United States v. 2005-03-14 | 03-35165 | TURNEY VPUGH | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 FRANK W. TURNEY, No. 03-35165
Petitioner, D.C. No.
v.  CV-01-00010-JWS
MARGARET PUGH, Commissioner, OPINION
Respondent. 
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
February 17, 2005—Seattle, Washington
Filed March 15, 2005
Before: Betty B. Fletcher, Ronald M. Gould, Circuit Judges,
and Samuel P. King, District Judge.*
Opinion by Judge B. Fletcher
*Honorable Samuel P. King, Senior United States District Judge for the
District of Hawaii, sitting by designation.
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COUNSEL
Mary C. Geddes, Assistant Federal Public Defender, Anchor-
age, Alaska, for the petitioner.
Douglas H. Kossler, Assistant Attorney General, Anchorage,
Alaska, for the respondent.
OPINION
B. FLETCHER, Circuit Judge:
This case raises the perennially difficult issue of the proper
balance between two of our society’s most treasured guaran-
tees: the fair administration of justice (including, most impor-
tantly, a defendant’s right to a fair trial) and the right to
freedom of expression. In this appeal from the denial of his
petition for a writ of habeas corpus, petitioner Frank Turney
alleges that the Alaska jury tampering statute under which he
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was convicted is overbroad in violation of the First Amend-
ment. As interpreted by the Alaska Supreme Court, the statute
prohibits knowingly communicating with a juror, directly or
indirectly, with the intent to influence the outcome of a spe-
cific case, unless such communication is permitted by the
rules of the proceeding. We conclude that the Alaska Supreme
Court has interpreted the statute narrowly enough that it does
not reach a substantial amount of protected speech. We there-
fore affirm the denial of Turney’s petition.
I. BACKGROUND
In July 1994, prior to the commencement of jury selection
in the Alaska criminal case State v. Hall in Fairbanks, jury-
nullification proponent Frank Turney approached three mem-
bers of the venire in the courthouse and told them to call the
toll-free number of the Fully Informed Jury Association.
Some of the individuals Turney lobbied were wearing badges
that identified them as jurors. At the time, a person calling the
number Turney publicized, 1-800-TEL-JURY, would have
heard the following message:
Thank you for calling the Fully Informed Jury Asso-
ciation. FIJA is a nonprofit educational association
that wants all Americans to know their rights as
jurors to judge the law itself as well as the facts
regardless of the instructions from the judge because
jurors cannot be punished for their verdict. They are
the final check and balance on our government, with
more power than the President, Congress, or the
Supreme Court. To talk to a live person, call 406-
793-5550 or we will mail you more free information
on jury veto power, if you tell us how you heard of
us. Then name and spell your name, address, and zip
code. Here’s the tone. [TONE]
Juror Ellis, one of the individuals Turney approached, was
selected for the petit jury in State v. Hall. At one point during
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deliberations, Ellis announced to the other jurors that he had
called 1-800-TEL-JURY and that he was changing his vote in
the case because “I can vote what I want.” He urged the other
jurors to call the number. The jury was unable to reach a deci-
sion and was excused.
Turney was subsequently indicted for three counts of jury
tampering and charged by information with two counts of
criminal trespass in the first degree. Alaska’s jury tampering
statute provides:
A person commits the crime of jury tampering if the
person directly or indirectly communicates with a
juror other than as permitted by the rules governing
the official proceeding with intent to
(1) influence the juror’s vote, opinion, deci-
sion, or other action as a juror; or
(2) otherwise affect the outcome of the offi-
cial proceeding.
Alaska Stat. § 11.56.590(a). A “juror” for purposes of this
statute is “a member of an impanelled jury or a person who
has been drawn or summoned to attend as a prospective
juror.” Id. § 11.56.900(3).
The superior court denied Turney’s motion to dismiss the
charges. The Alaska Supreme Court permitted an interlocu-
tory appeal and affirmed the denial of Turney’s motion to dis-
miss. Turney v. State, 936 P.2d 533, 545 (Alaska 1997).
