Adam Fox Appeal Brief

Case: 23-1029 Document: 48 Filed: 01/24/2024 Page: 1
No. 23-1014
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
__________
UNITED STATES OF AMERICA,

Plaintiff/Appellee,
v.
ADAM FOX,
Defendant/Appellant.
__________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
__________
APPELLANT ADAM FOX’S REPLY BRIEF

__________
Steven S. Nolder (0037795)

65 East State Street, Suite 200
Columbus, Ohio 43215
(614) 221-9790
snolder9@gmail.com
Attorney for Appellant Adam Fox
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................................................... ii
TABLE OF AUTHORITIES ............................................................ iiii-iv

INTRODUCTION .................................................................................... 1
FOX WAS DEPRIVED OF A "CONSTITUTIONALLY
MEANINGFUL" REMMER HEARING............................................ 1-13
FOX'S CROSS-EXAMINATION OF KALEB FRANKS WAS
ARBITRARY RESTRICTED .......................................................... 13-18
CONCLUSION ....................................................................................... 18
CERTIFICATE OF COMPLIANCE.................................................... 19
CERTIFICATE OF SERVICE ............................................................. 19
-ii-
TABLE OF AUTHORITIES
Cases
Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc). ...................... 2
Remmer v. United States, 347 U.S. 227 (1954) ........................... 1, 2, 5, 6, 8, 13, 18
United States v. Davis, 177 F.3d 552 (6th Cir. 1999)............................................... 2
United States v. Gagnon, 470 U.S. 522 (1985) ....................................3, 4, 5, 6, 7, 8
United States v. Lanier, 988 F.3d 284 (6th Cir. 2021) ...............................1, 2, 8, 13
United States v. Owens, 426 F.3d 800 (6th 2005) .................................................... 8
Rules
Fed. R. Crim. P. 43................................................................................................5, 6
FRAP 32(a)(7)(B)(ii) ..............................................................................................19
-iii-
I. Introduction.
On August 16, 2023, Appellant Adam Fox filed a brief raising four
assignments of error and three months later, the government filed its
rejoinder. In this reply brief, Fox responds to the government’s brief
addressing his first two assignments of error where he argued: (1) the
district court abused its discretion by depriving Fox of a “constitutionally
meaningful” Remmer hearing; and (2) the district court abridged Fox’s
right of confrontation by arbitrarily restricting Fox’s cross-examination
of Kaleb Franks.
II. Fox was Deprived of a “Constitutionally Meaningful”

