for RespondentAppellee.

OPINION
FISHER, Circuit Judge:
One of the most fundamental rights in our system of
criminal justice is the right to trial before an impartial jury.
Its common law origin can be traced back to the Middle
Ages. It was enshrined in the Sixth Amendment to the
Constitution, and it has been embraced by the Supreme Court
in numerous cases. The Court reaffirmed just last year that
“the guarantee of an impartial jury . . . is vital to the fair
administration of justice.” Dietz v. Bouldin, 136 S. Ct. 1885,
1893 (2016).

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 4 of 29

4

GODOY V. SPEARMAN

Here we address a critical safeguard of an impartial jury,
protecting the jury against improper influence from outside
parties. Enrique Godoy – after being convicted by a jury of
second-degree murder – claimed just such an improper
outside influence and moved for a new, untainted trial.
Specifically, he alleged that a juror (Juror 10) had
communicated about the case while it was ongoing with a
“Judge up North.” According to an uncontroverted
declaration from alternate juror “N.L.,” Juror 10 “kept
continuous communication” with the “judge friend” “about
the case” and passed the judge’s responses on to the rest of
the jury.
Despite the troubling questions Godoy’s allegations raised
about the jury’s impartiality, the California Court of Appeal
upheld the jury’s verdict. The court acknowledged that
N.L.’s declaration demonstrated juror misconduct and raised
a presumption that Godoy was thereby prejudiced. The court
concluded, however, that the presumption was rebutted – not
because the state made any showing to disprove prejudice,
but because N.L.’s declaration itself failed to prove actual
prejudice. The California Court of Appeal also affirmed the
trial court’s refusal to hold a hearing to determine whether
prejudice in fact had occurred.
The state appellate court’s decision was contrary to the
clearly established Supreme Court law that the parties agree
governs this case. The Court emphasized long ago that due
process does not tolerate “any ground of suspicion that the
administration of justice has been interfered with” by external
influence. Mattox v. United States, 146 U.S. 140, 149 (1892),
called into doubt on other grounds by Warger v. Shauers,
135 S. Ct. 521, 526–27 (2014). Thus, when faced with
allegations of improper contact between a juror and an

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 5 of 29

GODOY V. SPEARMAN

5

outside party, courts apply a settled two-step framework. At
step one, the court asks whether the contact was “possibly
prejudicial,” meaning it had a “tendency” to be “injurious to
the defendant.” Id. at 150. If so, the contact is “deemed
presumptively prejudicial” and the court proceeds to step two,
where the “burden rests heavily upon the [state] to establish”
the contact was, in fact, “harmless.” Remmer v. United
States, 347 U.S. 227, 229 (1954). If the state does not show
harmlessness, the court must grant the defendant a new trial.
See Remmer v. United States, 350 U.S. 377, 382 (1956)
(Remmer II). When the presumption arises but the prejudicial
effect of the contact is unclear from the existing record, the
trial court must hold a “hearing” to “determine the
circumstances [of the contact], the impact thereof upon the
juror, and whether or not it was prejudicial.” Remmer,
347 U.S. at 229–30.
Here, the California Court of Appeal failed to adhere to
this framework in three key respects. First, although the state
court correctly acknowledged at step one that N.L.’s
declaration raised a presumption of prejudice, it never
required the state to rebut that presumption at step two. It
concluded instead that the presumption was rebutted because
Godoy’s evidence failed to prove prejudice. But under
Mattox and Remmer, Godoy was not required to prove
prejudice at step two; once he triggered the presumption, the
burden “rest[ed] heavily upon the [state]” to disprove
prejudice. Id. at 229. Thus, in denying relief because
Godoy’s evidence did not prove prejudice at step two, the
state court acted contrary to Mattox and Remmer.
Second, setting aside the state court’s failure to hold the
state to its burden, it was error for the court to rely on the
very same statement from N.L.’s declaration both to raise the

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 6 of 29

6

GODOY V. SPEARMAN

presumption of prejudice and to rebut it. This defies not only
logic, but also the clearly established definition of a
“presumption.” It is well settled that a presumption can be
rebutted only by other, contrary evidence. It is not enough,
as the state court did here, to draw contrary inferences from
the same statement that established the presumption in the
first place.
Third, the California Court of Appeal denied Godoy a
hearing on prejudice under the wrong legal rule. It held he
had to show a “strong possibility” of prejudice, but Remmer
requires a hearing whenever, as here, the presumption
attaches but the prejudicial effect of the contact is unclear
from the record. See id. at 229–30.
Because the state court’s decision contravened these
bedrock principles, it was “contrary to” clearly established
Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
Furthermore, because Godoy established the presumption of
prejudice, but it is unclear from the existing record whether
he, in fact, suffered prejudice, Godoy is entitled to an
evidentiary hearing. We therefore reverse the judgment of
the district court and remand with instructions to hold a
hearing to “determine the circumstances [of Juror 10’s
misconduct], the impact thereof upon the jur[y], and whether
or not it was prejudicial.” Remmer, 347 U.S. at 230.
I
A
Enrique Godoy was convicted of second-degree murder
by a Los Angeles County Superior Court jury. A week before
his June 12, 2006 sentencing, he moved for a new trial

