Blue Ridge Transfer Company, an interstate trucking company, appeals from a judgment entered after a jury trial in favor of plaintiffs, Charles E. Haley, Grayson Shirley, Farrell L. Hunt, and Cecil L. Hunt. The plaintiffs were independent truck drivers who, pursuant to contract, purchased their trucks from Blue Ridge. The sales contracts provided principally that Blue Ridge would assign the plaintiffs interstate trucking runs and that payment on the trucks would be made from income received from these trucking assignments. The plaintiffs apparently established to the jury's satisfaction that Blue Ridge breached the contracts by favoring its salaried company drivers in trucking assignments and by purposefully acting in other ways that prevented the plaintiffs from realizing the profits contemplated by the contracts. Blue Ridge, however, contended in a motion for a new trial and now asserts on appeal that during the trial a nonjuror made an extraneous communication to the jury which could have affected the outcome of the jury's deliberations. The trial court disagreed and denied Blue Ridge's motion for a new trial. We reverse on the ground that there is a reasonable possibility that the jury's verdict was influenced by an unauthorized communication.

A jury of thirteen persons (twelve regular jurors and one alternate) was chosen in this case on January 7, 1985, approximately one month prior to the date that trial was scheduled to begin. At some point after the selection of the jury, but before the commencement of trial, the district court excused one of the chosen jurors from service. The court did not notify the parties of this action, and on February 4, 1985, the day trial began, it did not immediately recall excusing the juror.

On the morning of February 4, 1985, prior to the beginning of trial, an individual who had been summoned for jury duty in the same building, but in another trial court, was mistakenly directed by security personnel to the jury room where the jurors previously chosen for this case were assembled. The individual (hereafter referred to as the "nonjuror") took his place among the twelve jurors present; the mistake was not noticed, apparently because thirteen jurors were chosen originally and no one had reason to suspect that the same thirteen were not presently seated. Trial began with the jury thus composed. The nonjuror remained with the jury throughout the first day of the trial, which included swearing the jury, the parties' opening statements, and the testimony of the plaintiffs' first witness. Twice the nonjuror retired with the jury to the jury room--once each during the morning and afternoon recesses. At the end of the day, the court discovered the error. The judge questioned the nonjuror outside the presence of the jury and excused him from further service. The trial continued for eleven more days and the jury returned a verdict in favor of the plaintiffs in the aggregate amount of $338,000. Judgment was entered on February 20, 1985.

Blue Ridge filed a timely motion for a new trial. Attached to the motion was an affidavit of one of the regular jurors which averred that during the morning recess on the first day of trial the nonjuror made prejudicial remarks about the case in the presence of the entire jury. The affidavit stated, in pertinent part:

On the first day of the trial, there was present with all of the jurors a gentleman whose name I do not recall. I remember that he ... joined the rest of the jury in the jury room prior to the start of the trial, sat in the jury box with all of us during the first day's testimony and was with the jury in the jury room during the morning and afternoon breaks. This man did not return to the jury after the first day.

During the first break in the morning, after approximately one hour of testimony from Mr. Haley on direct examination, the gentleman described above remarked to the entire jury, all of whom appeared to me to be listening, that he had worked around truckers a lot and that he knew that what the plaintiff was testifying was true, that trucking companies really do treat truckers badly. Further, he remarked that no matter what the company said, he would be against the company. One female juror ... replied that she was glad this gentleman was on the jury as he would be a great help.

Neither the court nor any counsel was aware of the nonjuror's statements until the affiant contacted Blue Ridge's counsel after the verdict was returned and the jury dismissed. In ruling on Blue Ridge's motion, the court concluded that the nonjuror's remarks were harmless and it allowed the jury's verdict to stand.1 We disagree, reverse, and remand for a new trial.

It is fundamental that every litigant who is entitled to trial by jury is entitled to an impartial jury, free to the furthest extent practicable from extraneous influences that may subvert the fact-finding process. Because an impartial jury is obviously the touchstone of a fair trial,2 courts throughout modern history have labored to safeguard sitting jurors from improper contacts and advances by third parties.

In an early instance of this recurring problem, the Supreme Court adopted the rule that unauthorized communications to jurors are "forbidden," and unless determined to have been harmless, require the court to order a new trial. Mattox v. United States, 146 U.S. 140, 150, 13 S. Ct. 50, 53, 36 L. Ed. 917 (1892). The rule of Mattox was developed further in Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654 (1954), where the Court directed that private communications to jurors during trial should be deemed "presumptively prejudicial" with the burden of rebuttal resting "heavily" on the party supporting the jury's verdict. Id. at 229, 74 S.Ct. at 451. Remmer also established the requirement of a post-trial evidentiary hearing in which the prevailing party has the opportunity and burden of rebutting the presumption of juror prejudice.3 Id. at 229-30, 74 S.Ct. at 450-51; see also Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946, 71 L. Ed. 2d 78 (1982).

Although Mattox and Remmer were both criminal cases, their doctrine of presumed prejudice has been applied no less forcefully in civil cases in the federal courts.4 See Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984); cert. denied, --- U.S. ----, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985) (section 1985 action); Rinker v. County of Napa, 724 F.2d 1352 (9th Cir.1983) (section 1983 action); Krause v. Rhodes, 570 F.2d 563 (6th Cir.1977), cert. denied, 435 U.S. 924, 98 S. Ct. 1488, 55 L. Ed. 2d 517 (1978) (section 1983 action); United States v. Harry Barfield Co., 359 F.2d 120 (5th Cir.1966) (taxpayer refund suit); Link v. Mercedes-Benx of North America, Inc., 618 F. Supp. 679 (E.D.Pa.1985) (civil antitrust action). Moreover, we find nothing in post-Remmer Supreme Court decisions that limits the federal district court's obligation to invoke the presumption of prejudice when sitting jurors have been exposed to unauthorized, extraneous information that is of sufficiently prejudicial magnitude.5III.

