United States v. Alfonso Torres-Chavez

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1340
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFONSO TORRES-CHAVEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:09-cr-00967 — Amy J. St. Eve, Judge.
ARGUED NOVEMBER 13, 2013 — DECIDED MARCH 6, 2014
Before MANION, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Alfonso Torres-Chavez appeals his
convictions on seven felony counts related to his participation
in a conspiracy to distribute cocaine. He challenges three
decisions by the district court: (1) the admission of testimony
from a co-conspirator concerning that co-conspirator’s prior
uncharged drug-dealing activity with the defendant; (2) the
2 No. 13-1340
denial of the defendant’s motion attacking the sufficiency of
the evidence identifying the defendant as the individual
recorded on a series of incriminating telephone calls; and (3)
the refusal to consider post-verdict statements made by several
jurors in subsequent voir dire proceedings concerning their
ability to follow the court’s instructions. Finding no basis for
reversal, we affirm.
I. BACKGROUND
Torres-Chavez’s jury trial commenced on September 26,
2011. On September 29, the jury returned a guilty verdict,
thereby convicting Torres-Chavez on one count of conspiring
with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. § 846; one count of possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1); and
three counts of using a cellular telephone to facilitate the
distribution conspiracy, in violation of 21 U.S.C. § 843(b). On
February 4, 2013, the district court sentenced Torres-Chavez to
a total of 168 months’ imprisonment, plus five years of super-
vised release. On appeal, Torres-Chavez raises three claims
relating to the conduct of his trial. We briefly introduce each
below.
A. Other Crimes Evidence
The government’s star witness was Bartolo Lucatero, a co-
conspirator. Lucatero was charged along with Torres-Chavez,
but agreed to cooperate with the government in exchange for
leniency. Among other things, Lucatero testified about the
trusting nature of his relationship with the defendant in the
years leading up to the formation of the charged conspiracy. It
was a business relationship founded on a shared history of
No. 13-1340 3
drug trafficking. Torres-Chavez objected to Lucatero’s testi-
mony about prior instances in which Torres-Chavez recruited
Lucatero to accompany a truck driver on a trip transporting
marijuana from Phoenix to Chicago. He also objected to
testimony concerning prior uncharged cocaine transactions in
which the two were involved. The district court admitted the
evidence under Fed. R. Evid. 404(b)(2) for the purpose of
establishing the relationship between Lucatero and Torres-
Chavez. The court contemporaneously instructed the jury to
consider the evidence only for that limited purpose.
B. Sufficiency of the Identification Evidence
At trial, the government played a series of recorded
telephone calls to the jury. Torres-Chavez was caught as a part
of a larger operation targeting “La Familia,” a drug trafficking
cartel based in Michoacán, Mexico, and operating in the
Chicago area. Government wiretaps on phones used by one
José Gonzalez-Zavala, known in La Familia as “Panda,”
captured twenty-six conversations about the cocaine transac-
tion underlying the indictment. Twelve of those conversations
were with an individual referred to as “Guero,” whom the
government sought to prove was Torres-Chavez. Toward that
end, Lucatero identified Torres-Chavez as Guero, and a
contract linguist from the Drug Enforcement Agency testified
that the voices matched, as did an additional conspirator.
Finally, the government sought to connect Guero to an O’Hare
Airport flight record under the name “Alfonso Chavez” on the
same day Guero told Panda he needed to catch a plane.
On November 4, 2011, several weeks after the verdict was
returned, Torres-Chavez filed a motion for a judgment of
4 No. 13-1340
acquittal pursuant to Fed. R. Crim. P. 29(c)(1). In it, he argued
that the evidence was not sufficient to prove that Torres-
Chavez was Guero. The district court found that it was.
C. Juror Statements
After returning the guilty verdict in this case, several jurors
were placed back into the Northern District jury pool. Five
were questioned during voir dire in connection with subse-
quent trials, particularly concerning whether a defendant’s
failure to testify in his own defense would influence their
deliberative process. Three gave potentially problematic
answers, referencing Torres-Chavez’s failure to testify in his
trial and suggesting that they could not help but draw an
adverse inference. The United States Attorney’s Office brought
these statements to defense counsel’s attention, and defense
counsel included an allegation of juror bias in his November 4
motion for a judgment of acquittal. The district court found the
juror statements inadmissible under Fed. R. Evid. 606(b) and,
in the alternative, held that the statements did not show that
Torres-Chavez received an unfair trial.
