                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1125

                         DONALD PLUMMER,

                       Plaintiff-Appellant,

                                v.

              SPRINGFIELD TERMINAL RAILWAY COMPANY,

                       Defendant-Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                     

                                           

                              Before

               Torruella and Selya, Circuit Judges,
                                                  

                  and Woodlock,* District Judge.
                                               

                                           

     Jeremy R. Feedore, with whom McClung, Peters and Simon,  was
                                                           
on brief for appellant.
     Glen L. Porter, with whom Eaton, Peabody, Bradford &amp; Veague,
                                                                 
P.A., was on brief for appellee.
    

                                           

                        September 23, 1993
                                           

                    

*  Of the District of Massachusetts, sitting by designation.

          TORRUELLA,  Circuit  Judge.   Appellant  Donald Plummer
                                    

sued    appellee    Springfield    Terminal    Railway    Company

("Springfield") under the  Federal Employers'  Liability Act,  45

U.S.C.     51-60 (1986), for  injuries sustained as a Springfield

employee.    In Plummer's  complaint,  he  requested $650,000  in

damages.  After a four day trial, the jury  found Springfield 12%

at fault for the injuries and Plummer 88% at fault.

          At first,  the jury failed to  answer the interrogatory

that  asked the  amount  of damages  awarded.   After  two  bench

conferences,  the  court   sent  the  jury   back  to  make   the

determination.   The  relevant  interrogatory asked  the jury  to

determine the amount that would "fairly and adequately compensate

the  plaintiff  Donald Plummer  for  his injuries."    Under that

question,  the verdict  form also  stated, "[i]n  determining the

total amount of damages, do not make any reduction because of the

negligence,  if any,  of the  plaintiff."   Soon after,  the jury

returned  with a figure of  $78,000.  Because  $78,000 is exactly

12% of $650,000,  Plummer's counsel requested that  the court ask

the  jury if the figure was reduced for Plummer's own negligence.

The  court denied  the request,  discharged the  jury and,  after

reducing the $78,000 figure by 88%, ultimately entered a judgment

of $9,860 for appellant.

          Plummer contends that when  his attorney asked the jury

foreperson  later in the day  after the jury  had been discharged

whether the $78,000 figure  represented an amount already reduced

for  Plummer's  negligence,  the  juror  conceded  that  it  had.

                               -2-

Plummer also  contends that he immediately informed  the court of

this  conversation and  requested  a voir  dire  of the  jury  to

determine their  true intention,1 but  that the court  refused to

reconvene the jury.

          Several days later, Plummer formally moved to alter the

judgment.  The district  court denied the motion, see  Plummer v.
                                                              

Springfield Terminal Ry.  Co., No. 91-0114-B  (D. Maine Jan.  20,
                             

1993), and Plummer appealed.  We affirm.

                            DISCUSSION
                                      

          Plummer's principal argument  is that the court  should

have  either  conducted a  voir dire  of  the jury,  or permitted

Plummer  to  obtain  affidavits  from  the  jurors  in  order  to

determine whether the damage award was reduced to account for his

negligence.  

          Under Federal Rule of  Evidence 606(b), when questioned

about the  validity of a verdict,  a juror may not  testify about

the jury's  deliberations or the juror's  mental processes during

deliberation with two exceptions:  a juror may testify to (1) the

deliberations  with   respect  to  outside   influence;  and  (2)

"extraneous prejudicial information."2  The   advisory  committee

                    

1  The record contains no indication of this request.

2  Rule 606(b) provides:

            Upon  an inquiry  into the validity  of a
            verdict  or indictment,  a juror  may not
            testify as  to  any matter  or  statement
            occurring during the course of the jury's
            deliberations   or   to  the   effect  of
            anything  upon that or  any other juror's
            mind or emotions as influencing the juror

