United States v. Warner (498 F.3d 665, 2007)

WOOD, Circuit Judge.

This appeal comes to us after an investigation that lasted for years and a jury trial that lasted more than six months. In the end, the two defendants, former Illinois Governor George H. Ryan, Sr., and his associate Lawrence E. Warner, were convicted on various criminal charges. The case attracted a great deal of public attention, and thus the district court handling the trial had to handle a number of problems, some of which were common and others less so. The fact that the trial may not have been picture-perfect is, in itself, nothing unusual. The Supreme Court has observed more than once that “taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and ... the Constitution does not guarantee such a trial.” United States v. Lane, 474 U.S. 438, 445, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (quoting United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983)). It is our job, in this as in any other criminal appeal, to decide whether any of the court’s rulings so impaired the fairness and reliability of the proceeding that the only permissible remedy is a new trial.

Defendants Warner and Ryan raise eight grounds on appeal, six of them common and one argument unique to each. Their primary emphasis is on specific issues about the jury. They contend that the verdict was tainted by jurors’ use of extraneous legal materials. They characterize the dismissal of a juror as an “arbitrary removal of a defense holdout.” They object to the substitution of jurors after deliberations had begun. They also raise claims unrelated to the jury, including the arguments that the exclusion of certain evidence was an “erroneous exclusion of exculpatory evidence,” that the prosecution failed to identify an “enterprise” for purposes of its charges under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, and that the mail fraud charges were grounded in an “unconstitutionally vague criminal statute,” see 18 U.S.C. § 1346. Warner additionally objects to the joinder of his trial with Ryan’s, and Ryan argues that certain grand jury testimony violated his attorney-client privilege.

Some potential issues, we note, are not before us. The defendants do not argue that the problems with the jury had a cumulative, prejudicial effect, even though they made this argument in their motion for a new trial before the district court. Nor do they claim that the evidence was insufficient to support any of the charges on which they were convicted. Rather, their appeal is focused on particular alleged procedural and legal errors. As we would in any case, we review only those issues presented to this court. We conclude that the district court handled most problems that arose in an acceptable manner, and that whatever error remained was harmless. We therefore affirm the convictions.

I

The facts of this case are well-known, and so we recite only what is necessary to understand the issues on appeal. In December 2003, a grand jury returned a 22-count indictment against Warner and Ryan. After a lengthy trial, on April 17, 2006, a jury found Warner and Ryan guilty on all counts. On September 18, 2006, the district court set aside the jury’s verdict with respect to two separate mail fraud counts against Ryan and then entered judgment against both defendants on the remaining counts. The court sentenced Warner to 41 months’ imprisonment and Ryan to 78 months’ imprisonment. The defendants both filed timely notices of appeal on September 20, 2006.

The story behind this case began in November 1990 when Ryan, then the Lieutenant Governor of Illinois, won election as Illinois’s Secretary of State. He was reelected to that post in 1994. Throughout Ryan’s two terms in that office, Warner was one of Ryan’s closest unpaid advisors. One of Ryan’s duties as Secretary of State was to award leases and contracts for the office, using a process of competitive bidding for major contracts and selecting leases based on the staffs assessments of multiple options. Improprieties in awarding four leases and three contracts form the basis of the majority of the RICO and mail fraud counts against Warner and Ryan, as these leases and contracts were steered improperly to Warner-controlled entities. The result was hundreds of thousands of dollars in benefits for Warner and Ryan. These benefits included financial support for Ryan’s successful 1998 campaign for Governor of Illinois.

Prospective jurors for the trial in this case filled out a 110-question, 33-page form, which covered among many other topics the subjects of their criminal and litigation histories, their knowledge of the investigation of Ryan, and their awareness of Ryan’s positions on public issues. Counsel for all parties and the court reviewed the questionnaires for four days; voir dire consumed another six days. The district court seated 12 jurors and eight alternates. The trial lasted six months. The prosecution presented approximately 80 witnesses against the defendants. In the end, the evidence supporting the jury’s verdict was overwhelming. We give only a few examples here from the extensive record that was created. To begin with, the evidence showed that Ryan steered an $850,000 four-year Secretary of State’s office lease to Warner for a property that Warner had recently purchased for just $200,000. Ryan took regular Jamaican vacations paid for by a currency-exchange owner to whom Ryan later steered a $500,000 six-year Secretary of State’s office lease. Ryan took a Mexican vacation paid for by an individual to whom Ryan later steered another Secretary of State’s office lease and a lobbying contract worth nearly $200,000 for virtually no work. Warner received more than $800,000 for helping a company land a major Secretary of State’s office contract without registering as a lobbyist and added another of Ryan’s friends into the arrangement at Ryan’s request before the contract was awarded. Finally, and remarkably, despite evidence showing that they were enjoying a very nice lifestyle, Ryan’s and his wife’s total withdrawals from their bank accounts averaged less than $700 per year for ten years.

The jury retired on March 13, 2006. This jury deliberated for eight days. During their deliberations, the jurors were allowed occasional breaks so that some jurors could smoke outside. At the same times, some of the other jurors would go outside for fresh air or walk up and down the courthouse stairwells for exercise. No one formally objected to the court about these activities. On at least one occasion, the court noted that the jurors were accompanied by court personnel when on breaks. Putting media accounts and testimony that the district court discredited to one side, there is no basis in the record to conclude that any deliberations took place when the jurors were separated from one another.