Remmer Hearing.
A court confronted with a colorable claim of juror bias must
undertake an investigation of the relevant facts and circumstances.
Remmer v. United States, 347 U.S. 227, 230 (1954). The government is
correct by stating that district courts are generally afforded significant
discretion in establishing the scope of the proceeding necessary to
discover juror misconduct. However, this discretion isn’t “infinite.”
United States v. Lanier, 988 F.3d 284, 295 (6th Cir. 2021). Instead, when
a defendant raises a “colorable claim of extraneous influence[,]” a district
court must fulfill its “duty to investigate and to determine whether there
1
may have been a violation of the [constitutional guarantee]” of a fair trial
by impartial jurors. United States v. Davis, 177 F.3d 552, 557 (6th Cir.
1999). To discharge this obligation, “a district court usually must
conduct a Remmer hearing where the defendant has an opportunity to
demonstrate jury bias.” Lanier, 988 F.3d at 294-95. (Emphasis supplied).
One of the reasons the district court’s discretion in establishing the
procedure to investigate juror misconduct is not limitless is this Circuit
stands alone by placing the burden of establishing juror bias on the
defendant. Id. Consequently, in the Sixth Circuit, if a defendant makes
the requisite showing, a district court abuses its discretion by denying
him a “meaningful opportunity” to demonstrate jury bias. Id.
(a) Informal Hearing.
In some cases, the investigation can be an informal in camera
hearing. Dyer v. Calderon, 151 F.3d 970, 974–75 (9th Cir. 1998) (en banc).
However, at a minimum, the investigation must be reasonably calculated
to resolve the doubts raised about the juror's impartiality. Id.
Immediately after hearing Croft’s lawyer’s summary of his phone
call with a caller, later referred to as “Person #1,” detailing Juror #13’s
statements evidencing his bias, the district court offered “that would be
2
juror misconduct if true.” Croft’s lawyer provided Person #1’s name and
phone number to the court; consequently, this wasn’t an anonymous
source.
After learning of the alleged misconduct in Fox’s case, the district
court went into “investigation mode.” While Fox’s trial continued that day,
the court’s jury clerk interviewed Person #1 who confirmed much of the
information related by Croft’s counsel. This included Juror #13’s
statements that he would make sure the defendants would be found
guilty and hanged. Although these statements weren’t made to Person
#1, he had no doubt about their truthfulness.
Both Fox and Croft wanted to be present for any meeting with Juror
#13 as well as the opportunity to question him. (R. #711, Order, PAGE
ID #8982). These requests were denied; instead, the district court settled
on an ex parte meeting with the juror to discuss the misconduct
allegations.
The government champions the ex parte approach employed by the
district court and argues that based on the record, Fox was entitled to
nothing more. To support this position, the government cites United
States Gagnon, 470 U.S. 522 (1985) for the proposition that “the defense
3
has no constitutional right to be present at every interaction between a
judge and a juror, nor is there a constitutional right to have a court
reporter transcribe every such communication.” (R. #35, Government’s
Brief, PAGE ID #100-01). The irony of the government’s reliance on
Gagnon can’t be overstated because the process afforded Robert Gagnon,
and approved by the Supreme Court in its opinion, was all that Fox
wanted--an opportunity for his counsel to be present and question the
juror.
Robert Gagnon along with three other co-defendants were on trial
for trafficking cocaine. On the first day of the trial, Gagnon misused his
artistic talent by sketching portraits of several jurors. When one of the
jurors noticed this, he became understandably unnerved and reported his
observations to the presiding judge.
Initially, the judge informed the parties that he would meet with
the juror in chambers to discuss the matter. Id. at 523. However, after
the juror arrived in chambers, the judge summoned Gagnon’s lawyer, but
not the other three lawyers or any of the four defendants, to chambers.
Id. The AUSA prosecuting the case was also not present for the
proceeding.
4
After discussing the matter with the juror, the court was satisfied
he could continue to be fair and impartial. Id. at 524. Gagnon’s lawyer
asked the juror two questions and the juror’s responses also satisfied him
that the juror could continue to serve. Id. A transcript of the hearing was
made available to all counsel who weren’t in attendance. Id.
After the hearing, the trial concluded, and all four defendants were
convicted. On appeal, the defendants argued their exclusion from the in
chambers hearing violated their Sixth Amendment right to an impartial
jury as well as their right, under Fed. R. Crim. P. 43, to be present at all
stages of the trial. Id. at 524-25.
The Ninth Circuit agreed with the defendants, but the Supreme
Court reversed. The Court held that:
[I]n this case the presence of the four respondents

