                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-3132

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

F RANCHIE F ARMER,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                 for the Southern District of Illinois.
          No. 4:11-cr-40073-JPG-1—J. Phil Gilbert, Judge.



        A RGUED A PRIL 4, 2013—D ECIDED M AY 30, 2013




  Before M ANION, T INDER, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. A jury convicted Franchie
Farmer of armed bank robbery in violation of 18 U.S.C.
§§ 2113(a), (d), and 2, as well as use of a firearm
during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Several days after the trial, an alternate
juror contacted Farmer’s counsel and said that other
jurors had made statements during the prosecution’s
case indicating that they had discussed the evidence
2                                               No. 12-3132

and had already decided Farmer was guilty, all before
jury deliberations could have properly begun. Farmer
moved for a new trial, arguing that this premature de-
liberation prejudiced her and violated her right to a
fair trial. The district court denied the motion for a
new trial and imposed a sentence of 141 months in prison.
  Farmer appeals her conviction, arguing for the first
time on appeal that the evidence was not sufficient to
support a guilty verdict. She also renews her contention
that she is entitled to a new trial based on the juror’s
information. We affirm. The evidence was sufficient to
support a guilty verdict, and the district court did not
abuse its discretion by denying the motion for a new trial.


I. Sufficiency of the Evidence
  “An appellant who challenges the sufficiency of the
evidence underlying his conviction must show that no
reasonable jury could have found his guilt beyond a
reasonable doubt.” United States v. Tavarez, 626 F.3d 902,
906 (7th Cir. 2010), citing Jackson v. Virginia, 443 U.S. 307
(1979). If “any rational trier of fact, viewing the evidence
in the light most favorable to the prosecution, could
have found the essential elements of the crime beyond
a reasonable doubt, then the conviction must be up-
held.” United States v. Durham, 645 F.3d 883, 892 (7th
Cir. 2011); United States v. Huddleston, 593 F.3d 596, 601
(7th Cir. 2010). This standard is difficult to meet, though
the difficulty depends directly on the strength of the
government’s evidence. United States v. Jones, 713 F.3d
336, 339 (7th Cir. 2013).
No. 12-3132                                               3

  Farmer did not argue to the district court that the
evidence was insufficient, so our review is only for plain
error. United States v. Cummings, 395 F.3d 392, 397 (7th
Cir. 2005). In this case, though, the difference be-
tween plain error review and the ordinarily applicable
standard makes no difference. There was no error,
for there was substantial evidence of Farmer’s guilt.
  We summarize the government’s evidence and theory
of the case in light of the deferential standard of review
for sufficiency of the evidence. Two armed people
robbed the Capaha Bank in Tamms, Illinois on Novem-
ber 6, 2008. The government’s theory of the case was
simple: Farmer helped plan the robbery, wrote the
demand note given to a teller, and drove the two
robbers to and from the bank. (Farmer brought with her
a mentally disabled woman for whom she provided
daily care.)
  A bank customer testified that he escaped from the
bank during the robbery, hid from view outside the
bank, and saw the two robbers leave the bank and enter
the backseat of a dark SUV. He also testified that he
saw two people sitting in the front seat of the SUV. The
police testified that they were able to identify these
two armed people as Richard Anderson and Holli Wrice
after Anderson’s ex-girlfriend identified Anderson
from surveillance tape that aired on the local news, and
one of his fingerprints was found on the robbery
demand note.
  Police testified to the relevant aspects of their investi-
gation: A few months into the investigation, police identi-
fied the getaway SUV as a black 2002 Toyota Sequoia
4                                             No. 12-3132

registered to Farmer. During a police interview, Farmer
told police that she loaned her car and cell phone to
Wrice in November 2008. Farmer also informed police
that on the day in question she was working as a home
care provider for a mentally disabled client. (The client
was unable to testify.)
  Police testified that after interviewing Farmer, they
gathered cellular tower data on her cell phone. This
data included a log of all outgoing and incoming calls,
as well as the time and place of every call. An FBI agent
testified that this analysis revealed inconsistencies be-
tween Farmer’s story that she loaned her cell phone
to Wrice and the cell phone data. The call logs showed
dozens of calls between Wrice’s and Farmer’s cell
phones before, during, and after the robbery. The FBI
agent also testified that when Farmer was confronted
with this anomaly, she could not provide any explana-
tion. Finally, the FBI agent testified that the cell phone
data showed that Farmer’s cell phone traveled the route
of the bank robbery on the date and time in question.
  Wrice and Anderson also testified at trial pursuant to
plea agreements that required them to cooperate and
testify truthfully. Wrice testified that she and Farmer
had discussed committing the bank robbery for some
time before November 2008. Both Wrice and Anderson
testified that Farmer drove them, along with her disabled
client, to the bank and that they returned to Farmer’s car
after the robbery. She then dropped the two off at her
house before returning with her client to the client’s
home. Wrice and Anderson also both testified that
No. 12-3132                                                5