It was not long before problems arose. On Monday, March 20, 2006, Juror Ezell sent the court a note, also signed by the foreperson, complaining that other jurors were calling her derogatory names and shouting profanities. The court conferred with counsel and responded with a note instructing the jurors to treat one another “with dignity and respect.” Two days later, the court received a note from Juror Losacco signed by seven other jurors, asking if Juror Ezell could be excused because she was refusing to engage in meaningful discourse and was behaving in a physically aggressive manner. The court again conferred with counsel, noting that “[Losacco] has not told us anything about the way the jury stands on the merits. She really has not.” The next morning the court responded with a note, which began “You twelve are the jurors selected to decide this case.” The note then reiterated that the jurors were to treat each other with respect and reminded them of their duties.

On the eighth day of deliberations, a few hours after the court responded to the Losacco note, media reports surfaced claiming that one of the jurors had given untruthful answers on the initial juror questionnaire regarding his criminal history. The court stopped the jury’s deliberations while it looked into the new allegations, After a background check confirmed that Juror Pavlick had not disclosed a felony DUI conviction and a misdemeanor reckless conduct conviction, the court questioned him individually. The court asked counsel if there would be any objection to dismissing Pavlick. Neither the prosecutor nor Ryan’s counsel voiced any objection when Warner’s counsel moved to dismiss Pavlick or when the court granted that motion.

It turned out that Juror Ezell’s record was also problematic. A background check turned up seven criminal arrests, an outstanding warrant for driving on a suspended license, and an arrest under a false name, “Thora Jones.” The fingerprints of the “Thora Jones” arrestee matched Ezell’s, and it turned out that the name “Thora Jones” might belong to Ezell’s daughter, who also has a significant criminal history. The government told the court that it would have moved to excuse Ezell for cause had it known during voir dire that she had given law enforcement officers false booking information, as the Ryan-Warner case also involved charges of providing false information to law enforcement officers. The court replied that “I suspect there would not have been an objection [to that cause challenge]. She would have been excused.” The court proceeded to question Ezell, who acknowledged her untruthfulness. Even then, however, she was not forthcoming about her use of the name “Thora Jones” nor about her daughter’s criminal history. The court concluded that “some of the answers she just gave me ... aren’t truthful.” Warner’s counsel agreed that Ezell should be excused, while Ryan’s counsel took no position initially. When the government moved to dismiss Ezell, Ryan’s counsel objected to the standard employed but did not object to the decision to remove Ezell based on her untruthfulness.

The court also questioned a number of other jurors. It turned out that Jurors Gomilla and Talbot both had filed for bankruptcy in the mid-1990s, but neither included this information in response to a question about whether they had ever appeared in court or been involved in a lawsuit. That question, however, appeared in a section entitled “Criminal Justice Experience.” Several other jurors had also left that question blank: Juror Svymbersky, an alternate, who stole a bicycle at age 18 or 19 in 1983 and thought that the charges had been expunged; Juror Rein, who was arrested for assault for slapping his sister in 1980, but never appeared in court; Juror Casino who had three arrests that he had not remembered when filling out the questionnaire, because they occurred forty years earlier, in the 1960s, when he was in his early 20s; and Juror Masri, an alternate, who reported a 2000 DUI conviction but had said nothing about a 2004 DUI conviction nor about his conditional discharge or probation in September 2005.

The defense argued that Svymbersky, Rein, Casino and Masri should be dismissed for dishonesty, while the government took the position that all four were fit to serve. The district court initially was inclined to excuse Svymbersky and Masri, but it chose to re-interview Casino and Svymbersky, who both again stated that they had not recalled the incidents when filling out their questionnaires. The district court credited the testimony of Svymbersky, Rein, and Casino, concluding that they did not lie to the court. The district court did not credit Masri’s testimony and excused him; no one objected. (We acknowledge the dissent’s concern that the court did not state explicitly that it was granting the defendants’ motion to excuse Masri for cause. Looking at the record as a whole, however, it is clear that this is what the court did. There was no other motion related to Masri pending, and the court had stated that jurors would be dismissed only for cause. If the court was not excusing Masri for cause, but instead seating alternates out of order, Masri would have remained an alternate as opposed to being excused. More importantly, though, no one has objected to the characterization of Masri’s dismissal as one based on cause.)

In light of the dismissals, it became necessary to seat alternates Svymbersky and DiMartino on the jury in place of Ezell and Pavlick. At that point, as authorized by Fed. R. Crim. P. 24(c)(3), the court decided that the reconstituted jury would need to start its deliberations from scratch. It questioned each of the remaining original jurors to ensure that they understood their obligation to disregard whatever had gone on before and to begin deliberations anew, and that they felt capable of doing so. They all answered yes. The court then re-read its instructions to the reconstituted jury, adding a new one to allay defense concerns with the questioning about the jurors’ criminal histories. The new jury begin deliberating on March 29, 2006. After ten days’ work, it returned guilty verdicts on all counts on April 17, 2006.

After the verdict, dismissed juror Ezell publicly criticized the jury and the verdict. On April 25, 2006, defense counsel asked the court to conduct a formal inquiry into her comments. On April 26, the court held a hearing on the motion in open court, during which the government noted that “nothing that [Ezell] has said ... indicated any extraneous influence occurred.” The court determined that “the allegations that Ms. Ezell appears to be making [do not] constitute the kind of misconduct [that would require an inquiry].” At some point later that day or the next day, defense counsel learned through new media reports that Ezell had alleged that Juror Peterson had brought “case and law” into the jury room about removing a juror for failing to deliberate. Defense counsel filed a new motion for an inquiry, which the court granted. On May 5, 2006, the court opened its inquiry into Ezell’s allegations, interviewing both Ezell and Peterson. Ezell told the court that she had previously forgotten about “the case law” to explain why she had not previously mentioned the incident. Peterson acknowledged bringing into the jury room an article published by the American Judicature Society (AJS) (which she found by conducting a Google search of the term “deliberating”) about the substitution of jurors and a handwritten note recording her own thoughts about the duty to deliberate. She read a portion of the article and the handwritten note to the rest of the jurors. The court concluded that these two excerpts “did not prejudice the outcome” and ultimately denied the defendants’ motion for a new trial on that (and several other) grounds.