Holding that the jury tampering statute “proscribes only
speech intended to influence a juror in his or her capacity as
a juror in a particular case,” and that such speech is unpro-
tected, the court rejected Turney’s overbreadth challenge to
the law. Id. at 541.1
1The court also upheld the statute against a vagueness challenge and
rejected Turney’s argument that he fell outside the definition of criminal
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Turney was convicted at trial of three counts of jury tam-
pering. The court sentenced him to fourteen months on each
count to run concurrently, with all but sixty days suspended,
plus a $2,500 fine (mostly suspended), 160 hours of commu-
nity service work, and six years of probation. On direct
appeal, the Alaska Court of Appeals affirmed, in an unpub-
lished opinion that rejected Turney’s overbreadth and vague-
ness arguments as foreclosed by the Alaska Supreme Court’s
decision in the interlocutory appeal. One judge dissented. The
Alaska Supreme Court denied Turney’s petition for review.
In 2001, Turney petitioned the federal district court in
Alaska for a writ of habeas corpus, which the court denied.
According to the court, the Alaska Supreme Court’s over-
breadth decision was fully in accord with United States
Supreme Court jurisprudence, which makes clear that
attempts to interfere with the administration of justice by
improperly influencing jurors are not entitled to First Amend-
ment protection. The court also rejected Turney’s vagueness
challenge and his argument that his Sixth Amendment rights
were violated because the jury was not presented with every
element of the crime of jury tampering. The district court
denied a certificate of appealability, but we granted one with
respect to the question of whether Alaska’s jury tampering
statute is overbroad. We therefore have jurisdiction under 28
U.S.C. § 2253(a).
II. ANALYSIS
A district court’s denial of habeas relief is reviewed de
novo. Beardslee v. Woodford, 358 F.3d 560, 568 (9th Cir.
2004). A habeas petitioner under 28 U.S.C. § 2254 cannot
trespass. See id. at 542-45.
We discuss the Alaska Supreme Court’s overbreadth holding in detail
below.
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obtain relief based on a claim adjudicated on the merits in
state court unless
the adjudication of the claim (1) resulted in a deci-
sion that was contrary to, or involved an unreason-
able application of, clearly established Federal law,
as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The “clearly established Federal law”
inquiry refers to “the governing legal principle or principles
set forth by the Supreme Court at the time the state court ren-
ders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72
(2003).
A state court decision is “contrary to” clearly established
Supreme Court precedent where the court “applies a rule that
contradicts the governing law set forth in [the Supreme
Court’s] cases,” or “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that] prece-
dent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A
state court decision is an “unreasonable application of” clearly
established Supreme Court precedent where the court “identi-
fies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 413.
The “highly deferential standard for evaluating state-court
rulings” reflects a respect for state courts as “part of a co-
equal judiciary” and as “competent interpreters of federal
law.” Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003)
(citations and internal quotation marks omitted). Though we
review the district court’s decision de novo, we “cannot grant
relief . . . by conducting our own independent inquiry into
whether the state court was correct as a de novo matter.” Yar-
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borough v. Alvarado, 124 S. Ct. 2140, 2150 (2004). Accord-
ingly, for federal habeas relief to be granted, it is not enough
that our independent review indicate that the state court deci-
sion was incorrect or clearly erroneous; the state court’s appli-
cation of clearly established Supreme Court precedent must
be “objectively unreasonable.” Lockyer, 538 U.S. at 75-76.
In applying the standards of 28 U.S.C. § 2254, the relevant
state decision is the “last reasoned decision by a state court.”
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citation and internal quotation marks omitted). Here, because
the Alaska Court of Appeals treated the overbreadth issue as
settled by the Alaska Supreme Court on interlocutory review,
it is the Alaska Supreme Court’s decision whose conformity
to federal law (under the deferential standard of § 2254(d)) is
at issue.