and their four trial counsel at the in camera
discussion was not required to ensure
fundamental fairness or a “reasonably
substantial ... opportunity to defend against the
charge.” See Snyder, supra. The encounter
between the judge, the juror, and Gagnon's lawyer
was a short interlude in a complex trial; the
conference was not the sort of event which every
defendant had a right personally to attend under
the Fifth Amendment. Respondents could have
done nothing had they been at the conference, nor
would they have gained anything by attending.
Id. at 527.
5
The Supreme Court adopted the Ninth Circuit’s reasoning that this
conference was a stage of the trial where Gagnon’s presence was
guaranteed under Rule 43. Id. However, the Court found the defendants
waived their right to be present because they didn’t raise the issue,
challenge the procedure, or file post-trial motions raising this issue. Id.
at 528. One of the cases cited by the Court for this part of its ruling was
Remmer. Id. It was also important to the Court that the other three
lawyers made no effort to attend the hearing. Id. at 529.
There is a stark contrast between the procedure used in Gagnon’s
and Fox’s cases. First, Gagnon’s lawyer was invited to attend the
meeting while Fox’s wasn’t. Gagnon’s lawyer was permitted to question
the juror while Fox’s wasn’t. In Gagnon, the co-defendants’ lawyers who
were not invited to the meeting didn’t request to attend whereas Fox’s
did. None of the lawyers in Gagnon objected to the procedure while Fox’s
counsel did. Finally, Gagnon and the other defendants never requested a
Remmer hearing whereas Fox did.
At the ex parte meeting in Fox’s case, the district court confronted
Juror #13 with his alleged statements evidencing his bias. The court
asked Juror #13 if he made statements: that there would be a guilty
6
verdict, that the defendants were guilty, or that the defendants were
going to hang? (R. #734, Sealed Transcript, PAGE ID #9051).
Immediately after asking these questions, and before Juror #13
registered his denial, the court diminished the ability to prove the
statements by stating “It’s not like I have that on tape” and “It’s not like
I have anybody saying that under oath.” (R. #734, Sealed Transcript,
PAGE ID #9051).
The juror acknowledged telling people at work that he had jury duty,
but he was unsure about the nature of the case until he appeared for jury
selection. (R. #734, Sealed Transcript, PAGE ID #9053). He also
informed the court that he didn’t remember making any statements
evidencing bias years before when Croft and Fox were arrested. (R. #734,
Sealed Transcript, PAGE ID #9053). This was hardly an iron-clad denial.
Under the procedure approved by the Supreme Court in Gagnon,
the district court abused its discretion by depriving Fox of a
constitutionally meaningful procedure to demonstrate Juror #13’s bias at
this initial informal hearing. In Fox’s case, the district court’s “bobtailed
inquiry” into juror bias “flunked the constitutional test that ‘the
7
investigation be reasonably calculated to resolve the doubts raised about
the juror's impartiality.’” Lanier, 988 F.3d at 295.
(b) Remmer Hearing Request.
After being deprived of an opportunity to participate in the district
court’s initial interview of Juror #13, Fox formally sought a Remmer
hearing. To be afforded this hearing, Fox was still required to make a
“colorable claim of extraneous influence.”
“Extraneous influence” has been defined as “one derived from
specific knowledge about or a relationship with either the parties or their
witnesses.” United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005).
Therefore, Juror #13’s expressed bias in Fox’s case including his
assurance the defendants would be convicted “no matter what” and
“would hang” would be an extraneous influence he failed to mention in
either his juror questionnaire or during voir dire. These beliefs would
impact his ability to be fair and impartial.
(c) “Colorable Claim” of Misconduct.
This leaves the only other issue to be whether Fox established a
“colorable claim” of bias requiring a Remmer hearing. Unlike the phrase
“extraneous influence,” counsel has located no case where courts have
8
given contours to the meaning of what is required for the claim of juror
misconduct to be “colorable.”
However, the details discovered about this misconduct issue aired
on the second day of trial as well as the facts a defense investigator
unearthed up until the day of the jury’s verdict, show that Fox made a
“colorable claim,” triggering his right to a Remmer hearing:
(1) On August 10, 2022, Croft’s attorney was contacted by “Person

1” identifying himself by name and phone number. (R. #848,
Sealed in Camera Transcript, PAGE ID #16307-309);
(2) Person #1 informed Croft’s lawyer that one of his co-workers

was on the “Whitmer” jury. (R. #848, Sealed in Camera
Transcript, PAGE ID #16307-309);
(3) Person #1 identified the juror by name and physical description.