II

Both Warner and Ryan assert that the court’s ruling on this “extraneous evidence” was wrong, prejudicial, and requires a new trial. A preliminary question that influences the rest of the analysis is whether either one, or both, of these items should be characterized as “extraneous” evidence. The district court concluded that the AJS article was, but that Juror Peterson’s personal note was not.

A

Read in isolation, Peterson’s note is hard to criticize. It said:

You have the right to speak your opinion, but you have responsibility to use the facts[,] the testimony to support your opinion to seriously consider [sic]. If you don’t use evidence and testimony to support your opinion your [sic] not being responsibly [sic].

The proper characterization of this note is a question of fact, which we review for clear error. United States v. Mancillas, 183 F.3d 682, 695 (7th Cir.1999). Juror Peterson told the district court that her handwritten statement came from her own, independent thoughts. The district court credited that testimony, noting the lack of overlap between the subject of the AJS article and Peterson’s note as well as the similarities between Peterson’s note and the court’s instructions to the jury on their duty to deliberate.

Credibility findings are “binding on appeal unless the district judge has chosen to credit exceedingly improbable testimony.” United States v. Hubbard, 61 F.3d 1261, 1278 (7th Cir.1995) (emphasis in original). There is no reason to question the district court’s assessment of Juror Peterson’s explanation about the note, let alone any indication that Peterson’s account was “exceedingly improbable.” The defendants’ trial counsel were present when the district court discussed the note with Peterson and were permitted to ask questions. The defendants imply that Peterson could not have composed the note without assistance from external sources, apparently on the theory that it expressed concepts beyond the capability of a kindergarten teacher (which is Peterson’s profession). We cannot imagine why either we or the district court was required to draw any such inference, which is more than a little patronizing. Thus, the defendants are left only with the fact that Peterson put her thoughts on paper. Had she simply spoken those words to the jury without writing them first, Fed. R. Evid. 606(b) would bar any consideration of them at all. We conclude that the district court did not err in determining that this note was not extraneous information and did not require any further action.

B

The AJS article was indisputably extraneous information in the jury room. It dealt generally with the subject of juror removal and substitution. The excerpt that Peterson read to the jury was the following:

But other bases for substitution raise serious questions about the sanctity of the deliberative process, primarily allegations by some jurors that another juror is unwilling or unable to meaningfully deliberate, or is unwilling to follow the law. Such an allegation requires a hearing where the judge must decide the tricky question whether the juror is truly unfit to serve, or is merely expressing an alternative viewpoint that will likely result in a hung jury. Only if the judge concludes that the challenged juror is truly unfit to serve, will the judge be authorized to dismiss that juror and substitute an alternate juror.

In essence, Peterson’s act of reading that paragraph introduced new instructions into the jury room about the deliberative process, beyond those given by the court. There is no doubt that this should not have happened. The only question is whether it is such a fundamental error that it requires automatic reversal, or if it is subject to harmless error analysis.

The Supreme Court has repeatedly stressed the fact that so-called structural errors — those that fall outside the boundaries of harmless error analysis — are few and far between. Most recently, the Court found that a constitutional error in failing properly to apply the rule of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was subject to harmless error analysis. See Washington v. Recuenco, — U.S. -, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). The Court explained:

We have repeatedly recognized that the commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, “ ‘most constitutional errors can be harmless.’ ” Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Edüd 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). “ ‘[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.’ ” 527 U.S. at 8, 119 S.Ct. 1827 (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). Only in rare cases has this Court held that an error is structural, and thus requires automatic reversal.

126 S.Ct. at 2551 (footnote deleted). In a footnote, the Court reviewed the six “rare” areas where automatic reversal occurs: complete denial of counsel, a biased trial judge, racial discrimination in the selection of a grand jury, denial of the right of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. Id. at n. 2. It also recalled that its earlier decision in Neder had involved defective jury instructions, and that it had applied harmless error analysis there. Id. at 2551.

The defendants do not contend that anything that Recuenco recognized as structural error occurred here. Instead their argument is about jury instructions and external influences on the jury. The Court repeatedly has subjected challenges to external influences on jurors to harmless error analysis. In United States v. Olano, 507 U.S. 725, 738, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), it wrote that “[w]e generally have analyzed outside intrusions upon the jury for prejudicial impact.” The Court summarized its “ ‘intrusion’ jurisprudence” by stating that “[d]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable.” Id. (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Under Neder and similar cases, the introduction of the excerpt from the AJS article into the jury room is subject to harmless error analysis.

