have concluded that Remmer’s automatic presumption of prejudice no longer applies to cases involving extraneous juror communications. See, e.g., United States v. Williams-Davis, 90 F.3d 490, 497 (D.C.Cir.1996) (rejecting Remmer’s automatic presumption of prejudice and holding that the trial court has discretion “to inquire whether any particular intrusion showed enough of a ‘likelihood of prejudice’ to justify assigning the government a burden of proving harmlessness”); United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984) (“In light of Phillips, the burden of proof rests upon a defendant to demonstrate that unauthorized communications with jurors resulted in actual juror partiality. Prejudice is not to be presumed.”); People v. Wadle, 97 P.3d 932 40 N.M. 660, 146 P.3d 305 (<HOLDING>). {20} Second, as in Smith and Olano, the
holding that the remmer presumption did not apply where the communication was innocuous and the defendant had failed to present evidence that the communication was prejudicial holding that it is improper for a prosecutor to assume the existence of prejudicial facts not in evidence holding that extraneous information which is unrelated to the case being tried is not prejudicial holding that a defendant did not waive his right to be present at an ex parte encounter between the judge and juror because he was not present at the time of the communication and therefore had no opportunity to object when the error was committed holding that a communication between the judge and juror which is unrelated to the case being tried is not improper and prejudicial