II. ANALYSIS
Torres-Chavez believes he is entitled to a new trial for three
reasons. First, he argues that the district court erred by
admitting Lucatero’s testimony describing prior bad acts,
because he believes those bad acts were not themselves proved
by sufficient evidence. Second, he argues that the district court
erred by denying his motion for a judgment of acquittal based
on the alleged paucity of evidence identifying him as “Guero”
on the incriminating telephone calls. Third, he argues that the
juror statements gathered from unrelated court proceedings
No. 13-1340 5
are admissible, and that they prove that the jury in his case was
biased. We address the issues sequentially, and we affirm the
judgment of the district court.
A. Rule 404(b) Evidence
Federal Rule of Evidence 404(b) prohibits the admission of
evidence of an uncharged crime, wrong, or other act commit-
ted by the defendant when it is used to prove the defendant’s
character and that the defendant acted in accordance with that
character on a particular occasion. Fed. R. Evid. 404(b)(1). Such
evidence may be admissible, however, when it is introduced to
prove an issue other than propensity, including but not limited
to motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. Fed. R. Evid.
404(b)(2); United States v. Taylor, 522 F.3d 731, 735 (7th Cir.
2008) (Rule 404(b)(2)’s list is “not exhaustive”). Courts within
our circuit use a four-part test to determine whether Rule
404(b) evidence is admissible, asking if (1) the evidence is
directed towards establishing a matter other than the defen-
dant's propensity to commit the crimes charged; (2) the other
act is similar and close enough in time to be relevant; (3) the
evidence is sufficient to support a jury finding that the defen-
dant committed the other act; and (4) the probative value of the
evidence is not substantially outweighed by the danger of
unfair prejudice. United States v. Reese, 666 F.3d 1007, 1015 (7th
Cir. 2012).
At trial, cooperating co-defendant Lucatero testified to prior
uncharged drug dealing activity with Torres-Chavez. He
testified that Torres-Chavez recruited him to accompany a
truck driver (and a truckload of marijuana) on three cross-
6 No. 13-1340
country trips from Phoenix to Chicago in the spring of 2007,
the last of which ended in an interception by law enforcement.
Lucatero was questioned when the truck was stopped but did
not expose Torres-Chavez, thereby earning the latter’s trust for
future ventures. Lucatero also testified that he transported and
distributed about seven kilograms of cocaine on behalf of
Torres-Chavez on three separate occasions thereafter. The
district court found the evidence admissible for the purpose of
establishing the trusting relationship between Lucatero and the
defendant, a contention which Torres-Chavez does not
challenge on appeal, and found that the three remaining
prongs of the Rule 404(b) test were satisfied. The introduction
of the evidence was accompanied by a limiting instruction.
Torres-Chavez argues against the district court’s admission
of the evidence on narrow grounds. He believes that the third
prong of the test, requiring that the evidence be sufficient to
support a jury finding that the defendant committed the other
act, is not satisfied in this case. The question at the trial level
was whether the government proved that the other act
occurred by a preponderance of the evidence. See United States
v. Foster, 652 F.3d 776, 786 (7th Cir. 2011). The question at our
level is whether it was an abuse of discretion for the district
court to conclude that the government did. United States v.
Richards, 719 F.3d 746, 758 (7th Cir. 2013). That is a difficult
standard for Torres-Chavez to meet. “An abuse of discretion
occurs when a district court resolves a matter in a way that no
reasonable jurist would, or when its decision strikes us as
fundamentally wrong, arbitrary or fanciful.” United States v.
Purnell, 701 F.3d 1186, 1189 (7th Cir. 2012) (internal quotation
marks omitted). We ask only whether the district court’s
No. 13-1340 7
analytical process and result fell within the broad bounds of
reasonableness. Id.We find no abuse of discretion on this record. The district
court’s decision was not only reasonable, it was correct.
