Nos. 98-35807
                                                                                 D.C. No.




                                                                             No. 98-36087
                                                                             D.C. No.






WILDERNESS SAILING SAFARIS;                                     No. 98-35796
                                                                                     D.C. No.




Appeals from the United States District Court
for the District of Alaska
H. Russel Holland, Chief District Judge Presiding

Argued and Submitted
May 3, 1999

Filed March 16, 2000

Before: James R. Browning, Charles Wiggins, 1 and
Andrew J. Kleinfeld, Circuit Judges.
1 The Honorable Judge Charles E. Wiggins, who was a member of the
panel, died on March 2, 2000. He had concurred in this opinion before his


Opinion by Judge Kleinfeld



John F. Daum, O'Melveny & Myers, Los Angeles, California,
for defendants-appellants Exxon Corporation, et al.

George J. Tsimis (briefed) and Thomas M. Russo (briefed),
Chalos & Brown, New York, New York, for defendant-
appellant Joseph Hazelwood.

David C. Tarshes (briefed), Davis, Wright, Tremaine,
Anchorage, Alaska, for plaintiffs-appellees Baker.

Brian B. O'Neill (argued), Minneapolis, Minnesota, for
plaintiffs-appellees Sea Hawk Seafoods, Inc., et al.




KLEINFELD, Circuit Judge:

This is one of several appeals before this panel relating to
the Exxon Valdez oil spill litigation. The subject of this appeal
is whether the $5 billion punitive damages verdict against
Exxon, and the $5,000 punitive damages award against Hazel-
wood, should be set aside because of irregularities during jury
deliberations. We affirm the district court order that it should
not. This decision goes only to the motion to vacate the judg-
ment for irregularities during jury deliberations. It does not
purport to decide the issue of the amount of damages, com-
pensatory and punitive, awarded to the plaintiffs.

I. Facts.

This case was tried in three separate phases. The phase with
which this appeal is concerned was the punitive damages
determination. After the jury awarded $5 billion, defendants
filed numerous motions, and appealed from the judgment and
from denial of its motion for new trial. While that appeal was
pending, newly discovered evidence persuaded the district
judge, and us, that remand was appropriate, under Crateo, Inc.
v. Intermark, Inc.,2 for consideration in the trial court. We
remanded for consideration of the Rule 60(b)(2) motion for
relief from judgment based on the newly discovered evidence.
This appeal concerns only the second motion for new trial,
based on the newly discovered evidence, not the first motion
for new trial, so we do not discuss the facts and legal determi-
nations raised in the earlier motion. Captain Hazelwood, who
piloted the Exxon Valdez in the accident, appeals, but simply
joins in the arguments by Exxon Corporation and Exxon
Shipping Company, so we describe the appellants collectively
as "Exxon."
2 Crateo, Inc. v. Intermark, Inc. , 536 F.2d 862, 869 (9th Cir. 1976).


A retired police officer from Florida served as a Court
Security Officer during the trial and deliberations. He was
experienced and much decorated, as a police officer and
before that in the military. He acted as one of the bailiffs,
maintaining security for the jury room, escorting the jury,
attending to its requests for food and other needs, and receiv-
ing its communications. The punitive damages phase of the
trial took more than four months, so all the participants had
considerable contact with each other.

An Anchorage newspaper published a story after the trial
describing the extremely stressful summer in the jury room.3
One of the jurors, Juror A, was especially distressed and was
not getting along well with the rest of the jury. That had been
obvious to all participants, because she cried in the hall and
otherwise acted distressed, and because the jury sent out notes
expressing concern about her mental condition. Based on
some of the allegations in the article, the district court held an
evidentiary hearing in which the jurors were questioned by
the judge under oath in open court with counsel present about
possible irregularities.

One juror, Juror B, testified that the bailiff motioned him
aside as he came to deliberations one morning and "said
something about, you know, you guys, you're really having
problems with her, or something like that, pulled his gun out,
took a bullet out and said maybe if you put her out of her mis-
ery or something." Juror B said he might have told the jury
foreman about it, but told no one else, and "it really shook me
up." Juror B perceived the remark as a tasteless joke rather
than as a threat or serious suggestion. The bailiff testified
under oath that "I haven't heard anything so absurd in my life.
Nothing like that ever came from me." The district judge
ruled that "the court is not convinced that the incident ever
occurred," but that if it did, it did not warrant a new trial,
because Juror A never learned of the communication, and
3 See The $5 Billion Jury, Anchorage Daily News, Jan. 22, 1996, at A1.