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 7 of 29

GODOY V. SPEARMAN

7

alleging that Juror 10 had improperly communicated about
the case with a judge friend. Godoy argued that because
Juror 10’s misconduct “injected . . . improper considerations
into the jury’s deliberations,” “prejudice is presumed, [and]
the prosecutor must rebut the presumption or lose the
verdict.” He argued that “once the court is informed of
potential juror misconduct, the court must then conduct
hearings to ascertain whether such misconduct has in fact
occurred.”
To substantiate his allegations, Godoy brought to the June
12 sentencing hearing alternate juror “E.M.” The trial judge,
apparently believing E.M.’s testimony would impermissibly
impeach the jury’s verdict, refused to hear live testimony
from her, insisting instead that Godoy obtain a sworn
declaration. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855,
861 (2017) (describing the no-impeachment rule). Moreover,
because Godoy had not previously informed the state he
intended to have E.M. testify, the state sought a continuance
to interview her and discover what she had to say.
The trial court put the hearing over to June 29. To
facilitate the state’s discovery in the interim, the court
obtained E.M.’s contact information and informed her that the
state would likely contact her for an interview. E.M. gave her
cell phone number and address, and she indicated her
willingness to speak with the state. We do not know whether
the state followed up with E.M., and the state never offered
evidence from E.M. regarding Juror 10’s communications.
On June 22, Godoy sent the prosecutor a declaration
about Juror 10’s misconduct, from alternate juror N.L., who
wrote that

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 8 of 29

8

GODOY V. SPEARMAN
[d]uring the course of the trial, juror number
ten kept continuous communication with a
gentleman up north, who she referred to as her
“judge friend.” Juror number ten explained to
us, the jury as a whole, that she had a friend
that was a judge up north. From the time of
jury selection until the time of verdict, juror
number ten would communicate with her
“judge friend” about the case via her TMobile Blackberry, a two way text paging
system. When the jury was not sure what was
going on or what procedurally would happen
next, juror number ten would communicate
with her friend and disclose to the jury what
he said.

The state responded to N.L.’s declaration on June 27, two
days before the continuation of sentencing. It offered no
evidence contrary to the declaration. The state argued instead
that the declaration was inadmissible and that it failed to
show juror misconduct in the first place because the alleged
communications involved procedural issues. As to prejudice,
the state simply argued that “the defendant is unable to show
any.”
On June 29, the court proceedings reconvened. Although
no more progress was made toward resolving Godoy’s
allegations, the trial court denied Godoy’s request for another
adjournment and then – without explanation – denied his
motion for a new trial. Neither Godoy nor the state made any
further argument or offered any further evidence at the June
29 hearing. The court then sentenced Godoy to 16 years’ to
life imprisonment.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 9 of 29

GODOY V. SPEARMAN

9

B
Godoy appealed his conviction to the California Court of
Appeal, arguing the trial court erred by (1) refusing to
presume Juror 10’s communications prejudiced the verdict
and (2) refusing to hold an evidentiary hearing on the alleged
misconduct.1
The California Court of Appeal rejected both of these
arguments on the merits and affirmed Godoy’s conviction.
The court agreed with Godoy that “[b]ased on N.L.’s
declaration, juror number 10 committed misconduct . . . [,]
rais[ing] a rebuttable presumption of prejudice.” The court
then held, however, that “[t]he presumption of prejudice
arising from juror number 10’s misconduct was rebutted.”
The California Court of Appeal cited no evidence other than
N.L.’s declaration. Instead, it held N.L.’s declaration itself
rebutted the presumption:
N.L. was an alternate juror with no personal
knowledge of what had occurred during jury
deliberations. Her declaration indicates that

1

While his direct appeal was pending, Godoy also filed a habeas
petition in the California Court of Appeal. The court of appeal denied the
petition, saying only that Godoy “fail[ed] to state a prima facie case for
relief.” The California Supreme Court denied review. In connection with
the state habeas petition, Godoy submitted a declaration from E.M. (the
juror he had brought to the June 12 hearing). The three-judge panel of this
court that first considered Godoy’s appeal concluded E.M.’s declaration
was not part of the federal habeas record, because it was not part of the
trial court record the California Court of Appeal considered on direct
review. See Godoy v. Spearman, 834 F.3d 1078, 1088–89 (9th Cir. 2016).
We assume without deciding that this was correct because, even based
solely on N.L.’s declaration, Godoy was denied due process.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 10 of 29

10

GODOY V. SPEARMAN
the information furnished by juror number
10’s “judge friend” related to procedural
matters rather than appellant’s guilt. Nothing
in the declaration suggests that the “judge
friend” communicated information prejudicial
to appellant. Accordingly, there was no
substantial likelihood of juror bias.