Lucatero testified as to the nature of each prior drug transac-
tion and as to the involvement of Torres-Chavez therein.
Lucatero was an eyewitness. We have said that “it is black
letter law that testimony of a single eyewitness suffices for
conviction even if 20 bishops testify that the eyewitness is a
liar.” Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). If the
testimony of a single eyewitness is sufficient evidence to
convince a jury that a defendant committed a charged criminal
act beyond a reasonable doubt, then surely it is also sufficient
evidence to convince a jury that a defendant committed an
uncharged criminal act by a preponderance of the evidence,
which we have called “a lower standard.” United States v.
DiDomenico, 78 F.3d 294, 304 (7th Cir. 1996).
In an attempt to argue otherwise, Torres-Chavez relies on
our holdings in United States v. Reyes, 542 F.3d 588, 593 (7th Cir.
2008), and United States v. Lindemann, 85 F.3d 1232, 1238–39
(7th Cir. 1996), for the proposition that some independent
corroboration of Lucatero’s testimony was required as a matter
of law. We find the defendant’s argument unpersuasive for
three reasons.
First, Lindemann is clearly inapposite. That case dealt with
co-conspirator hearsay under Fed. R. Evid. 801(d)(2)(E), an
issue raising distinct concerns about the attributability of
statements that have little bearing on the case before us.
8 No. 13-1340
Second, while Reyes is more relevant, to read it as imposing
a universally applicable corroboration requirement is to go too
far. In Reyes, the government attempted to prove prior crimes
committed by the defendant by introducing testimony from
two witnesses that was so facially inadequate it failed to even
answer the basic who, what, when, and where questions. 542
F.3d at 592–93. We did note the lack of corroboration, but the
point was to emphasize that nothing else existed in the record
to save the government’s otherwise shaky offering. No such
help is necessary when the evidentiary offering is not shaky at
all in the first place. Lucatero’s was not. His testimony was
long on details and certainly facially plausible. Torres-Chavez
was free to raise his concerns about a lack of corroboration
before the jury, but under these circumstances those concerns
go to weight, not sufficiency.
Third, even if a corroboration requirement did exist in this
context, Lucatero’s testimony was corroborated by photographs
of vehicles, persons, and controlled substances involved in at
least one of the transactions he described. It is true that the
government did not produce photographs to confirm every
single detail of Lucatero’s testimony, but the government could
hardly be expected to do so. It is the nature of criminal activity
that much of it takes place unobserved, in the figurative (and
sometimes literal) shadows. We will not impose a “total”
corroboration requirement on the government which would
prove in so many cases to be impossible to meet, nor was there
any reason for the district court to do so.
In summary, this issue provides no basis for reversal. We
not only believe that the district court’s decision fell within the
“broad bounds of reasonableness,” Purnell, 701 F.3d at 1189;
No. 13-1340 9
we in fact agree with the district court that the evidence in
question was admissible.
B. Sufficiency of the Identification Evidence
Rule 29 of the Federal Rules of Criminal Procedure permits
a defendant to move for a judgment of acquittal even after a
guilty verdict is entered if he does not believe the evidence is
sufficient to sustain a conviction. Fed. R. Crim. P. 29(c)(1).
When faced with a Rule 29 motion, a court asks “whether, after
viewing the evidence in the light most favorable to the govern-
ment, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). The movant faces a nearly
insurmountable hurdle. United States v. Blassingame, 197 F.3d
271, 284 (7th Cir. 1999). Not only do we view the evidence in
the light most favorable to the government, we “defer to the
credibility determination of the jury[] and overturn a verdict
only when the record contains no evidence, regardless of how
it is weighed, from which the jury could find guilt beyond a
reasonable doubt.” Id.At trial, much of the evidence tying Torres-Chavez to the
conspiracy came in the form of recorded telephone calls. La
Familia, the Mexico-based trafficking organization with which
the defendant was involved, did business in the Chicago area
primarily through an individual named José Gonzalez-
Zavala—“Panda,” to his friends. A series of calls took place in
May 2013 between Panda, Lucatero, and an individual known
as “Guero.” Those calls were the mechanism by which the
cocaine transactions underlying the indictment were arranged.