earlier that day, they saw Farmer write the demand
note they later presented to the teller during the rob-
bery. A handwriting analyst testified that the hand-
writing on the demand note shared a number of charac-
teristics with a sample of Farmer’s handwriting, but the
analyst could not exclude the possibility that someone
else had written the note.
   Viewing all this evidence, as we must, in the light
reasonably most favorable to the government, there was
ample evidence to find Farmer guilty on the govern-
ment’s theory that she had planned and orchestrated
the robbery. In fact, Farmer does not actually argue that
the evidence presented at trial was insufficient, if be-
lieved, to support each element of the crimes beyond a
reasonable doubt. She instead challenges the credibility
of the government’s witnesses, arguing that their testi-
mony was contradictory and unreliable and should not
have been believed. Credibility challenges face an even
higher hurdle than claims that the totality of the evi-
dence is insufficient to support the conviction. United
States v. Carraway, 612 F.3d 642, 645 (7th Cir. 2010) (“As if
the bar for sufficiency-of-evidence challenges were not
high enough, Carraway’s argument takes a particularly
difficult route by effectively conceding that he cannot
win unless we were to find that Owens, the primary
witness linking him to the crack, was not credible.”).
  When considering a challenge to the credibility of a
witness’ testimony, “[w]e will overturn a conviction
based on a credibility determination only if the witness’
testimony was incredible as a matter of law.” Id. (internal
6                                               No. 12-3132

citation omitted); see also United States v. Hayes,
236 F.3d 891, 896 (7th Cir. 2001) (“The lack of a com-
plete overlap between the recollection of two witnesses
is hardly surprising, and it was the province of the
jury to determine whether those inconsistencies
rendered the testimony incredible.”). Given our duty not
to invade the province of the jury, to find a witness’
testimony incredible as a matter of law, it must “have
been physically impossible for the witness to observe
what he described, or . . . impossible under the laws of
nature for those events to have occurred at all.” Id. (inter-
nal quotations omitted). As our summary of the trial evi-
dence shows, any challenge to Wrice’s or Anderson’s
credibility as well as to any inconsistencies between
their testimonies cannot meet this high burden.
Farmer’s challenge to the testimony falls far short of
this standard.
  Farmer also challenges specific pieces of evidence,
namely the cell phone data and the handwriting analy-
sis, in isolation, as insufficient to sustain her convic-
tion. This argument is misguided. The law does not
require that each piece of evidence exclude beyond a
reasonable doubt the possibility of innocence. The
totality of the evidence, taken together as a whole, must
do so. We will 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.” United States v. Huddleston, 593 F.3d
596, 601 (7th Cir. 2010). The jury’s duty was to consider
the entire record as presented at trial; it was not re-
quired to consider whether or not one piece of evidence
No. 12-3132                                                7

in isolation supported a guilty verdict. For these
reasons, Farmer’s challenges to the sufficiency of the
cell phone data and handwriting evidence fail.
   Farmer’s last challenge, that Wrice had the motive and
opportunity to frame her, is an argument for the jury at
trial, not for us on appeal. We do not reweigh the
evidence or make our own credibility determinations.
“The inquiry does not ask what we would have decided
if we were on the jury. We need not be convinced by
the evidence ourselves.” United States v. Jones, 713 F.3d
336, 340 (7th Cir. 2013). We need only ensure that a
rational jury could, based on the record presented, ratio-
nally find guilt beyond a reasonable doubt on each
element of the charged crimes. The jury here could do so.


II. Motion for a New Trial
  The jury convicted Farmer after three days of testi-
mony. Farmer then moved for a new trial alleging
juror misconduct. She submitted an affidavit from an
alternate juror. (At oral argument, counsel made it clear
that the juror, acting on his own, located counsel to
share the information in the affidavit.) The affidavit said
that before the prosecution had finished presenting its
evidence, one juror said, “I wrote my verdict down right
away and it hasn’t changed yet.” In conversation with
others, a second juror said, “Yeah, like if 11 say guilty
and 1 says not guilty. It’s like ‘come on!’ ” Before lunch on
the second day of trial, a juror said, “Could we just go
ahead and vote now so we can get out of here? Haha.” The
alternate juror overheard this comment but did not see
8                                            No. 12-3132