In evaluating it in this light, we bear two things in mind. First, we have held, and we reaffirm, that district courts “retain ... substantial discretion over the determination of whether the prejudice arising from the unauthorized contact is rebutted or harmless.” United States v. Sababu, 891 F.2d 1308, 1335 (7th Cir.1989); see also Evans v. Young, 854 F.2d 1081, 1084 (7th Cir.1988). The relevant question is thus whether the court abused its discretion in making that determination. Sababu, 891 F.2d at 1334. Second, context matters. Many cases in which extraneous information made its way into the jury room involve evidence relevant to the defendant’s guilt or innocence. See, e.g., United States v. Berry, 92 F.3d 597, 600 (7th Cir.1996) (unadmitted transcript of admitted recording that labeled one speaker as the defendant although identification was in dispute); Sababu, 891 F.2d at 1332-33 (unadmitted transcript of defendant’s unadmitted recorded conversation with a co-defendant); United States v. Bruscino, 687 F.2d 938, 941 (7th Cir.1982) (en banc) (Bureau of Prisons document about the defendant’s possible membership in prison gang and a newspaper article about the case). The excerpt from the AJS article did not. Compare United States v. Estrada, 45 F.3d 1215, 1226 (8th Cir.1995), vacated on other grounds, 516 U.S. 1023, 116 S.Ct. 664, 133 L.Ed.2d 516 (1995) (differentiating between external information that merely supplements the court’s instructions and factual evidence not developed at trial).

We first consider whether the district court applied the proper legal standard for its inquiry. A district court’s failure to use the proper legal standard is an abuse of discretion. United States v. Austin, 103 F.3d 606, 609 (7th Cir.1997). A district court also abuses its discretion if the record contains no evidence on which the court could have relied or if its findings of fact are clearly erroneous. United States v. Jain, 174 F.3d 892, 899 (7th Cir.1999).

This court has looked to the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 228, 74 S.Ct. 450, 98 L.Ed. 654 (1954), in order to develop a legal standard in this area. Sababu, 891 F.2d at 1335. In Remmer, the Court considered the case of a juror who supposedly was offered a bribe for a vote to acquit. 347 U.S. at 228, 74 S.Ct. 450. The FBI was brought in to question the juror, and the district court concluded that the bribe was a joke, but the defendant was never told about the allegation. Id. Remmer held that

[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.

Id. at 229, 74 S.Ct. 450. The Court also said, however, that “[t]he presumption is not conclusive, but the burden rests heavily on the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.” Id. It cautioned that inquiries of jurors about extraneous influences must strike a balance between the need to ensure that no prejudice has occurred and the need to let jurors deliberate unimpeded. Id.

District courts have some flexibility in structuring an inquiry into this kind of problem. Bruscino, 687 F.2d 938 at 940. Sometimes the circumstances are such that the Remmer presumption does not even apply. Thus, in Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir.2001), we held that it did not apply to the publication of jurors’ names and addresses by the media. Whitehead also suggested that “no Rem-mer hearing is necessary” where a “comment heard by a juror was ambiguous and innocuous.” 263 F.3d at 725-26. We need not explore when a hearing may not be essential, however, since the district court held one here. The general rule is that the district court “ ‘should determine the circumstances [surrounding the improper contact] and the impact thereof on the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.’ ” Sababu, 891 F.2d at 1335 (quoting Remmer, 347 U.S. at 230, 74 S.Ct. 450).

The defendants argue that this standard does not adequately protect the deliberative process. They urge the adoption of a standard under which “any reasonable possibility of prejudice” from the external influence automatically entitles a defendant to a new trial. This, however, would represent a significant extension of the law. In our view, such an extension is not warranted and would in fact be inconsistent with the Supreme Court’s approach to harmless error. If the district court is able to take remedial measures that remove the possibility of prejudice, or if it finds after a hearing that the Government has rebutted the presumption of prejudice, no new trial is required.

The district court described the approach it took to this issue as “a two-pronged inquiry.” It said that it would determine “whether there was an extraneous influence on the jury, [and] whether from an objective perspective ... what happened was prejudicial.” The parties agreed to the judge’s approach. Moreover, in the court’s memorandum and order denying the defendants’ motion for a new trial, the district court explicitly discussed the requirements and holdings of Remmer, Bruscino, and Sababu, among other cases, concluding that “[prejudice to the defendants is presumed ... but is rebutted if there is no reasonable possibility that the verdict was affected by the contact.” We are confident, in light of these statements, that the court identified the correct legal standard for its inquiry.

C

The question remains whether the court abused its discretion in applying the law. In United States v. Sanders, 962 F.2d 660 (7th Cir.1992), we suggested a non-exclusive list of considerations that throw light on the question of prejudice. These factors “include [1] the extent and nature of the unauthorized contact, [2] the power of curative instructions, and [3] the responses of the jury.” Id. at 669. We will follow that check-list here, understanding of course that in the end this type of inquiry simply helps to ensure that neither the district court nor we have overlooked anything important.

As we noted earlier, the AJS article was unrelated to the facts of the case or the defendants’ guilt, and thus was less likely to prejudice the jury’s evaluation of the central issues in the case. Furthermore, it was only the jurors who sat on the original jury who were exposed to the article, and their exposure was brief.

The district court rejected the defendants’ speculation that Peterson “believed this document was some sort of trump card in an ongoing dispute with [Juror] Ezell.” The testimony was in conflict about how severe that dispute was: Ezell claimed that she cried after the AJS article was read to the original jury, while Peterson testified that no one responded emotionally at all. The district court concluded that the article “did not sway the course of deliberations” during the first jury’s deliberations when it was read, nor (more importantly) did it “play any role in the reconstituted deliberations.” In reaching this conclusion, the district court credited Peterson’s testimony that Ezell did not change her approach to the deliberative process after the excerpt was read, and Peterson’s testimony that she did not refer to the article at all during the reconstituted jury’s deliberations. The defense cannot point to any evidence showing that the district court’s conclusions about credibility of the jurors regarding the external information were clearly erroneous.