[1] Under the doctrine of First Amendment overbreadth, a
litigant may mount a facial attack on a statute that restricts
protected speech even if the litigant’s own speech is unpro-
tected. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
The overbreadth must be substantial in order for the statute to
be invalidated on its face; the fact that a court may conceive
of a single impermissible application is insufficient to justify
striking down the law. City of Houston v. Hill, 482 U.S. 451,
458 (1987).
When examining a law for overbreadth, a court’s first task
is to determine “whether the enactment reaches a substantial
amount of constitutionally protected conduct.” Id. (citation
and internal quotation marks omitted). Where a state statute
challenged for overbreadth has been construed by the state’s
highest court, the scope of the statute is to be assessed in light
of the construction that court has given. See Osborne v. Ohio,
495 U.S. 103, 113 (1990).
The Alaska Supreme Court’s decision in Turney’s case pro-
vides a detailed analysis of the state’s jury tampering statute.
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Specifically, the court held that the statute prohibits only
“communications intended to affect how the jury decides a
specific case” where the speaker has “intent to influence the
outcome” and knows he or she is communicating with a juror.
Turney, 936 P.2d at 540-41 (emphasis added). As thus inter-
preted, the statute did not, in the court’s view, reach speech
protected by the First Amendment. Id. at 541. For example,
because of the “particular case” requirement, the statute
“would not reach institutional messages that are broadcast to
the general public on such topics as the adverse effects of
insurance fraud or the wisdom of tort reform.” Id. at 540. The
court dismissed the concern that the statute would unfairly
sweep in an innocent person giving a juror general advice,
such as “You must do your very to best to be fair,” or express-
ing a generalized opinion to an juror, as in “You’re on jury
duty? I don’t care what the case is — hang ‘em!” Though the
court did not deny that such statements could result in crimi-
nal liability, the court explained that “[w]hether such state-
ments violate the statute turns on the intent of utterer.” Id. at
540 & n.9. Finding that the statute as construed only reached
speech aimed at influencing jurors, and that such speech is
unprotected, the court held that the statute was not overbroad.
Id. at 541.
[2] In light of the Alaska Supreme Court’s opinion, the
scope of the jury tampering statute can be described as fol-
lows: the law criminalizes knowingly communicating with a
juror, directly or indirectly, with the intent to influence the
outcome of a specific case, unless such communication is per-
mitted by the rules of the proceeding. We must now deter-
mine whether this prohibition sweeps in a substantial amount
of speech that is constitutionally protected.
The Supreme Court has developed robust protections for
speech concerning judicial proceedings. In a line of cases
beginning with Bridges v. California, 314 U.S. 252 (1941),
the Court reversed a series of contempt convictions for dis-
seminating editorials and other public commentary about
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pending cases or grand jury investigations. See id. at 268-75
(reversing contempt convictions for publishing editorials,
including one urging a judge to impose harsh punishment on
two defendants facing sentencing); Pennekamp v. Florida,
328 U.S. 331, 336 & n.4, 349-50 (1946) (reversing contempt
convictions for publishing editorials critical of pro-defendant
rulings in criminal cases); Craig v. Harney, 331 U.S. 367,
369-70, 377-78 (1947) (reversing contempt convictions for
publishing editorials criticizing a judge for directing a verdict
in a particular case); Wood v. Georgia, 370 U.S. 375, 376-80,
395 (1962) (reversing the contempt conviction of a local sher-
iff for publicly denouncing a court’s instruction to a grand
jury to investigate “Negro bloc voting” in a Georgia county).
As the Supreme Court recognized, restrictions on speech con-
cerning pending judicial proceedings are likely to impede dis-
cussion of important public issues “at the precise time when
public interest in the matters discussed would naturally be at
its height.” Bridges, 314 U.S. at 268. But “[n]o suggestion can
be found in the Constitution that the freedom there guaranteed
for speech and the press bears an inverse ratio to the timeli-
ness and importance of the ideas seeking expression.” Id. at
269.