who made it. The alternate juror said: “This comment
was made in the sense that many had already decided
that the defendant was guilty.”
   The affidavit concluded: “There were numerous
other comments made regarding the perceived guilt of
the defendant during the trial. In my opinion, these
comments made it clear that certain jurors wanted to be
outspoken about their opinion of guilt before the jury
was able to deliberate. These outspoken opinions made
it clear that an opinion other than guilty was going to
be met with disapproval.” The district court denied the
motion for a new trial for reasons that track closely
our own thinking about the issue.
  “We review a district court’s handling of allegations
of premature deliberations and juror bias for an abuse of
discretion.” United States v. Morales, 655 F.3d 608, 629
(7th Cir. 2011). The most basic axioms of our system of
criminal law are that the defendant is presumed innocent
and the prosecution always has the burden of proving
guilt beyond a reasonable doubt. Ensuring that the de-
fendant enjoys a presumption of innocence throughout
the trial remains one of the most important duties of
both trial and appellate judges. The jurors’ reported
comments here indicate that at least a few jurors did not
follow the district judge’s instructions about presuming
the defendant was innocent, keeping an open mind,
and waiting to the end of trial before deliberating.
  At the same time, we are dealing with fallible human
beings and institutions. It’s a rare jury trial in which
there are no mistakes on anyone’s part. The Supreme
No. 12-3132                                                 9

Court has warned that zealous attempts to achieve per-
fection in jury deliberations are likely to do more
harm than good: “There is little doubt that postverdict
investigation into juror misconduct would in some in-
stances lead to the invalidation of verdicts reached after
irresponsible or improper juror behavior. It is not at all
clear, however, that the jury system could survive such
efforts to perfect it.” Tanner v. United States, 483 U.S. 107,
120 (1987). Such a practice would threaten the finality
of too many verdicts and invite losing parties to harass
jurors, id. at 119-20, quoting McDonald v. Pless, 238 U.S.
264, 267-68 (1915), and close scrutiny of jury verdicts on
the basis of alleged juror misconduct would also under-
mine “full and frank discussion in the jury room, jurors’
willingness to return an unpopular verdict, and the com-
munity’s trust in a system that relies on the decisions
of laypeople.” Id. at 120-21. To borrow an old adage,
the jury system cannot afford to allow the perfect to
become the enemy of the good.1
  The Supreme Court’s warning in Tanner reflects a well
established common law prohibition on post-verdict
inquiry into jury deliberations and the use of juror testi-
mony to impeach a verdict. Federal Rule of Evidence


1
  Which is not to say that there is not room for improvement.
See, e.g., Robert C. Walters, et al., Jury of Our Peers: An
Unfulfilled Constitutional Promise, 58 SMU L. Rev. 319 (2005)
(discussing under-representation of minorities on juries and
the ABA’s model standards that attempt to mitigate this
problem, and surveying different states’ approaches to
the problem).
10                                               No. 12-3132

606(b) codifies the “near-universal and firmly established
common-law rule” that “flatly prohibited the admission
of juror testimony to impeach a verdict.” Tanner, 483 U.S.
at 117. Rule 606(b) cabins post-verdict review of juror
deliberation. In the event of “inquiry into the validity of
a verdict or indictment,” Rule 606(b)(1) bars juror testi-
mony on, and court consideration of, the jury’s internal
deliberations, including the jurors’ discussions and men-
tal processes. The rule also prohibits the court from
“receiv[ing] a juror’s affidavit or evidence of a juror’s
statements on these matters.” Id. To preserve the
privacy and independence of juries from well-inten-
tioned efforts to perfect them, such evidence is simply
not admissible.2
  Potentially prejudicial communications that occur
before jury deliberations, however, are not wholly pro-
tected by Rule 606(b) and therefore may be considered
by the district court in certain cases. See United States v.
Kimberlin, 805 F.2d 210, 243-44 (7th Cir. 1986) (interpreting


2
  While courts may not consider any internal or intra-jury
communications, they may consider the effect of improper
external or extraneous influences on a jury. Rule 606(b)(2)
creates exceptions to this broad rule if “(A) extraneous prej-
udicial information was improperly brought to the jury’s
attention; (B) an outside influence was improperly brought
to bear on any juror; or (C) a mistake was made in entering
the verdict on the verdict form.” See also Tanner, 483 U.S. at
117 (explaining the “external/internal distinction” used by
courts “to identify those instances in which juror testimony
impeaching a verdict would be admissible”).
No. 12-3132                                              11

