United States v. Leonard Rowe, Walter Preston Rash, 906 F.2d 654 (11th Cir. 1990). · Go Syfert
United States v. Leonard Rowe, Walter Preston Rash, 906 F.2d 654 (11th Cir. 1990). Cases Citing This Book View Copy Cite
“prejudice is not presumed. the defendant has the burden of demonstrating prejudice by a preponderance of credible evidence. 'such prejudice may be shown by evidence that extrinsic factual matter tainted the jury's deliberations.”
71 citation events (32 in the last 25 years) across 13 distinct courts.
Strongest positive: State v. Marshall (utahctapp, 2025-05-22) · Strongest negative: United States v. Apolonio Lopez Aguirre (ca11, 2005-09-07)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 29 distinct citers.
examined Cited "but see" United States v. Apolonio Lopez Aguirre (4×) also: Cited as authority (rule)
11th Cir. · 2005 · signal: but see · confidence high
United States v. Caporale, 806 F.2d 1487, 1503 (11th Cir.1986); but see Rowe, 906 F.2d at 656 (stating that prejudice is not presumed).
discussed Cited as authority (verbatim quote) State v. Marshall
Utah Ct. App. · 2025 · quote attribution · 1 verbatim quote · confidence high
in recognizing the degree of prejudice required and the government's burden to establish harmless error, the strength of the government's case has a bearing on the issue of prejudicial error.
examined Cited as authority (verbatim quote) Juarez v. Crews (2×) also: Cited as authority (rule)
M.D. Fla. · 2024 · quote attribution · 1 verbatim quote · confidence high
prejudice is not presumed. the defendant has the burden of demonstrating prejudice by a preponderance of credible evidence. 'such prejudice may be shown by evidence that extrinsic factual matter tainted the jury's deliberations.
discussed Cited as authority (rule) Pettaway v. Barber
M.D. Ala. · 2022 · signal: cf. · confidence medium
Cf. United States v. Rowe, 906 F.2d 654, 656 (1990) (holding, in the context of a criminal case, that the “‘theory’ that the jury’s verdict be based solely upon the evidence offered at trial ‘goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.’” (quoting Turner v. Louisiana, 379 U.S. 466, 472 (1965)).
discussed Cited as authority (rule) State v. Soto
Utah · 2022 · confidence medium
See, e.g., United States v. Lloyd, 269 F.3d 228, 241 (3d Cir. 2001) (―We have further recognized that a heavy ‗volume of incriminating evidence‘ also can undermine a claim of prejudice.‖ (citation omitted)); United States v. Rowe, 906 F.2d 654, 657 (11th Cir. 1990) (―In recognizing the degree of prejudice required and the government‘s burden to establish harmless error, the strength of the government's case has a bearing on the issue of prejudicial error.‖); see also United States v. Honken, 541 F.3d 1146 , 1160–61 (8th Cir. 2008); United States v. Hornung, 848 F.2d 1040 , 1045…
discussed Cited as authority (rule) United States v. Kenneth J. Enrico
11th Cir. · 2016 · confidence medium
“A juror’s exposure to extraneous material or influence requires a new trial if the exposure ‘poses a reasonable possibility of prejudice to the defendant.’ ” Id. (quoting United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (emphasis omitted)).
discussed Cited as authority (rule) Starbuck v. R.J. Reynolds Tobacco Co. (2×) also: Cited "see, e.g."
M.D. Fla. · 2015 · confidence medium
Rather, as I noted, above, the Eleventh Circuit Court of Appeals explained in BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467 (11th Cir.1992), the circumstances in which a juror’s misconduct in considering extrinsic evidence in a civil case requires a new trial pursuant to Rule 59(b). 955 F.2d at 1471 -72 (citing United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990)).
discussed Cited as authority (rule) Jefferson v. Hall (2×)
11th Cir. · 2009 · confidence medium
"Although prior precedent recognized the presumption of prejudice from Remmer , this Court, on at least two later occasions, has stated that prejudice is not presumed even when jurors considered extrinsic evidence.” Ronda, 455 F.3d at 1299 n. 36 (citing United States v. Rowe, 906 F.2d 654, 656-57 (11th Cir.1990); United States v. De La Vega, 913 F.2d 861, 870 (11th Cir.1990)).
discussed Cited as authority (rule) United States v. Marc Jacques (2×)
11th Cir. · 2008 · confidence medium
This theory “goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.” United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (internal quotation marks omitted).
discussed Cited as authority (rule) United States v. Khanani