10 No. 13-1340
The government relied on four sources of evidence to prove
that “Guero” was, in fact, Torres-Chavez: (1) Lucatero, who
had been friends with Torres-Chavez for five years, identified
the voice of Guero on the recorded calls as Torres-Chavez and
confirmed his personal knowledge (aside from voice recogni-
tion) that the two were one and the same; (2) Stephanie
Skelsky, a contract linguist employed by the Drug Enforcement
Agency, listened to Torres-Chavez’s voice on jail calls recorded
following his arrest and testified as to her opinion that it
matched the voice of Guero on the calls played at trial; (3)
Jorge Ayala-German, a cooperating co-conspirator who had
pled guilty under a separate indictment, testified that he had
grown familiar with Torres-Chavez’s voice while the two were
incarcerated together at the Metropolitan Correctional Center
(“MCC”) and that it matched the voice of Guero on the
recorded calls; and (4) United Airlines flight records showed
that an “Alfonso Chavez” had flown out of O’Hare Interna-
tional Airport on May 27, 2009, just a few hours after Guero
told Panda he needed to get to “the big airport” to catch a
flight.
Torres-Chavez moved for a judgment of acquittal on the
grounds that there was insufficient evidence identifying him
as the individual known as Guero, and the district court denied
his motion. We review de novo. United States v. Chambers, 642
F.3d 588, 592 (7th Cir. 2011).
This is not a close call. Federal Rule of Evidence 901(b)(5)
makes admissible “[a]n opinion identifying a person’s
voice—whether heard firsthand or through mechanical or
electronic transmission or recording—based on hearing the
voice at any time under circumstances that connect it with the
No. 13-1340 11
alleged speaker.” The testimony provided by Lucatero,
Skelsky, and Ayala-German easily meets that standard. To be
sure, evidence is not reasonably persuasive just because it is
admissible, but there is nothing inherently unpersuasive about
any of the forms of evidence on which the government relied.
Lucatero had known Torres-Chavez for years when he made
the identification. Skelsky, as a DEA linguist who understood
the Spanish language, was precisely the sort of person we
usually see identifying voices on calls like these. See United
States v. Mendiola, 707 F.3d 735, 739–40 (7th Cir. 2013) (collect-
ing cases). Ayala-German was a cooperating witness with
something to gain, but that does not mean no rational jury
could believe him; his cooperation goes to the weight of his
testimony, not to its sufficiency. Finally, whether the suppos-
edly matching flight record was reasonably persuasive or not,
it was unnecessary, because the previous three forms of
evidence were sufficient in and of themselves. It is not as
though they require a leap from inference to speculation.
United States v. Jones, 713 F.3d 336, 340 (7th Cir. 2013) (“A Rule
29 motion calls on the court to distinguish between reasonable
inferences and speculation.”). In fact, they do not require any
inference in the first place. They were direct identifications
from lay witnesses with personal knowledge.
In short, viewing the evidence in the light most favorable to
the government, we are convinced that a rational jury could
believe Torres-Chavez was the individual identified as Guero
on the recorded phone calls. We therefore affirm the district
court’s denial of Torres-Chavez’s motion for a judgment of
acquittal on those grounds.
12 No. 13-1340
C. Possibility of Juror Bias
Federal Rule of Evidence 606(b) generally prohibits the use
of juror statements during an inquiry into the validity of a
verdict or indictment:
During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any statement
made or incident that occurred during the jury’s delib-
erations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning
the verdict or indictment. The court may not receive a
juror’s affidavit or evidence of a juror’s statement on
these matters.
Fed. R. Evid. 606(b)(1). Exceptions to the rule only occur under
three circumstances: (1) where extraneous prejudicial informa-
tion was improperly brought before the jury; (2) where an
outside influence was improperly brought to bear on any juror;
and (3) where a mistake was made in entering the verdict onto
the verdict form. Fed. R. Evid. 606(b)(2). The rule finds its basis
in the common law tradition, and it is intended to preserve the
privacy of jury deliberations as well as the integrity and
finality of their verdicts. Tanner v. United States, 483 U.S. 107,
118–20 (1987).