Juror B and the jury foreman did not understand it to be a
threat directed at them.

The United States Marshal in Anchorage, John R. Murphy,
directed the investigation of the alleged incident. Juror B
passed a lie detector examination, and the bailiff's lie detector
examination "indicated deception" in the opinion of the poly-
graph examiner, Investigator Robert Sheldon. Sheldon later
confronted the bailiff about aspects of his interrogation that
appeared contradictory. The bailiff then admitted that the bul-
let incident occurred as Juror B described it, but that he "was
joking" and that "nothing was meant to be . . . a threat or
intimidation." Marshal Murphy told the bailiff that because he
had lied, the Marshals Service would pursue terminating him
unless he resigned. The bailiff turned in a written resignation
within five minutes. Marshal Murphy did not tell the district
judge or the lawyers that Juror B had been telling the truth
and that the bailiff had lied. The bailiff died of a heart attack
a few months after being forced to resign, prior to adjudica-
tion of the second motion to vacate the judgment. At the time
the district court denied Exxon's motion, partly on the basis
of believing the bailiff's false testimony, all these events had
already transpired, and the Marshal knew the bailiff was lying
and that the gun incident had occurred. But the judge did not.

Exxon's lawyers did not know anything about the Mar-
shal's investigation of and report on the bailiff. It was secret.
But a lawyer in Fairbanks happened to be representing a
woman there in a wrongful termination case in which the bai-
liff figured, and he had done discovery that disclosed the exis-
tence (but not the contents) of the report. He wrote Exxon's
lawyers, assuming they knew more than he did, and saying
that he had found out in discovery that a supervisor of the bai-
liff had written in his notes that the report was "potentially
explosive" but claimed not to recall why, and the United
States Attorney's office objected to disclosing the report or to
deposing Marshals Service personnel about it. He hoped to
obtain a copy of it from Exxon's lawyers, not realizing that


he knew much more about it (such as that it existed) than they

After following up on this tip, Exxon filed a second motion
for new trial. Though the gun incident described above
brought about the motion, Exxon claims that additional inci-
dents also entitle it to relief. In addition to the remark and dis-
play of the gun to Juror B, the bailiff had had other contacts
with the jurors that Exxon claims entitle it to a new trial. Also,
Juror A testified that when she asked the bailiff what would
happen if she simply refused to come to the courthouse and
deliberate any more, he told her that she could be arrested and
put in jail. Also, she testified that one of the other jurors made
a remark to her which she understood as a threat to harm her
daughters if she did not say that she agreed with the verdict
when the jury was polled.


A. The bailiff's gun remark.

Exxon argues that the bailiff's remark to Juror B, in the
context of other contacts that it argues were inappropriate for
a bailiff, entitles it to have the $5 billion punitive damages
verdict vacated and a new trial ordered.

The district judge held extensive evidentiary proceedings,
and made extensive findings of fact in support of its denial of
the motion for new trial. On the second motion, after the bai-
liff had been forced to resign for lying, the court found that
the incident occurred as Juror B had described it. The district
court characterized the bailiff's "maybe if you put her out of
her misery" remark as "potentially coercive," but noted that
the "potential coercion was not directed at Juror[B]." The
juror toward whom the remark might be potentially coercive
was Juror A, but she did not know about it during the deliber-
ations and verdict. The juror to whom the remark was made,
Juror B, and the jury foreman, to whom Juror B may have


repeated it, were not the objects of any coerciveness. The dis-
trict court expressly found that "Juror [B ] was not coerced by
the incident and that, with the possible exception of the jury
foreman, the other jurors did not learn of the incident during
the time they deliberated."  Based on these factual findings,
the district court concluded that the bailiff's "maybe if you
put her out of her misery" remark and display of the gun,
though potentially coercive, was not in fact coercive conduct.

The district court therefore treated the bailiff's remark and
conduct as an inappropriate ex parte contact rather than coer-
cion. The court concluded that "Exxon has not shown preju-
dice or that the incident between [the bailiff ] and Juror B
affected the verdict." Based on Exxon's failure to show actual
prejudice, the district court concluded that a new trial was not
warranted on this ground.

There was testimony that the bailiff had dropped by a
Fourth of July picnic the jurors had. Some jurors thought he
should not have been there, though the juror who hosted the
picnic apparently invited him. Also, while on a weekend drive
in the neighborhood of one of the jurors, Juror C, the bailiff
and his wife dropped by the house of Juror C and his wife.
Juror C was a gold miner, and lived in a rural area an hour or
two out of Anchorage. The two couples had coffee and chat-
ted about guns, but not about anything trial related. The dis-
trict judge found that the bailiff attended the Fourth of July
picnic and had social encounters with Juror C. The court
found that these contacts were "not coercive in nature or
effect." The district court concluded that because the contacts
were not coercive, the burden was on Exxon to show preju-
dice, and it had not.