11th Cir. · 2007 · confidence medium
A juror’s exposure to extraneous material or influence requires a new trial if the exposure “poses a reasonable possibility of prejudice to the defendant.” United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (emphasis and citations omitted).
cited Cited as authority (rule) United States v. Antonio Cruz
11th Cir. · 2007 · confidence medium
States v. Rowe, 906 F.2d 654, 656-57 (11th Cir. 1990); United States v. De La Vega, 913 F.2d 861, 870 (11th Cir. 1990).
cited Cited as authority (rule) United States v. Oscar Ronda
11th Cir. · 2006 · confidence medium
United States v. Rowe, 906 F.2d 654, 656-57 (11th Cir.1990); United States v. De La Vega, 913 F.2d 861, 870 (11th Cir.1990).
discussed Cited as authority (rule) Parker v. Turpin (2×)
N.D. Ga. · 1999 · confidence medium
Prejudice is not presumed[,] and [t]he defendant has the burden of demonstrating prejudice by a preponderance of credible evidence.” United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (citations omitted).
discussed Cited as authority (rule) State v. Hartley (2×)
R.I. · 1995 · confidence medium
See Parker, 385 U.S. at 364-65 , 87 S.Ct. at 470 , 17 L.Ed.2d at 422-23 ; United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (holding that exclusion of outside evidence is essential “because only evidence offered against the defendant at the witness stand in a public courtroom receives the judicial protection of the defendant’s [S]ixth [A]mendment right of confrontation, cross-examination, and counsel”) (citing Turner v. Louisiana, 379 U.S. 466, 472 , 85 S.Ct. 546, 549 , 13 L.Ed.2d 424, 428 (1965)).
discussed Cited as authority (rule) State v. Harley (2×)
R.I. · 1995 · confidence medium
See Parker, 385 U.S. at 364-65 , 87 S.Ct. at 470 , 17 L.Ed.2d at 422-23 ; United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (holding that exclusion of outside evidence is essential "because only evidence offered against the defendant at the witness stand in a public courtroom receives the judicial protection of the defendant's [S]ixth [A]mendment right of confrontation, cross-examination, and counsel") (citing Turner v. Louisiana, 379 U.S. 466, 472 , 85 S.Ct. 546, 549 , 13 L.Ed.2d 424, 428 (1965)).
discussed Cited as authority (rule) United States v. Shawn Joseph Pessefall, United States of America v. Lawrence Whittaker, United States of America v. Roy Vinson Rickman
11th Cir. · 1994 · confidence medium
Because the jury had extrinsic evidence in the jury room, we assume prejudice and consider whether the government rebutted that presumption considering such factors as the “heavy burden on the government, the nature of the extrinsic information, the manner in which the information reached the jury, and the strength of the government’s case.” Martinez, 14 F.3d at 550 . *516 The jury’s consideration of extrinsic evidence requires a new trial “if the evidence poses a reasonable possibility of prejudice to the defendant.” United States v. Awan, 966 F.2d 1415, 1432 (11th Cir.1992) (quot…
discussed Cited as authority (rule) United States v. Steven Lynn Griffith
6th Cir. · 1994 · confidence medium
Exclusion of outside information is essential, “because only evidence offered against the defendant at the witness stand in a public courtroom receives the judicial protection of the defendant’s sixth amendment right of confrontation, cross-examination, and counsel.” United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990).
discussed Cited as authority (rule) United States v. Raul Martinez (2×)
11th Cir. · 1994 · confidence medium
United States v. Rowe, 906 F.2d 654, 657 (11th Cir.1990); Remmer, 347 U.S. at 229 , 74 S.Ct. at 451 .
discussed Cited as authority (rule) United States v. Joseph Laspesa, Victor E. Murgo, Steven A. Sarault, Aime J. Sarault (2×)
11th Cir. · 1992 · confidence medium
United States v. Rowe, 906 F.2d 654, 656-57 (11th Cir.1990); United States v. Harris, 908 F.2d 728, 733 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 979 , 112 L.Ed.2d 1063 (1991).
discussed Cited as authority (rule) BankAtlantic v. Blythe Eastman Paine Webber, Inc.
11th Cir. · 1992 · confidence medium
As noted, the district court held an evidentiary hearing and thereafter denied both motions. (a) Juror Exposure to Extrinsic Evidence A juror’s consideration of extrinsic evidence requires a new trial ‘‘if the evidence poses a reasonable possibility of prejudice to the defendant.” United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (quoting United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984)).