[3] In these cases, the Court applied various versions of the
then-evolving “clear and present danger” test to evaluate
restrictions on speech concerning judicial proceedings. See id.
at 271 (assessing “to what extent the substantive evil of unfair
administration of justice was a likely consequence” of publi-
cation of the articles in question, and “whether the degree of
likelihood was sufficient to justify summary punishment”);
Pennekamp, 328 U.S. at 348 (assessing whether publications
created “a clear and present danger to the fair administration
of justice”); Harney, 331 U.S. at 378 (assessing whether pub-
lications created “an imminent and serious threat to the ability
of the court to give fair consideration” to pending matters);
Wood, 370 U.S. at 384-85 (following Bridges, Pennekamp,
and Craig). In light of the subsequent evolution of the clear
and present danger test, it can be extrapolated that, as a gen-
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eral rule, speech concerning judicial proceedings may be
restricted only if it “is directed to inciting or producing” a
threat to the administration of justice that is both “imminent”
and “likely” to materialize. Brandenburg v. Ohio, 395 U.S.
444, 447 (1969) (per curiam) (setting forth the successor to
the clear and present danger test applied in its various incarna-
tions in the Bridges-Wood line of cases).
[4] However, speech to jurors about pending cases presents
a special problem because of its grave implications for defen-
dants’ right to a fair trial and the public’s interest in fair and
impartial justice. In Remmer v. United States, 347 U.S. 227
(1954), for example, the Supreme Court vacated the convic-
tion of a defendant whose jury foreman was told by an
unnamed person that he could profit by ensuring an acquittal.
Id. at 228, 230. The Court set forth this broad rule: “In a crim-
inal case, any private communication, contact, or tampering
directly or indirectly, with a juror during a trial about the mat-
ter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial” unless made pursuant to court
rules or other instructions. Id. at 229 (emphasis added). In
Sheppard v. Maxwell, 384 U.S. 333 (1966), the Supreme
Court found that habeas relief was warranted for a defendant
tried and convicted in a “carnival atmosphere,” id. at 358, cre-
ated by “inherently prejudicial publicity which saturated the
community,” id. at 363. The Court explained: “The theory of
our system is that the conclusions to be reached in a case will
be induced only by evidence and argument in open court, and
not by any outside influence . . . .” Id. at 351 (citation and
internal quotation marks omitted). In fact, “[d]ue process
requires that the accused receive a trial by an impartial jury
free from outside influences.” Id. at 362 (emphasis added).
Even in the strongly speech-protective decisions of the
Bridges-Wood line, the Court was careful to distinguish the
publications it deemed protected under the First Amendment
from speech aimed at improperly influencing jurors. As the
Court observed in Bridges: “The very word ‘trial’ connotes
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decisions on the evidence and arguments properly advanced
in open court. Legal trials are not like elections, to be won
through the use of the meeting-hall, the radio, and the news-
paper.” 314 U.S. at 271. Thus, in Wood v. Georgia, while the
Court held that the First Amendment protected a sheriff’s
public criticism of a pending grand jury investigation, the
Court stressed that the speech at issue there “[did] not repre-
sent a situation where an individual is on trial; there was no
‘judicial proceeding pending’ in the sense that prejudice
might result to one litigant or the other by ill-considered mis-
conduct aimed at influencing the outcome of a trial.” Wood,
370 U.S. at 389. The majority concluded that it “need not
pause . . . to consider the variant factors that would be present
in a case involving a petit jury”; in Wood, as in Bridges, Pen-
nekamp, and Harney, a jury trial was not implicated. Id.
[5] Reading all of these cases together leads us to conclude
that the First Amendment, while generally quite protective of
speech concerning judicial proceedings, does not shield the
narrow but significant category of communications to jurors
made outside of the auspices of the official proceeding and
aimed at improperly influencing the outcome of a particular
case. What Alaska’s jury tampering statute covers in the
main, then, is speech that is not protected by the First Amend-
ment.
