Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. The defendant Robert L. Lawhorne has filed a MOTION FOR MISTRIAL BASED UPON IMPROPER CONTACT BETWEEN A GOVERNMENT PROSECUTOR AND A JUROR AT THE DEFENDANT’S TRIAL. For the reasons set forth below and, pursuant to Fed.R.Crim.P. 52(b), the verdict is set aside, the Judgment In A Criminal Case entered herein on December 12, 1997 is vacated and a new trial shall be had within the time set by 18 U.S.C. § 3161(e) if the United States intends to proceed further with the charge. BACKGROUND On December 3, 1996, Lawhorne was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The case was tried to a jury on March 20,1997. The evidence presented by the Government was from Deputy Sheriff Richard Rose, Deputy Sheriff George Bond, Officer Michael Bennett and Mr. William Flynn. Rose testified that, while he and Bond were traveling on Interstate 95, they passed the defendant’s pickup truck. Rose was driving and glanced to his right, across Bond, and into the defendant’s truck. As his car drew alongside the defendant’s truck, Rose observed a pistol “pointing out the driver’s side door window towards our vehicle.” (Tr. at 63-64.) Startled by what he saw, Rose told Bond that there was a gun in the adjacent car, then slowed the speed of his vehicle and fell in behind the defendant’s truck at which time he claimed to have observed Lawhorne holding the pistol in his right hand and pulling the slide of the weapon with his left hand. (Tr. at 64.) Bond testified that, in response to Rose’s statement and while he and Rose were beside (not behind) the defendant’s truck, Bond turned to his right and saw a gun pointing straight in the air in the defendant’s right hand and he observed the defendant operating the slide of the weapon with his left hand. (Tr. at 83, 89.) Cross-examination showed that, because of the relative heights of defendant’s truck and the car in which Rose and Bond were riding, there was doubt whether Rose could have seen what he claimed to have seen. Also, the high rate of speed at which both vehicles were traveling was argued as an additional factor why the testimony of Rose and Bond was not credible, especially if both of Law-horne’s hands were off of the steering wheel and on the weapon. Bond communicated with his office (the Stafford County Sheriffs Department) to determine ownership of the truck and shortly thereafter was informed that the registered owner’s driver’s license had been suspended. Because, by then, Rose and Bond were beyond the boundaries of Stafford County, they requested the Prince William County authorities to make a traffic stop. The defendant’s vehicle was stopped by Prince William Officer Bennett, who, in rather equivocal terms, testified that, after he stopped the defendant’s truck, the defendant said that he had shown the handgun to his wife. Bennett later acknowledged some uncertainty about exactly what the defendant had said. (Tr. at 144, 146, 147.) After the traffic stop, Bond initiated a criminal background cheek and learned that Lawhorne was a convicted felon. The defendant was then arrested for being a felon in possession of a firearm. The evidence showed that the firearm in the truck had been purchased earlier that day from the Fredericksburg Golden Pawn Shop. William Flynn, an employee of the pawn shop, showed guns to Lawhorne and his wife on the morning of October 21 and, during the process, the couple passed several guns back and forth between themselves. The firearm purchase forms were signed by Mrs. Lawhorne, as purchaser, and Lawhorne paid for the weapon with a check. The undisputed evidence was that the firearm was purchased for Mrs. Lawhorne to use for self-protection. Notwithstanding that the defendant reportedly told Officer Bennett, who executed the traffic stop, that he had shown the weapon to his wife, the defendant claimed in his testimony at trial that, in the pickup truck, he had not handled the weapon in the manner described either by Rose or by Bond. Mrs. Lawhorne confirmed her husband’s version of events. With this general background in mind, it is appropriate to recite the facts and procedural history pertinent to the motion currently before the Court for decision. PROCEDURAL HISTORY AND FACTS RELEVANT TO THE MISTRIAL MOTION Jury selection began at 9:30 a.m. March 20, 1997. During the voir dire examination, the members of the panel were required to disclose whether they knew the lawyers in the case or had any business or social relationships with them. The following exchange occurred: Now, does anybody know [the Prosecutor] or her client, or have any business relationship with [the Prosecutor] or her client? All right, your name, sir? Stand up and give me your name. THE JUROR: [identified by name]. THE COURT: All right, [the Juror], Is it [the Prosecutor] you know or somebody else? THE JUROR: [The Prosecutor.] THE COURT: And how do you know [the Prosecutor]? THE JUROR: I have a jewelry business on the side. I have had a couple of shows in her home, and I also know — I used to attend the church she now attends. THE COURT: Do you have any business relationship with Lthe Prosecutor]? You said you had some jewelry shows in her home. Do you pay her something, or does she pay you something? THE JUROR: She has — well, it’s the company I represent who she has paid. I collect the money, but I send it to the company. THE COURT: Right. So you don’t pay her anything; the company you work for does? THE JUROR: Gives her, yes. THE COURT: For which she works and provides her house. THE JUROR: And I work and I make money by coming into her home. THE COURT: Well, would the relationship — and you say you also know [the Prosecutor] from church? THE JUROR: I used to attend the church that she now attends. THE COURT: Would the relationship you have just described with [the Prosecutor] keep you in any way from giving the parties in this case, both the Government and the defendant, a fair trial, basing your decision only on the evidence in the case and putting aside entirely your knowledge of and relationship with [the Prosecutor]? THE JUROR: It shouldn’t affect it. (Tr. at 10-11) (emphasis added). Neither party challenged the Juror for cause and, when the Juror was selected to sit on the petit jury, the defendant did not peremptorily challenge him. Following presentation of the evidence outlined in the BACKGROUND section above, the case was submitted to the jury at 3:40 p.m. At 4:50 p.m. the jury presented the following questions: (1) If the defendant does not realize the complete meaning of possession, as defined in Jury Instruction Number 27, paragraph 5, is he guilty of “knowingly” possessing a firearm? (2) Does giving verbal instruction regarding use of the gun constitute possession or control? (3) Does the fact that they are married make the purchase a joint possession? (4) What is the definition of “control”? (Tr. at 187.) After consultation with counsel, the questions were answered as set forth fully in the transcript of trial. A summary of the answers, however, is appropriate. Question Number 2 was answered: if by verbal instructions in that question you mean that the defendant was giving verbal instructions to his wife, then the answer to your question is no. (Tr. at 213.) Then Question Number 3 was answered. The response was: So, first, as to Question Number 