The district court also concluded that the AJS article “does not state or imply that jurors must reach any decision,” and could not “lead a reasonable juror to change his or her determination for fear of punishment.” Rather, based on the court’s instructions about deliberations, the “jurors may have reasonably believed, even without consulting extraneous material, that they could be removed if they refused to ‘deliberate.’. ” This differs significantly from the situation faced by the Ninth Circuit in United States v. Rosenthal, in which a juror asked an attorney friend whether she had “any leeway” in following the court’s instructions on the law and her friend advised her that she “could get into trouble” if she strayed from the instructions, which implies a more severe penalty than simply being removed from a jury. 454 F.3d 943, 950 (9th Cir.2006).

We now come to what may be the most powerful reason for concluding that Peterson’s reading of the paragraph from the AJS article did not prejudice the defendants: it occurred during the deliberations of the initial jury, and the district court took measures to assure that the new jury could and would put Round 1 behind them. After dismissing Ezell and Pavlick, the district court asked each one of the remaining original jurors individually if he or she could disregard the previous deliberations and start over. For example, the court asked one juror, “If I were to tell you that today we are bringing some other jurors back and you must start all over, is that something you think you can do?” and “Could you, do you believe, to the best of your ability, put out of your mind all the discussion that’s happened in the last few days with your fellow jurors?” The juror responded, “Yes, I can. Put it over and just start new.” The court continued, “Just start as though it never happened before?” The juror replied, “Yes.” The court followed up yet again, “Any concerns about how — the difficulty that that would present for you?” The juror responded, “None whatsoever. I have no problems with it.”

We approved a similar manner of proceeding in Sanders. There, “[the contacted juror] explicitly testified that she could put this incident behind her and continue to serve impartially as a juror.” Sanders, 962 F.2d at 670. We concluded that “[b]e-cause of this explicit testimony and the careful inquiry of the district court, we are unable to say that the district court abused its discretion in accepting Juror Layton’s sworn statements and allowing the trial to continue.” Id. Sanders compared this situation with “pretrial voir dire,” about which “the Supreme Court has held that the test for determining impartiality in a prospective juror is whether he or she can ‘lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ” Id. at 670, n. 10 (quoting Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975)).

The court did not specifically instruct the remaining jurors to disregard the AJS article (as it had not yet come to light), but still the court trod carefully to avoid prying into the jury’s earlier internal deliberations. This is because Fed. R. Evtd. 606(b) provides that

[u]pon 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 that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.

The rule did not technically apply at the time of the new instructions to the remaining jurors, as the jury had not yet reached a verdict. The rule is based, however, on the “long-recognized and very substantial concerns support the protection of jury deliberations from intrusive inquiry.” Tanner v. United States, 483 U.S. 107, 127, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). The court reasonably took care to abide by the spirit of the rule because the original jurors were going to return as part of the reconstituted jury. If by its inquiry the court sent the implicit message that future deliberations might not be secret, then we would be facing a different set of problems with the reconstituted jury’s verdict.

Following the juror interviews, the district court made a precautionary statement to the new jury before instructing it:

You may have heard by now that two of the original jurors in this case were excused from further jury service. I want you to know, as I’ve told some of you already, that the circumstances that brought about the fact that these two jurors were excused, those circumstances were not prompted by any of the lawyers or by the parties in this case, nor by your previous deliberations, those of you who were here. Rather, the inquiry was generated by members of the media.... I want you to know that in attempting to reach verdicts in this case you are answerable only to your own conscious [sic]. It is your job, and your job alone, to find the facts in this case and to apply the law that I have given you.... The fact that there have been circumstances that led to two jurors being excused should not in any way enter into your deliberations.... [I]t is imperative that you completely put your prior deliberations out of your mind. You must treat this case as if the prior deliberations did not occur. You also should not discuss or mention any statements or comments made during the prior deliberations when you begin these neiv deliberations.

(emphasis added).

There is a general presumption that juries follow their instructions. See, e.g., Penry v. Johnson, 532 U.S. 782, 799, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), citing Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); see also United States v. McClinton, 135 F.3d 1178, 1189 (7th Cir.1998). This presumption is only overcome if there is an “overwhelming possibility” that jury was unable to follow the instructions. Greer v. Miller, 483 U.S. 756, 767 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). Here it is hard to imagine instructions that would be better tailored to the issue of the AJS article, as well as to the other concerns about the original deliberations that the defendants allege. (The defendants’ assertion that some of the jurors believed that they “could force the removal of a fellow juror” also falls in light of these instructions and the court’s credibility findings.) During the post-trial proceedings, the district court once again concluded that “the court believes that the jurors who deliberated to verdict in this case were diligent and impartial .... They sat attentively through nearly six months of evidence.... The court believes these jurors made every effort to be fair, even amid extraordinary public scrutiny.” This assessment is entitled to deference from us.

D

The defendants make one final argument about the alleged external influences on the jury. They claim that the district court “acknowledged presumptive prejudice, [but] it effectively required a showing of actual prejudice.” We do not see it that way. The defendants are forgetting that there is a middle ground, in which the court finds presumptive prejudice, but it then goes on to find that the government has rebutted that presumption. After interviewing both Ezell and Peterson, the district court stated “I am comfortable, based upon what I have heard, at least at this point, that the jurors’ brief consideration of that material did not [cause] prejudice.” The court did not conclude that the defendants lost because they failed to show actual prejudice, or that it was their burden to do so. It found that the government satisfied its burden to show that there was no prejudice, as it is entitled to do under Remmer. For all of these reasons, the district court did not abuse its discretion in concluding that the extraneous information at issue did not prejudice the defendants.

III

At the outset of the trial, the district court empaneled eight alternates to the jury. In the end, most of these alternates were necessary to provide the defendants with a full jury. By the time the trial reached the jury deliberation stage, one juror had been excused for inability to serve — Juror McFadden, who was dismissed on the court’s own motion because she had a medical condition that made her repeatedly fall asleep during the trial.