Our precedents distinguish between introduction of
"extraneous evidence" to the jury, and ex parte contacts with
a juror that do not include the imparting of any information
that might bear on the case. Our precedents are mostly in


criminal cases, but we have applied the same rules in civil cases.4
Where extraneous information is imparted, as when papers
bearing on the facts get into the jury room without having
been admitted as exhibits, or when a juror looks things up in
a dictionary or directory, the burden is generally on the party
opposing a new trial to demonstrate the absence of prejudice,
and a new trial is ordinarily granted if there is a reasonable
possibility that the material could have affected the verdict.5

[1] But this is not an extraneous information case. The bai-
liff did not tell Juror B anything about the facts or the law. He
made a strikingly tasteless joke about Juror A, arising out of
her conspicuous emotionality, departure from the jury room,
and crying. "Where ex parte contacts are involved, the defen-
dant will receive a new trial only if the court finds `actual
prejudice' to the defendant."6 This standard applies to ex parte
contacts when, as compared to extraneous information, they
do not pertain to " `any fact in controversy or any law applica-
ble to the case.' "7 The contact by the bailiff here was ex parte
in the same sense the clerk's contact with a crying juror was
in Madrid. Both cases involve an inappropriate response by
court staff to emotion and bickering in the jury room, where
the staff contact did not involve any communication bearing
on the substantive matters before the jury.8 The heightened
standard for motions for new trial, burden on the movant to
show actual prejudice, therefore applies to the bailiff's con-
tact. Our review, where, as here, the district judge has held an
4 See Rinker v. County of Napa, 724 F.2d 1352, 1354 (9th Cir. 1983)
(stating that reliance on criminal cases is appropriate because the
"integrity of the jury system is no less to be desired in civil cases." (quot-
ing United States v. Barfield, 359 F.2d 120, 124 (5th Cir. 1966)).
5 See United States v. Maree, 934 F.2d 196, 200-01 (9th Cir. 1991); see
also United States v. Madrid, 842 F.2d 1092, 1093 (9th Cir. 1988).
6 Maree, 934 F.2d at 201 (citing Madrid, 842 F.2d at 1093).
7 See id.
8 Madrid, 842 F.2d at 1091.


evidentiary hearing, is marked by "special deference to the
trial judge's impression of the impact of the evidence."9

[2] While an ex parte remark may in some circumstances
merit a rebuttable presumption of prejudice because of its
inherently coercive effect, as where a judge instructs a juror
ex parte regarding the verdict,10 the bailiff's tasteless joke did
not merit any such presumption. It did not purport to tell the
individual to whom it was directed, Juror B, what his decision
in the case ought to be or how he should make it. The bailiff
was not telling him he should shoot Juror A, and Juror B did
not understand the remark to mean that. The district judge
made a finding of fact that "[Juror B] treated this encounter
as a bad joke." We defer to this finding of fact as our prece-
dents require.11

Exxon argues for application of the standard, more liberal
toward grants of new trial, for juror coercion and extrinsic
evidence. However, as Madrid illustrates, the problem of
court personnel making inappropriate remarks to deal with
crying jurors who are not getting along with their fellow
jurors arises from time to time, and is ordinarily dealt with as
an ex parte contact case, under the standard requiring the
movant to demonstrate actual prejudice.12 

Exxon has not cited any precedent for applying the extrin-
sic evidence or coercion standard to an ex parte  contact case
such as this one. These ex parte contact cases use a different
standard from extrinsic evidence and coercion cases both
because ex parte contacts are less likely to do any harm to the
deliberative process than extrinsic information or coercion,
9 United States v. Plunk, 153 F.3d 1011, 1024 (9th Cir. 1998).
10 Cf. United States v. United States Gypsum, 438 U.S. 422, 462 (1978);
Jenkins v. United States, 380 U.S. 445, 446 (1965).
11 See Valley Eng'rs, Inc. v. Electric Eng'g Co., 158 F.3d 1051, 1052
(9th Cir. 1998), cert. denied 119 S. Ct. 1455 (1998).
12 See Madrid, 842 F.2d at 1091.