3, you are advised that the Government does not contend that the fact that Mr. and Mrs. Law-horne are married made the purchase a joint possession. That response was supplemented by the following: Further, as to Question Number 3, the mere fact that Mr. and Mrs. Lawhorne are married does not make any possession a joint possession. In other words, the mere fact of marriage does not establish joint possession, if there was a possession. (Tr. at 213-14.) Questions 1 and 4 were answered by referring the jury to the instructions originally given on possession which were augmented by discussing the meaning of the term “knowing” in context of each aspect of the definition of possession. Also, “control” was defined to mean “the power, ability or authority to manage, to direct, to superintend, to restrict, to regulate, to govern, to administer or to oversee.” (Tr. at 214-17.) The jury then returned to the jury room and resumed deliberations. At 7:45 p.m. the jury submitted the following question: What if we are not unanimous? Will there be an acquittal or will there be a re-trial? After consultation with counsel, the jury was informed of the need for unanimity in the verdict and was given an Allen charge. (Tr. at 226-29.) At 9:10 p.m. the jury returned a verdict of guilty on the one count charged in the Indictment. The jury was polled at the defendant’s request and, upon polling, one of the jurors answered “reluctantly yes” to the question whether the verdict was in fact hers. (Tr. at 230.) Upon individual examination by the Court in the presence of counsel and the defendant, the juror explained her answer to mean that she had followed her head, ie. the instructions, instead of her emotion. (Tr. at 239-40.) Thereafter, counsel for the defendant verbally moved for a mistrial. The Court considered the motion to be a motion for mistrial, for judgment of acquittal and for new trial and directed briefing following preparation of the transcript. Pursuant to that order, Lawhorne filed, on June 13, 1997, a Motion For Judgment of Acquittal, a Motion for New Trial and supporting briefs. Both motions were based on the insufficiency of the evidence to support a conviction. Although the Court expressly articulated that it did not find the testimony of Rose or Bond to be credible, the motions were denied on August 7, 1997 for the reason that questions of credibility were to be resolved by the jury. Sentencing was set for October 31,1997. On October 30, 1997, Lawhorne attempted to commit suicide by taking an overdose of prescription medication. Hence, sentencing was continued generally, pending a determination of the defendant’s mental condition. On December 12, 1997, after several continuances occasioned by a belated motion for downward departure filed by the defendant and by the time required to resolve motions respecting the defendant’s mental status, the defendant was sentenced to a term of 37 months confinement, placed on supervised release for a term of three years, directed to perform 100 hours of community service, directed to participate in a substance abuse and mental health program and ordered to pay a special assessment of $100.00. The Judgment In A Criminal Case was entered on December 12,1997. On December 18, 1997, a Notice of Appeal was filed; and on December 22, 1997, Law-horne’s counsel filed, in the Court of Appeals, a DOCKETING STATEMENT to which was appended a statement of issues to be raised for appeal. Issue No. 2 was: “[w]hether the jury was tainted by virtue of a juror having some kind of conversation with the prosecutor during trial.” The first time an issue of that sort was directed to the attention of this Court, however, was on January 12, 1998, when the Court received a letter from the defendant which contained the following allegations: Also your Honor during the trial, one of the jurors, [ ] who sat on the first row, directly in front of the U.S. Attorney and who had a business relationship with the U.S. Attorney had communication with the U.S. Attorney during the trial. My mom witnessed this and immediately moved forward and told my attorney and myself about it. [Defense counsel] said he would take care of it, but did nothing at that time or since to bring it to the Court’s attention.- Then during one of the questions when the jury was out, they came back into the comiroom and this juror gave the U.S. Attorney the ok sign. Again [defense counsel] was told and did nothing. (emphasis added). Also, on January 12, 1998, the Court received a letter from the defendant’s mother in which she stated: My daughter-in-law and I were sitting on the front row behind [defense counsel] when the jury came back in to ask a question of you, I saw a gentleman jtiry [sic] stop by and say something to [the Prosecutor] about the case. He looked over at [the Prosecutor] and gave her the high sign with his hand — he also winked at her. I immediately let [defense counsel] know by tapping him in the back and telling him what had happened. (emphasis added). By Order dated January 16, 1998, the Court directed that those letters be sent to counsel for both parties; and the United States and counsel for the defendant were ordered to file responses. The United States complied with that order on January 27,1998 and, on February 2, 1998, the defendant responded by moving for a mistrial, alleging as the basis therefor “improper contact between the prosecutor and a juror at defendant’s trial.” The United States replied on February 9, 1998. In support of the February 2 motion for mistrial, the defendant offered the affidavits of his wife, Angela Lawhorne, and his mother, Margaret Lawhorne. The defendant’s wife averred: On the day of my husband’s trial, the jurors had been out deliberating and came back in the Courtroom to hear the answers to their questions. As they were filing through, Juror [ ], leaned slightly in [the Prosecutor’s] dil'ection and said something to her. I didn’t mention because I previously mentioned a lady juror talking to [the Prosecutor] to [defense counsel], and [defense counsel] admonished [the Prosecutor], who explained the juror commented on her dress. When the jurors were getting up to leave, my mother-in-law, Margaret Lawhorne, punched me in the arm and told me about the “wink” and “high sign.” The defendant’s mother swore that: On the day of my son’s trial, the jurors were walking back into the Courtroom to ask questions of clarification of the meaning of possession. The Juror, [ ], came in and passed the Prosecutor’s table. I saw him look right at [the Prosecutor], lean into the table, and say something directly to her. I didn’t hear what he said and didn’t mention it to anyone. When the Judge sent the Jury back to continue deliberations, some jurors were standing up to leave. [The Juror], however, still sitting, looked over to [the Prosecutor] and simultaneously winked one eye and gave [the Prosecutor] a “high sign” or “o.k. sign” by encircling the thumb and pointer finger of his right hand and pointing the rest of the fingers upward. At the exact point of this gesture, I told my daughter-in-law, Angela Lawhorne, what I saw. She told me to notify the defense attorney. I did so by tapping him on the shoulder and telling him what I saw. Then, on April 6,1998, the Court heard the defendant’s motion for mistrial and received the testimony