The California Court of Appeal also rejected Godoy’s
argument that he was entitled to an evidentiary hearing on the
prejudicial effect of Juror 10’s misconduct. It held the trial
court properly “refused to conduct an evidentiary hearing on
the allegations of juror misconduct” because Godoy had not
“come forward with evidence demonstrating a strong
possibility that prejudicial misconduct ha[d] occurred.” The
court affirmed Godoy’s conviction, and the California
Supreme Court summarily denied review.
Godoy thereafter filed a federal habeas petition raising the
same arguments, which the federal district court denied.
After a divided three-judge panel of this court affirmed the
district court’s judgment, a majority of nonrecused active
judges voted in favor of rehearing en banc.
II
A
We review de novo a district court’s denial of a 28 U.S.C.
§ 2254 habeas corpus petition. See Lopez v. Thompson,
202 F.3d 1110, 1116 (9th Cir. 2000) (en banc). Because
Godoy filed his petition after April 24, 1996, the
Antiterrorism and Effective Death Penalty Act (AEDPA)
governs review of his claims. See Estrella v. Ollison,

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 11 of 29

GODOY V. SPEARMAN

11

668 F.3d 593, 597 (9th Cir. 2011). As relevant here, when a
state court has adjudicated a claim on the merits, AEDPA
permits a federal court to grant habeas relief only if the state
court’s adjudication of the claim “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.”
28 U.S.C.
§ 2254(d)(1).
When reviewing a state court’s determination under
AEDPA, “we look ‘to the last reasoned decision’ that finally
resolves the claim at issue.” Amado v. Gonzalez, 758 F.3d
1119, 1130 (9th Cir. 2014) (quoting Ylst v. Nunnemaker,
501 U.S. 797, 804 (1991)). Here, that is the California Court
of Appeal’s decision affirming Godoy’s conviction on direct
review.
B
1
Even under AEDPA’s deferential standard, the California
Court of Appeal’s decision does not withstand scrutiny. We
begin by outlining the Mattox and Remmer framework that
the parties agree governs Godoy’s claim, and which the
California Court of Appeal purported to apply.2 That
framework is straightforward: When a defendant alleges
improper contact between a juror and an outside party, the
court asks at step one whether the contact was “possibly
prejudicial.” Mattox, 146 U.S. at 150. If so, the contact is

2

The presumption of prejudice the California courts apply is derived
from Remmer. See In re Price, 247 P.3d 929, 938 (Cal. 2011) (citing
Remmer, 347 U.S. at 229).

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 12 of 29

12

GODOY V. SPEARMAN

“deemed presumptively prejudicial” and the court moves to
step two, where the “burden rests heavily upon the [state] to
establish” the contact was actually “harmless.” Remmer,
347 U.S. at 229. If the state does not prove harmlessness, the
court sets aside the verdict. When the presumption arises but
the prejudicial effect of the contact is unclear, the trial court
must hold a “hearing” to “determine the circumstances [of the
contact], the impact thereof upon the juror, and whether or
not it was prejudicial.” Id. at 229–30.
2
This framework finds its origins in the Supreme Court’s
1892 decision in Mattox v. United States. After Clyde Mattox
was convicted of murdering John Mullen, he filed a new trial
motion. In support of his motion, Mattox offered affidavits
from two jurors saying that the bailiff had told the jurors that
Mullen was “the third fellow [Mattox] ha[d] killed.” Mattox,
146 U.S. at 142. Mattox also alleged that a newspaper article
discussing the trial and Mattox’s criminal history “was
introduced into the jury room.” Id. at 143. These contacts, he
alleged, violated his right to trial before an impartial jury.
In evaluating Mattox’s allegations, the Court began by
underscoring the fundamental nature of the right to an
impartial jury.
It is vital in capital cases that the jury should
pass upon the case free from external causes
tending to disturb the exercise of deliberate
and unbiassed judgment. Nor can any ground
of suspicion that the administration of justice
has been interfered with be tolerated. Hence,
the separation of the jury in such a way as to

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 13 of 29

GODOY V. SPEARMAN

13

expose them to tampering, may be reason for
a new trial, variously held as absolute; or
prima facie, and subject to rebuttal by the
prosecution; or contingent on proof indicating
that a tampering really took place.
Id. at 149–50.
To implement this principle, the Court created the
foundational rule that applies here: “Private communications,
possibly prejudicial, between jurors and third persons, or
witnesses, or the officer in charge, are absolutely forbidden,
and invalidate the verdict, at least unless their harmlessness
is made to appear.” Id. at 150. The Court granted Mattox’s
motion for a new trial.
Six decades later, in Remmer, the Court reaffirmed
Mattox’s core rule and fleshed out its application. In
Remmer, the defendant was convicted of federal tax evasion.
347 U.S. at 228. During the trial, FBI agents were sent to
investigate a juror who had informed the judge and
prosecutor (but not the defense) that he had been told “he
could profit by bringing in a verdict favorable to the
[defendant].” Id. When the defendant learned of the FBI’s
investigation, he moved for a new trial, alleging the juror’s
contact with the agents tainted the verdict.
Applying Mattox, the Court agreed, holding that
[i]n 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

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 14 of 29

14

GODOY V. SPEARMAN
prejudicial, if not made in pursuance of
known rules of the court and the instructions
and directions of the court made during the
trial, with full knowledge of the parties. The
presumption is not conclusive, but the burden
rests heavily upon the Government to
establish, after notice to and hearing of the
defendant, that such contact with the juror was
harmless to the defendant.