He also knew the juror didn’t drive so the juror’s father
transported him to and from work as well as the courthouse for
jury service. The person described was Juror #13. (R. #745-1,
Attachment A to Motion for New Trial and For Remmer Hearing,
PAGE ID #9752);
(4) Later that evening, a defense investigator interviewed Person #1

who stated he worked with Juror #13 for the past decade. (R.
#745-1, Attachment A to Motion for New Trial and For Remmer
Hearing, PAGE ID #9752);
(5) After being notified that he was summoned for jury service,
Juror #13 informed other co-workers, but not Person #1 directly,
that if he were seated on the Whitmer jury, the defendants “were
going to hang” and they’d be found guilty “no matter what.” (R.
9
(6) Juror #13 made these comments up until the day before he
appeared in court for jury selection. (R. #745-1, Attachment A to
Motion for New Trial and For Remmer Hearing, PAGE ID #9752);
(7) One of the individuals who heard Juror #13 make these
comments was Person #1’s friend. Person #1 and his unidentified
friend were co-workers for many years and Person #1 had no
reason to doubt the veracity of his friend’s report. (R. #745-1,
PAGE ID #9752-753);
(8) Person #1 refused to identify anyone who heard Juror #13 make
these comments but instead told the investigator that he’d speak
with his co-workers and determine if any were willing to come
forward. (R. #745-1, Attachment A to Motion for New Trial and
For Remmer Hearing, PAGE ID #9753);
(9) Person #1 viewed Juror #13 as “far-left leaning” and that he’d
already made up his mind before being seated for jury service.
(R. #745-1, Attachment A to Motion for New Trial and For
Remmer Hearing, PAGE ID #9752);
(10) Twelve days later, the investigator contacted Person #1 to

divine if any witnesses were willing to be interviewed about
Juror #13’s statements. (R. #745-1, Attachment A to Motion for
New Trial and For Remmer Hearing, PAGE ID #9752);
(11) Person #1 informed the investigator that Juror #13’s mother

also worked with her son and Person #1 and that witnesses to
Juror #13’s statements were afraid they’d lose their jobs if they
came forward. (R. #745-1, Attachment A to Motion for New Trial
and For Remmer Hearing, PAGE ID #9753-754);
(12) Person #1 related he would say that he “does not know

anything” if compelled to talk about Juror #13’s statements. (R.
10
(13) On August 23, 2022, the investigator traveled to Juror #13’s

place of employment and encountered Person #2, who was also a
co-worker. (R. #745-1, Attachment A to Motion for New Trial and
For Remmer Hearing, PAGE ID #9753);
(14) Person #2 identified Juror #13 by name and when pressed

how he knew the juror’s name, he stated Juror #13 told others,
before he was selected for jury service, that the defendants would
be found guilty “no matter what.” These comments weren’t made
to Person #2 but to a person who was identified only by his first
name and who was later identified as Person #3. Person #3 was
the source of Person #2’s knowledge. (R. #745-1, Attachment A
to Motion for New Trial and For Remmer Hearing, PAGE ID
#9755);
(15) While the investigator was interviewing Person #2 at his

place of employment, the investigator was cautioned to speak
softly because Juror #13’s mother had just walked out of her
office and was within earshot. (R. #745-1, Attachment A to
Motion for New Trial and For Remmer Hearing, PAGE ID #9754);
(16) The investigator confirmed, through independent

investigation, that Person #3 was the individual Person #1 had
identified as hearing Juror #13’s statements evidencing his bias.
Remmer Hearing, PAGE ID #9754-755);
(17) Company management advised the defense investigator that

employees were not permitted to say anything more about the
matter and referred the investigator to corporate counsel. (R.
(18) While the investigator was in the parking lot waiting for
employees to leave work, Person #2 approached and told him
Juror #13’s mother had just received a text from her son that the
jury reached a verdict but didn’t note the verdict. (R. #745-1,
PAGE ID #9755); and
11
(19) On August 23, 2022 at 4:00 pm, the investigator attempted to