and also because such contacts are very hard to avoid. "[I]t is
virtually impossible to shield jurors from every contact or
influence that might theoretically affect their vote."13 Long tri-
als are especially vulnerable to ex parte contacts, because
people around the courthouse get to know the jurors, and it
becomes much harder for jurors and others to preserve an arti-
ficial social isolation as days stretch into weeks. Publicity
creates a shower of ex parte contacts on the jurors. They
become celebrity magnets to aspiring "inside dopesters," and
also because ordinarily social people are naturally inclined to
make small talk about what they heard in the news. Except in
large cities, at least some jurors in long trials are reasonably
likely to see the judge, witnesses, court personnel, and law-
yers at school events, concerts, sporting events, or the grocery
store, where social contact is hard to avoid. In a long, high
publicity case, a new trial on account of ex parte contacts is
likely to be no more pure than the first trial. Retrial of a publi-
cized case introduces the additional distortion that jurors in
the retrial are likely to have trouble distinguishing what they
heard from the publicity after the first trial from what they
heard in the courtroom in the second.

[3] Exxon also argues that the district court, in the course
of finding that the "maybe if you put her out of her misery"
remark was taken as a "bad joke," violated the rule against
inquiring into the effect of a statement during deliberations on
a juror's state of mind.14 The rule does not apply. It is limited
to effects on the juror's state of mind "as influencing the juror
to assent to or dissent from the verdict,"15 or "concerning the
juror's mental processes in connection therewith."16 Juror B's
testimony was not about his mental processes in connection
with the verdict. He was asked what he understood the bai-
13 Rushen v. Spain, 464 U.S. 114, 118 (1983).
14 Fed. R. Evid. Rule 606(b).
15 Id.
16 Id.


liff's words to mean, that is, whether they were a bad joke or
a serious suggestion that he shoot Juror A. That had no bear-
ing at all on whether Exxon should pay punitive damages and
how much it should pay. Rushen establishes that "[a] juror
may testify concerning any mental bias in matters unrelated
to the specific issues that the juror was called upon to decide
and whether extraneous prejudicial information was improp-
erly brought to the juror's attention," even though the rule
prohibits a juror from testifying "about the mental process by
which the verdict was arrived."17 Likewise, in Madrid we con-
sidered the juror's statement that she "did not think" that the
court clerk was trying to influence her verdict, when the clerk
found her crying after another juror had sworn at her, and told
her she should settle her differences with that juror.18

The bailiff certainly should not have made his tasteless joke
to Juror B. However, after careful review of the extensive evi-
dentiary record and scrutiny of the district court's findings,
we conclude that the district court correctly categorized the
bailiff's conduct and words as an inappropriate ex parte con-
tact with a juror that did not introduce extraneous information
into the deliberations and was not, in context, actually coer-
cive. Our precedents therefore require that in order to obtain
a new trial on account of it, Exxon would have to demonstrate
actual prejudice. It did not.

B. The bailiff's alleged threats to Juror A 

Exxon also argues that it is entitled to a new trial because
of newly discovered evidence that the bailiff coerced Juror A.
Its theory is that the bailiff threatened both to kill her and also
to lock her in jail if she refused to deliberate further. During
the extensive evidentiary proceedings on the first motion for
new trial, she had made no such allegations. Her emotionally
distraught condition had been apparent to the judge and other
17 Rushen, 464 U.S. at 121 n.5.
18 See Madrid, 842 F.2d at 1092.


court personnel, because she ran out of the jury room crying
more than once, and her husband had come to court to talk to
the judge about how upset she was. But she had not made her
accusations of coercion by the bailiff until after the newspaper
publicity about denial of the first motion for new trial. Her
husband had testified, during the evidentiary proceedings on
the first motion for new trial, that she did not ever tell him
that the bailiff or any other court employee had made any
communication to her that she considered inappropriate. He
testified that she told him the guards outside the jury room
tried to "calm her down" and "console her" "with hugs and
words." Regarding jail, Juror A's husband testified that his
wife felt "penned up" as "everybody does" in a jury, and that
"if she chose not to come back, that they would put her in the
jail downstairs and bring her up to deliberation during the
day," but he did not testify as to who she said told her that.
The judge had not required Juror A to testify on the first
motion because of her ill health, and Juror A's husband
expressed appreciation for that.

