dissenting:

I dissent for the reasons so eloquently expressed by Judge Trott in McDowell v. Calderon, 130 F.3d 833 (9th Cir.1997) (en banc). The majority correctly holds that the district court’s summary treatment of the note violates the Sixth Amendment. However, the majority glosses over the question of whether a jury may come to automatic conclusions, a question which was ignored by the trial court. A belief by a jury in automatic conclusions relieves the government of its full burden of proof and vitiates the jury’s verdict. By engaging nonetheless in the harmless error analysis, the majority permits the jury to become the “unguided missile” found unconstitutional in McDowell .

FACTS

In order to understand the note in the context of this case, it is necessary to set forth a summary of the drug transaction:

DISCUSSION

During deliberations, the jury sent two inquiries to the judge. The first read: “Does having possion [sic] of the herion [sic] (this quantity) mean he has the intent to distribute?” The judge properly consulted with the parties, informed the jury that the question concerned the proof of the intent to distribute heroin, and directed them to two specific jury instructions which contained the answer.

The next day, the jury sent out the note now at issue. It was signed by the foreperson and one juror. The first portion of the note read:

The trial court never answered this note. The parties were not presented with the note until after the verdict was delivered.

The question, in effect, asks whether it is proper to erect an automatic conclusion or mandatory presumption of knowledge and intent from a finding of mere possession. The only correct answer to the question, of course, is no. Knowledge and intent may be proven by inferences and indirect evidence, but it has never been held that jurors may come to an automatic conclusion, ie. without thought or volition, regarding an element of a crime. See, e.g., Francis v. Franklin, 471 U.S. 307 , 105 S.Ct. 1965 , 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979).

We assume that the jury will understand and follow the instructions it is given. However, where it becomes clear through juror correspondence that the jury is erecting an erroneous mandatory presumption, it is the district court’s duty to correct the legal error. Indeed, this Court has recently confirmed that, “[a]s they work towards a verdict, the jurors must stay in the channel charted for them by ... law. To this end, they may need ongoing guidance.” McDowell, 130 F.3d at 836 . Even where the relevant instructions are “technically flawless,” if it becomes clear that a jury has misinterpreted those instructions, the trial judge has “a duty to respond to the jury’s request with sufficient specificity to clarify the jury’s problem.” _ Id. at 839 (quoting Davis v. Greer, 675 F.2d 141, 145 (7th Cir.1982)). “Moreover, when constitutional requirements are involved, the proper execution of this duty is a matter of insuring due process of law as guaranteed by the Fourteenth Amendment.” Id.

The district court’s failure to respond to the constitutional error in this case amounts to the sort of erroneous instruction reversed in Sullivan v. Louisiana, 508 U.S. 275 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993). In that case, the Supreme Court reconfirmed that “[a] mandatory presumption — for example, the presumption that a person intends the ordinary consequences of his voluntary *1292 acts — violates the Fourteenth Amendment, because it may reheve the State of its burden of proving all elements of the offense.” Id. at 280 , 113 S.Ct. at 2082 (citing Sandstrom, 442 U.S. 510 , 99 S.Ct. 2450 (1979); Francis, 471 U.S. 307 , 105 S.Ct. 1965 (1985)). Such an erroneous presumption “vitiates all the jury’s findings.” Sullivan, 508 U.S. at 281 , 113 S.Ct. at 2082 .

The majority claims Sullivan does not control because the legal concept of “presumption” never entered this case. Justice Scalia stated in Sullivan that mandatory presumptions violate the due process clause because they reheve the government of its burden of proving all elements of the offense. Automatic conclusions suffer from the same defect and thus violate due process as well.

The cavaher attitude of the majority in this ease is summed up by its assertion that “[t]he content of the note does not reveal any disorientation on the part of the juror or jury, it simply reveals some difficulty in assessing the probative value of the evidence. It is not the role of a judge to help a juror sort out her own dehberative thinking.”

It was not the dehberative thinking of a single juror that was the import of the first part of the note, but a legal question signed by the foreperson and another juror on behalf of the entire jury: “must we automaticly [sic] come to the conclusion that he knew____?” The failure of the trial court to answer such a question amounts to a violation of due process of law. No amount of wishful thinking by the majority can cure the enormity of the prejudicial error. By not answering the question, the trial court in effect told the jury that there is nothing wrong with making automatic conclusions. The error is made more egregious by the fact that due process could easily have been safeguarded with a five minute hearing with counsel and a simple note to the jury saying “you may not automatically come to any conclusion.”

The attitude of the majority concerning McDowell is also puzzling. There, among other serious statements about our constitutional system of justice, Judge Trott said that a jury “is not an unguided missile free according to its muse to do as it pleases.” McDowell, 130 F.3d at 836 . Here, the foreperson and one member of the jury asked the court if the jury must automatically come to a conclusion. It is apparent from the context of the note that the jury was in fact considering the possibility. For a trial court to completely ignore the note is to permit the jury to become that unguided missile that Judge Trott describes as constitutionally defective.

As Judge Trott states in McDowell , “there is no one-size-fits-all response to jury disorientation.” Id. at 840 . Yet here he describes “must we automatically conclude” as a mere weight of the evidence issue. The foreperson of the jury clearly spelled out the jury disorientation. “When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.” Id. at 839 (quoting Bollenbach v. United States, 326 U.S. 607, 612-13 , 66 S.Ct. 402, 405 , 90 L.Ed. 350 (1946)). This means that the trial court has “a duty to respond to the jury’s request with sufficient specificity to clarify the jury’s problem.” Id. (quoting Davis v. Greer, 675 F.2d 141, 145 (7th Cir.1982)). The trial court’s complete failure to respond was the worst thing that could have happened.

Finally, engaging in the harmless error analysis in such a situation requires this panel to engage in pure speculation regarding what a reasonable jury would have done had they followed the correct legal analysis. Sullivan, 508 U.S. at 281 , 113 S.Ct. at 2082-83 . When that happens, it is the Court and not the jury who judges the defendant guilty, contrary to the guarantees of the Sixth Amendment. Id. at 277, 281 , 113 S.Ct. at 2080, 2082-83 ; Rose v. Clark, 478 U.S. 570, 578 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986). Having found the district court to be in error, the right to trial by jury precludes this Court from judging the uncorrected mandatory presumption harmless.

CONCLUSION

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial, by an impartial jury----” U.S. Const, amend. VI. The most important aspect of this right is to have a jury, and not the judge, determine guilt or innocence. Sullivan 508 U.S. at 277 , *1293 113 S.Ct. at 2080 ; Sparf v. United States, 156 U.S. 51, 105-06 , 15 S.Ct. 273, 294-95 , 39 L.Ed. 343 (1895). By allowing the jury to apply a mandatory presumption, the district court violated the due process clause by relieving the government of its burden of proving each element of the crime charged. The jury verdict must therefore be vitiated. By engaging nonetheless in the harmless error analysis, the majority now compounds the district court’s error by speculating about what a reasonable jury might hold were it applying the proper standard. I therefore respectfully dissent.