Torres-Chavez did not testify in his own defense at trial.
The district court properly instructed the jury not to consider
his failure to testify an admission of guilt or to consider it in
any way, and we assume juries follow their instructions. Soltys
v. Costello, 520 F.3d 737, 744 (7th Cir. 2008). In the week
following the guilty verdict in this case, however, several
jurors returned to the Northern District of Illinois jury pool and
No. 13-1340 13
were subjected to voir dire in connection with possible jury
service in unrelated trials. Five of those jurors were questioned
concerning their consideration of a defendant’s exercise of his
right not to testify during trial, and three responded problem-
atically.1
Juror A ultimately confessed to an inability to follow the
law in the new trial for which voir dire was being conducted:
THE COURT: [Y]ou indicated that you would have
some problems if the defendant did not testify in this
case, am I right about that?
JUROR A: Yes.
THE COURT: … [I]f you’re in this courtroom situation
and if you are instructed the government has the
burden, the defendant has the right not to testify, would
you be able to follow that instruction?
JUROR A: I would try, but it’s hard because the last case
we tried last week it was like the same thing. He didn’t
testify. Me, I probably want to hear from the other side.
THE COURT: Did the Judge instruct you that you
shouldn’t consider whether or not he testified?
1
The United States Attorney’s Office learned of the jurors’ potentially
problematic responses through its participation in the subsequent trials in
which they were subjected to voir dire. Despite the Office’s doubt that the
statements were admissible in Torres-Chavez’s case, it made them available
to defense counsel so that the issue could be properly addressed. We
commend the government for its candor in this matter and for the even-
handed approach it has taken.
14 No. 13-1340
JUROR A: I mean, yeah, but—
***
THE COURT: … Do you think you could be fair and
follow the law … ?
JUROR A: I don’t know. From the last trial I just don’t
understand nobody not testifying. That’s just me.
THE COURT: Well, did the jury evaluate the govern-
ment’s evidence in that case?
JUROR A: I mean, yeah, they did, but it was just me. I
don’t know about anybody else.
THE COURT: [W]ere you able to decide whether or not
the government had carried its burden of proof?
JUROR A: Yeah, a little bit. A little. But I still had the
doubt as soon as I heard the case knowing he was not
defending himself. I still had the little doubt in my head
that he probably did it.
***
THE COURT: So apart from feeling like maybe you
didn’t hear both sides, do you feel that the trial was
unfair?
JUROR A: Not really.
***
THE COURT: Do you understand that [the defendant]
has a right to not testify and that exercise of that right
cannot be used against him?
No. 13-1340 15
JUROR A: I understand it, but I still—I felt—I still think
I have an opinion about the situation too.
THE COURT: … If you can’t follow the law, you should
not be on the jury. If you can follow the law, you should
be on the jury. It’s that easy.
JUROR A: I probably wouldn’t, being honest.
Juror B, questioned in the same trial, was somewhat more
equivocal, but likewise could not firmly commit to following
the district court’s instructions:
COUNSEL: [Juror B] indicated I think she might have
difficulty with a defendant who didn’t testify.
JUROR B: I did raise my hand for that, and I served last
week and I didn’t raise my hand for that question last
week. After my experience last week, I’m sorry, but I
couldn’t help it, but that entered into my thought
process when I was trying to reach a verdict, that he did
not testify. And I felt that if he would have said I wasn’t
there, I have an alibi, I would have maybe believed him
more.
THE COURT: … So I guess the question is if that is
what you’re instructed, and that will be what you’re
instructed, can you follow that instruction?
JUROR B: Well, I can say that I will try. But if you want
me to be honest, I was surprised about how that did
affect me, how I felt after the last trial.
16 No. 13-1340
***
THE COURT: And I need you—I need you to be able to
commit that you can follow [my instructions the defen-
dant’s right not to testify].
JUROR B: I can say that I can follow those instructions,
but whether or not it’s in the back of my mind truthfully
I can't say.
***
JUROR B: The last case it involved a wiretap, whether
there was voice evidence. And I think he didn’t want to
speak. I think he didn’t want us to hear his voice. It’s
very hard not to assume there was a reason he didn’t
want us to hear his voice. Now, the jury did reach a
decision. We did, but we did all bring that subject up. A
lot of us I should say. And I think we deliberated maybe
six hours[.]