Id. at 229 (emphasis added) (citing Mattox, 146 U.S. at
148–50).
Beyond its restatement of the presumption of prejudice,
Remmer established that once the presumption of prejudice
arises, the court must hold a “hearing” – at which the state
bears the burden – to “determine the circumstances [of the
contact], the impact thereof upon the juror, and whether or
not it was prejudicial.” Id. at 230; see id. at 229.
The Court explained that a hearing was required because
the FBI’s investigation raised a possibility of prejudice, but
the existing record did not show whether or not prejudice had
occurred:
We do not know from this record, nor does
the petitioner know, what actually transpired,
or whether the incidents that may have
occurred were harmful or harmless. The
sending of an F.B.I. 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. A juror must feel free to
exercise his functions without the F.B.I. or

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 15 of 29

GODOY V. SPEARMAN

15

anyone else looking over his shoulder. The
integrity of jury proceedings must not be
jeopardized by unauthorized invasions. The
trial court should not decide and take final
action ex parte on information such as was
received in this case, but 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 229–30. The Court made its reasoning even more plain
when the case returned to it after remand, explaining that “[i]t
was the paucity of information relating to the entire situation
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.” Remmer II, 350 U.S. at 379–80
(emphasis added). Because the government never rebutted
the presumption of prejudice, the Court granted the defendant
a new trial. See id. at 381–82.
Taken together, Mattox and Remmer clearly establish the
framework that applies to Godoy’s allegations.3 Under this

3

Some courts have viewed Smith v. Phillips, 455 U.S. 209, 215
(1982), as limiting Mattox and Remmer. See, e.g., United States v.
Pennell, 737 F.2d 521, 532 (6th Cir. 1984). We have previously
questioned, in dictum, whether Smith limited the scope of Remmer, even
as we held that Remmer remains good law as applied to jury tampering.
United States v. Dutkel, 192 F.3d 893, 895–96 & n.1 (9th Cir. 1999).
Smith did not, however, purport to abrogate these earlier decisions in any
respect, and no Supreme Court authority has suggested that it did.
Consistent with the Court’s treatment of the issue, our own case law
continues to follow Mattox and Remmer, see, e.g., Tarango v. McDaniel,
837 F.3d 936, 947–49 (9th Cir. 2016), cert. denied sub nom. Filson v.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 16 of 29

16

GODOY V. SPEARMAN

framework, the California Court of Appeal’s decision
contravened Mattox and Remmer in three respects.
C
1
The California Court of Appeal’s first two errors boil
down to the same central problem: The court applied the
presumption of prejudice in name alone. It did so first by
failing to place any burden on the state to rebut the
presumption of prejudice and second by relying on the exact
same statement from N.L.’s declaration both to establish the
presumption and to rebut it.
Turning first to the burden issue, the state court properly
acknowledged that, based on N.L.’s declaration, Godoy
established a presumption of prejudice. Under Mattox and
Remmer, that was the only burden Godoy needed to carry;
once he triggered the presumption, the burden shifted to the
state to prove the contact was “harmless.” Remmer, 347 U.S.
at 229 (citing Mattox, 146 U.S. at 148–50). The California
Court of Appeal, though, never held the state to this burden.
Indeed, it did not require the state to make any showing at
step two. Rather than requiring the state to prove
harmlessness – something the state never attempted to do –
the state court held that “[t]he presumption of prejudice
Tarango, 2017 WL 635904 (U.S. Apr. 24, 2017); Caliendo v. Warden of
Cal. Men’s Colony, 365 F.3d 691, 695–97 (9th Cir. 2004); United States
v. Littlefield, 752 F.2d 1429, 1431 (9th Cir. 1985), as does California’s
case law, see, e.g., Price, 247 P.3d at 938. We reaffirm now that Smith
left Mattox and Remmer intact. We also note that the California Court of
Appeal in this very case treated the Mattox and Remmer framework as the
governing law, and the state does not argue otherwise on appeal.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 17 of 29