interview Person #3 about Juror #13’s statements made about
the Whitmer trial. Person #3 informed the investigator that he
didn’t know anything and refused to speak with the investigator.
Remmer Hearing, PAGE ID #9755-756).
These facts, when taken together, constituted a “colorable claim” of
extraneous influence. Immediately after hearing Croft’s lawyer’s
summary of his phone call with Person #1, the caller was identified by
name and phone number. Much of the information imparted by Croft’s
lawyer was confirmed by the jury clerk. This included Juror #13’s
statements that he would make sure the defendants would be found
guilty and hanged. These statements weren’t on the boundary of whether
Juror #13 could be fair and impartial; instead, they went right to the
heart of his ability to discharge the oath he’d taken after being sworn as
a juror.
Further indicators that Fox’s claim was “colorable” was the
phraseology used by Persons #1 and #2 to describe what they were told
Juror #13 said. They were both told Juror #13 would ensure the
defendants would be found guilty “no matter what.”
It was also important that Persons #1-3, Juror #13, and Juror #13’s
mother all knew each other, working many years at the same business.
12
However, Persons #1-3 all feared losing their jobs if they came forward.
This was underscored when management removed the defense
investigator from the business and voices were hushed when Juror #13’s
mother was close by.
In Lanier, this Court established a framework to ensure the defense
is given an adequate opportunity to investigate juror bias. This includes
(a) permitting “all interested parties” to participate at the hearing to
comport with due process; (b) a hearing that must be “unhurried and
thorough;” and (c) allowing the defense to question the juror(s). Lanier,
988 F.3d at 295. Despite making a “colorable claim” of Juror #13’s bias,
none of these safeguards were afforded Fox. The district court abused its
discretion by depriving Fox of a Remmer hearing, Fox’s convictions must
be reversed, and his case must be remanded for a new trial.
III. Fox’s Cross-Examination of Kaleb Franks was Arbitrarily