THE COURT: The judge told you that shouldn’t enter
into your deliberations?
JUROR B: Oh, certainly. Certainly[.]
***
JUROR B: I am being honest when I say one of the first
things that came into my mind, well, why doesn’t he
have an alibi? Why doesn’t he say where he was? Why
doesn’t he defend himself?
Finally, Juror C, questioned in another trial, also equivo-
cated about the issue, but ultimately committed to following
the instructions of the district court:
No. 13-1340 17
THE COURT: And is there anything about [the prior
case] that you feel leaves you predisposed to favoring
one side or the other in this case?
JUROR C: Yeah. The defendant didn’t testify and that—
THE COURT: Okay.
JUROR C: —really bothered—
THE COURT: And did that leave you with some sense
of unfairness?
JUROR C: [Y]es, it did. I didn’t feel it was tried right
and I—you know what? After—I didn’t really come to
a conclusion until after I went home that night, and the
whole way home I was thinking about it and I’ve been
thinking about it ever since. I wasn’t sure. I kind of felt
like, you know—at the time I thought we were doing
the right thing but it just kept on playing in my head
that I wasn’t sure about it.
THE COURT: … Can you follow [the] principle whether
you agree or not?
JUROR C: I could follow it.
THE COURT: Are you satisfied in your own mind that
you can [do so]?
JUROR C: My only—my answer on that was, I thought
I could before and I thought I was—I thought I was
satisfied, but then afterwards these are the questions
that I’ve been milling around with since Thursday
afternoon.
18 No. 13-1340
***
THE COURT: … [C]an you not hold it against any
defendant if he or she does not testify[?]
JUROR C: I believe so. I—yeah, I believe so. I mean, that
was my questions. That’s where I’m sitting right now.
But I believe so. I’m not sure but I believe so.
***
THE COURT: Is there anything about th[e former] case
that leaves you with a predisposition to favor one side
or the other in this case or that leaves you with any
doubts about your ability to be fair and impartial in this
case, sir?
JUROR C: Just what we spoke about before. I just didn’t
feel—I felt there were some holes after we left. That’s
pretty much the gist of it.
***
THE COURT: … [C]an [you] be fair to both sides in this
case?
JUROR C: If it’s yes or no, yes.
THE COURT: Very well.
The jurors’ post-trial statements led Torres-Chavez to
believe he did not receive a fair trial. Both the Fifth Amend-
ment right to due process and the Sixth Amendment right to
an impartial jury protect a defendant against juror bias. Arreola
v. Choudry, 533 F.3d 601, 605 (7th Cir. 2008). These rights
guarantee a jury “capable and willing to decide the case solely
on the evidence before it,” Smith v. Phillips, 455 U.S. 209, 217
No. 13-1340 19
(1982), and consistent with the trial court’s instructions, Morgan
v. Illinois, 504 U.S. 719, 728 (1992). Torres-Chavez moved the
district court to grant him a new trial, seeking to introduce the
juror statements as evidence that the jury disregarded the
court’s instructions and allowed bias to infect their delibera-
tions. The district court denied the motion because the state-
ments were inadmissible under Rule 606(b), and found in the
alternative that the statements did not actually prove that the
Torres-Chavez trial was unfair.
We review the district court’s evidentiary ruling for an
abuse of discretion. United States v. Henderson, 736 F.3d 1128,
1130 (7th Cir. 2013). The same standard applies to the district
court’s consideration of the juror bias issue on the merits,
United States v. Vasquez-Ruiz, 502 F.3d 700, 704 (7th Cir. 2007),
but we need not go that far. It was not an abuse of discretion
for the district court to refuse to admit the juror statements into
evidence, and without those statements there is no support for
Torres-Chavez’s claim.
Rule 606(b) draws a line in the sand between evidence of
outside influences on the jury’s deliberative process and
evidence of the jury’s own internal processes. Contrast Fed. R.