of the defendant’s mother (Margaret A. Lawhorne), the defendant’s wife (Angela Lawhorne), the Prosecutor and Special Agent Michael Talbert, who had attended trial. The testimony there showed the need to examine The Juror. The defendant’s mother and wife generally confirmed the events recited in their affidavits even though there were a few minor differences between their testimony on April 6 and the previous affidavits. (Apr. 6 Tr. at 8-28.) On direct examination, the Prosecutor testified that she did not recall the Juror having said anything to her or gesturing to her. (Apr. 6 Tr. at 27-28.) On cross-examination, the Prosecutor acknowledged that the Juror, in fact, had made a gesture which she took to refer to her jewelry which was obtained from the company for whom the Juror worked. The government’s representative at trial, an agent of the Bureau of Alcohol, Tobacco and Firearms, did not recall either verbal communication or gestures, but acknowledged that they could have occurred without his knowledge. (Apr. 6 Tr. at 33-34.) Considering the foregoing, the Court continued the hearing until April 29, 1998 so that the Juror, whose conduct was at issue, could be examined under oath. On April 27, 1998, Lawhorne submitted a memorandum in anticipation of the hearing at which the Juror was to be examined. In the April 27 pleading, Lawhorne noted that, at the April 6 hearing, there was evidence “which indicated that [the Juror] had at least one non-verbal communication with [the Prosecutor] while seated in the jury box, and may have had other verbal and non-verbal communications with [the Prosecutor].” (Def.’s Mem. Concerning Allegations Juror Bias at 1.) It was in this pleading that Law-horne first asserted specific claims of juror dishonesty and actual bias to augment the February 2 mistrial motion that was based upon improper communication between the Prosecutor and the Juror. At the evidentiary hearing held on April 29, the Juror was examined under oath by the Court. The Juror recalled that, when the jury returned to the courtroom for the purpose of having a question answered, he said something to the Prosecutor “like ‘hi’ or something.” (Apr. 29 Tr. at 8.) The Juror could not recall exactly his conduct on March 20,1997, but he testified that “[i]t would have been very limited if I had said anything.” (Id.) The Juror was asked specifically whether he gave the “okay” or “high sign” and he responded “I wouldn’t have made — I don’t ever make a gesture like that.” (Id.) He also testified that “my decision was not based on my relationship with [the Prosecutor].” (Id. at 9.) On examination by the United States, the Juror recalled that the Prosecutor was wearing “a necklace and earrings, part of the product line I sell.” (Id. at 11.) And, he testified that he pointed to the jewelry which the Prosecutor was wearing and made a gesture or acknowledged saying: “[h]ey, it looks good. You’re wearing my product and it looks good.” (Id. at 11.) He further explained that he was “happy to see she was wearing [the jewelry].” (Id.) In response to further questions from the Court, the Juror said that the gesture which he made to the Prosecutor was a “thumbs-up sign” and was intended to be “a gesture showing my approval that she was wearing the product. I was glad that she was, and also it looked good on her, in a gesture like that.” (Id. at 11.) According to the Juror that exchange occurred while “I was in sitting in the jury box” and “before anything ever started, I think.” (Id. at 12.) On examination by counsel for the defendant, the Juror was asked whether he may have said “hi” or something like that to the Prosecutor more than once and he responded: “I’m not ruling out the possibility I could have waved at her or something passing in the hall.” (Id. at 12.) Nor would the Juror rule out the possibility that he had gestured to the Prosecutor at other times during the trial. In fact, the Juror said “[i]t’s very possible” that he made such gestures or statements to the Prosecutor more than once during the proceeding. (Id. at 13.) In other words, the Juror, both verbally and with gestures, commented approvingly on the appearance of the Prosecutor and demonstrated an affinity with her by virtue of the business relationship which, during voir dire examination, he said would not affect his ability to serve impartially. This very personal conduct may have occurred, according to the Juror, on several occasions during the trial. In the face of such testimony, the Juror explained the answers which he had given during the voir dire examination on March 20,1997 in the following way: It was kind of — because I didn’t really want to serve on the jury because I had a lot to do and it takes time out of my day, I knew that I would have said yes, it would affect [my decision] and I would not have had to serve, but I would have been lying, so I had to truthfully respond that my knowledge of [the Prosecutor] would not affect my discussion so I was maybe in a reluctant way — I wasn’t all enthusiastic, ‘No way,’ you know, because I was kind of hoping. I was really expecting not to have to serve on the jury. (Id. at 14.) After the Juror gave that testimony on April 29, the following exchange occurred between him and counsel for the defendant: Question: Is that because you thought your relationship might get you kicked off the jury? Answer: Yes, sir. I was very surprised I had to serve. Question: Why did you feel that your relationship was such that it might disclude you from being a juror? * * * * * * Question: What in your mind made you think that perhaps a lawyer for the defendant or the Government may not want you to sit? Answer: I thought that you [counsel for defendant] wouldn’t want me to serve because you knew that I knew her, and I would think that you would have guessed that because I knew her that I might be inclined, to be on her side, on the prosecution side, and that’s why, you know, I thought for sure I ivasn’t going to have to serve. (Id. at 14-15) (emphasis added). Thus, even the Juror recognized at the outset that his relationship with the Prosecutor was such that it ought to prompt defense counsel to excuse him. Some of the conduct on which this motion is founded was directed to the attention of counsel for the defendant immediately when it occurred. The conduct observed by the defendant’s mother and wife occurred after the jury had been out deliberating and had returned to receive answers to questions which they had asked during deliberations. The affidavit by the defendant’s mother says that communications also occurred during the taking of evidence. The Juror says that gestures were made before the evidence was taken and in the hall during recesses. The Prosecutor recalled that gestures occurred before the taking of evidence, but is not sure of that. At no time, however, did the Prosecutor advise the Court or opposing counsel of these communications. Counsel for the defendant represented that he “didn’t pay any attention” to the information regarding this conduct at trial but said that he “later heard about it ... [a]s we were leaving the courthouse after the jury had left at 10:00 p.m.” (Id. at 20.) According to the defense counsel: “[tjhat’s the first time that it registered in my mind that was a complaint [the defendant’s mother and wife] had, not during the