GODOY V. SPEARMAN

17

arising from juror number 10’s misconduct was rebutted”
because “[n]othing in [N.L.’s] declaration suggests that the
‘judge friend’ communicated information prejudicial to
appellant. Accordingly, there was no substantial likelihood
of juror bias.” (emphasis added). But saying the presumption
was rebutted because Godoy’s evidence failed to prove actual
prejudice is the equivalent of placing the entire burden of
proof on Godoy. Under Mattox and Remmer, that was clearly
wrong.
2
The California Court of Appeal’s reliance on N.L.’s
declaration to rebut the presumption also led to a second error
under Remmer. Once the state court decided that a statement
in N.L.’s declaration triggered the presumption of prejudice,
it could not rely on the exact same statement to conclude the
presumption was rebutted – effectively negating the
presumption. Here is the entirety of what N.L. said about
Juror 10’s misconduct:
During the course of the trial, juror number
ten kept continuous communication with a
gentleman up north, who she referred to as her
“judge friend.” Juror number ten explained to
us, the jury as a whole, that she had a friend
that was a judge up north. From the time of
jury selection until the time of verdict, juror
number ten would communicate with her
“judge friend” about the case via her TMobile Blackberry, a two way text paging
system. When the jury was not sure what was
going on or what procedurally would happen
next, juror number ten would communicate

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 18 of 29

18

GODOY V. SPEARMAN
with her friend and disclose to the jury what
he said.

This statement cannot be read to both raise and rebut the
presumption of prejudice. Although this is true as a matter of
common sense, it is also clear from Remmer itself. The Court
applied a presumption of prejudice, and a “presumption” can
be rebutted only by contrary evidence. See Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (“[I]f [one
party] is silent in the face of the presumption, the court must
enter judgment for [the other party] because no issue of fact
remains in the case.”); Lincoln v. French, 105 U.S. 614, 617
(1881) (“Like other presumptions, it was sufficient to control
the decision of the court if no rebutting testimony was
produced.”); Presumption, Black’s Law Dictionary (10th ed.
2014) (“calling for a certain result . . . unless the adversely
affected party overcomes it with other evidence” (emphasis
added)); Rebuttable Presumption, Black’s Law Dictionary
(10th ed. 2014) (“[a]n inference” that “may be overcome by
the introduction of contrary evidence” (emphasis added)); 9 J.
Wigmore, Evidence in Trials at Common Law § 2491 (3d ed.
1940) (the “effect of a presumption . . . is . . . to invoke a rule
of law compelling the jury to reach the conclusion in the
absence of evidence to the contrary from the opponent”); 2 K.
Broun, McCormick on Evidence § 343 (7th ed. 2016) (“A
presumption shifts the burden of producing evidence, and
may assign the burden of persuasion as well.”). In every
context of which we are aware, a presumption can be rebutted
only by contrary evidence.
There is no reason to think the presumption recognized in
Remmer deviates from this well-settled definition. Here, that
means the state needed to produce some evidence contrary to
N.L.’s declaration, not simply draw contrary inferences from

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 19 of 29

GODOY V. SPEARMAN

19

the same statement that established the presumption. The
state neither offered contrary evidence nor pointed to contrary
evidence elsewhere in the record. The single statement from
N.L.’s declaration was the only evidence either party offered.
Thus, once the California Court of Appeal concluded this
statement triggered the presumption, the absence of any
additional evidence shedding light on prejudice means the
presumption should have carried the day. Because the state
court concluded otherwise, it acted contrary to Remmer.4
Furthermore, even if it were permissible to view a single
statement as both raising and rebutting a presumption of
prejudice, that would not be possible here, because nothing in
N.L.’s statement demonstrates that the improper
communications were harmless. The state court focused on
N.L.’s use of the word “procedurally,” theorizing that
communications between a judge and a jury concerning
procedural matters could not influence the jury’s verdict. But
the state court knew nothing about what “procedural” matters
were discussed. It also had no idea what N.L. meant by the
word “procedurally.”
The state court ignored that
communications about procedural matters could well have

4

We recognize that in theory the same declaration could both raise
and rebut a presumption where the court looks only to one part of the
declaration to conclude the presumption exists but consults the declaration
as a whole to conclude the contact was actually harmless. But nothing in
the case law suggests this is how the Mattox and Remmer framework
works, and there is certainly no indication the state court engaged in this
sort of parsing, blinding itself at step one to anything suggesting Juror 10’s
communications were innocent. We assume the state court did what it
was supposed to do at step one – look at the entirety of N.L.’s statement,
in its full context, to determine whether a possibility of prejudice existed
at all.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 20 of 29

20

GODOY V. SPEARMAN

influenced the jury.5 In sum, no reasonable jurist could
conclude, based only on N.L.’s declaration, that the
communications between the jury and Juror 10’s judge friend
were harmless.
3
Finally, the California Court of Appeal’s decision was
also contrary to Remmer because it denied Godoy an
evidentiary hearing under the wrong legal rule. The court of
appeal concluded the presumption attached but nonetheless
held that the trial court properly “refused to conduct an
evidentiary hearing on the allegations of juror misconduct”
because Godoy had not “come forward with evidence
demonstrating a strong possibility that prejudicial misconduct
ha[d] occurred.” (emphasis added). Remmer, however,
clearly requires a hearing where, as here, the presumption of
prejudice attaches yet the prejudicial effect of the
communications is unclear from the existing record. There is
no additional requirement that the defendant establish a
“strong possibility” of prejudice. See Remmer, 347 U.S. at
229–30; Remmer II, 350 U.S. at 379–80. Thus, the court of
appeal’s decision that the trial court properly “refused to
conduct an evidentiary hearing” was contrary to Remmer.