When the second motion for a new trial was made, Juror A
was required to testify. Her testimony was strikingly different
from anything that had been heard before. According to what
she said in 1998, three and a half years after the trial, she
knew about the bailiff's display of the gun when it happened,
because the other jurors told her "[t]hat I was wanted dead."
Two of the jurors did not tell her that, but the other nine and
also the bailiff "were very creative at telling me how I could
be killed." Asked what the bailiff said when he told her he
wanted her dead, Juror A gave this response:

      [One juror] could have a heart attack; it would be my
      fault. [The jury foreman] could start smoking and
      that would be my fault. I could be shot, accidentally,
      with a throw-away gun on break and wouldn't be
      able to prove who did it. Or one of the jurors could
      just accidentally get in the deliberation room with a
      gun. One day I was very upset and one of my things


      was just to walk in the little room outside the delib-
      eration room and [the bailiff] told me that he could
      kill me and no one would know . . . and the other
      jurors would back him up.

Asked if the bailiff ever took a bullet out of his gun and
showed it to her, Juror A gave this response:

      He loaded his gun, yeah . . . . I don't know anything
      about guns, and he just had this bullet and he put it
      in and asked me -- I don't remember. Oh, we just
      -- two weeks of terror and I don't know what day
      it was, but it was something about Russian roulette
      or something. That's the only time I saw the bullet.

Juror A, during this same line of questioning, gave this
description of the threat to put her in jail:

      I asked him if I just didn't show up one day what
      they would do. He said they would arrest me and
      there was a jail downstairs and I could spend nights
      in the jail and they would bring me up for delibera-
      tion, and it wouldn't solve anything in my life,
      because home was the only thing that was saving my

She testified that eight other jurors "most definitely" wanted
her dead.

      - One, who scared her by "throwing things at me,"
      threatened to rape her, suggesting that rape
      "would straighten me up." This juror, as the
      jurors were lined up to reenter the courtroom and
      deliver their verdict, also made what Juror A
      took to be a threat against her daughters, dis-
      cussed in the next section: "he told me that my
      daughters were very good-looking and to think
      about that when I gave my vote."


      - Another was "big on killing me" by smuggling a
      knife into the jury room in a cup of ice, and
      "cutting my body up and flushing it down the

      - Another, who "was slimy, acting like he was on
      the take," "told me how to commit suicide."

      - Another suggested that the first would "make me
      come to my senses" through the use of murder or

      - Another "had a vacation, that was the most
      important thing. If it meant killing me, fine. She
      had a real important vacation."

      - There were also various "comments about shoot-
      ing me."

According to Juror A, once it started, the open discussion of
how to kill her came up every day in the jury room.

Juror A testified that she did not tell her husband or anyone
else about the death threats from the bailiff and the others at
the time. Then she forgot about them, and had no recollection
of the bailiff displaying the gun or bullet until her husband
told her that the incident with Juror B had been reported in the
newspaper. After her husband told her about the story in the
newspaper about the display of the gun and bullet to Juror B,
then "things started coming back." Juror A kept a personal
journal during the trial, but she did not mention the bailiff's
threat to kill her or any of the other death threats in the jour-
nal. She also talked to numerous journalists, but did not tell
any of them about it. She claimed to receive numerous written
death threats, but did not save any of them or show any of
them to anyone. Juror A subsequently attempted suicide, and
was under medical care at the time of her testimony. She attri-


buted her suicide attempt to delivering a verdict that was not
her true verdict, because of the threat to her daughters.

Exxon's argument focuses upon the alleged threats by the
bailiff, not on the alleged threats by the other jurors, so the
restrictions on upsetting a verdict because of what went on in
the jury room have no application. There was no objection to
the testimony about what went on in the jury room, and it is
summarized above because it bears on the credibility determi-
nation the district judge made.

The district judge was present when Juror A testified. He
had arranged an informal setting for her testimony, a deposi-
tion in a lawyer's office with himself and one lawyer for each
side present, instead of testimony in court with all the many
lawyers involved, in order to provide her with a less stressful
environment. He did not believe that the incidents she
described involving the bailiff -- the gun display, the Russian
roulette comment, the threat to put her in jail -- had actually
happened. The judge was now well aware that the bailiff
could not be assumed to have acted properly. And the bailiff
had died of a heart attack shortly after being required to
resign, so he could not contradict Juror A's account, which
she had not remembered while he was alive.

The district judge nevertheless concluded, applying a pre-
ponderance of evidence standard, that the events Juror A now
described had not actually occurred. He found that Juror A
was telling what she believed to be the truth and not lying, but
that what she described as a new memory was actually a false
memory stimulated by the newspaper account of the bailiff's
contact with Juror B, and mediated through her own high
level of emotion:

      [Juror A] more probably than not did not learn of the
      bullet incident involving [the bailiff] and Juror [B]
      during the time the jury was deliberating. Rather, the
      court finds that she learned of this incident later,


      more probably than not as a result of publicity fol-
      lowing the court's denial of Exxon's first motion for
      a new trial . . . . The court finds that [Juror A ] has
      unintentionally and mistakenly incorporated the inci-
      dent between [the bailiff] and Juror [B ] into her own
      experience where it formed the basis for erroneous,
      recently regained memories of other incidents which
      did not happen.