In ruling on Blue Ridge's challenge to the integrity of the verdict, the trial court framed the issue as follows:

When, as here, the Court is presented with a challenge to a verdict based upon the testimony of a juror, two questions are presented for determination. First, is the juror's testimony competent to impeach the verdict? Second, assuming the evidence is competent does it establish that the alleged impropriety was prejudicial? (citations omitted).

The first issue--whether the juror's testimony as represented by her affidavit was competent to impeach the verdict--was properly raised and correctly decided by the trial court. It held that Rule 606(b)6 did not bar the juror's testimony.7 However, the second issue considered--whether the juror's affidavit established that the alleged impropriety was prejudicial--was incorrectly stated and incorrectly decided by the trial court. At this juncture, the court should have simply invoked the Remmer presumption that the nonjuror's comments prejudicially affected the jury's verdict. Once invoked, the court should have gone on to consider whether the plaintiffs' evidence relating to the probable effect of the nonjuror's communication was sufficient to rebut the presumption. It was error not to employ these procedures, and on the facts of this case Remmer compels the conclusion that Blue Ridge is entitled to a new trial.

To reiterate, and as the trial court correctly observed, the competency of juror testimony must first be tested under Rule 606(b).8 The rule presented no problem here because the affidavit simply related the nonjuror's conduct without reference to any phase of the jury's deliberation. Since we agree that the juror's affidavit was competent evidence under Rule 606(b), the next question is whether it presented a sufficient basis for invocation of the presumption that the communication was prejudicial.9 This, in turn, leads to the third and most crucial problem presented by Blue Ridge's motion for a new trial--was the presumption rebutted?

In viewing rebuttal evidence we are guided by the rule that the party benefitting from the verdict bears a heavy burden to establish the harmlessness of an unauthorized jury communication.10 See Mattox, 146 U.S. at 150, 13 S.Ct. at 53; Remmer, 347 U.S. at 229, 74 S. Ct. at 451. In recognition of the prevailing party's heavy burden, we have held that a new trial must be granted if there remains a reasonable possibility that the jury's verdict was influenced by an improper communication.11 United States v. Barnes, 747 F.2d 246 (4th Cir.1984). Here, the facts set forth in the juror's affidavit constitute the only record evidence relating to the nonjuror's communication. Our principal chore then is to determine if the presumption raised by those facts is rebutted by the inferences flowing from them.12

The court below, after discussing the evidence presented by the affidavit, denied Blue Ridge's motion for a new trial because it was "not convinced that the [nonjuror's] remark adversely affected the verdict." In this the court erred--whether or not it utilized the correct decisional framework. The evidence considered here simply was not sufficient to carry the plaintiffs' burden of rebuttal.

As we have held, the general standard for determining if the prevailing party has carried its burden of proving the jury communication non-prejudicial is whether, after the presumption has been invoked and the rebuttal evidence offered, there remains "a reasonable possibility that the jury's verdict was influenced by the material that improperly came before it." Barnes, 747 F.2d at 250. Viewing the nonjuror's remarks in context, we feel strongly that the communication created at least a reasonable possibility of prejudicing the jury against Blue Ridge. The statement was uttered before the entire jury in the sheltered environment of the jury room by an individual who, at the time, was perceived to be a properly selected member of the panel. We cannot, in retrospect, assume that the jurors deemed the nonjuror's commentary irrelevant or inconsequential. Indeed, the affidavit confirms that it received an enthusiastic response from at least one juror who ultimately participated in deciding the case.

The trial court based its conclusion that the extraneous communication was harmless on three subordinate findings of fact. First, the court found that the nonjuror's remarks "did not refer to the facts of the case." Our review, however, indicates that the plaintiffs' case depended largely on convincing the jurors that Blue Ridge had treated the independent truckers unfairly. The nonjuror's assertion of personal knowledge that "trucking companies really do treat truckers badly" went directly to this ultimate factual issue. Next, the court observed that the nonjuror's remarks were made on the first day of a twelve day trial and not during deliberations. While it is true that the nonjuror's remarks came early on in the trial, his statement that he would "be against the company" regardless of the evidence presented demonstrates an unwavering bias, and it is certainly within the realm of reasonable possibility that the nonjuror's obdurate beliefs cast a lasting impression on the panel. Finally, the district court noted that the juror's affidavit did not "aver that the affiant or any juror was influenced by the remark." But, as noted above, jurors are not competent to testify, by way of affidavit or otherwise, to the effect of an extraneous communication on their deliberations. United States v. Duncan, 598 F.2d 839, 866 (4th Cir.), cert. denied, 444 U.S. 871, 100 S. Ct. 148, 62 L. Ed. 2d 96 (1979); Fed. Rule Evid. 606(b). Neither Blue Ridge nor the affiant can be faulted for failing to proffer inadmissible evidence--especially when the burden of rebuttal should have been placed upon the plaintiffs.

We feel it unlikely that Blue Ridge received a fair trial by an impartial jury. At a minimum, the nonjuror's remarks gave rise to a reasonable possibility of resultant jury prejudice, and on the strength of the appeal record, the plaintiffs did not carry their burden of rebuttal.

For the above reasons, we reverse and remand for a new trial.

REVERSED AND REMANDED.