UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ IN RE: ALEXANDER SITTENFELD, aka P.G. Sittenfeld, │ Petitioner. > No. 22-3694 │ ┘

On Petition for a Writ of Mandamus Construed as an Appeal United States District Court for the Southern District of Ohio at Cincinnati. No. 1:20-cr-00142-1—Douglas Russell Cole, District Judge.

Decided and Filed: September 23, 2022

Before: BATCHELDER, GIBBONS, and THAPAR, Circuit Judges.

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COUNSEL ON PETITION FOR A WRIT OF MANDAMUS AND LETTER BRIEF: Gus J. Lazares, RITTGERS & RITTGERS, Cincinnati, Ohio, for Alexander Sittenfeld. ON RESPONSE AND LETTER BRIEF: Alexis J. Zouhary, Matthew C. Singer, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for the United States.

BATCHELDER, J., delivered the opinion of the court in which THAPAR, J., joined. GIBBONS, J. (pp. 22–25), delivered a separate concurring opinion.

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OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. Alexander Sittenfeld, a criminal defendant convicted by a jury in the district court, has filed a motion in this court to compel a forensic examination of a juror’s cellphone, computer, or “any electronic device that [the juror] used to make electronic communications.” Sittenfeld presented this same motion to the district court, No. 22-3694 In re: Alexander Sittenfeld Page 2

which denied it. United States v. Sittenfeld, No. 1:20-cr-142, Dkt. 234 (S.D. Ohio, Aug. 3, 2022) (sealed). We construe Sittenfeld’s motion as an appeal from that order.1

Sittenfeld’s argument prompted a precursor question that had not been addressed, so we asked for additional briefing on this question: What legal authority empowers a court to order a juror to provide his or her cellphone, computer, or other electronic devices to the court for it to conduct—or permit a party to conduct—a search or forensic examination of the juror’s devices?

Because a court’s inherent or statutory authority in conducting a Remmer hearing does not include an unlimited, inquisitorial power to order jurors to surrender their personal possessions, such as their electronic devices, or to divulge their passwords, we hold that the district court had no power to order a forensic examination of the juror’s devices. Therefore, we AFFIRM the district court’s denial of Sittenfeld’s motion and alert the district court that any further aspects of the Remmer hearing must comply with this opinion.

I.

In the criminal context, a Remmer hearing concerns a defendant’s Sixth Amendment right to “a fair trial by a panel of impartial, indifferent jurors.” United States v. Perry, 438 F.3d 642, 651 (6th Cir. 2006) (citation omitted). In Remmer v. United States, 347 U.S. 227, 229-30 (1954), the Supreme Court held that “unauthorized invasions” on the jury proceedings can oblige the trial court to “determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate.” This is a Remmer hearing.

In this circuit, a Remmer hearing is required when a defendant presents a “colorable claim” that extraneous information or contact had an obvious or likely adverse effect on the jury.