                             UNITED STATES COURT OF APPEALS
                                 FOR THE EIGHTH CIRCUIT


                                        No. 97-1037


UNITED STATES OF AMERICA,                         *
                                                  *
            Appellee                              *
                                                  *
           v.                                     *
                                                  *           Appeal from the United
SI QUOC TRAN,                                     *           States District Court for
                                                            *            the Western
District of
      Appellant.                                  *           Missouri
                                                      *


                                  Submitted:       May 20, 1997

                                                                      Filed: September 4,
1997



Before BEAM, FRIEDMAN*, and LOKEN, Circuit Judges.



FRIEDMAN, Circuit Judge.

       In this appeal from his conviction of one count of conspiracy to traffic in counterfeit
checks, the appellant Si Quoc Tran contends that: (1) the jury improperly considered his failure to
testify; (2) the district court erroneously allowed the introduction of evidence of a meeting of the
conspirators at which another conspirator was seriously injured and at which Tran was present;
and (3) the district court improperly enhanced his sentence because he was a supervisor or
manager of the conspiracy. We affirm.




       * DANIEL M. FRIEDMAN, of the United States Court of Appeals for the Federal
Circuit, sitting by designation.
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       A jury in the United States District Court for the Western District of Missouri convicted
Tran of conspiring to pass and cash counterfeit checks, in violation of 18 U.S.C. §§ 371 and 513.
The district court** sentenced Tran to fifty-seven months imprisonment.


       Viewing the evidence most favorably to the government, see United States v. Street, 66
F.3d 969, 972 (8th Cir. 1995), the jury could have found the following facts:


       The conspiracy involved the passing and cashing of counterfeit checks drawn on various
business bank accounts. It operated from August through November, 1994, and grossed almost
$90,000. The leader of the conspiracy was Hai Ngoc Nguyen, who came to Kansas City,
Missouri in 1994.


       The conspiracy had persons known as "passers," who cashed the checks, and those
known as "drivers," who drove the "passers" to the places where they did the cashing. Its modus
operandi was as follows: In the morning, Nguyen distributed to the "drivers" the counterfeit
checks, payable to the "passers." The "drivers" drove the "passers" to banks in the Kansas City
and St. Louis areas, where they gave the checks to the "passers," who cashed them. The
"passers" turned over the money they received to the "drivers," who gave the money to Nguyen.
The "passers" usually cashed several counterfeit checks in a day. Later in the day, the "passers"
returned to Nguyen's apartment, where they received fifteen percent of the proceeds. Nguyen
paid the "drivers" five percent of the amounts received.
       When Nguyen came to Kansas City, Tran arranged for him to rent a small apartment
located below his parents' store. Tran recruited three "passers," and




     ** The Honorable H. Dean Whipple, United States District Judge for the
Western District of Missouri.

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attempted to recruit a fourth. Tran frequently was present in Nguyen's apartment when Nguyen
distributed the counterfeit checks in the morning and paid the "passers" at the end of the day.


        Following the verdict, Tran moved for a new trial and for an evidentiary hearing to
determine whether the jurors improperly considered his failure to testify. The court denied both
motions.
                                                   II
        Tran did not testify. The district court instructed the jury (Instruction No. 17): "There is no
burden of proof on a defendant to prove that he is innocent. Accordingly, the fact that the
defendant did not testify must not be considered by you in any way, or even discussed, in arriving
at your verdict."


        During its deliberations the jury sent a note to the court that included the question
whether it was "entitled to know why the defendant did not take the witness stand." The court
answered "no" and told the jury to look at Instruction No. 17.
        In his motion seeking an evidentiary hearing on alleged jury misconduct, Tran presented
affidavits from two of the jurors. One affidavit stated: "The fact that Mr. Tran did not testify was
discussed by the jury during our deliberations" and "was one of the major arguments used by
some of the jurors to convince the undecided jurors to vote to find Mr. Tran guilty." The other
affidavit stated: "During the jury's deliberations, the fact that Mr. Tran did not testify was
discussed by at least four members of the jury." Tran's motion requested an evidentiary hearing
on "the allegation of jury misconduct." He sought the hearing under the exception to Rule 606(b)
of the Federal Rules of Evidence, which provides:
                a juror may not testify as to any matter or statement occurring
                during the course of the jury's deliberations . . . except that a juror
                may testify on the question whether extraneous prejudicial
                information was improperly brought to the jury's attention or
                whether any outside influence was




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                improperly brought to bear upon any juror.

        In denying the motion, the district court ruled that Rule 606(b) barred the use of the jurors'
affidavits to impeach their verdict because their allegation that the jury had considered Tran's
failure to testify did not come within the Rule's exception for "extraneous prejudicial information."
The court stated: "There is no admissible evidence that the jury premised their verdict on
Defendant's failure to testify."[Op. 7]


        In this court Tran again argues that the statements in the affidavits came within the
"extraneous prejudicial information" exception to the bar in Rule 606(b) on a juror's testifying
about what occurred during the jury's deliberations and that he was therefore entitled to an
evidentiary hearing on the issue. This court's recent decision in United States v. Rodriquez, 116
F.3d 1225 (8th Cir. 1997), rendered after the decision of the district court, is dispositive of the
issue and requires rejection of Tran's contention.