The revelations of the possible criminal records of some of the original jurors led, as we have said, to the district court’s decision to excuse Jurors Pavlick and Ezell and to replace them with alternates. Defendants raise five arguments relating to the process of removal and replacement: first, they accuse the district court of misleading defense counsel about the standard that would be used for removing jurors; second, they assert that the court applied an arbitrary standard for dismissals; third, they claim that the prosecution knew that Ezell was a holdout juror for the defense at the time it moved for Ezell’s removal; fourth, they speculate that the removal of Ezell chilled pro-defense jurors; and finally, they fear that the investigation into the jurors’ backgrounds biased the jurors against the defense.

A

The most important question for purposes of this part of the appeal is whether the district court correctly decided to rely on the standard established in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), for assessing these various challenges to the jury. In McDon-ough, the Supreme Court held that an inaccurate answer on a jury questionnaire discovered after the verdict was returned could be grounds for a new trial only if the “correct response would have provided a valid basis for a challenge for cause.” Id. at 556, 104 S.Ct. 845. Defendants claim that this standard is inappropriate for pre-verdict removals because McDonough rested on the need for finality in a given jury’s verdict. The implication of their position is that it is actually impossible to remove a juror for cause once deliberations have started. This is not the case, as Fed. R. Crim. P. 24(c)(3) illustrates. Furthermore, most of the interests in finality recognized by McDonough have already accrued by the time a fully tried case is submitted to a jury. We can see no sense in a rule that forces the court to sit by idly, knowing that it ought to remove a juror, just so that the jury can return a verdict and the facts of McDonough will be replicated. The district court was correct to turn to McDonough for guidance on how to resolve the problems that had arisen.

B

The next question is whether the district court applied this standard consistently. When the possibility arose that some sitting jurors would need to be removed because of their criminal records, the court asked the attorneys for their thoughts on the standard to apply to possible removals. All attorneys responded with arguments to the court. Less than an hour later, the court informed counsel that it saw a difference between jurors such as Pavlick and Ezell, for whom there were significant disparities between the questionnaires and their recent criminal histories, on the one hand, and jurors such as Casino, who may simply have forgotten long past criminal histories or may not have understood what was required to be disclosed.

In the end, the district court concluded and repeatedly stated that the appropriate action would be to excuse any juror for whom the newly acquired information would have led to a challenge for cause by one of the parties that the court would have granted. The court announced that it would follow that standard even if the result was to reduce the number of jurors below the number required to reach a verdict. This is precisely what McDon-ough calls for: changing the composition of the jury after the time for peremptory challenges has expired only if the “cause” standard is met. When faced with a post-trial argument about a juror, the Supreme Court has focused on the question whether a district court’s ruling “resulted] in the seating of any juror who should have been dismissed for cause,” not on whether some other jury might also have been impartial. United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).

Before Ezell was dismissed, the district court asked defense counsel if they were accepting its standard. The court again clarified the standard being used, stating that a juror’s saying only that she did not understand a question, or a juror acknowledging that she may not have answered everything truthfully, might not be excusable solely for that reason. The government agreed and noted that even if it might have made a challenge for cause, the decision would have been the court’s in the end. The defense counsel stated their disagreement “that that’s the standard that should be applied,” and again expressed a preference for removing any juror “the Court has found ... not [to be] truthful.” When all was said and done, however, this was just a discussion about how to apply the McDonough standard to these facts. The court recognized this: in its order denying defendants’ motion for a new trial, it reiterated that it had applied the Mc-Donough standard to removing the contested jurors.

Ignoring this extensive exchange, the defendants claim that “the district court never made any findings with respect to any juror that would have constituted a valid challenge for cause.” The record does not support that assertion. The dismissal of Ezell provides a good example. After explaining the applicable standard, the district court said, “Let’s just start with the use of an alias. I think that probably would have been a basis for cause ....”• Prior to Ezell’s dismissal, the government told the district court that it would have challenged her for cause had it known that “she has an arrest with a false name” because “[h]ow somebody who gives law enforcement officers false information upon an arrest can possibly be an impartial juror in this case, where one of the charges is giving false information to law enforcement officers, is well beyond me.” The prosecution added, “Judge, there would not have been a contest” and that it was “[n]ot even an issue” because the government would always challenge for cause under such circumstances. The court responded that “if ... there would have been a cause challenge, I suspect there would not have been an objection. She would have been excused.”

Soon after saying that, the court questioned Ezell about her arrest under a false name and concluded that her response was not forthcoming. As the court put it, “[Ezell] has never told us the truth about the [false] name Thora Jones.” After listening to the attorneys’ arguments, the court said, “I think she has concealed a great deal of information. And the critical question is, had this question been answered, would it have been grounds for cause? I can’t imagine that the answer is anything other than yes. I think I have to excuse her.” This is enough to convince us that Ezell was removed because she would have been removable for cause. This case is not like United States v. Harbin, where the district court told the parties that jurors would be removed only for cause once trial began, but then it allowed the prosecution to use a peremptory challenge to remove a juror during the trial. 250 F.3d 532, 547 (7th Cir.2001). Based on the lengthy discussions among the court, the prosecutors, and defense counsel, it is apparent that everyone knew that the court was using the McDonough standard.