discussed Cited as authority (rule) ca11 1992
11th Cir. · 1992 · confidence medium
As noted, the district court held an evidentiary hearing and thereafter denied both motions. 23 (a) Juror Exposure to Extrinsic Evidence 24 A juror's consideration of extrinsic evidence requires a new trial "if the evidence poses a reasonable possibility of prejudice to the defendant." United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (quoting United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984)).
examined Cited as authority (rule) Harper v. People (5×) also: Cited "see, e.g."
Colo. · 1991 · confidence medium
The article appeared during the second day of trial in the local newspaper of a relatively small city. "[T]he court must investigate the asserted impropriety upon merely a colorable showing *86 of extrinsic influence." United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990).
discussed Cited as authority (rule) United States v. Robert S. Falcone, Sandra S. Falcone
11th Cir. · 1991 · confidence medium
Sec. 2113 (a)); United States v. Rowe, 906 F.2d 654, 655 (11th Cir.1990) (conspiracy to commit wire fraud in connection with scheme to defraud insurance company); United States v. Funt, 896 F.2d 1288, 1290-91 (11th Cir.1990) (conspiracy to commit mail and wire fraud and to transport stolen property across state lines in connection with fraudulent coin sales scheme); United States v. LaFraugh, 893 F.2d 314 (11th Cir.) (conspiracy to commit mail fraud, wire fraud, and fraud using access devices in connection with scheme to defraud U.S. Sprint), cert. denied, --- U.S. ----, 110 S.Ct. 2601 , 110 L…
discussed Cited as authority (rule) United States v. Falcone
11th Cir. · 1991 · confidence medium
See, e.g., United States v. Keller, 916 F.2d 628, 630 (11th Cir.1990) (conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 2113 (a)); United States v. Rowe, 906 F.2d 654, 655 (11th Cir.1990) (conspiracy to commit wire fraud in connection with scheme to defraud insurance company); United States v. Funt, 896 F.2d 1288, 1290-91 (11th Cir.1990) (conspiracy to commit mail and wire fraud and to transport stolen property across state lines in connection with fraudulent coin sales scheme); United States v. LaFraugh, 893 F.2d 314 (11th Cir.) (conspiracy to commit mail fraud, wire fraud…
discussed Cited as authority (rule) United States v. Arturo De La Vega, Raimundo Betancourt, Ricardo Aleman, Mario Carballo and Osvaldo Coello
11th Cir. · 1990 · confidence medium
Finally, the standard by which we review the district court’s determination of whether the defendants were prejudiced is a factual one committed to the court’s ‘large discretion.’ Id. at 656-57 (citations omitted).
cited Cited "see" Virgil Hall, III v. Michael Zenk
7th Cir. · 2012 · signal: see · confidence high
See United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (“Prejudice is not presumed.
cited Cited "see" United States v. Bakari Deontre Brown
11th Cir. · 2009 · signal: see · confidence high
See United States v. Rowe, 906 F.2d 654, 656-57 (11th Cir.1990); United States v. De La Vega, 913 F.2d 861, 870 (11th Cir.1990).
cited Cited "see, e.g." United States v. Siegelman
M.D. Ala. · 2011 · signal: see, e.g. · confidence medium
See, e.g., United States v. Rowe, 906 F.2d 654, 656 (11th Cir.1990) (setting out the standards that determine whether a jury’s exposure to extrinsic information requires a new trial).
discussed Cited "see, e.g." McNair v. Campbell
M.D. Ala. · 2004 · signal: see also · confidence medium
The Eleventh Circuit has identified several factors relevant to this analysis, “including the heavy burden on the government, the nature of the extrinsic information, the manner in which the information reached the jury, and the strength of the government’s case.” Martinez, 14 F.3d at 550 ; see also United States v. Rowe, 906 F.2d 654, 657 (11th Cir.1990).
UNITED STATES of America, Plaintiff-Appellee,
v.
Leonard ROWE, Walter Preston Rash, Defendants-Appellants
88-8850.
Court of Appeals for the Eleventh Circuit.
Jul 24, 1990.
906 F.2d 654
Mark J. Kadish, James J. McGinnis, Law Firm of Mark J. Kadish, P.C., Atlanta, Ga., for defendant-appellant Rowe., Walter Moore Henritze, Jr., Atlanta, Ga., for defendant-appellant Rash., Robert L. Barr, Jr., U.S. Atty., Robert Schroeder, Asst. U.S. Atty., N.D. Ga., for plaintiff-appellee.
Tjoflat, Anderson, Eschbach.
Cited by 38 opinions  |  Published
ESCHBACH, Senior Circuit Judge:

Leonard Rowe and Walter Rash were indicted by a federal grand jury of one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343, 371, one count of wire fraud, in violation of 18 U.S.C. § 1343, and two counts of interstate transportation of stolen goods, securities or money in excess of $5,000, in violation of 18 U.S.C. §§ 2314, 2. Following a jury trial defendant Rowe was found guilty on all four counts in the indictment. Rash was found guilty on two. Though the defendants raise numerous grounds for the reversal of their convictions, none prove meritorious. However, to elucidate our framework for reviewing cases of alleged jury misconduct, we articulate herein the reasons for our rejection of the defendants’ claim that a juror’s misconduct denied them their sixth amendment right to trial by a fair and impartial jury.

I.

After nearly two weeks of trial and following counsels’ closing arguments, Judge Richard Freeman recessed the court for the final time preceding jury instruction and deliberation. In so doing, the judge reiterated his admonition to the jury that until deliberation they were prohibited from discussing the case, even among themselves. The judge further instructed jurors to immediately inform him of any breach of this order.

Upon return from the recess, the judge informed counsel that his chambers received a telephone call from an unidentified man claiming to be a juror in this ease. The anonymous caller stated that he overheard a discussion in the jury room to the effect that the defendants in the case could not pay their lawyers and that defendant Rowe was no longer in the entertainment promotion business. A sequestered voir dire of male jurors revealed that juror Adams placed the call. Adams identified the speaker in the jury room as juror Ford. Upon the court’s inquiry Ford admitted to stating that Rowe was no longer in the entertainment production business but denied stating that the defendants could not afford to pay their attorneys.

To definitively determine what was heard by whom, the judge conducted a second sequestered voir dire examination of the entire panel. The result of which revealed that, in addition to Adams, only second alternative juror Thompson heard remarks made by Ford.

Juror Ford was held in contempt, fined, and dismissed. Thereafter, Judge Freeman called the remaining jurors back to the courtroom and informed them that whether a defendant’s counsel was government appointed or personally paid was irrelevant to the determination of guilt. The jurors were then asked whether their ability to decide the case solely upon the evidence presented at trial was in any way compromised or impaired by out of court statements heard in the case. Since none re[*656] sponded, the judge then instructed the jury and they retired to the jury room to await deliberation. First alternate juror Touhy replaced dismissed juror Ford. Since this made twelve, second alternative juror Thompson was excused. Thus, of the three people who either made or overheard the remarks in question, only juror Adams, the juror who complied with the judges instructions by first bringing Ford’s statements to the court’s attention, remained on the jury.

II.

In Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907) Justice Holmes observed that “[t]he theory of our system is that the conclusions to be reached in a ease will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Indeed, this “theory” that the jury’s verdict be based solely upon the evidence offered at trial “goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.” Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965). This is so because only evidence offered against the defendant at the witness stand in a public courtroom receives the judicial protection of the defendant’s sixth amendment right of confrontation, cross-examination, and counsel. Id. Mindful of this axiom, we meticulously review incidents involving jury exposure to information adduced outside of trial. Concurrently, however, we recognize that since “it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote ... due process does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982) “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Id. With these principles in mind we articulate and apply the test which determines whether Sixth Amendment fair trial rights are so violated by a jury’s exposure to extraneous material or influence that a new trial is warranted.