        In Rodriquez, the defendant sought a new trial and an evidentiary hearing based on the
statement by his lawyer's secretary that "at least one juror" had told her after the trial that
"Rodriquez's failure to testify was discussed during deliberations." Id. at 1226. This court rejected
Rodriquez's argument that "since his failure to testify was not evidence and should not have
been considered, it should be considered an `outside influence' about which the jurors should be
allowed to testify." Id. at 1226-27. In language equally applicable to the present case, the court
explained:
                That Rodriquez did not testify is not a fact the jurors learned
                through outside contact, communication, or publicity. It did not
                enter the jury room through an external, prohibited route. It was
                part of the trial, and was part of the information each juror
                collected. It should not have been discussed by the jury, and
                indeed was the subject of a jury instruction to that effect. But it
                was not "extraneous [prejudicial] information," and therefore does
                not fall within the exception outlined in Rule 606(b). Accordingly,
                members of the jury are prohibited by Rule




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               606(b) from testifying about their deliberations or impeaching their
               verdict.

Id. at 1227 (footnote omitted).


       In the present case, Tran's failure to testify also was not "extraneous prejudicial
information" because it was known to the jurors as a result of their presence at the trial, not as a
result of something disclosed to them that had not occurred in the courtroom. The present case,
therefore, is unlike United States v. Swinton, 75 F.3d 374 (8th Cir. 1996), upon which Tran relies,
because there a juror had stated during jury deliberations that the defendant had a prior
conviction -- a fact that, although correct, had not been brought out at the trial. As this court
stated in Rodriquez, citing Swinton, "A prior conviction of a defendant, for example, when not
admitted as evidence at trial, but which nonetheless entered into the jury's deliberations through
personal knowledge of a juror, has been held to be `extraneous prejudicial information.'"
Rodriquez, 116 F.3d at 1227. Here, as in Rodriquez, "[t]he district court did not err in denying
[Tran] a new trial or an evidentiary hearing." Id.
                                                     III
       At the trial, one of the conspirators testified about a meeting of conspirators at Nguyen's
apartment, at which the witness and another conspirator tried to withdraw from the venture.
Nguyen refused to allow them to do so, beat both of them and, when the witness persisted in his
request, seriously injured him by cutting him with a knife. According to the witness, Tran was
present during his beating by Nguyen, but "didn't do anything. He just stand there and look."
Prior to trial, the court had denied Tran's motion in limine to exclude evidence of this incident
because the evidence was admissible as an overt act in furtherance of the conspiracy and its
"probative value was not substantially outweighed by the danger of unfair prejudice." Fed. R.
Evid. 403. Tran contends that the evidence of the beating was improperly admitted as other
crimes evidence under Rule 404(b) of the Federal Rules of Evidence.
       "This court has consistently held that `[e]vidence that is probative of the crime




                                                     5
charged and not relevant solely to uncharged crimes is not "other crimes" evidence.'" United
States v. Aranda, 963 F.2d 211, 213-14 (8th Cir. 1992) (quoting United States v. Cerone, 830
F.2d 938, 948 (8th Cir. 1987), cert. denied, 486 U.S. 1006 (1988)). Here, Tran was charged with
conspiracy to traffic in counterfeit business checks. Nguyen beat the witness in retaliation for his
attempt to withdraw from that conspiracy, in front of other conspirators, including Tran. The
testimony showed Nguyen's determination to keep the conspiracy going and the punishment a
conspirator who attempted to withdraw would receive. "Where the government has introduced
evidence of acts committed by the defendant or a co-conspirator, during the time frame of the
conspiracy and in furtherance of it, this Court has held that such evidence is not of `other crimes,'
but rather is evidence of the very crime charged." Id. at 214 (citations omitted).


       Tran argues that even if the evidence was admissible, its prejudicial nature substantially
outweighed its probative value. "Such balancing is peculiarly within the discretion of the district
court and should not be disturbed absent a clear showing of abuse." United States v. Adediran,
26 F.3d 61, 64 (8th Cir. 1994). The probative value of the evidence outweighed any possible
prejudicial effects of the testimony that Tran did nothing to prevent the beating.
                                                  IV
       In determining Tran's sentence, the district court increased his offense level by three to
reflect Tran's role as "a manager or supervisor (but not an organizer or leader) [in a] criminal
activity involv[ing] five or more participants." U.S. Sentencing Guidelines Manual § 3B1.1(b)
(1995). "`We will reverse the determination of a defendant's role in a criminal activity only if it is
clearly erroneous.'" United States v. Rodamaker, 56 F.3d 898, 902 (8th Cir. 1995) (quoting
United States v. Cotton, 22 F.3d 182, 186 (8th Cir. 1994)). Here, the court did not clearly err.


       As the district court justifiably concluded, "this man was one of the ring leaders in this
conspiracy." Tran recruited three "passers," tried to recruit another, and




                                                   6
recruited one "driver." The district court also noted that Tran "never appeared at any bank to
cash any checks, but he was always around, and he was always present in that house."


       Tran contends that the fact that his share of the conspiracy proceeds was only five
percent -- the same as that of the "drivers" and substantially less than the fifteen percent the
"passers" received -- is inconsistent with the district court's finding that he was a manager or
supervisor. The mere mathematical percentage of Tran's share, however, may not be a proper
measure of his compensation. This is because the record suggests that he may have received
five percent of the proceeds generated by each of the persons he had recruited, whereas the
"passers" and "drivers" received a percentage of only the counterfeit checks they cashed or
helped to cash. In any event, his allegedly low share of the proceeds does not outweigh the
other evidence in the record supporting the district court's finding that he was a manager or
supervisor or establish that the finding is clearly erroneous.


                                           CONCLUSION
       Tran's conviction and sentence are affirmed.
       A true copy.


               ATTEST:


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




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