                                   ___________

                                   No. 95-3155
                                   ___________


United States of America,              *
                                       *
           Appellee,                   *
                                       *     Appeal from the United States
     v.                                *     District Court for the
                                       *     Eastern District of Arkansas.
James Kennedy Caldwell,                *
                                       *
           Appellant.                  *

                                   ___________

                   Submitted:      January 9, 1996

                          Filed:   May 3, 1996
                                   ___________

Before WOLLMAN, CAMPBELL,* and MURPHY, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     James Kennedy Caldwell was convicted of conspiracy and of trafficking
in vehicles with altered vehicle identification numbers (VINs) in violation
of 18 U.S.C. §§ 371, 511, and 2321.        He was sentenced to twenty-three
months' imprisonment.   Caldwell appeals his conviction on two grounds:   (1)
the district court should have investigated his allegations of juror
misconduct and granted his motion for a new trial; and (2) the evidence was
insufficient to convict him.        We affirm the judgment of the district
court.1




     *The HONORABLE LEVIN H. CAMPBELL, United States Circuit
     Judge for the First Circuit, sitting by designation.
     1
     The Honorable William R. Wilson, Jr., United States District
Judge for the Eastern District of Arkansas.
                                        I.


        Caldwell operated a small used-vehicle dealership outside Forrest
City, Arkansas.        In June 1991 he began purchasing vehicles from co-
defendant Danny Ray Reeves.     Reeves owned a body shop and directed a scheme
whereby he transferred the VIN plates and titles from wrecked vehicles onto
stolen ones of the same make, model, and year and then sold the stolen
vehicles either to unsuspecting buyers or to retailers such as Caldwell.
Between June 1991 and October 1992, Caldwell purchased a total of thirty
vehicles from Reeves.


        Caldwell was tried with Reeves and two other co-defendants.2 The
testimony of several admitted co-conspirators and the evidence regarding
the thirty vehicles that Caldwell purchased from Reeves linked Caldwell to
the illegal scheme.      The jury found him guilty of conspiracy and of twenty-
five counts of possession and sale of motor vehicles with illegally altered
VINs.       The jury acquitted him on five counts.


        Several days after the trial, Caldwell's counsel spoke with defense
witness Travis Sinclair, who alerted him to potential juror misconduct that
had occurred during the trial, to wit, a juror's statement that he had
"heard about all of this [he] [could] stand."            Later, at Caldwell's
sentencing, the attorney learned that Caldwell's sister, Patricia Davidson,
and a co-defendant's mother-in-law, Esther Sampley, had also observed
incidents of juror misconduct involving additional juror statements and the
presence of a juror's husband in the jury room.        Caldwell filed a motion
for a new trial based on juror misconduct.           After conducting a brief
hearing on this matter, at which Caldwell was allowed to present




        2
      The Reeves brothers' convictions were affirmed on this day.
See No. 95-2410, United States v. Marlin Lynn Reeves and No. 95-
2411, United States v. Danny Ray Reeves, slip op. (8th Cir. May 3,
1996).

                                       -2-
the testimony of Sinclair, Davidson, and Sampley, the district court denied
the motion.   Caldwell was not permitted to call as witnesses any of the
jurors or the husband who allegedly entered the jury room.


                                    II.


     Caldwell first argues that the district court erred in refusing to
investigate further his claims of juror misconduct and in denying his
motion for a new trial based on this misconduct.          We review both the
district court's handling of allegations of juror misconduct and its denial
of the motion for a new trial for an abuse of discretion.      United States
v. Wiley, 997 F.2d 378, 383 (8th Cir.) (allegations of juror misconduct),
cert. denied, 114 S. Ct. 600 (1993); United States v. Cruz, 993 F.2d 164,
167 (8th Cir. 1993) (motion for new trial).


     We first address the interchange between Patricia Davidson and one
of the jurors, in which Davidson claims to have responded to the juror's
assertion that "all four of them's [sic] guilty," with the reply, "no,
one's not."   Davidson informed Caldwell of this incident during the trial,
but Caldwell did not tell his attorney for fear that it would somehow get
either him or his sister into trouble, as the witnesses had been instructed
to have no contact with the jury.    Whatever the reason for his silence,
Caldwell's failure to inform his attorney during trial of the juror's
statement constituted a waiver of any claim for relief.    See United States
v. Dean, 667 F.2d 729, 732-34 (8th Cir.) (en banc), cert. denied, 456 U.S.
1006 (1982); United States v. Laird, 948 F.2d 444, 446 (8th Cir. 1991).