Turney urges us to apply Brandenburg and hold that the
State may not proscribe speech to jurors unless it is likely
imminently to undermine the administration of justice. But
the Supreme Court has never applied any version of the clear
and present danger test to communications made knowingly
to jurors with the intent to influence the outcome of a specific
case. On the contrary, as we have observed, the Court has
expressly distinguished such communications from the speech
it has protected under the First Amendment and as a general
matter has demonstrated little tolerance for improper commu-
nications with jurors. Thus the fact that the Alaska Supreme
Court declined to apply Brandenburg to the jury tampering
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statute did not render that court’s decision “contrary to”
Supreme Court precedent.
[6] Despite its primary focus on unprotected speech, the
Alaska statute is nonetheless overbroad if it covers a substan-
tial amount of protected speech. “[T]he possible harm to soci-
ety in permitting some unprotected speech to go unpunished
is outweighed by the possibility that protected speech of oth-
ers may be muted . . . .” Broadrick, 413 U.S. at 612. In his
dissent from the affirmance of Turney’s conviction on direct
appeal, Alaska Court of Appeals Judge Mannheimer argued
that, in spite of the state supreme court’s limiting construc-
tion, the statute would still criminalize two substantial catego-
ries of protected speech: innocent advice to jurors and
political demonstrations outside a courthouse.
With respect to the first example, it is doubtful that the stat-
ute as construed by the Alaska Supreme Court sweeps as
broadly as Judge Mannheimer fears. In his dissent, Judge
Mannheimer posited a detailed hypothetical in which a juror
is told by her daughter to avoid reading the newspaper so she
does not encounter publicity about the case on which she is
serving as a juror, the juror’s husband advises her to contact
the police after she receives a threatening phone call, and a
police officer instructs the juror to notify the trial judge of the
phone call. Judge Mannheimer contended that all three of
these contacts would be criminal under Alaska’s jury tamper-
ing statute because all three speakers communicated with the
juror, knowing she was a juror, with the intent to influence
her actions as a juror in a particular case.
We disagree with Judge Mannheimer’s analysis of this
hypothetical, because one element of the statute (as con-
strued) is not met: the intent to influence the outcome of a par-
ticular case. None of the three innocent jury communications
posited by Judge Mannheimer is “intended to affect how the
jury decides a specific case.” Turney, 936 P.2d at 540
(emphasis added); see also id. (“[I]t is the intent to influence
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the outcome that is critical.”). Thus the fear that Alaska has
criminalized many innocent conversations with jurors is exag-
gerated; under the Alaska Supreme Court’s interpretation, the
statute will rarely reach such conversations because the
speaker will rarely possess the requisite intent.
Judge Mannheimer’s second example — political demon-
strators, situated immediately outside a courthouse, shouting
to everyone approaching the courthouse fervent opinions
about the guilt or innocence of the defendant being tried
inside — raises challenging questions about the proper bal-
ance between due process and freedom of expression. But we
need not engage in the difficult task of balancing fundamental
rights with respect to courthouse demonstrations, because the
Supreme Court already has.
In Cox v. Louisiana, 379 U.S. 559 (1965), the Supreme
Court considered the case of a man prosecuted for his
involvement in a demonstration in front of a courthouse to
protest the arrest of a group of students the previous day. Id.
at 564-65. Though the Court reversed the defendant’s convic-
tion on due process grounds, see id. at 568-71, it refused to
invalidate the statute under which he was convicted. The stat-
ute read:
Whoever, with the intent of interfering with,
obstructing, or impeding the administration of jus-
tice, or with the intent of influencing any judge,
juror, witness, or court officer, in the discharge of his
duty pickets or parades in or near a building housing
a court of the State of Louisiana shall be fined not
more than five thousand dollars or imprisoned not
more than one year, or both.
Id. at 560 (citation, internal quotation marks, and ellipsis
omitted). Finding the statute to be “narrowly drawn to punish
specific conduct that infringes a substantial state interest in
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protecting the judicial process,” the Supreme Court rejected a
facial challenge to the law. Id. at 564.