5

The description by N.L. indicates that the discussions with the judge
were not limited to procedural matters. N.L. said Juror 10 contacted her
judge friend when “the jury was not sure what was going on or what
procedurally would happen next.” (emphasis added). The phrase “was
not sure what was going on” could refer to substantive legal or factual
questions as easily as procedural questions, and the use of “or” suggests
some of the inquiries went beyond “what procedurally would happen
next.”

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 21 of 29

GODOY V. SPEARMAN

21

III
Because the California Court of Appeal’s decision was
contrary to Mattox and Remmer, AEDPA is no bar to habeas
relief, and we evaluate Godoy’s claim “without [the]
deference to the state court’s decision” that “AEDPA
normally requires.” Panetti v. Quarterman, 551 U.S. 930,
948 (2007). That is, “we review de novo . . . , applying the
correct legal standard to determine whether the applicant is
entitled to relief.” Castellanos v. Small, 766 F.3d 1137, 1146
(9th Cir. 2014).
A
Because we now must review Godoy’s claim de novo –
rather than through the lens of AEDPA – we reiterate the
governing two-step process.
1
At step one, the court determines whether the alleged
external contact was “possibly prejudicial.” Mattox, 146 U.S.
at 150. To meet this “low threshold,” the defendant must
present “evidence of an external contact that has a ‘tendency’
to be ‘injurious to the defendant.’” Tarango v. McDaniel,
837 F.3d 936, 947, 949 (9th Cir. 2016) (quoting Mattox,
146 U.S. at 150), cert. denied sub nom. Filson v. Tarango,
2017 WL 635904 (U.S. Apr. 24, 2017). The contact must
“raise a credible risk of influencing the verdict” before it
triggers the presumption of prejudice. Id. at 947; accord
Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697
(9th Cir. 2004).

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 22 of 29

22

GODOY V. SPEARMAN

We recognize the practical impossibility of shielding
jurors from all contact with the outside world, and also that
not all such contacts risk influencing the verdict. See
Tarango, 837 F.3d at 947 (citing Smith v. Phillips, 455 U.S.
209, 217 (1982)). Thus, the defendant’s burden at step one
cannot be met by “[t]hreadbare or speculative allegations” of
misconduct. Id. Nor do “allegations involving prosaic kinds
of jury misconduct,” id. (internal quotation marks omitted),
such as “chance contacts between witnesses and jury
members – while passing in the hall or crowded together in
an elevator,” id. at 951, trigger the presumption. The
defendant must present evidence of a contact sufficiently
improper as to raise a credible risk of affecting the outcome
of the case.
Among the considerations relevant to this determination
are the identity of the outside party and the nature of the
contact. We have held, for example, that “undue contact”
between jurors and certain government officers – like bailiffs
or law enforcement agents – will “almost categorically”
trigger the presumption. Id. at 947. This may be especially
true when the officer is “deeply entangled in [the] case.” Id.
at 949 (applying the presumption where police officers who
were victims, investigators and witnesses in the case tailed a
holdout juror on his drive to the courthouse); see also Parker
v. Gladden, 385 U.S. 363, 365 (1966) (per curiam) (“[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 [sequestered] jury which he had been shepherding for eight
days and nights.”); Remmer, 347 U.S. at 229 (“The sending
of an F.B.I. agent in the midst of a trial to investigate a juror
. . . is bound to impress the juror and is very apt to do so
unduly. A juror must feel free to exercise his functions
without the F.B.I. . . . looking over his shoulder.”); Mattox,

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 23 of 29

GODOY V. SPEARMAN

23

146 U.S. at 151 (“Nor can it be legitimately contended that
the misconduct of the bailiff could have been otherwise than
prejudicial. Information that this was the third person Clyde
Mattox had killed, coming from the officer in charge,
precludes any other conclusion.”). Similarly – regardless of
the outside party’s identity – communications “about the
matter pending before the jury,” “if not made in pursuance of
[the] rules . . . and the instructions . . . of the court,” greatly
increase the risk of prejudice. Remmer, 347 U.S. at 229; see
also Caliendo, 365 F.3d at 697–98 (“Other factors may
include the length . . . of the contact, . . . evidence of actual
impact on the juror, and the possibility of eliminating
prejudice through a limiting instruction.”).
We bear in mind that even such highly troubling contacts
do not necessarily raise a presumption of prejudice. At step
one, the court considers the full context of the contact to
determine whether a credible risk of prejudice exists. Contact
with a government officer, for example, will trigger the
presumption only if the defendant shows the contact was
somehow improper. Similarly, even contact about the case
may be insufficient to trigger the presumption if the
surrounding circumstances show the contact was innocuous.
Importantly, however, the defendant’s burden at step one
to show a possibility of prejudice is not onerous. The
defendant need only demonstrate a credible risk, and the
presumption may arise even when “[w]e do not know from
th[e] record . . . what actually transpired, or whether the