trial itself.” (Id. at 21.) Counsel was more specific on April 6, when he represented to the Court that: Mrs. Lawhorne did tap me on the shoulders during the trial itself to tell me about this, tell me about this problem. I believe she did that two times. It didn’t register with me. I was in the emotion of the moment, and so I did not raise it at trial. She again told me about it as we left the courtroom that evening. And, again, it wasn’t until they wrote [presumably the January 12,1998 letter] that I thought it worthy to bring forward. I let that slip, Judge. It somehow came in one ear and out the other as everything was happening and I did not raise it. (Apr. 6 Tr. at 6-7.) Asked “[w]hen did you learn of this circumstance?”, counsel responded: “[t]he facts of all of it came to my mind just about the time that they wrote to you, Judge.” (Id. at 7.) DISCUSSION The defendant’s MOTION FOR MISTRIAL BASED UPON IMPROPER CONTACT BETWEEN A GOVERNMENT PROSECUTOR AND A JUROR AT THE DEFENDANT’S TRIAL was filed on February 2, 1998. It does not cite the rule under which it was filed. However, in a pleading dated April 24, 1998 and filed on April 27, 1998, Lawhorne argues that the motion should be regarded as one for new' trial under Fed. R.Crim.P. 33. In the April 27 pleading, Lawhorne takes the position that his right to a new trial first manifested itself at the April 6 hearing because, during that hearing, the Prosecutor first admitted the communications with the Juror that warrant a new trial. On April 6, counsel for Lawhorne made a verbal motion for a new trial based on juror misconduct as well as improper communication. (Apr. 6 Tr. at 36.) Before then, according to the April 27 pleading, the only information known to the defense counsel was that which was provided by the defendant’s mother and wife respecting the allegedly improper communication at the prosecu-torial counsel table in the form of an “okay” sign delivered by the Juror to the Prosecutor. Notwithstanding its misnomer as a motion for mistrial, the motion filed on February 2 is, in form and substance, a motion for new trial, made pursuant to Fed.R.Crim.P. 33, which, in pertinent part, provides: The court on motion of the defendant may grant a new trial to that defendant if required in the interest of justice.... A motion for new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period. Although Rule 33 permits a district court to grant a new trial “if required in the interest of justice,” a motion for new trial based on any ground other than “the ground of newly discovered evidence” must be made within seven days after verdict or at such other time as permitted by court order within that seven-day period. A motion for new trial by virtue of juror bias or other juror-related problems is a motion falling within the ambit of the phrase “in the interest of justice.” Allegations of juror misconduct do not, however, per se fall within the reach of the newly discovered evidence provision of Rule 33 under which a motion for new trial may be made before or within two years after final judgment. Apparently in recognition of that circumstance, Lawhorne, by the April 27 pleading, has recast his February 2 motion for mistrial as a motion for new trial on the ground that there is newly discovered evidence of juror misconduct. It is against the foregoing factual and procedural background that Lawhorne’s motion for new trial will be considered. I. Threshold Considerations A. Jurisdiction to Entertain the Motion The threshold problem with Lawhorne’s motion is that it was filed approximately six weeks after he noted an appeal to the United States Court of Appeals for the Fourth Circuit (see Notice of Appeal, Pleading Number 46, Dec. 18, 1997). And, one of the issues presented for appeal was: “whether the jury was tainted by virtue of a juror having some kind of conversation with the prosecutor during trial.” Giving Lawhorne the benefit of every doubt, the motion for new trial was filed on February 2,1998. Accordingly, if, as Lawhorne here urges, his motion for new trial is based on the ground of newly discovered evidence respecting the partiality of a juror, then it is timely because it was filed within two years after final judgment. However, under the newly discovered evidence facet of Rule 33, this Court may grant the motion only on remand because, at the time the motion was filed, an appeal was pending in the Court of Appeals. Notwithstanding the provisions of Rule 33, this Court recently has been informed that the Court of Appeals is holding further action on the appeal in this case until after this Court rules on the motion for new trial. Accordingly, it is necessary for this Court to decide the motion, notwithstanding the provisions of Rule 33 to the contrary. B. Waiver As explained above, Lawhorne’s counsel was aware, on March 20, 1997, of some of the basic conduct (ie., communications between the Prosecutor and the Juror) that forms the basis of Lawhorne’s motion. The United States contends that this fact alone constitutes a waiver of any right to a new trial. In Gray v. Hutto, 648 F.2d 210 (4th Cir.1981), the Fourth Circuit held that the defendant had waived his right to a new trial where his -attorney learned of alleged juror misconduct while the case was still in progress, but deliberately delayed bringing the matter to the attention of the trial court until after the verdict. See id. at 211-12; see also United States v. Gootee, 34 F.3d 475, 479 (7th Cir.1994). Also, in United States v. Breit, 712 F.2d 81 (4th Cir.1983), the Fourth Circuit explained, in unequivocal terms, that “[a] defendant who remains silent about known juror misconduct—who, in effect, takes out an insurance policy against an unfavorable verdict—is toying with the court.” Id. at 83. In Breit, the district court also found that the lawyer made a deliberate decision to remain silent about the juror’s conduct. For that reason, the Court of Appeals sustained the denial of a motion for new trial. Although it is rather clear that counsel for Lawhorne (who was aware from voir dire that the Juror had a business relationship with the Prosecutor) was told during the trial of information surrounding possible juror misconduct, counsel never brought that information to the Court’s attention. Here, the record is that, until after the trial, the defense counsel paid no attention to the information made known to him at trial. Even then, he did not pursue it or raise it in the first post-trial motion filed in June 1997 and argued in August 1997. The Court in no way intends to suggest that Lawhorne himself is “toying with” the judicial process. Nor does the Court consider that Lawhorne’s counsel made a conscious and deliberate decision not to promptly bring this serious matter to the attention of the Court when it occurred. Rather, the Court notes that defense counsel is new to the bar and erred in failing to do what is expected of counsel. Unlike Gray and Breit, there was no deliberate decision to forego a known right. Thus, although the error may had been forfeited, it was not waived. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Of equal importance is the fact that the Prosecutor knew about the communications and failed to disclose them to her adversary or to the Court. Under these circumstances, the United States is estopped by its own conduct from interposing a claim of waiver. For the foregoing reasons, the Court declines to find a waiver. II. The Merits of the Motion A. Is The Factual Information On Which The Motion Relies Evidence Under Rule 33? Lawhorne’s theory that he is entitled to a new trial because of newly discovered evidence of juror misconduct runs afoul of the strictures recently imposed on Rule 33 by the Fourth Circuit in United States v. Smith, 62 F.3d 641 (4th Cir.1995). In Smith, the putative newly discovered evidence was information supporting an ineffective assistance of counsel claim. After finding that information of that sort was not “ ‘evidence’ within the meaning of Rule 33,” id. at 648, the Fourth Circuit went on to reject the motion for new trial for the reason that Rule 33’s two-year window is available only if the new evidence was of the sort which was admissible at trial. In that regard, the Court of Appeals held: Third, the very language of the rule suggests that, in order for a defendant's motion to come within the two-year time limit, that which is ‘newly discovered’ must be evidence that would be admissible were a new trial granted. Otherwise, the rule would more naturally refer to ‘newly discovered facts’ or ‘newly discovered information.’ Smith, 62 F.3d at 649 (emphasis added). Although Smith puts this circuit in conflict with the more relaxed view of Rule 33 taken elsewhere, it is clearly binding here. And, Smith is fatal to Lawhorne’s newly discovered evidence theory because that which is newly discovered here—juror communications or juror misconduct—would not be admissible were a new trial granted. It is arguable, however, that because Smith involved a claim of newly discovered evidence of ineffective assistance of counsel, an issue not presented at this juncture in Lawhorne’s case, the above-referenced discussion in Smith is dicta that is restricted to cases only involving newly discovered facts about ineffective assistance of counsel. That possibility having been posited, it must be rejected and thus Smith forecloses Law-horne’s newly discovered evidence theory as a way to bring his plea for relief from error within the two-year period of Rule 33, rather than the otherwise applicable seven-day period. And, that would be the end of the Rule 33 inquiry under ordinary circumstances. However, the language in Smith is at odds with the less restrictive view of Rule 33 taken in other courts and, if it is dictum, then it would be necessary to assess the merits of Lawhorne’s Rule 33 motion. For that reason, and beeause Lawhorne is incarcerated, it is appropriate to turn to the merits of his motion so as to avoid further delay. B. The Rule 33 Test And Its Application Here If Smith does not foreclose Lawhorne’s motion, then he must satisfy each aspect of this circuit’s five-part test for assessing motions for a new trial based on newly discovery evidence: (1) the evidence must be, in fact, newly discovered, ie., discovered since the trial; (2) facts must be alleged from which the Court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) the evidence must be material to the issues involved; and (5) the evidence must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal. See United States v. Christy, 3 F.3d 765, 768 (4th Cir.1993); United States v. Chavis, 880 F.2d 788, 793 (4th Cir.1989); United States v. Bales, 813 F.2d 1289, 1295 (4th Cir.1987) (citing Mills v. United States, 281 F.2d 736, 738 (4th Cir.1960)). Unless the answer to each of these inquiries is in the affirmative, a new trial is not appropriate. See Chavis, 880 F.2d at 793. 1. Newly Discovered First, the evidence must truly be “newly discovered.” Where the defendant had knowledge of the evidence in question at the time of the trial, before the verdict, courts uniformly have held that Rule 33’s more generous timing mechanism is unavailable. See, e.g., United States v. McKinney, 952 F.2d 333, 335 (9th Cir.1991). Even if the defendant is in possession of the evidence before trial, but does not realize its relevance, the result is the same: the evidence is not “newly discovered” for purposes of a motion for new trial. See United States v. Jammillo, 42 F.3d 920, 925 (5th Cir.1995). In this case, Lawhorne’s mother and wife observed, at least, some of the applicable juror misconduct on the date of trial, during the trial, during the deliberative process and before the jury had returned its verdict. The record also shows that, almost immediately after observing the alleged misconduct, the defendant’s mother communicated it to counsel for Lawhorne. Thus, the basic conduct (communication between the Juror and the Prosecutor) on which the new trial motion is based, having been known before the verdict was returned, cannot qualify as evidence “newly discovered” since the trial. Lawhorne seeks to escape the consequence of that rather obvious conclusion by arguing that his counsel did not learn until the April 6 hearing that the Prosecutor had been aware of the allegedly improper communication. It is not readily apparent why the Prosecutor’s post-trial confirmation of a fact learned by counsel during trial converts that fact into evidence “newly discovered” after the trial. In reality, the argument is that counsel did not appreciate that the defendant’s evidence (from his wife and mother) could be corroborated by the testimony of the Prosecutor. That certainly does not make the basic evidence qualify as newly discovered. The more troublesome issue respecting newly discovered evidence is not even addressed by Lawhorne or the United States. The significant question is whether the revelations made by the Juror on April 29 qualifies as newly discovered. Beyond question, the Juror revealed far more extensive and more significant communications with the Prosecutor than Lawhorne’s wife and mother witnessed at trial, or than that to which the Prosecutor testified on April 6. In sum, the Juror disclosed several communications, verbally and by signal, between himself and the Prosecutor, and he admitted that his relationship with her was such that he expected to be challenged. More importantly, on April 29, the Juror, for all practical purposes, confessed to facts which showed that, contrary to his assertions at voir dire and on April 29, he was not able to put aside his business relationship with the Prosecutor. Indeed, that relationship was so important that he signaled it before the taking of evidence and during deliberations, and perhaps at other times. That testimony on April 29 was, in fact, “newly discovered evidence” and it is highly relevant to whether the Juror truthfully or completely answered the original voir dire questions and whether his relationship created actual bias. Therefore, the most important support for Lawhorne’s motion qualifies as newly discovered. 2. The Exercise of Diligence Second, it is necessary to determine whether there has been diligence on the part of the defendant. “Diligence” means ordinary diligence, not the highest degree thereof; and diligence usually is determined by taking into account the composite knowledge of the defendant and his counsel. See 3 Wright, supra, § 557, at 327-29. However, it has been held that “a defendant raising a constitutional claim in a new trial motion based on new evidence need not excuse his lawyers’ failure to discover the evidence at the time of trial with a showing of ‘due diligence.’ ” United States v. Torres, 115 F.3d 1033, 1037 (D.C.Cir.1997) (citing Marshall v. United States, 436 F.2d 155, 159 n. 1 (D.C.Cir.1970)). The Fourth Circuit does not appear to have ruled on this exception to the diligence component of the standard test for securing a new trial under Rule 33. Nor does it seem to have been adopted beyond the District of Columbia Circuit. But, if ever there was a case for freeing a defendant from the consequences of a counsel lacking in diligence, it can be made here because Lawhorne’s mother told counsel about the conduct when it happened, and she raised it again immediately after the verdict when Lawhorne, his family and counsel were departing the courthouse. And, it is undisputed that counsel did nothing with this information until nine months later when the Docketing Statement was filed on appeal. In other words, in this case it is undisputed that the defendant acted with diligence to place the information known to him in the hands of someone whom he reasonably could have expected would know how to put it to use in protecting his right to trial by an impartial jury. Furthermore, the issue here is of constitutional import, implicating, as it does, Lawhorne’s Sixth Amendment rights. See infra Parts II.B.5 & III. Hence, under the Torres/Marshall rationale, a factual and legal predicate exists for excusing Lawhorne from the undisputed, and inexcusable, lack of diligence exhibited by his counsel. However, there is reason to believe that the Fourth Circuit might not follow the Torres/Marshall rationale because counsel’s lack of diligence is, as the Marshall court noted, also subject to collateral attack, see Marshall, 436 F.2d at 159, and, in Smith, the Fourth Circuit concluded that the availability of a collateral attack upon the inadequate assistance of counsel was one of the reasons why information about the ineffectiveness of counsel was not subject to redress under the newly discovered evidence facet of Rule 33. See Smith, 62 F.3d at 649. On the other hand, the narrow issue presented by the diligence component of the Rule 33 test is not ineffectiveness of counsel as a ground for relief, but whether a defendant who has acted diligently in apprising counsel of the basis for a challenge to the constitutional validity of his conviction should be held accountable for his lawyer’s lack of diligence in protecting the defendant’s constitutional rights. The decisions in ToiTes and Marshall teach that the answer is no. And, considering that the right to trial by an impartial jury is a bedrock principle of our criminal justice system, it is appropriate to apply, in this limited circumstance, the Torres/Marshall rationale in this case. Finally, the undisclosed knowledge of the Prosecutor respecting the juror communications is another reason for ameliorating the harshness of Rule 33’s diligence-of-eounsel requirement in this case. If the Juror’ factual testimony is to be believed (and there is no reason not to do so, considering that it is corroborated by Lawhorne’s mother and wife), then the Prosecutor knew of the Juror’s conduct. Indeed, she confirmed on cross-examination on April 6 that she was aware of some of that conduct. Thus, unlike the circumstances presented by most lack of diligence cases, the prosecution was not at all in the dark about the prospect of a ground for a new trial. Had the Prosecutor simply presented what she knew to counsel for the defendant or the Court when she claims to have become aware of it (before the presentation of evidence), the ensuing difficulty could have been avoided because the Juror could have been excused and replaced by the alternate. At worst, the trial would have been delayed a day and presented to a new jury. And, if as seems to have been the case, the communications took place on several occasions, it is simply unfair to hold Lawhorne accquntable for his counsel’s failure to raise and pursue what, in essence, the Prosecutor was obligated to disclose. For the foregoing reasons, Lawhorne has satisfied the second facet of the Rule 33 test. 3. The Cumulative/Impeaching Factor The third factor is whether the newly discovered evidence is cumulative or impeaching. Notwithstanding the information provided during the voir dire examination, the information on which Lawhorne bases his motion is neither cumulative nor impeaching. Rather, the conduct in which the Juror engaged did not occur until long after the completion of voir dire, and hence it is not cumulative of the information available to counsel during voir dire. Although some of the answers given by the Juror do tend to impeach the profession of lack of bias which he gave on von dire, his conduct during the trial and the jury’s deliberation was substantive in nature and therefore cannot be considered merely impeaching within the meaning of Rule 33 jurisprudence. 4. Materiality Clearly, the testimony given on April 6 by the Prosecutor and on April 29 by the Juror is material to resolving the issue of improper communications. And, it is the key to the issues of juror dishonesty and actual bias. 5. The Probability of Acquittal The final element is whether the newly discovered evidence, in a new trial, would probably produce an acquittal. Of course, the fact pattern presented here does not lend itself to analysis of that sort because the “new evidence” at issue would never be presented to a jury. The pertinent question, in the context of this case, then, is whether the “new evidence” likely would have produced a mistrial or new trial if it had been promptly presented. Neither the parties nor the Court have unearthed decisions instructing on how to assess the fifth component of the new trial test under the factual circumstances which form the basis for the new trial request presented in this case. Nonetheless, it appears that assessment of that component is materially informed by the following alternative frameworks: (1) the controlling rule in this circuit for assessing alleged improper juror contact set forth in United States v. Cheek, 94 F.3d 136, 140 (4th Cir.1996); (2) the standard for assessing allegations of juror dishonesty during voir dire enunciated in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984); and (3) a general Sixth Amendment challenge to the verdict by virtue of the partiality of a juror based upon circumstances occurring outside the voir dire examination. Because these three standards are equally instructive, the fifth element of the test for resolving new trial motions — whether the “new evidence” would have produced a mistrial or new trial — will be considered under each framework. a. The Cheek Test for Analyzing Allegations of Improper Juror Contact Under United States v. Cheek, the party attacking the verdict bears the initial burden of introducing competent evidence that there were extrajudicial communications or contacts and that they were “more than innocuous interventions.” Although, as the Government argues, some of the communications at issue occurred in open court, they were nonetheless private communications between the Juror and the Prosecutor because they were not readily visible to the Court or to defense counsel. The facts in this record foreclose a finding that the communication was a mere innocuous intervention. The