[7] While Alaska’s statute is directed at a different set of
communications than the Louisiana statute at issue in Cox, the
former is no broader in its applicability to courthouse demon-
strations than the latter. In fact, the Alaska statute’s applica-
bility to courthouse demonstrations is more limited than that
of the Louisiana statute, as the Alaska law reaches only com-
munications made to a juror with the intent to influence the
outcome of a particular case, as opposed to all communica-
tions made “with the intent of interfering with, obstructing, or
impeding the administration of justice, or with the intent of
influencing any judge, juror, witness, or court officer, in the
discharge of his duty.” Id. at 560 (citation and internal quota-
tion marks omitted). Since the impact of the Louisiana statute
on courthouse demonstrations did not render it facially uncon-
stitutional, the Alaska statute’s narrower impact on this class
of speech probably does not render the Alaska statute facially
unconstitutional either. The Alaska Supreme Court’s rejection
of Turney’s overbreadth challenge was therefore not an objec-
tively unreasonable application of Cox.
[8] A third area in which Alaska’s statute could intrude into
the realm of protected expression is the mass publication of
political ideas. For example, the terms of the statute could be
construed to apply to a person who takes out a newspaper or
television advertisement supporting a particular outcome in a
pending case (e.g., “OJ Was Framed!”). The ad is an indirect
communication with the newspaper’s or television station’s
entire audience. If that audience includes a juror in the case,
the purchaser of the ad has communicated with a juror, other
than as permitted by the rules of the proceeding, with the
intent of influencing the outcome of a specific case.
[9] The Alaska Supreme Court has specifically addressed
our concerns on this score. The court observed that the stat-
ute’s implied scienter requirement would prevent application
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of the statute to mass communications of this type, because
the speaker would have to know that she or he was communi-
cating with a juror in order to be guilty of jury tampering.
Turney, 936 P.2d at 541. Once again, the Alaska Supreme
Court’s construction of the statute has narrowed its reach so
that it does not sweep in a substantial amount of protected
speech.
[10] It is possible that Alaska’s jury tampering statute may
cover one or two instances of constitutionally protected
speech to jurors. But a law may not be held invalid on its face
“merely because it is possible to conceive of a single imper-
missible application.” Hill, 482 U.S. at 458 (citation and inter-
nal quotation marks omitted). The parties and state opinions
in this case have identified only one swath of protected speech
that the statute (as construed by the Alaska Supreme Court)
could reach — political demonstrations at a courthouse about
trials occurring therein — and the U.S. Supreme Court in Cox
rejected a facial challenge to a statute that impinged upon
such speech to a broader degree. We have not been able to
identify any other applications of the Alaska statute that
would reach a substantial amount of constitutionally protected
speech. We must therefore conclude that it was not objec-
tively unreasonable for the Alaska Supreme Court to hold that
the jury tampering statute, as construed, is not overbroad in
violation of the First Amendment.
III. CONCLUSION
When government restricts the expression of ideas, alarm
bells should sound for all of us. The freedom of speech —
including both a speaker’s freedom to convey an idea, and a
listener’s freedom to receive it — is at the heart of the protec-
tions that our Constitution guarantees so that our society may
remain a free one. The fact that judicial proceedings can be
sensitive and controversial does not diminish the importance
of vigorous national debate on matters concerning the admin-
istration of justice.
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But our courts will be unable to carry out their vital func-
tions — including the weighty task of enforcing the guaran-
tees of our Constitution — if jurors are not insulated from
influences that could undermine their ability to decide the
cases before them fairly and impartially. “Due process
requires that the accused receive a trial by an impartial jury
free from outside influences.” Sheppard, 384 U.S. at 362.
[11] The Alaska Supreme Court has carefully narrowed the
state’s jury tampering statute so that it operates in service of
the latter constitutional command without substantially
impinging on the former. Given this construction, the Alaska
Supreme Court’s conclusion that the jury tampering statute is
not overbroad in violation of the First Amendment was not “a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). We therefore affirm the district court’s denial of
habeas relief.
AFFIRMED.
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