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 24 of 29

24

GODOY V. SPEARMAN

incidents that may have occurred were harmful or harmless.”
Remmer, 347 U.S. at 229.6
2
Once a defendant shows a possibly prejudicial contact,
the presumption of prejudice attaches, and the burden shifts

6

Some of our cases have suggested the presumption attaches under
only more limited circumstances. For example, in United States v. Dutkel,
192 F.3d 893, 895–96 & n.1 (9th Cir. 1999), we said in dictum that the
presumption of prejudice arises only in the context of jury tampering (i.e.,
threats or bribes intended to influence the jury’s decision). Although
tampering is among the types of contacts that may raise a presumption,
nothing in Mattox or Remmer suggests this is the only circumstance where
the presumption arises. See Remmer, 347 U.S. at 229 (“private
communication, contact, or tampering” may trigger the presumption
(emphasis added)); Mattox, 146 U.S. at 150 (“Private communications,
possibly prejudicial . . . invalidate the verdict . . . unless their harmlessness
is made to appear.”). We have also suggested that the presumption applies
only to the introduction of extraneous information – not to ex parte
contacts that do not impart information “pertain[ing] to any fact in
controversy or any law applicable to the case.” United States v.
Rosenthal, 454 F.3d 943, 949 (9th Cir. 2006) (internal quotation marks
omitted) (summarizing cases). Although, as noted, it is certainly relevant
whether the contact was “about the matter pending before the jury,”
Remmer, 347 U.S. at 229, neither Remmer nor Mattox suggests that the
outside party must actually “submi[t] . . . extraneous information (e.g., a
file or dictionary) to the jury” before the presumption arises, Rosenthal,
454 F.3d at 949 (internal quotation marks omitted). In Tarango, for
example, the police officers who tailed the holdout juror on his drive into
the courthouse imparted no specific information about any fact or point of
law in the case. 837 F.3d at 942–43. This contact was nonetheless
“possibly prejudicial” within the meaning of Mattox and Remmer. See id.
at 949–50. Accordingly, we reiterate that any outside contact raising a
credible risk of influencing the verdict triggers the presumption of
prejudice. To the extent cases such as Dutkel and Rosenthal suggested
otherwise, they are disapproved.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 25 of 29

GODOY V. SPEARMAN

25

to the state to prove the contact was harmless. See id.
Harmlessness in this context means “that there is no
reasonable possibility that the communication . . .
influence[d] the verdict.” Caliendo, 365 F.3d at 697.
As previously discussed, the state must rebut the
presumption by pointing to some evidence contrary to the
evidence that established it. Drawing contrary inferences
from the same evidence is not enough. That approach would
be contrary to the meaning and effect of a legal presumption.
Given the fact-based nature of this inquiry, we express no
opinion on what that contrary evidence must be in any given
case, or where the prosecution must obtain it. Most
obviously, though, the prosecution could seek evidence from
the jurors themselves – as the state had the opportunity to do
here – or from the outside party who had contact with the
jury. See United States v. Remmer, 122 F. Supp. 673, 673–74
(D. Nev. 1954) (at the hearing on remand from the Supreme
Court, the court heard the testimony of 27 witnesses,
including 12 members of the jury, two alternate jurors, the
person who communicated with the juror and the FBI agent
who conducted the investigation); see also Smith, 455 U.S. at
213, 217 & n.7 (approving in a related context the trial
court’s reliance on the allegedly biased juror’s testimony
explaining the harmlessness of his conduct); Remmer II,
350 U.S. at 380–81 (relying on the evidence adduced at the
remand hearing from the third parties who had contact with
the jury to conclude the state had not shown harmlessness);
Tarango, 837 F.3d at 951–52 (holding that on remand, the
trial court should consider juror testimony about the allegedly
prejudicial contact); United States v. Rutherford, 371 F.3d
634, 638, 643–45 (9th Cir. 2004) (considering juror affidavits
about alleged jury intimidation by government agents).