Rule 606(b) as not reaching “communications between
jurors [that] were allegedly made during the course of
trial”). In such cases, while a juror still may not testify
to “the effect of the communication upon his mind or
emotions, or concerning his mental processes in connec-
tion with the verdict,” the district court may consider
whether such statements should be presumed prejudicial.
Id.; see also United States v. Morales, 655 F.3d 608, 631
(7th Cir. 2011) (explaining that “[a]ny inquiry as to
bias arising from the alleged premature deliberations
would run afoul” of Rule 606(b)). Cf. United States v.
Paneras, 222 F.3d 406, 411 n.1 (7th Cir. 2000) (“In evalu-
ating a claim that a jury was improperly influenced by
extraneous material, a district court must ignore a
juror’s comment regarding how a particular piece of
material disposed the juror toward a particular verdict,
and the district court must make an independent deter-
mination of the likely effect of the prejudicial material.”)
(internal quotations omitted).
  Thus, when a district court receives information
after a verdict is returned that jurors engaged in
premature deliberation or made pre-deliberation state-
ments indicating they had already made up their
minds, Rule 606(b) does not prevent consideration of
evidence of the statements or conduct, but it does
prevent consideration of evidence about whether and
how such statements or conduct may have affected
actual deliberations and verdicts. In essence, the court
must ignore any evidence about the supposed actual
effects of the statements or conduct on the jurors, and
must rely instead on precedent, experience, and common
12                                                No. 12-3132

sense to gauge whether the statements or conduct
should be presumed prejudicial.
  Here, the district court determined that the statements
should not be presumed prejudicial. That finding was
not an abuse of discretion. See, e.g., Kimberlin, 805 F.2d at
243-44 (finding no abuse of discretion in not presuming
prejudice where defendant claimed that prior to delib-
eration, one juror had said, “ ‘They ought to hang him
now, so that we can go home,’ or words to that effect”).
The comments reported by the alternate juror were
not appropriate but are also not unknown in experience
with lay jurors encountering unfamiliar procedures
and institutions, perhaps for the first time. It is virtually
impossible for a human being serving as a juror not to
form preliminary opinions about a case while the evi-
dence is presented. Some jurors succumb to the tempta-
tion to share those preliminary opinions with others.
  As we pointed out in Morales, some state court systems
actually allow such discussions among all jurors during
trial if the jurors are reminded not to make any final
judgment until deliberations begin at the end of the
trial. 655 F.3d at 632 n.8, citing Ind. Jury R. 20(a)(8), Ariz.
R. Civ. P. 39(f), and Shari Seidman Diamond, et al., Juror
Discussions During Civil Trials: Studying an Arizona In-
novation, 45 Ariz. L. Rev. 1 (2003). The federal system
does not authorize such premature discussions among
jurors, but the fact that they have occurred does not
mean that the ultimate verdict must be set aside. We
count on the court’s final instructions to the jurors and
the gravity of the group deliberations to rein in jurors
No. 12-3132                                             13

who may struggle with or even make light of their im-
portant responsibilities.
  To argue for reversal, Farmer relies on United States v.
Vasquez-Ruiz, 502 F.3d 700 (7th Cir. 2007). There a juror
informed the judge during the trial that the word
“GUILTY” had been written in her juror notebook by
someone else, and neither the parties nor the judge could
be confident that the communication had come from
another juror. We reviewed the district court’s inter-
vening measures and determined that questioning the
juror and a curative instruction were not sufficient to
mitigate the potential prejudice. We ordered a new trial.
  Vasquez-Ruiz, however, differs in two important re-
spects from this case. First, in this case the information
came to the attention of the court only after the verdict
was returned, when no corrective action could be taken
and any inquiry into the effects of the comments would
have run into Rule 606(b)’s bar on such inquiry. Second,
the information here did not indicate any external in-
fluence on the jury. The Supreme Court has instructed
us always to remember the importance of finality when
considering post-verdict requests to review potential
juror misconduct: “Allegations of juror misconduct,
incompetency, or inattentiveness, raised for the first time
days, weeks, or months after the verdict, seriously
disrupt the finality of the process.” Tanner, 483 U.S. at
120. And in Vasquez-Ruiz, the prospect that the message
came from someone outside the jury gave rise to a pre-
sumption of prejudice. 502 F.3d at 705-06. There is no
such prospect here. Given these differences, the district
14                                                 No. 12-3132

court did not abuse its discretion by denying Farmer’s
motion for a new trial based on alleged juror misconduct.3
    The judgment of the district court is A FFIRMED.




3
   The timing of the district court’s discovery of potential
juror misconduct is, of course, no fault of Farmer’s counsel,
who did not become aware of such alleged misconduct until
the alternate juror located and contacted him after the verdict.
If we were to find that the court abused its discretion in
this circumstance, though, the finality of any jury verdict
could be called into question any time a disgruntled juror
made a telephone call after the trial. This is precisely the
prospect the Supreme Court sought to avoid in Tanner.


                             5-30-13