signaling, although uninvited by the Prosecutor, demonstrated an affinity of the Juror for the Prosecutor of the type which should not exist in any trial. Either before the start of the evidence (if the Juror’s somewhat indefinite recollection is to be believed) or during the trial and later during deliberations when the Court was answering crucially important questions having to do with the key element in the case (possession and control of the weapon at issue), or perhaps at both times, the Juror gave the Prosecutor a universally recognized signal of victory. Moreover, the Juror indicated that it was entirely possible that he had additional communications with the Prosecutor, and, whatever the gesture was, it evinced an affinity much stronger than that disclosed by the Juror in the voir dire examination. Finally, the nature of the communications undercut the Juror’s voir dire response that his business relationship with the Prosecutor would not affect his ability to be impartial. Where, as here, the communications cannot be characterized as innocuous, there arises a presumption of prejudice. See Cheek, 94 F.3d at 141; Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1537 n. 9 (4th Cir.1986). The burden then shifts to the United States to establish that there exists no reasonable possibility that the jury’s verdict was influenced by the improper communication. The Fourth Circuit has described this as a “heavy burden.” Haley, 802 F.2d at 1537. That burden is especially difficult to meet where, as here, the prosecution’s case turned on the credibility of two key government witnesses whose testimony was inconsistent. The burden is virtually impossible to meet where the questions submitted by the jury and the polling of the jury established that the key issues were extremely close ones and that the jury evinced great difficulty in reaching its decision. It is also clear from the polling of the jury that, after having signaled affinity with, approval of and support for the Prosecutor, the Juror voted for conviction. Although the Juror swore under oath that his verdict was not affected by his business relationship with the Prosecutor, there is, in the objective facts, very real evidence that the verdict of guilty was not free from influence by the extrajudicial communication. That assessment is underscored by the failure of the Prosecutor to bring those communications to the attention of her adversary or the Court. Indeed, if the communications had been perceived as innocuous by the Prosecutor, there would be no reason for her not to have directed them to the attention of the Court and defense counsel. That the Prosecutor failed to do so suggests strongly that she saw them as less than innocuous, especially where, as happened here, defense counsel had once before admonished the Prosecutor about a communication with another juror concerning the dress worn by the Prosecutor. Therefore, if the fifth facet of the test for a new trial under Rule 33 is analyzed as a Cheek inquiry, the Court finds that a mistrial or new trial would have been produced if the matter had been timely presented. However, to stop.the analysis here would be remiss because the Cheek test generally is reserved for assessing the effect of extra-judicial communication between a third party and a juror. See, e.g., Cheek, 94 F.3d at 141; Stockton v. Commonwealth of Virginia, 852 F.2d 740, 745 (4th Cir.1988). This case presents a juror-initiated communication with a prosecutor and that fact, and the nature of the communications, requires assessment of juror bias and partiality, rather than the danger of outside influence. So it is to the jurisprudence respecting juror bias that the Court now turns for further instruction in the Rule 33 inquiry presented by the facts here. b. Juror Dishonesty on Voir Dire An alternative approach to assessing whether the “new evidence” of the Juror’s demonstrated affinity and communication with the Prosecutor would have produced a mistrial or new trial for Rule 33 purposes is to determine whether the evidence provides Lawhorne with a claim of juror dishonesty during voir dire. The Supreme Court has enunciated a two-part test to determine whether a defendant alleging juror dishonesty during voir dire is entitled to a new trial: [T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). At the April 29 hearing, Lawhorne contended that the Juror responded dishonestly when, at the voir dire, he answered “It shouldn’t affect it” to an inquiry from the Court whether the relationship the Juror described with the Prosecutor would prevent him from giving a fair trial and from basing his decision only on the evidence in the case. According to Lawhorne, a new trial is appropriate because the Juror’s actual conduct during the proceedings demonstrated that his statement during voir dire was a falsehood when made. The issue, then, is whether any “new evidence” assists Lawhorne in establishing the first aspect McDonough. Crucial to this inquiry is a delineation of the precise contours of this first element. May a defendant establish a McDonough claim by demonstrating that a juror gave a subjectively honest answer that later proved to be incorrect, or is McDonough limited to challenges based on deliberately dishonest voir dire responses measured at the time of the response? If only the latter, then Lawhorne faces difficulty proving his entitlement to a. new trial under McDonough. The answer ultimately depends upon the correct interpretation of the Supreme Court’s decision in McDonough. Chief Justice Rehnquist’s plurality opinion conditions the grant of a new trial on a showing that the juror “failed to answer honestly.” 464 U.S. at 556, 104 S.Ct. 845. A party cannot satisfy this test merely by demonstrating that a juror provided a “mistaken, though honest, response to a question.” Id. at 555, 104 S.Ct. 845. Two justices, however, concurred only in the judgment in McDonough, stating that “[o]ne easily can imagine eases in which a prospective juror provides what he subjectively believes to be an honest answer, yet that same answer is objectively incorrect and therefore suggests that the individual would be a biased juror in the particular case.” Id. at 559, 104 S.Ct. 845 (Brennan, J., joined by Marshall, J., concurring in judgment). Three other justices took the view that “regardless of whether a juror’s answer is honest or dishonest,” a defendant may be entitled to relief if he “demonstrate[s] actual bias, or in exceptional circumstances, that the facts are such that bias is to be inferred.” Id. (Blackman, J., joined by Stevens and O’Connor, JJ., concurring). Thus, when reduced to an exercise in vote-counting, a cloud surrounds the proper interpretation of McDonough and the application of that decision to these facts. The Fourth Circuit recently recognized this ambiguity, but expressly declined to resolve it, holding instead that a state habeas corpus petitioner’s McDonough claim failed under either interpretation. See Fitzgerald v. Greene, 150 F.3d 357 (4th Cir.), cert. denied, — U.S. —, 119 S.Ct. 389, 142 L.Ed.2d 321 (1998). In Fitzgerald, the Fourth Circuit did, however, highlight what it perceived to be a split among the circuits concerning whether the correct interpretation of McDonough incorporates the view of the concurring opinions that a juror’s dishonesty is