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 26 of 29

26

GODOY V. SPEARMAN

Alternatively, the prosecution might find contrary evidence
elsewhere in the existing record that sheds new light on the
potentially prejudicial communication. Or the prosecution
could seek further evidence about the content of the
communications themselves, to show, for example, that rather
than texting about the case, the juror was simply asking a
friend out to dinner. These examples are not exhaustive, only
illustrative. In short, regardless of its source of rebuttal
evidence, the prosecution must point to some contrary
evidence in attempting to rebut the presumption of prejudice.
In addition, once the presumption attaches, the trial court
must hold a hearing on prejudice if there is any remaining
uncertainty about “what actually transpired, or whether the
incidents that may have occurred were harmful or harmless.”
Remmer, 347 U.S. at 229; see Remmer II, 350 U.S. at 379–80.
The form of this hearing may vary, depending on what is
necessary to “determine the circumstances [of the contact],
the impact thereof upon the juror, and whether or not it was
prejudicial,” Remmer, 347 U.S. at 230, but due process
always “requires . . . that the investigation be reasonably
calculated to resolve the doubts raised about the juror’s
impartiality,” Dyer v. Calderon, 151 F.3d 970, 974–75 (9th
Cir. 1998) (en banc). In many, if not most, cases, that will
mean the “full hearing” that Remmer deemed “manifest[ly]”
necessary. Remmer II, 350 U.S. at 380; see Remmer, 122 F.
Supp. at 673–74 (at the hearing on remand from the Supreme
Court, the court heard the testimony of 27 witnesses); see
also Smith, 455 U.S. at 213, 217 (approving in a related
context the full evidentiary hearing conducted by the trial
court). In some cases, however, something like a more
“informal in camera hearing may be adequate” to address the
defendant’s allegations. Dyer, 151 F.3d at 974. If the state

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 27 of 29

GODOY V. SPEARMAN

27

fails to demonstrate the contact was harmless, the defendant’s
conviction is unconstitutional.
B
1
Applying the requisite framework here, Godoy offered
evidence of possibly prejudicial communications that
triggered the presumption of prejudice, as the California
Court of Appeal found. Godoy submitted undisputed
evidence – N.L.’s declaration – that Juror 10 “kept
continuous communication” with her “judge friend” “about
the case” “[d]uring the course of the trial” and “disclose[d] to
the jury what he said.” Although the judge friend was not a
state officer “entangled in this case,” Tarango, 837 F.3d at
949, his status as a judge is nonetheless relevant to the step
one inquiry. The weight a judge’s comments would carry
with the jury greatly increases the risk that his advice about
the case swayed its decision. As noted, that some of the
communications perhaps concerned procedural matters does
not mitigate this risk. See supra note 5 and accompanying
text. Procedural guidance on questions such as why certain
evidence was excluded, or how the jury was to determine
guilt, could certainly influence the jury’s decision. See
Rosenthal, 454 F.3d at 950.7 These facts, taken together,
indisputably show an external contact raising a credible risk
of influencing the verdict.

7
That N.L. was an alternate juror does not detract from the possible
prejudice conclusion. N.L.’s statement concerned communications
throughout the trial – not just during deliberations – communicated to all
the jurors, including the alternates. It is also plausible N.L. heard from
other jurors that the communications continued during deliberations.

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 28 of 29

28

GODOY V. SPEARMAN
2

Having concluded Godoy triggered the presumption of
prejudice, the next question is whether the state rebutted the
presumption by showing Juror 10’s communications were, in
fact, harmless. On the existing record, the state has not made
that showing. We simply “do not know from this record . . .
what actually transpired, or whether the incidents that may
have occurred were harmful or harmless.” Remmer, 347 U.S.
at 229. Because the existing record is unclear as to prejudice,
and no evidentiary hearing on prejudice has yet been held, we
remand to the district court to conduct such a hearing. See id.
at 230; Tarango, 837 F.3d at 952.8 On remand, the district
court should “determine the circumstances [of Juror 10’s
misconduct], the impact thereof upon the jur[y], and whether
or not it was prejudicial.” Remmer, 347 U.S. at 230.
If the state does not present contrary evidence that rebuts
the presumption of prejudice by showing “there is no
reasonable possibility that [Juror 10’s] communication[s] . . .
influence[d] the verdict,” Caliendo, 365 F.3d at 697, the
district court should grant Godoy’s petition for a writ of
habeas corpus. To be clear, to make the necessary showing,
the state must present evidence beyond N.L.’s declaration. It
cannot rely simply on N.L.’s status as an alternate juror or on
the fact that some of the communications may have involved
procedural matters. For example, the most relevant evidence
would be the actual content of the text messages or testimony

8
Because we evaluate Godoy’s claim de novo, the Supreme Court’s
decision in Cullen v. Pinholster, 563 U.S. 170 (2011), does not preclude
remand for an evidentiary hearing in the district court. See Crittenden v.
Chappell, 804 F.3d 998, 1010 (9th Cir. 2015); Johnson v. Finn, 665 F.3d
1063, 1069 n.1 (9th Cir. 2011).

Case: 13-56024, 06/30/2017, ID: 10493434, DktEntry: 60-1, Page 29 of 29

GODOY V. SPEARMAN

29

from a juror showing what actually transpired between Juror
10 and her judge friend, sufficient to find there is “no
reasonable possibility” Godoy was prejudiced. Id. Under the
circumstances of this case, given the time that has elapsed, it
may be difficult for the state to meet its heavy burden on
remand, but we nevertheless afford it the opportunity to do
so.
IV
We reverse the judgment of the district court and remand
with instructions to hold an evidentiary hearing to determine
the factual basis of Juror 10’s misconduct and its prejudicial
effect, if any, on Godoy’s verdict.
REVERSED and REMANDED.