                               -3-

notes for Rule  606(b) explain  that "[t]he values  sought to  be

promoted   by  excluding   the   evidence   include  freedom   of

deliberation, stability and finality of  verdicts, and protection

of jurors  against annoyance  and embarrassment."   Similarly, we

have observed  that "the  unbridled interviewing of  jurors could

easily  lead to  their harassment,  to the exploitation  of their

thought processes, and to diminished confidence in jury verdicts,

as  well as to unbalanced  trial results depending  unduly on the

relative resources  of the parties."   United States  v. Kepreos,
                                                                

759 F.2d 961,  967 (1st Cir.), cert. denied, 474 U.S. 901 (1985).
                                           

At  the same time, of  course, courts must  avoid "simply putting

verdicts  beyond  effective  reach  [, which]  can  only  promote

irregularity  and  injustice."   Fed.  R.  Evid. 606(b)  advisory

committee note.

          A  number of  circuits hold,  and we agree,  that juror

testimony regarding an alleged clerical error, such as announcing

a verdict different than that agreed upon, does not challenge the

validity of the verdict or  the deliberation or mental processes,

and therefore is not subject to Rule 606(b).  See,  e.g., Karl v.
                                                              

                    

            to assent  to or dissent from the verdict
            or indictment or  concerning the  juror's
            mental processes in connection therewith,
            except that  a juror may  testify on  the
            question  whether extraneous  prejudicial
            information  was  improperly  brought  to
            bear upon  any juror.  Nor  may a juror's
            affidavit or evidence of any statement by
            the juror concerning a matter about which
            the   juror   would  be   precluded  from
            testifying   be    received   for   these
            purposes.

                               -4-

Burlington  Northern Ry. Co., 880 F.2d 68, 73-74 (8th Cir. 1989);
                            

Eastridge Development  Co. v.  Halpert Associates, 853  F.2d 772,
                                                 

783  (10th Cir. 1988);  see also Robles v.  Exxon Corp., 862 F.2d
                                                       

1201, 1207-08  (5th  Cir.  1989), cert.  denied,  490  U.S.  1051
                                               

(1989).

          In the present case,  Plummer similarly argues that the

rendered  verdict was  not the one  agreed upon by  the jury, and

therefore that his requested inquiry does not invoke Rule 606(b).

          Several circuits  might find this  argument acceptable.

In Eastridge Development Co., for example, the jury, contrary  to
                            

the court's  instructions, reduced its verdict  by the percentage

of  the   plaintiff's  own   negligence.    The   district  court

interrogated the jury,  accepted affidavits from  the jury as  to

their  damages calculation,  and  amended the  ultimate award  to

reflect the  jury's decision.   The  Tenth  Circuit accepted  the

district court's rationale that  the jury made a  clerical error,

and that the inquiry therefore did not violate Rule  606(b).  See
                                                                 

also Attridge v.  Cencorp Div.  of Dover Tech.  Int'l, Inc.,  836
                                                           

F.2d 113, 116-17 (2d Cir. 1987).

          By contrast,  the Eighth Circuit  in Karl, 880  F.2d at
                                                   

73-74, reversed  similar actions by  a district court  judge when

the jury made  the same mistake.   The court  in that case  found

that  the inquiry  was improper  because it  went to  the thought

processes  underlying  the  verdict,  rather than  the  verdict's

accuracy in capturing what the jurors had agreed upon.

          We agree  with the district court  that Karl's approach
                                                      

                               -5-

better  reflects  the goals  of Rule  606(b)  and our  opinion in

Kepreos because it  better insulates jury deliberations.   In the
       

present  case, the verdict form,  which the judge  went over with

the  jury,3 instructed the jury not to reduce the damages verdict

based  on Plummer's  negligence,  and Plummer  never objected  to

these  instructions.4   Plummer's  current allegations,  however,

suggest that the jurors believed that  the rendered verdict would

have  a  different   effect  on  the  parties,  based   on  their

                    

3  Specifically, the  judge stated the following with  respect to
the relevant interrogatory:

              And  then finally, if  you have reached
            this, what amount  of money would  fairly
            and  adequately compensate  the plaintiff
            should - plaintiff Donald Plummer for his
            injuries.    That's   the  full   amount,
            irregardless  of  what  your   answer  to
            number five is.