not a necessary predicate to obtaining a new trial. Id. at 364 n. 3 (collecting authority). To justify its abstention on this issue, the Fourth Circuit explained that: The only circumstance in which this distinction is relevant is when the prospective juror answers a question honestly, but incorrectly such that a “correct response would have provided a valid basis for a challenge for cause. ” When, as here, the prospective juror’s answer was not just honest, but also correct, the second part of the McDonough test is necessarily rendered moot. Id. (emphasis added) (citation omitted). That very distinction is decisive in this case. Several courts have held that Chief Justice Rehnquist’s opinion provides the controlling rule, and that “the McDonough test is directed at intentionally incorrect responses.” Gonzales v. Thomas, 99 F.3d 978, 984 (10th Cir.1996), cert. denied, 520 U.S. 1159, 117 S.Ct. 1342, 137 L.Ed.2d 501 (1997); accord United States v. Wright, 119 F.3d 630, 636 (8th Cir.1997); United States v. White, 116 F.3d 903, 930 (D.C.Cir.), cert. denied, — U.S. —, 118 S.Ct. 390, 139 L.Ed.2d 305 (1997). According to those decisions, the only pertinent inquiry is whether the juror honestly believed that the response provided during the voir dire examination was truthful. See, e.g., Gonzales, 99 F.3d at 984-85. The record in Lawhorne’s case establishes that, at the time of the voir dire, the Juror honestly believed that his response to the Court’s inquiry was true. The Juror himself provides the best evidence of his perception of his state of mind, and he has twice represented to the Court that he answered honestly during voir dire. First, the Court engaged the Juror in a colloquy wherein the scope of his business and social acquaintance with the Prosecutor was placed on the record, and the Juror stated that those facts “shouldn’t affect” his judgment. (Tr. at 11.) Thus, Lawhorne cannot make the argument considered dispositive by some other courts: that the Juror deliberately concealed facts concerning the nature of his relationship with the Prosecutor during the voir dire. See, e.g., Zerka v. Green, 49 F.3d 1181, 1184-86 (6th Cir.1995). In addition, The Juror’s frank explanation of his voir dire response at the April 29 hearing provides further uncontradicted evidence of his state of mind on the morning of March 20, 1997: I knew that if I would have said yes, it would affect it and I would not have had to serve, but I would have been lying, so I had to truthfully respond that my knowledge of her would not affect my discussion. (Apr. 29 Tr. at 14.) Accordingly, the Court finds that, if Chief Justice Rehnquist’s opinion in McDonough provides the controlling rule of law, then Lawhorne cannot establish the fifth prong of the standard for a new trial under Rule 33. The Fourth Circuit intimated in Fitzgerald, however, that a party may be able to seek relief under McDonough without establishing juror dishonesty during voir dire. See Fitzgerald, 150 F.3d at 364 n. 3. If that is the rule, then a McDonough claim may lie because here the Juror’s profession of impartiality may have been subjectively honest, but his subsequent conduct proves objectively that his perception, and hence his answers on voir dire, were incorrect. In addition to the separate opinions in McDonough, the decision in Fitzgerald cited decisions of the First and Sixth Circuits to support the pro-sect that McDonough affords relief even absent a threshold showing of dishonesty. See id. (citing Zerka v. Green, 49 F.3d 1181 (6th Cir.1995) and Amirault v. Fair, 968 F.2d 1404 (1st Cir.1992)). Study of those decisions, however, suggests that Fitzgerald may have perceived a split in the circuits when none exists. For example, the separate opinions in McDonough do not seem to urge an alternative reading of the plurality opinion; rather, they seem merely to emphasize that the Chief Justice’s opinion did not foreclose a further determination on the question of juror bias, even where a juror had been honest during voir dire. And, clearly, it does not. Also, the decisions which Fitzgerald described as interpreting McDonough to encompass “honest but incorrect” voir dire responses likewise do not appear to go that far. To the contrary, both Amiraidt and Zerka go to great lengths to explain that, if a juror has responded to voir dire with subjective honesty, “McDonough would not apply, but rather the pre-existing rule requiring proof of actual bias.” Zerka, 49 F.3d at 1186 n. 7; see Amirault, 968 F.2d at 1405. Moreover, the facts in those cases are not materially different than those appearing in decisions that supposedly require a threshold showing of dishonesty for relief under McDonough. For example, even though the Tenth Circuit has held that McDonough is “directed at intentionally incorrect responses,” Gonzales v. Thomas, 99 F.3d 978, 984 (10th Cir.1996), the court also explained that: Just because a juror responds honestly, but incorrectly, to a voir dire question does not foreclose the possibility of bias — Though a defendant cannot prevail under McDonough in such a situation — because the juror has not been dishonest — we believe the doctrines of actual and implied bias provide defendants adequate Sixth Amendment protection in such cases. Id. at 985 n. 4 (citations omitted) (rejecting a McDonough claim based on a juror who did not disclose prior victimization when asked). Similarly, the Fourth Circuit observed, in Fitzgerald, that “[f]ailure to satisfy the requirements of McDonough does not end the court’s inquiry, however, when the [defendant] also a general Sixth Amendment claim challenging the partiality of a juror based upon additional circumstances occurring outside the voir dire.” 150 F.3d at 362-63. In any event, any dispute over the proper interpretation of McDonough appears largely to be a semantic one because a party seeking to challenge a jury verdict on grounds of impartiality or bias of a juror can proceed on alternative theories: a McDonough claim of juror dishonesty, or “a general Sixth Amendment claim of juror bias.” Id. at 364. To the extent that it is necessary to define the precise contours of the former, it appears that, to establish a McDonough claim alleging juror dishonesty during voir dire, the complaining party must demonstrate that the juror gave a subjectively dishonest response. Support for this conclusion is found in a plain reading of the plurality opinion in McDonough bolstered by reading the concurring opinions to mean only that McDonough does not foreclose other avenues of inquiry such as a Sixth Amendment challenge. That also seems to be consistent with the pre-McDonough decision in United States v. Bynum, 634 F.2d 768 (4th Cir.1980), wherein the Fourth Circuit ordered new trials in two criminal cases only after considering evidence that established that a juror’s failure to disclose information during voir dire was “deliberately untruthful,” rather than merely inadvertent. Because the record here does not establish the Juror’s deliberate untruthfulness during voir dire, any “new evidence” that Lawhorne may have does not provide him with a McDonough claim that satisfies the fifth aspect of a Rule 33 motion. c. Sixth Amendment Claim of Juror Bias “Though the test articulated by the Supreme Court in McDonough serves as the primary means for assessing cases where