Restricted.
This Court’s jurisprudence is clear that district courts have
discretion in placing limits on cross-examination and the parties agree
these limits can’t be arbitrarily applied. (R. 35, Government’s Appellate
Brief, PAGE ID #105). However, this is exactly what happened when the
13
district court limited Kaleb Franks’s cross-examination while the
government was spared any limits in the presentation of evidence.
(a) Before the Retrial.
At the end of the first trial, the district court, sua sponte, informed
the parties that although time limits were commonplace in civil cases,
the court had never imposed them in criminal cases. Additionally, before
the retrial, the court informed the parties to plan their cases using the
same ground rules experienced at the first trial.
There was no pushback from the court on the time the parties
estimated the retrial would take. Defense counsel even made
concessions to streamline the government’s case.
(b) Trial.
Despite being well ahead of the projected completion date for the
trial, the court repeatedly harangued defense counsel, in the jury’s
presence, to speed up their examinations and avoid repetition. Defense
counsel weren’t the only targets of the court’s ire for perceived
inefficiency. The AUSAs were also dressed down for: (a) using an exhibit
that wasn’t on its exhibit list; (b) not getting “to the point;” (c) asking
argumentative questions; (d) rehashing points that were already made
14
on direct examination; and (e) visiting issues on redirect that weren’t
disputed on cross-examination. After the trial, the government
acknowledged these rebukes. (R. #761-1, Government’s Response to
Motion for New Trial, PAGE ID #10,002-003).
However, whereas the government merely endured tongue
lashings, real consequences were brought to bear on the defense. To prod
counsel along, the court repeatedly rattled the “Bertelsman Rule” saber.
The context in which this rule was invoked made it obvious to the jury
that the court’s frustration was directed at defense counsel. Despite its
liberal reference to the rule, the court never explained it to the jury,
leaving them wondering about the seriousness of the defense lawyers’
misconduct and the effect of the court’s threatened remedy.
Despite the court’s perceived inefficiencies on both sides, the court
didn’t remedy these problems across the board. There were no
restrictions on the government’s direct or cross-examinations; instead,
these were reserved for the defense.
Before Franks took the stand, the court announced to the parties,
in open court, that the “Bertlesman Rule” was in effect. This
announcement was misleading as the rule applied was more akin to a
15
modified “Bertlesman Rule.” This is true because when implementing
that rule in a criminal case, Judge Bertlesman applied it across the
board, not just to defense counsel. Additionally, Judge Bertlesman
informed the parties before the trial of the time restrictions and gave
them an opportunity to brief the issue. Finally, Judge Bertlesman
applied his rule to all witnesses, not just ones he handpicked.
For Franks, the length of his direct examination wasn’t curtailed,
only his cross-examination. The court’s one-sided rule made the
aggregate length of cross-examination a function of the length of the
government’s unlimited direct.
During the cross-examination, the court mocked Fox’s counsel on
the way time was being spent and then engaged in a countdown in open
court. When the clock was exhausted, the court notified Fox’s counsel
“[Y]ou have used the time.”
In the government’s eyes, the time limits weren’t arbitrary because
“[T]he court allowed the defendants as much time as the prosecution,
and placed no restrictions on the topics they could explore.” (R. #35,
Government’s Appellate Brief, PAGE ID #109). However, this doesn’t
speak to the court’s arbitrary decision to not limit the government’s
16
presentations for its perceived inefficiencies. Additionally, it doesn’t
address the fairness of allowing the length of the government’s direct
examination to control the length of Fox’s cross-examination.
(c) Prejudice.
The government urges this Court to dismiss Fox’s explanations of
how the time limits impacted his cross-examination. To the government,
these were “after-the-fact assertions” “largely directed at creating an
issue on appeal.” (R. #35, Government’s Appellate Brief, PAGE ID #108).
However, Fox’s counsel wanted to make a record on this issue before
cross-examining Franks, but the court wouldn’t allow it for fear of
slowing the trial’s progress.
When given the opportunity to justify his lengthy cross
examinations at the retrial when compared to the first trial, Fox’s
attorney informed the court that: (1) Fox was at every event, on every
phone call, and at every training; (2) the government elicited evidence at
the first trial that was helpful to Fox’s entrapment defense as well as the
ridiculous nature of the kidnapping plans but this evidence was avoided
at the retrial; and (3) Agent Reineck’s inability to answer a
straightforward question.
17
With an additional 20-30 minutes, Fox’s counsel intended to probe
nine areas to develop the record so the jury could assess his client’s
entrapment defense and Franks’ bias and credibility. (R. #26, Fox’s Brief,
PAGE ID #58-9). Questioning Franks about his plea agreement, his role
in the conspiracy, his decision to participate in the conspiracy, the impact
Franks’s arrest had on Fox’s entrapment defense, and Franks’ knowledge
about the groups’ live action role playing were important to support Fox’s
entrapment defense, demonstrate Franks’s bias, and attack Franks’s
credibility.
The district court abused its discretion by implementing the
modified “Bertelsman Rule.” Its arbitrary application adversely affected
Fox’s defense and deprived Fox of his Sixth Amendment right to fully
confront one of the government’s “star” witnesses.
IV. Conclusion.
In sum, the district court abused its discretion by depriving Fox of
a “constitutionally meaningful” Remmer hearing and arbitrarily
restricting the cross-examination of Kaleb Franks. Fox’s convictions
must be reversed, and his case remanded for a new trial.
18
Respectfully submitted,
/s/Steven S. Nolder
________________________________
65 East State Street, Suite 200
Columbus, Ohio 43215
(614) 221-9790
snolder9@gmail.com
CERTIFICATE OF COMPLIANCE
Counsel hereby certifies that the foregoing brief complies with the
type-volume limitation provided in Federal Rule of Appellate Procedure
32(a)(7)(B)(ii). The relevant portions of the foregoing brief contain 4,156
words in Century Schoolbook (14-point) type. The word processing
software used to prepare this brief was Microsoft Office Word 2010.
/s/ Steven S. Nolder