     We turn, then, to the remaining claims of juror misconduct, which
were not brought to Caldwell's attention until after trial.    To prevail on
these claims, Caldwell must present evidence of juror misconduct that is
not barred by the rule of juror incompetence and




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is sufficient to establish grounds recognized as adequate to overturn the
verdict.   United States v. Eagle, 539 F.2d 1166, 1169-70 (8th Cir. 1976),
cert. denied, 429 U.S. 1110 (1977).


     Federal Rule of Evidence 606(b) generally precludes the testimony of
any juror regarding intrajury communications, as well as the testimony of
a nonjuror regarding an intrajury statement.         See Scogin v. Century
Fitness, Inc., 780 F.2d 1316, 1318-20 (8th Cir. 1985) (precluding testimony
from court bystander that a juror confided that the jury had reached a
quotient verdict); 27 C. Wright and V. Gold, Federal Practice and Procedure
§ 6074 at 416 (1990) (Rule 606(b) has been interpreted to exclude "all
manner of juror statements, whether conveyed directly to the court by the
juror or indirectly through a witness who overheard the statement").     The
rule's two exceptions allow testimony regarding extraneous prejudicial
information and outside influences brought to bear on the jury.    Scogin,
780 F.2d at 1318.


     Two of the alleged incidents of juror misconduct involve intrajury
statements overheard by a nonjuror during the course of the trial.    These
include:   (1)   a comment overheard by Sinclair to the effect that "I've
heard all of this I need to hear"; and (2) a comment overheard by Sampley
to the effect that "this is just a bunch of crap."    Neither statement may
be used to impeach the jury's verdict.   See United States v. Resko, 3 F.3d
684, 690 (3d Cir. 1993) (finding that although the jury engaged in
premature deliberations, "there is no reason to doubt that the jury based
its ultimate decision only on evidence formally presented at trial").
Thus, the district court did not abuse its broad discretion either in
refusing to conduct further inquiry into these alleged statements or in
refusing to grant a new trial on the basis of this alleged misconduct.   See
Tanner v. United States, 483 U.S. 107 (1987) (policy against investigating
alleged improprieties when they are intrajury); Wiley, 997 F.2d at 383-84
(district court has broad discretion in handling allegations of juror
misconduct).




                                   -4-
        The final incidents of alleged misconduct involve Patricia Davidson's
assertion that she saw a man enter the jury room and Esther Sampley's
testimony that she saw a man, whom she believed to be a juror's husband and
whom she had seen watching the trial, enter the jury room during several
breaks.    To the extent that these incidents allege external influence, they
are not barred from consideration under Rule 606(b).                  See United States v.
Swinton,    75   F.3d    374,   381   (8th    Cir.     1996).       Moreover,     third-party
communications regarding the substance of the trial are presumptively
prejudicial      and   can   constitute      grounds    for     a   new   trial   unless   the
government establishes that the contact was harmless to the defendant.
Wangrow v. United States, 399 F.2d 106, 117 (8th Cir.), cert. denied, 393
U.S. 933 (1968).       Caldwell's attempt to apply the third-party communication
rule to these facts, however, is flawed.              Caldwell offers no evidence that
the juror's husband gained improper knowledge from watching the trial and
then imparted that knowledge to the jury or even that any communication
between the husband and the jurors occurred.                        See United States v.
Phillips, 609 F.2d 1271, 1274 (8th Cir. 1979) (speculative contact between
jurors and third parties does not create presumption of prejudice).
Rather, Caldwell offers a vague picture of third-party contact with the
jury.    The district court acted well within its discretion in finding that
these     nebulous      allegations     were        insufficient      to    merit     further
investigation.     See United States v. Williams, 77 F.3d 1098, 1100 (8th Cir.
1996) ("district court has broad discretion in handling allegations of
juror misconduct").


                                             III.