III.

When jurors consider extrinsic evidence, we require a new trial if the evidence poses a reasonable possibility of prejudice to the defendant. United States v. Perkins, 748 F.2d 1519, 1533 (11th Cir.1984); United States v. Howard, 506 F.2d 865 (5th Cir.1975). Prejudice is not presumed. The defendant has the burden of demonstrating prejudice by a preponderance of credible evidence. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.1979). [1] “Such prejudice may be shown by evidence that extrinsic factual matter tainted the jury’s deliberations.” Id. 2 However, since it is the court’s duty to ensure that the jury verdict was in no way tainted by improper outside influences, the court must investigate the asserted impropriety upon merely a colorable showing of extrinsic influence. Id. See also, Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). Subject only to Federal Rule of Evidence 606(b), [3] the court may[*657] use whatever inquisitorial tools are necessary and appropriate to determine prejudice. United States v. Savage, 701 F.2d 867, 871 (11th Cir.1983). If after this inquiry the court determines that the defendant met his burden of showing by a preponderance of the evidence the likelihood of jury prejudice, the burden shifts to the government to prove that the consideration of the extrinsic evidence was harmless. United States v. Perkins, 748 F.2d at 1533; United States v. Howard, 506 F.2d at 869. In recognizing the degree of prejudice required and the government’s burden to establish harmless error, the strength of the government’s case has a bearing on the issue of prejudicial error. United States v. Spurlock, 811 F.2d 1461, 1463 (11th Cir.1987). Also relevant is the nature of the information learned by the jurors and the manner in which it was revealed. Government of Virgin Islands v. Dowling, 814 F.2d 134, 138 (3rd Cir.1987). Finally, the standard by which we review the district court’s determination of whether the defendants were prejudiced is a factual one committed to the court’s “large discretion.” Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959).

IV.

The factual circumstances of this case, while establishing a colorable showing of extrinsic influence meriting judicial inquiry, clearly do not establish the sort of prejudice meriting a new trial. Indeed, based on the nature of the extrinsic influence and the extent of juror exposure, these facts do not even rise to the level of significance requiring a government showing of harmlessness. Since both statements heard by Adams were to the effect that the defendants were penurious, these statements could as easily have evoked sentiments generating leniency as they could have engendered an inference of guilt. Indigence simply is not a motive strongly ascribed to the execution of an elaborate fraud. If this were a case involving the theft of a loaf of bread, the effect of the influence would be strong in both directions. In this case, however, where the defendants participated in a complex conspiracy to defraud a leading insurance company of a sum in excess of one hundred thousand dollars, any inference of guilt associated with the defendants’ poverty is simply too attenuated to create the reasonable possibility of prejudice required for the grant of a new trial. In addition, this colorably prejudicial statement was heard by only one juror who deliberated in this case. Indeed, this is the very juror who, in compliance with his oath and the judge’s instructions, first brought the extrinsic statement to the court’s attention. Since “one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter,” [4] and since this juror acknowledged his ability to proceed in this case impartially, considering only the evidence presented at trial, we are confident that the defendants were tried by a fair and impartial jury free of the taint of extrinsic influence. Accordingly, we conclude that the district court did not abuse its discretion in finding that the extrinsic evidence heard by one conscientious juror did not so taint the jury as to create a reasonable possibility of prejudice to the defendants requiring a new trial.

AFFIRM.

1

. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981).

2

. Where, as in this case, the discovery of out of court influence is discovered before the jury verdict, the inquiry is whether the extrinsic factual matter would likely taint the jury’s deliberation.

3

. Fed.R.Evid. 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to
any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concern[*657] ing a matter about which he would be precluded from testifying be received for these purposes.

This rule is relevant only in those inquiries which occur after the return of a verdict or issuance of an indictment. See United States v. Badolato, 710 F.2d 1509, 1515 (11th Cir.1983); United States v. Howard, 506 F.2d at 869.

4

. Dennis v. United States, 339 U.S. 162, 171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950).