CERTIFICATE OF SERVICE
I hereby certify that on January 24, 2024, I electronically filed the
foregoing with the Clerk of the United States Court of Appeals for the
Sixth Circuit using the CM/ECF system, to AUSA Nils R. Kessler.
/s/ Steven S. Nolder

19

Adam Fox Appeal Brief

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Case: 23-1029 Document: 48 Filed: 01/24/2024 Page: 1

UNITED STATES OF AMERICA,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

APPELLANT ADAM FOX’S REPLY BRIEF

Steven S. Nolder (0037795)

TABLE OF CONTENTS ......................................................................... ii

TABLE OF AUTHORITIES ............................................................ iiii-iv

rejoinder. In this reply brief, Fox responds to the government’s brief

district court abused its discretion by depriving Fox of a “constitutionally

right of confrontation by arbitrarily restricting Fox’s cross-examination

II. Fox was Deprived of a “Constitutionally Meaningful”

A court confronted with a colorable claim of juror bias must

undertake an investigation of the relevant facts and circumstances.

correct by stating that district courts are generally afforded significant

discretion in establishing the scope of the proceeding necessary to

discover juror misconduct. However, this discretion isn’t “infinite.”

a defendant raises a “colorable claim of extraneous influence[,]” a district

may have been a violation of the [constitutional guarantee]” of a fair trial

1999). To discharge this obligation, “a district court usually must

conduct a Remmer hearing where the defendant has an opportunity to

demonstrate jury bias.” Lanier, 988 F.3d at 294-95. (Emphasis supplied).

One of the reasons the district court’s discretion in establishing the

procedure to investigate juror misconduct is not limitless is this Circuit

stands alone by placing the burden of establishing juror bias on the

defendant. Id. Consequently, in the Sixth Circuit, if a defendant makes

the requisite showing, a district court abuses its discretion by denying

him a “meaningful opportunity” to demonstrate jury bias. Id.

(a) Informal Hearing.

In some cases, the investigation can be an informal in camera

However, at a minimum, the investigation must be reasonably calculated

to resolve the doubts raised about the juror's impartiality. Id.

Immediately after hearing Croft’s lawyer’s summary of his phone

phone number to the court; consequently, this wasn’t an anonymous

After learning of the alleged misconduct in Fox’s case, the district

information related by Croft’s counsel. This included Juror #13’s

statements that he would make sure the defendants would be found

guilty and hanged. Although these statements weren’t made to Person

#1, he had no doubt about their truthfulness.

on an ex parte meeting with the juror to discuss the misconduct

The government champions the ex parte approach employed by the

nothing more. To support this position, the government cites United

has no constitutional right to be present at every interaction between a

judge and a juror, nor is there a constitutional right to have a court

reporter transcribe every such communication.” (R. #35, Government’s

Brief, PAGE ID #100-01). The irony of the government’s reliance on

Gagnon can’t be overstated because the process afforded Robert Gagnon,

wanted--an opportunity for his counsel to be present and question the

Robert Gagnon along with three other co-defendants were on trial

artistic talent by sketching portraits of several jurors. When one of the

jurors noticed this, he became understandably unnerved and reported his

observations to the presiding judge.

he could continue to be fair and impartial. Id. at 524. Gagnon’s lawyer

made available to all counsel who weren’t in attendance. Id.

convicted. On appeal, the defendants argued their exclusion from the in

chambers hearing violated their Sixth Amendment right to an impartial

stages of the trial. Id. at 524-25.

Court reversed. The Court held that:

[I]n this case the presence of the four respondents

conference was a stage of the trial where Gagnon’s presence was

lawyers made no effort to attend the hearing. Id. at 529.

There is a stark contrast between the procedure used in Gagnon’s

meeting while Fox’s wasn’t. Gagnon’s lawyer was permitted to question

Remmer hearing whereas Fox did.