              Determine the total amount  of damages.
            Do not make any  reductions.  If you have
            answered  three, four,  and five,  you do
            not change this figure at all.

4   At  oral argument,  Plummer stated  that his  appellate brief
implicitly assigns error to  the instructions on that issue.   We
can find no such argument in his brief.  Although Plummer's brief
states  that he  appeals from  his motion  to alter  the district
court's  judgment  which  complained  that the  court  failed  to
instruct  the  jury on  the disputed  issue,  the brief  does not
mention a failure to instruct.   Nor does the brief request a new
trial  on the issue  of damages.   Thus, we need  not address the
issue.  See Ryan v. Royal Ins.  Co. of America, 916 F.2d 731, 734
                                              
(1st Cir. 1990) ("issues  adverted to on appeal in  a perfunctory
manner, unaccompanied by some developed argumentation, are deemed
to  have been abandoned").  Moreover, even if Plummer's brief had
made this  argument, our review of instructions and verdict forms
that were  not challenged  before jury  deliberation is  only for
plain  error.  Phav  v. Trueblood, Inc.,  915 F.2d  764, 769 (1st
                                       
Cir. 1990).    Although  the  instructions might  not  have  been
ideally  formulated, they were given  to the jury  on the verdict
form, and we observe no plain error.

                               -6-

understanding of the  court's instructions.5   Karl, 880 F.2d  at
                                                   

73-74; see also Robles,  862 F.2d at 1207-08.   Plummer does  not
                      

contend  that the jurors never agreed upon the rendered verdict -

the number that the  jury chose is not in  dispute.  Accordingly,

the  requested inquiry went to what the jurors were thinking when

they  chose the number that  they did and  whether their thinking

was sound.6  

See Karl,  880 F.2d at 73-74;  Robles, 862 F.2d at  1205; Fed. R.
                                     

Evid. 606(b),  advisory committee note ("testimony  or affidavits

of   jurors  have   been  held   incompetent  to   show  .   .  .

misinterpretations  of instructions)  (citing Farmers  Coop Elev.
                                                                 

Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir.), cert. denied,  389
                                                           

U.S.  1014   (1967));  but   see  Attridge,   836  F.2d  at   117
                                          

(characterizing similar  inquiry as  "ascertaining what the  jury

decided and not why they did so").

          Plummer asked the district  court to examine the jurors

                    

5  We construe the instruction on the verdict form as part of the
court's instructions to the jury.

6  We are  unpersuaded by Plummer's argument that  permitting him
to obtain  affidavits from the  jurors would have  alleviated the
Kepreos  and  Rule  606(b)   concerns.    Like  testimony,  juror
       
affidavits would diminish the stability of  jury verdicts and the
jury's  freedom to deliberate, and  could just as  easily lead to
harassment.     Additionally,  through   affidavits,  as  through
testimony, "the  'secret thought  of one  juror' would have  'the
power  to disturb the express conclusions of twelve.'"  Karl, 880
                                                            
F.2d at 74 (quoting  Mattox v. United  States, 146 U.S. 140,  148
                                             
(1892)). Of course, Plummer's counsel is ill positioned to  argue
that his proposed procedure would alleviate the Kepreos concerns.
                                                       
Plummer's  counsel  already had  spoken to  at  least one  of the
jurors ex parte.  In Kepreos, 759 F.2d at 967, this court set out
                            
a  clear rule  forbidding  "post verdict  interview of  jurors by
counsel."   By discussing  the verdict with  the jury foreperson,
Plummer's attorney violated this rule.

                               -7-

after the jury had already been discharged. This was too late.7  

We  cannot conclude  that the  district court  erred in  refusing

further inquiry.