As a result, the court explicitly found that "[Juror A] did not
have any inappropriate, threatening, or coercive encounter
with [the bailiff] during jury deliberations," and concluded
that Juror A "was not the subject of coercive conduct or other
impermissible communications from [the bailiff ] . . . during
jury deliberations."

The district judge gave extensive reasons for his conclu-
sion. Among them were these:

      - He had extensive opportunities, during the trial
      and deliberations, and during the deposition, to
      observe Juror A's demeanor, and it showed an
      emotional condition not consistent with reliabil-
      ity of her report. At the deposition, where she
      had no personal stake (unlike a litigant in court),
      and was questioned by a lawyer with a gentle,
      soft manner, she began trembling the first min-
      ute, and within ten minutes "her entire body was
      trembling" and she was crying, yet unlike most
      stressed witnesses in court, she had no trouble
      speaking and "appeared oblivious to the violent
      trembling of her limbs and copious weeping."
      There was "no objective reason for [Juror A ] to
      be fearful or emotional," and her "severe trem-
      bling and copious weeping was a wholly inap-
      propriate response to the circumstances" and
      "cast substantial doubt upon the reliability of
      what she has said."


      - Her testimony about the bailiff and also about
      what the other jurors said and did was "bizarre
      and shocking."

      - According to the other jurors, Juror A had never
      mentioned being threatened by the bailiff.

      - Juror A's husband testified that Juror A had
      never told him of any communications with
      "anyone associated with the court" that she
      deemed to be inappropriate. In fact, Juror A's
      husband stated that Juror A often received con-
      soling "hugs and words" from the bailiffs imme-
      diately outside the jury deliberation room.

      - As he personally observed them during delibera-
      tions, "other jurors appear to have been con-
      cerned for Juror A's emotional well-being"
      during deliberations.

      - Juror A kept a journal during the deliberations,
      yet "[n]one of the incidents which she now
      recalls and attributes to [the bailiff] are men-
      tioned in the contemporaneous journal."

The district judge was acutely aware that, the last time he
had disbelieved a story about highly inappropriate conduct by
the bailiff, he had been mistaken. He said that his own words
in his previous finding "have now come back to haunt this
judge," and in his order expressly addressed his "own embar-
rassment over learning that the `bullet incident' between the
[the bailiff] and Juror [B] in fact occurred." But he was not
prepared simply to assume that any accusation of any similar
incident was true, without careful examination of the evi-
dence, because "[t]hat would be unfair to the plaintiffs and to
the ten other jurors."


Exxon argues that the district judge should have believed
at least part of what Juror A said the bailiff had done, and part
is enough to obtain a new trial. Because the district court held
extensive evidentiary hearings and made findings of fact, we
review the findings of fact to determine whether they are
"clearly erroneous."19

Exxon argues that Juror A's testimony "is validated first
and foremost by Juror A's attempted suicide." We do not see
why. The suicide attempt can just as reasonably be interpreted
as an indicator of extreme emotional distress or depression
that might distort the individual's ability to perceive and
remember social occurrences accurately. Exxon argues that
something must have happened to precipitate Juror A's emo-
tional distress during the deliberations. But we know that an
entirely innocent, highly stressful event occurred that would
cause emotional distress -- two weeks of intense jury deliber-
ations in an important case.

Exxon argues that Juror A's "emotional response was proof
of the truth of what she was saying." Again, we do not under-
stand why. "Inappropriate affect" is a term any judge has
heard many times from psychiatric witnesses testifying to an
emotional disorder, such as depression, which would more
likely distort an individual's perceptions and memories of
social interactions than validate them. Exxon says that "[t]he
district court simply did not get it," because the emotions
would naturally flow from Juror A's distress about having
been threatened with death, but that assumes what is to be
proved, that she was in fact threatened with death. Juror A's
explanation of why she had not brought up any of the death
19 See U.S. v. Hanley, 190 F.3d 1017, 1031 (9th Cir. 1999) ("We review
the district court's denial of a motion for a new trial on the asserted ground
of juror misconduct for an abuse of discretion.`[A]lthough we review
alleged incidents of juror misconduct independently, we must accord spe-
cial deference to the trial judge's impression of the impact' of the alleged
misconduct. We review the district court's credibility determinations and
findings of historical fact for clear error." (internal citations omitted)).


threats before, "I'd forgotten," would raise serious doubts in
any rational finder of fact about whether she had a normally
functioning memory.

