                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 _____________

                                 No. 96-4095SD
                                 _____________

United States of America,             *
                                      *
            Appellee,                 *
                                      * On Appeal from the United
      v.                              * States District Court
                                      * for the District of
                                      * South Dakota.
Bennie Joe Rodriquez, also known      *
as Bennie Joe Rodriguez,              *
                                      *
            Appellant.                *
                                 ___________

                             Submitted: May 20, 1997
                                 Filed: June 25, 1997
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

RICHARD S. ARNOLD, Chief Judge.

     Bennie Joe Rodriquez appeals his convictions of assault with a dangerous
weapon and assault resulting in serious bodily harm.1 We affirm.




      1
       The Hon. Andrew W. Bogue, United States District Judge for the District of
South Dakota, presided over the jury trial and imposed the sentence.
                                             I.

      Rodriquez's convictions stem from the stabbing of Shawn Poor Bear. On appeal,
Rodriquez advances two arguments: first, that his Fifth Amendment right not to
incriminate himself was violated because the jury discussed his failure to testify at trial;
and second, that there was insufficient evidence to convict him. We address each
argument in turn.

                                            II.

       The Fifth Amendment guarantees a criminal defendant the right to remain silent
and the right not to have adverse inferences drawn from the exercise of that right.
Carter v. Kentucky, 450 U.S. 288 (1981). Rodriquez argues that this right was denied
him because the jury, during its deliberations, discussed his failure to testify in his own
behalf.

       Rodriquez bases this argument on a statement by his attorney's secretary, who
spoke with several jurors after the trial. She affirmed that "at least one juror" told her
Rodriquez's failure to testify was discussed during deliberations, apparently by jurors
lamenting that he could have "shed a lot of light on the facts of the allegations against
him." Appellant Br. A-9. Because of the need to protect the secrecy of the jury room,
the law strongly resists allowing jurors to testify about their deliberations. See Tanner
v. United States, 483 U.S. 107, 117-27 (1987) (discussing the "long-recognized and
very substantial concerns [which] support the protection of jury deliberations from
intrusive inquiry"). Federal Rule of Evidence 606(b) accordingly prohibits jurors from
testifying about their deliberations, with the sole exception 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 improperly brought to bear on any
juror." Rodriquez argues that since his failure to testify was not evidence and should


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not have been considered, it should be considered an "outside influence" about which
the jurors should be allowed to testify. We cannot agree.

       This Court has considered what types of influences will be considered extrinsic
or extraneous to deliberations, so that a juror may testify about them. Extrinsic or
extraneous influences include "publicity received and discussed in the jury room,
matters considered by the jury but not admitted into evidence, and communications or
other contact between jurors and outside persons." United States v. Bassler, 651 F.2d
600, 602 (8th Cir. 1981), cert. denied, 454 U.S. 1151 (1982). 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." United States v. Swinton, 75 F.3d 374,
381 (8th Cir. 1996).

       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 information," and
therefore does not fall within the exception outlined in Rule 606(b).2 Accordingly,
members of the jury are prohibited by Rule 606(b) from testifying about their



      2
         The Advisory Committee notes to Rule 606 show that Congress specifically
rejected a version of the rule that would have allowed jurors to testify about "objective
matters occurring during the jury's deliberation, such as the misconduct of another juror
or the reading of a quotient verdict," in favor of the rule as it now stands, which "does
not permit juror testimony about any matter or statement occurring during the course
of the jury's deliberations." Fed. R. Evid. 606 advisory committee's note to 1974
enactment. Discussion of Rodriquez's silence was not an outside influence, and is
precisely the kind of deliberative information about which jurors may not testify.

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deliberations or impeaching their verdict. The District Court did not err in denying
Rodriquez a new trial or an evidentiary hearing.

                                          III.

      Rodriquez also argues that there was insufficient evidence to convict him. Again,
we cannot agree.

       The stabbing victim, Shawn Poor Bear, identified Rodriquez as the man who
stabbed him. Several witnesses saw the two men fighting at the party where Poor Bear
was stabbed, and testified that Rodriquez was the only person who argued with the
victim. One witness reported a conversation she had with Rodriquez earlier that day,
in which he showed her a knife and told her he intended to stab Poor Bear. The host
of the party where the stabbing took place reported finding blood on her floor.

       Rodriquez insists Poor Bear was too intoxicated at the time of the incident to
be credible. But the jury is entitled to evaluate the credibility of witnesses, and to
weigh the evidence presented to it. We will reverse a conviction for lack of sufficient
evidence only when "no reasonable trier of fact could find guilt beyond a reasonable
doubt." United States v. Triplett, 104 F.3d 1074, 1080 (8th Cir. 1997) (citations
omitted), cert. denied, 65 U.S.L.W. 3767 (May 19, 1997). There was more than
substantial evidence presented at trial in this case on which a reasonable trier of fact
might base a conviction.

      Affirmed.

      A true copy.

             Attest:

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



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