The defendants try to undermine this conclusion by arguing that the prosecution did not raise challenges for cause against all jurors with criminal convictions or family members with extensive criminal histories. To the extent that this is accurate, this argument would sway us only if the government did not challenge jurors with the same types of criminal histories as those who were struck for cause during deliberations. Cf. Coulter v. McCann, 484 F.3d 459, 465 (7th Cir.2007) (reiterating the established principle that when defense counsel claims that prosecutors have used a peremptory strike for an impermissible reason, it is necessary to show a “similarly situated venireperson” who was not struck). In this case, the defense has pointed to no comparable jurors who were not struck. No other juror had committed, as Ezell had, conduct with such significant similarities to the charged conduct at issue in the case.

Pavlick’s dismissal during deliberations stemmed from an undisclosed felony DUI conviction during Ryan’s tenure as Secretary of State. The Illinois Secretary of State sets many significant drunk driving policies, and this case dealt with locations of the Secretary’s local motor vehicles administration facilities that might have connected Pavlick’s conviction to Ryan’s office. In fact, it appears that there was some action taken by the Secretary of State against Pavlick while Ryan was serving in that office. The conviction, coupled with Pavlick’s negative association with Ryan’s office, provide ample grounds for dismissal for cause. Even Warner’s counsel stated, “[w]e have a real concern with a convicted felon sitting with a deliberating jury for eight days.” There was no argument from any attorney before the district court that Pavlick would not have been removed for cause had he been honest during voir dire. Also, the only juror with similar convictions to Pavlik’s — alternate Masri — was also dismissed. Again, the district court was entitled to remove Pavlick under the McDonough standard.

Other jurors also found themselves under the court’s scrutiny. Alternate juror Svymbersky failed to disclose a 23-year-old conviction charge for purchasing a stolen bicycle, explaining that he had not thought of it when filling out his questionnaire. The court ultimately believed this explanation. Juror Casino had three arrests (including one conviction) in the 1960s. He too testified that he did not remember these incidents when filling out the questionnaire. The district court remarked after interviewing Casino that “[t]his juror is as credible as any juror I have ever had.” The court listened to the attorneys argue about Casino and then said, “somebody who really, truly doesn’t remember it and hasn’t gotten in any trouble since, it seems to me could hardly have a bias.” Juror Rein was arrested in 1980 for assault for slapping his sister, but never appeared in court for the charge and thought that the matter had been expunged from his record. He testified that he did not recall the event when he filled out his questionnaire. By contrast, alternate juror Masri had reported a DUI conviction in 2000 but had not disclosed another DUI conviction in 2004 or that he was on probation in September 2005. The district court ultimately allowed the defendants’ cause challenge against Masri, and we have already noted the similarities between Pavlick’s and Masri’s criminal records. Although one of Masri’s DUI misdemeanor convictions came out during voir dire, that one did not occur while Ryan was the Secretary of State and therefore it is not unreasonable that neither party would have moved to remove him for cause for that conviction alone. Only when it turned out that there were multiple, recent convictions, and that Masri was trying to hide them, did the likelihood that he would have been removed for cause become significant.

Looking at these other jurors (apart from Ezell and Pavlick), we view the district court’s conclusion that only Masri could have faced a valid challenge for cause as reasonable. A district court has no obligation to grant a challenge every time it turns out that a venireperson has a criminal record. It has the discretion to determine, based on all the facts, whether dismissal for cause is necessary. United States v. Ray, 238 F.3d 828, 837 (7th Cir.2001). We conclude that the district court applied the McDonough standard consistently in considering whether to excuse each of the jurors with undisclosed criminal histories.

C

Next we address the defendants’ claim that the prosecution knew that Ezell was a defense holdout and that this was the real reason why Ezell was dismissed. The record does not support this contention. Three jurors were dismissed (Pavlick, Ezell, and Masri) after the investigations into their questionnaires. The district court concluded that “I have genuine concerns that Mr. Pavlick and Ms. Ezell ... may very well have been motivated to get on the jury.” Indeed, the strongest cases for challenges for cause were against these two jurors.

We cannot find any basis in the record to conclude that the district court dismissed Ezell because of her view of the evidence or that the prosecution tricked the district court into dismissing Ezell for cause based on its belief about Ezell’s view of the evidence. The district court was troubled immediately after Ezell’s criminal history was disclosed. We have no doubt that the district court’s reasons (which we have already reviewed) for dismissing Ezell for cause were genuine.

Because of this, it does not matter what the prosecution may have suspected about Ezell’s views on the evidence in this case. It is the court’s actions that count when a decision is within the discretion of the court, not counsel’s motivations for supporting or opposing the court’s actions. So long as the court was not hoodwinked into believing there was cause where there was none (and it was not), the removal was proper. Without belaboring the point, we note finally that there is no serious basis in the record supporting the defense’s speculation that the prosecution somehow knew that Ezell was a “defense” juror and that it was trying to bounce her from the jury for that reason. At best, everyone was guessing. These hunches fall far short of supporting the defendants’ argument that the prosecution knew Ezell’s view of the evidence, let alone sought her dismissal for that reason.

D

The defendants also contend that Ezell’s removal “potentially chilled the expression of pro-defense jurors in deliberations.” Based on our discussion above, we believe that the instructions that the court gave to the reconstituted jury prevented any chilling of pro-defense views in the new jury. It is also worth noting that the jurors who served on both juries would have recalled that when the court initially received the note about Ezell, it responded by instructing the jury that “you twelve are the jurors selected to decide this case.” This instruction also operated to prevent any potential chilling of pro-defense views (or any other dissenting views). Moreover, the first juror dismissed after that response from the court was Pavlick, who had signed the note, not Ezell.