Exxon argues that the district judge engaged in "judicial
psychologizing" that he "was patently unqualified to
perform," when he attributed Juror A's testimony to a false
memory, because such analysis can only be performed by
experts. Exxon cites cases in support of its argument,20 but
they are not on point. They hold that a district court erred in
not allowing a defendant to put psychiatric evidence before
the jury to show that he suffered from a mental defect that
would cause him to make a false confession,21 that a plaintiff
needed some expert witness evidence to show causation
between certain physical conditions and claimed chemical
exposure,22 and that a mother bringing a negligence claim was
not competent to testify as to her child's internal injuries due
to a car accident.23

[4] The "judicial psychologizing" argument lacks merit.
Any judge or juror assigned the task of deciding whether a
juror's account of facts is true must necessarily consider the
juror's ability accurately to perceive, remember and relate
those facts. Where the judge or juror has good reason to think
that the account of the facts is false, yet the witness has no
apparent reason to lie, the finder of fact necessarily must think
about why the witness might give a false account while
attempting to tell the truth. Juror A's account was, as the dis-
trict judge noted, so unlikely as to be highly implausible. Far
from being inappropriate "amateur psychologizing" as Exxon
20 United States v. Hall, 93 F.3d 1337 (7th Cir. 1996); United States v.
Shay, 57 F.3d 126 (1st Cir. 1995); Claar v. Burlington Northern R. Co.,
29 F.3d 499 (9th Cir. 1994); Franklin v. Shelton , 250 F.2d 92 (10th Cir.
21 See Hall, 93 F.3d at 1344-45; Shay, 57 F.3d at 133.
22 See Claar, 29 F.3d at 104.
23 See Franklin, 250 F.2d at 97.


contends, the district judge's careful analysis focused on fac-
tors that juries are routinely instructed to consider: "the wit-
ness' memory"; "the witness' manner while testifying";
"whether other evidence contradicted the witness' testimony";
"the reasonableness of the witness' testimony in light of all
the evidence"; and "any other factors that bear on

Exxon argues that we must reverse because the district
judge did not explicitly and separately discuss Juror A's alle-
gation that the bailiff threatened her with jail if she refused to
come to court and deliberate. This part of her account did not
suffer from the implausibility of the rest of it, because court-
houses ordinarily have holding cells for prisoners, and it may
be that there are circumstances where a recalcitrant juror
could be brought in and held pursuant to a bench warrant.25
But the district judge did not have this allegation in isolation.
Juror A testified that the bailiff made this threat in the conver-
sation where he threatened to kill her, and testified to it in the
series of answers where she described all the lurid ways she
could be killed.

[5] It is logical to disbelieve even a plausible allegation if
a witness makes it in the course of a generally implausible
account. Suppose, hypothetically, a person says "I saw a
woman milking a cow." That is plausible. Now suppose the
person goes on to say "and the woman and cow were inside
a horse's head, and there was another woman who was walk-
ing upside down on the roof of an upside down house." In
light of these additional statements, it is not sensible to say,
as Exxon's argument implies, "well, she must have seen
24 Ninth Circuit Manual of Model Jury Instructions, Civil, Form 3.7
25 See generally 28 U.S.C.S 1866(g) (1994) (providing that juror who
fails to appear pursuant to summons for jury duty and fails to show cause
for failing to appear "may be fined not more than $100 or imprisoned not
more than three days, or both." (emphasis added)).


something, and a woman milking a cow is plausible, so she
must have at least seen a woman milking a cow." It is far
more probable that the person is not describing anything that
happened in the empirical actuality of which findings of fact
are made, and instead saw all this in a Marc Chagall painting
(or if the hypothetical speaker is Marc Chagall, in his imagi-
nation). Juror A was not describing a Chagall painting, but
she described events so unlikely, with a demeanor so extreme,
that a finder of fact could reasonably conclude that she suf-
fered from a condition that would distort her perceptions or
recollections. The district judge so concluded. If a person
claims to have perceived things which almost certainly did
not occur, then it is reasonable to disbelieve the person's
claim to have perceived things that might otherwise reason-
ably be thought to have occurred. The district judge did not
accept the truth of anything Juror A said, because of the
extreme unlikelihood of much of what she said, as well as her
demeanor while saying it. We routinely instruct jurors that
they "may believe everything a witness says, or part of it, or
none if it,"26 and a judge has the same choices, for the same
reasons. The district judge rejected all of Juror A's testimony,
including her account of the bailiff's threat to put her in jail
if she refused to come to court and deliberate. His finding was
not clearly erroneous.