        Caldwell next argues that the district court erred in denying his
motion for judgment of acquittal on the basis of insufficiency of the
evidence.     In considering this claim we must review the evidence in the
light most favorable to the government, reversing only if we conclude that
no reasonable jury could have found Caldwell guilty beyond a reasonable
doubt.    United States v.




                                             -5-
Quintanilla, 25 F.3d 694, 699 (8th Cir.), cert. denied, 115 S. Ct. 457
(1994).


     Because Caldwell does not dispute either the existence of the
conspiracy or that he bought and sold stolen vehicles bearing tampered-with
VINs, the sufficiency challenge centers on whether Caldwell had knowledge
of the illegal scheme.   Caldwell claims to have been merely an unsuspecting
participant; and indeed, the record reveals no direct evidence tending to
prove that Caldwell knew of the illegal activities.        None of the co-
conspirators testified to having spoken with Caldwell about the stolen
vehicles, and Caldwell himself testified that he did not know the vehicles
he was selling were stolen until his customers informed him that they had
been confiscated.


     Moreover, the jury heard evidence that tends to support Caldwell's
claim that he did not know he was selling stolen vehicles.          Numerous
witnesses testified to Caldwell's reputation for honesty.           Caldwell
introduced evidence regarding his efforts to repay many of the losses
suffered by his customers whose vehicles were confiscated.    Several used-
vehicle dealers testified that the general trade practice does not involve
a careful inspection of vehicles to determine if they are stolen.   Caldwell
also presented testimony that Reeves' reputation for reconditioning salvage
vehicles was excellent and that those reconditioned vehicles often appeared
quite new.   Finally, co-conspirator Shane Roberts testified that although
he took stolen vehicles directly to the lot of the other dealer charged in
the conspiracy, he never took vehicles to Caldwell's dealership until after
they were "fixed"   -- that is, until after the windows and steering columns
broken to steal the vehicles had been mended and after the VINs were
changed.


     Notwithstanding the foregoing evidence, we find that sufficient
circumstantial evidence was presented from which the jury could have
inferred that Caldwell knowingly participated in




                                    -6-
the illegal activities.   Caldwell bought thirty stolen vehicles from Reeves
over a period spanning only sixteen months.     One of the co-conspirators,
David Paul Davis, testified that Caldwell essentially custom-ordered
vehicles from Reeves, presenting Reeves with a standing offer to pay $7,000
for a 1989 Chevrolet or GMC truck, $7,500 for a 1990 version of these
trucks and $8,000 for a 1991 version.      Because Reeves had a ready market
for these vehicles, his illegal activity focused primarily on those models
and years.


     In addition, several of Reeves' employees testified that they went
to Caldwell's lot to correct problems with the stolen vehicles.           For
example,     Roberts    testified   that   sometimes   one   of   the     co-
conspirator/employees would be sent to Caldwell's lot to fix an odometer
so that the mileage on the stolen vehicle would match that on the salvage
title.     Co-conspirator Davis testified that on at least one occasion
Caldwell was present when Davis performed this task.   Davis also testified
that Caldwell once instructed Reeves and Davis to switch a VIN from a newer
truck on Caldwell's lot to an older one so that Caldwell could pass off the
older model as a newer one and receive more money for its sale.     Although
Caldwell was not charged in connection with this illegal activity, the jury
reasonably could have determined that unless Caldwell knew that Reeves was
engaged in illegal activity involving the switching of VINs, he would not
have asked Reeves to illegally switch the VINs in this instance.        Bryan
Boggan testified that he went to Caldwell's to remove glass that fell into
the door frame when the driver-side windows were broken to steal the
trucks.


     Concededly, the evidence that Caldwell knew of and voluntarily
participated in the illegal VIN-switching scheme is not overwhelming.
After giving the government the benefit of all reasonable inferences,
however, see United States v. DeLuna, 763 F.2d 897, 924 (8th Cir.), cert.
denied, 474 U.S. 980 (1985), we conclude that the evidence is sufficient
to support Caldwell's




                                     -7-
conviction.    Moreover,   the   acquittal   of   Caldwell   on   five   counts
demonstrates that the jury carefully considered the evidence before
reaching a verdict.   Accordingly, we affirm both the district court's
denial of Caldwell's motion for a new trial and Caldwell's conviction.


     A true copy.


           Attest:


                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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