Evid. 606(b)(2) with Fed. R. Evid. 606(b)(1). Evidence of outside
influences is not just admissible; it triggers a presumption of
prejudice. Remmer v. United States, 347 U.S. 227, 229 (1954). But
see Hall v. Zenk, 692 F.3d 793, 799–805 (7th Cir. 2012) (discuss-
ing confusion among the circuits as to whether Remmer
remains good law in light of conflicting Supreme Court
statements before ultimately concluding that a presumption
still exists under limited circumstances). Evidence of internal
matters, however—including statements or affidavits “about
20 No. 13-1340
any statement made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes”—is out. Fed. R.
Evid. 606(b)(1). We strictly adhere to the plain language of the
rule, especially where the allegations of jury misconduct arise
after a verdict has already issued. See, e.g., United States v.
Morales, 655 F.3d 608, 630–33 (7th Cir. 2011); United States v.
Briggs, 291 F.3d 958, 963–64 (7th Cir. 2002); United States v.
Febus, 218 F.3d 784, 795 (7th Cir. 2000); United States v.
Muthana, 60 F.3d 1217, 1223 (7th Cir. 1995); United States v.
Ford, 840 F.2d 460, 465–66 (7th Cir. 1988).
The juror statements in this case concern only “intrajury
influences on the verdict during the deliberative process,” Ford,
840 F.2d at 465, and therefore fall squarely within the Rule
606(b)(1) prohibition. They are not admissible under existing
law. Torres-Chavez acknowledges the legal status quo, but
argues that we should create an additional, judge-made
exception to the 606(b)(1) prohibition for statements concern-
ing potential bias against a defendant’s exercise of his right to
remain silent, as the First Circuit has done for statements
exhibiting racial or ethnic bias. See United States v. Villar, 586
F.3d 76, 84–88 (1st Cir. 2009). We decline to do so, and we thus
join every other circuit court to consider the issue. See United
States v. Kelley, 461 F.3d 817, 832 (6th Cir. 2006); United States v.
Rutherford, 371 F.3d 634, 639–40 (9th Cir. 2004); United States v.
Tran, 122 F.3d 670, 672–73 (8th Cir. 1997); United States v.
Martinez-Moncivais, 14 F.3d 1030, 1036–37 (5th Cir. 1994);
United States v. Voigt, 877 F.2d 1465, 1469 (10th Cir. 1989);
United States v. Friedland, 660 F.2d 919, 927–28 (3d Cir. 1981).
No. 13-1340 21
Rule 606(b)(2) already lists the circumstances under which
evidence of juror statements should be admitted. Expanding
that list by carving out additional prudential exceptions
vitiates the rule and threatens the values that undergird it. As
the Supreme Court has cautioned, “full and frank discussion
in the jury room, jurors’ willingness to return an unpopular
verdict, and the community’s trust in a system that relies on
the decisions of laypeople would all be undermined by a
barrage of postverdict scrutiny of juror conduct.” Tanner, 483
U.S. at 120–21. We are not prepared to say that no circum-
stances exist which would warrant a prudential exception, but
we join our sister circuits in concluding that these circum-
stances do not.
Because we agree with the district court that the juror
statements are inadmissible under Rule 606(b), we cannot say
that the district court abused its discretion by refusing to
consider those statements. Without those statements, there is
no basis for an attack on the impartiality of the jury, and we
affirm the district court’s denial of Torres-Chavez’s motion for
a judgment of acquittal.
III. CONCLUSION
In summary, first, the district court did not abuse its
discretion by admitting evidence of the defendant’s previous
drug-dealing relationship with the cooperating co-conspirator,
Lucatero. To the contrary, that evidence was correctly admit-
ted. Second, the district court properly denied the defendant’s
motion attacking the sufficiency of the evidence, because there
was plenty of admissible, direct evidence identifying him as
the individual referred to as “Guero” on the incriminating calls
22 No. 13-1340
recorded by the government. Finally, the district court did not
abuse its discretion by refusing to consider statements made by
the defendant’s jurors in subsequent proceedings concerning
their deliberative process. Those statements were indeed
inadmissible under Fed. R. Evid. 606(b). We therefore AFFIRM
the district court’s evidentiary ruling and its denial of the
defendant’s motion for a judgment of acquittal.