Exxon also argues that the district court's instructions did
not adequately emphasize each juror's duty to maintain her
own honest convictions rather than yield them to reach a ver-
dict, and each juror's duty to maintain courtesy toward the
other jurors. This argument could be and was made only in
Exxon's first motion for new trial, not the second motion for
new trial, the denial of which is the only issue before us. The
second motion is based on "newly discovered evidence"
under Rule 60(b)(2).27 The judge's instructions to the jury
26 Ninth Circuit Manual of Model Jury Instructions, Civil, 3.7 (West
27 Fed. R. Civ. Pro. Rule 60(b).


were of course not "newly discovered evidence" years after
the trial had concluded. They are therefore not before us for
review. We do not intimate that the judge's instructions fell
outside the discretion the district court had to formulate

Exxon argues that Juror A's account of the bailiff's alleged
threat to put her in jail and bring her upstairs for deliberations
was corroborated by her husband's testimony. It would not be
decisive if it was, but in fact it was not. What he said was that
his wife felt "penned up," as jurors typically do during
lengthy deliberations. He also said that "her impression" was
that "if she chose not to come back, they could put her in the
jail downstairs and bring her up to deliberation during the
day." He did not testify that she said the bailiff had told her
this. The impression could as easily have come from a juror
or some other acquaintance who had been on a state jury
where the same question was raised, and an answer along
those lines had been given. Jurors sometimes learn a lot from
accounts by others of jury service in other cases.

In sum, the district judge described the focus of his findings
as being on whether Juror A had been "threatened" or
"intimidated" by the bailiff. That included the alleged threat
to hold her in jail if she refused to show up. He held extensive
evidentiary hearings, made careful findings of fact, and found
that Juror A's account, in its entirety, did not merit belief,
despite its subjective honesty. These findings were not clearly

C. Juror C's Alleged Threat

Exxon argues that the district judge was required to grant
28 See Gilbrook v. City of Westminster, 177 F.3d 839, 860 (9th Cir.
1999) ("Because the district court has substantial latitude in tailoring jury
instructions, we review the formulation of those instructions for an abuse
of discretion.").


a new trial because of a threat after the jurors had reached
their verdict but before they returned it in open court. When
the jurors have a verdict, they typically tell the bailiff. After
the judge causes the parties, counsel and others to assemble
in court, the bailiff informs the jurors, and they line up await-
ing his signal to walk into the courtroom. Once in court, their
verdict is handed to the bailiff or deputy clerk, who passes it
to the judge to inspect for defects of form, such as illegibility
or not being signed by the foreman. Assuming that there are
no defects of form, the judge has the deputy clerk read the
verdict out loud. Many judges, with or without a request by
counsel, then have the clerk poll the jury. That means that the
deputy clerk asks each of them in open court whether the ver-
dict as read is that juror's true and correct verdict. Only after
each jurors says that it is, does the judge accept the verdict
and direct that it be entered.29

If a juror says "no" during the polling in open court, then
the verdict is not entered. There may be a motion for mistrial,
and the judge may decide whether to discharge the jury and
declare a mistrial, or order the jury to deliberate further.30
Juror A testified that she planned to say "no" when the jury
was polled, because she recognized that as a moment when a
juror enjoys a high degree of physical safety. But she was
scared to do so because as the jurors lined up to enter the
courtroom, Juror C "told me that my daughters were very
good-looking and to think about that when I gave my vote."
She understood that remark to be a threat directed at her

Exxon argues that the rule against allowing a juror to
impeach her own verdict31 does not apply because the alleged
remark was made after the jurors had concluded their deliber-
29 See 1 Kevin F. O'Malley et. al, Federal Jury Practice and
Instructions, S 9.07 (5th ed. 2000).
30 See id.
31 Fed. R. Evid. Rule 606(b).


ations. We need not determine whether its legal argument has
any merit, a doubtful proposition,32 because the district judge
made a finding of fact, as discussed above, that Juror A's
account was not worthy of belief. This finding was not clearly
erroneous, so the alleged threat must be treated as imaginary.


The district court's denial of Exxon's Rule 60(b)(2) motion
based on irregularities in jury deliberations is AFFIRMED.

32 See Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980)