          Finally,  Plummer argues, in  the alternative, that the

district  court should have  stricken the jury's  finding that he

was 88%  at fault because  it was excessive  and contrary  to the

                    

7   We note  that on the  two occasions the jury  returned with a
verdict before it was discharged, Plummer's counsel  successively
intimated  and requested  that the  court should  inquire of  the
jurors regarding whether they were reducing the  damage figure to
reflect  Plummer's own  negligence.   At  oral argument,  Plummer
characterized   his   pre-discharge   efforts  in   this   regard
alternatively   as  requests  for   inquiries  or   requests  for
supplemental  jury instructions,  depending  on  the question  he
faced from the panel.  Because Plummer did not develop his  vague
assertions  at oral argument, we  consider the issue  of the pre-
discharge efforts at jury inquiry only as it is explicated in his
brief.   See Ryan, 916 F.2d at 734.  And his brief fails to argue
                 
that the court erred in disregarding them.

   Plummer's brief frames the issue he is presenting to us as the
court's  refusal "to  conduct a  voir dire  of the jury  panel to
clarify their verdict  in light of  the patently mistaken  amount
recorded  .  .  . ."    Yet,  however  characterized, neither  of
Plummer's  pre-discharge efforts at inquiry sought a voir dire to
clarify the  recorded amount in the  verdict. Plummer's counsel's
first  intimation of  concern,  when the  jury  returned with  an
incomplete verdict slip, did not seek clarification in light of a
recorded  amount.   When  the  concern  ripened into  a  specific
request after the jury  returned on the second occasion  with the
$78,000 figure, the court properly described the request, without
objection by Plummer, as  seeking a "further written  question to
the jury."   Such an  interrogatory would not  constitute a  voir
dire.  More fundamentally, Plummer mentions in his brief only the
later  effort  at pre-discharge  inquiry  and then  simply  as an
explanation for why he did not request a poll of the jury.

   While we recognize that the trial court is under an obligation
"with appropriate  instructions, [to] afford[] the  jury a timely
opportunity  to  straighten  out   both  apparent  and   possible
mistakes," Poduska v. Ward, 895 F.2d 854, 857 (1st Cir. 1990), we
                          
can find  no sufficient argument  that the district  court abused
its discretion  in meeting  that obligation with  respect to  the
pre-discharge efforts at inquiry made by plaintiff here.

                               -8-

weight of the  evidence.   However, Plummer failed  to provide  a

transcript  of the  evidence offered  at trial  on the  liability

issue.

          Under Federal Rule of Appellate Procedure 10(b),

            [i]f the  appellant  intends to  urge  on
            appeal  that a  finding or  conclusion is
            unsupported   by   the  evidence   or  is
            contrary to the  evidence, the  appellant
            shall  include in the record a transcript
            of all evidence  relevant to such finding
            or conclusion.

See also Syncom  Capital Corp. v.  Wade, 924 F.2d  167 (9th  Cir.
                                       

1991).  Accordingly, "[w]here an appellant raises issues that are

factually  dependent yet  fails to  provide a  transcript of  the

pertinent  proceedings in  the district  court, this  circuit has

repeatedly  held that we will not review the allegations."  Mu iz
                                                                 

Ram rez  v. Puerto Rico Fire  Services, 757 F.2d  1357, 1358 (1st
                                      

Cir.  1985); see  also Farrar  v. Cain, 756  F.2d 1148  (5th Cir.
                                      

1985).  Because  Plummer failed  to provide a  transcript of  the

relevant evidence, we do not reach the merits of his argument.8

          Similarly, Plummer's assertion that the court  erred in

instructing the  jury on contributory negligence in  light of the

lack  of evidence  on  the  issue  also must  fail.    Without  a

transcript  of the evidence presented on  the liability issue, we

cannot  determine  whether   evidence  of  Plummer's   negligence

                    

8  Although we  have considered claims when feasible  without the
transcript  of  the  relevant  proceedings, Valed n  Mart nez  v.
                                                             
Hospital Presbiteriano, 806  F.2d 1128, 1135 (1st  Cir. 1986), we
                      
can  find no fair or meaningful method to review this evidentiary
issue without a transcript of the evidence presented.  Of course,
the  transcript of  the  trial's closing  statements provided  by
Plummer cannot be considered evidence.

                               -9-

existed.

          Affirmed.
                  

                               -10-