E

The defendants’ last argument relating to the jury is that the background checks on jurors that the court ordered when word of the criminal backgrounds hit the media prejudiced the defense. The government rightly points out that the defense asked for many of these checks. Although this comes close to waiving this point for appeal, we are willing to assume that the defense’s waiver was not complete. Nevertheless, the district court’s specific instructions to the reconstituted jury, as well as its repeated admonitions to avoid media coverage of the trial, precluded any bias against the defense by preventing the jurors from knowing about the extent of the background checks. The defendants’ only real support for their argument comes from Juror Losacco’s testimony that she was “scared” during her interview. But this trepidation appears to have resulted from the number of lawyers in the room during her interview rather than any feeling that she needed to serve the prosecution’s interest or risk punishment. Therefore, we see no abuse of the court’s discretion in its decision to call for the background checks.

In summary, the defendants’ complaints about the court’s handling of the jury are unsupported by the law and the record. The district court properly employed the McDonough standard in determining whether jurors should be removed, in determining whether an misstatement was made on the juror questionnaires and the reasons for the misstatement, and in focusing on whether the undisclosed information would have supported striking that juror for cause. With careful consideration and full attention to all counsels’ arguments, the district court applied that standard consistently and openly to all of the jurors and alternates. The court did not dismiss Ezell because she was a “holdout,” nor were jury deliberations chilled because of the way in which Ezell was removed. Finally, the record suggests no reason to think that the reconstituted jury was biased against the defendants because of the court’s inquiries.

IV

The defendants next argue that the replacement of jurors after eight days of deliberations deprived them of their right to a fair trial before an impartial jury. One major strike against this argument is the fact that since its amendment in 1999, Fed. R.CRIm. P. 24(c) has allowed for the removal of deliberating jurors. Although the defendants contend that the government has the burden of showing that a juror replacement during deliberations is not prejudicial, this burden allocation is not supported by the text of Rule 24(c)(3), which states:

Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.

So long as the two explicit conditions of the rule — ensuring that the alternate does not discuss the case prior to replacing an original juror and instructing the jury to restart deliberations — are satisfied, the decision to replace deliberating jurors rests firmly within the district court’s discretion.

We have held that “[rjemoving [a] questioned juror and replacing her with an alternate” is reviewed for abuse of discretion. United States v. Sandoval, 241 F.3d 549, 552 (7th Cir.2001). There is nothing in the text of Rule 24(c)(3) to suggest that a different approach is required for reviewing removals that occur during deliberations. The Fifth Circuit employed an abuse of discretion standard for juror removals during deliberations, although it is not clear whether the trial in that case took place before or after the Rule 24 amendment came into force; it concluded that a district court abuses its discretion in the context of juror removal only “if the juror was discharged without factual support or for a legally irrelevant reason.” United States v. Edwards, 303 F.3d 606, 631 (5th Cir.2002). (internal quotation marks and citations omitted).

The defendants urge us to rely on cases that pre-date Rule 24’s amendment. They argue that we must reverse the conviction if “the record indicates a reasonable possibility of prejudice” from the removal of the juror during deliberations. United States v. Register, 182 F.3d 820, 843 (11th Cir.1999). The flaw in this argument is that Register based its holding on “the letter of Rule 24(c),” which at that time stated that “[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” Id. (emphasis added). The court wrote that the rule “do[es] not apply a per se reversal standard to Rule 24(c) violations, [but rather] ... the harmless error test and reversefs] ... only where there is a reasonable possibility that the district court’s violation of Rule 24(c) actually prejudiced [the defendant] by affecting the jury’s final verdict.” Id. at 842. Thus, Register undertook a prejudice inquiry only because the district court had no discretion under the old Rule 24(c) to retain alternate jurors.

Under the amended Rule 24(c), the district court has discretion to retain alternates during deliberations. We think it most useful to look to our general approach to Rule 24 to decide whether the court properly removed Ezell and Pavlick. Only where a district court fails to comply with the non-discretionary requirements of Rule 24(c)(3) should our review require a prejudice inquiry like that in Register. Otherwise, “if the record shows some legitimate basis for th[e] decision [to replace a juror], there is no abuse of discretion.” United States v. Humphrey, 34 F.3d 551, 557 (7th Cir.1994). The defendants have the burden of demonstrating on appeal that there was no legitimate basis in the record for the district court to remove Ezell and Pavlick and replace them with alternates.

The defendants claim that the jurors were incapable of following the court’s instructions to begin anew, but we have already rejected that argument. They also point to the fact that the jury had sought and received guidance from the court during its original deliberations, and they charge that the jury “resorted to misconduct in an effort to force the removal of a holdout defense juror,” about which we have little more to say. The defendants also refer to unsubstantiated reports in the media that the jury had already deliberated to verdict on several counts to demonstrate that there was no basis in the record for the district court to seat the two alternate jurors.

We have no intention of deciding this case based on anything but what is properly in the record. The only allegation that we need address is the one of jury misconduct, and it is easily rejected. The district court, based on its assessments of the jury’s notes to the court, concluded that there was no concerted effort to remove any juror based on her viewpoint. This conclusion, which is supported by the record, provides all the basis this court needs to affirm the district court’s decision to order substitutions of jurors.

The defendants complain that we have no way of knowing whether the jury really started its deliberations anew, as the court told it to do. They also charge that the record reveals a likelihood that empaneled alternate DiMartino discussed the case with outsiders while the first jury’s deliberations were ongoing. We have no quarrel with the Eleventh Circuit’s practical observation that “the further along deliberations proceed, the more difficult it becomes to disregard them and begin anew.” United States v. Kopituk, 690 F.2d 1289, 1310-11 (11th Cir.1982). Kopituk also held, however, even before the amendment to Rule 24, that even though

the jury spent a total of approximately five days deliberating prior to substitution