1 Senior Circuit Judge of the Ninth Circuit, sitting by

designation.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-8611

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN ARON SANCHEZ-SOTELO, JOSE RABELO RENTERIA, and RICARDO

GARCIA,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

(November 16, 1993)

Before SNEED1, REYNALDO G. GARZA and JOLLY, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Juan Aron Sanchez-Sotelo, Jose Rabelo Renteria, and Ricardo

Garcia appeal their convictions for conspiracy to possess cocaine

and possession of cocaine with intent to distribute. We AFFIRM the

district court in all respects, except we VACATE the order denying

the appellants' motion for new trial based on extraneous jury

influence and REMAND the cause for further proceedings.

I. FACTS
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This case arises from an undercover narcotics sting operation

in El Paso, Texas. Sergio Filemon Sotelo Sanchez ("Filemon"), the

key person in the criminal conspiracy, pled guilty and is not a

party to this appeal. The appellants are Filemon's brother, Juan

Aron Sotelo Sanchez ("Sotelo"); Jose Renteria; and Ricardo Garcia.

On November 13, 1991, an undercover law enforcement agent met

with Filemon, purchased a one-half ounce sample of cocaine from

him, and agreed to meet with him later that day in the parking lot

of a toy store to purchase another half-ounce. After the initial

purchase, law enforcement agents tracked Filemon as he drove to

several places including the apartment of his brother Sotelo's

girlfriend. The meeting between the undercover agent and Filemon

was delayed for two hours because, according to Filemon, Sotelo

"had sent the guy that takes care of the stash house on an errand."

At the meeting, the undercover agent purchased another one-half

ounce sample and agreed to purchase a much larger quantity of

cocaine after she obtained the money to do so. After this meeting,

Filemon drove to his house on Mockingbird Street. The trial

testimony conflicts as to whether Sotelo lived at the house on

Mockingbird Street with his brother, Filemon.

On November 21, the undercover agent met with Filemon in the

same toy store parking lot and agreed to exchange one kilogram of

cocaine later that day for $14,500 (the "one-kilo exchange").

Filemon then drove in a maroon pickup truck to a house on Rubicon

Street where he picked up his brother, Sotelo. The two men drove
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to a gas station and met with several other men who arrived in a

gray pickup truck. After this meeting, Filemon and Sotelo drove

back to the toy store parking lot. 

A few hours later, the undercover agent returned to the

parking lot where Filemon and Sotelo were waiting in the maroon

truck to consummate the one-kilo exchange. Filemon got out of the

truck, leaving Sotelo in the passenger side, and entered the

undercover agent's truck. In the recorded conversation that

followed, Filemon told the undercover agent to retrieve the

kilogram of cocaine from an empty Chevrolet Cavalier in the parking

lot. After retrieving the cocaine, the undercover agent handed

Filemon an envelope containing $14,500. Filemon agreed to meet

later that day in the same parking lot to exchange a larger

quantity of cocaine (the "four-kilo exchange").

After the one-kilo exchange, Filemon and Sotelo drove to a

pool hall where they met with appellant, Garcia. The three men

then went to a motel where they were later met by two other men who

arrived in a blue pickup truck driven by appellant, Renteria.

After the men conversed, Filemon, Sotelo and Garcia drove away in

Filemon's maroon truck. Renteria drove away alone in the blue

truck. Both trucks arrived at the toy store parking lot where

Garcia entered the Cavalier that Filemon used in the earlier onekilo exchange. Garcia then drove the Cavalier around the parking

lot, parking for a short period of time, and then driving around

the parking lot again. Simultaneously, Filemon in the maroon truck
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and Renteria in the blue truck drove around the parking lot in a

manner that suggested they were searching for signs of law

enforcement personnel. After a short meeting between the two

trucks, Filemon drove to a gas station across the street and called

the undercover agent regarding the planned exchange.

The undercover agent arrived at the parking lot at 5:15 p.m.

to consummate the four-kilo exchange. The agent parked near

Filemon's maroon truck. Filemon left Sotelo in the maroon truck

and entered the undercover agent's car where he explained, in a

recorded statement, that they were "waiting for the delivery of the

cocaine." Filemon offered to have Sotelo drive the maroon truck

close to the undercover agent's car in order to hand the drugs from

the truck to the car, but abandoned this method of exchange at the

agent's request. As Garcia drove the Cavalier by the undercover

agent's car, Filemon stated that the car was driven by one his

"business partners." The gray pickup truck then arrived in the

parking lot and parked next to the maroon truck that Sotelo was

sitting in. Filemon exited the undercover agent's car, and Sotelo

exited the maroon pickup, and then Filemon met with the driver of

the gray truck. Afterwards, Filemon took a toolbox from the gray

truck and brought it to the undercover agent's car. Agents closed

in and arrested Filemon, Sotelo, Renteria and, after a high speed
 

2Agents found two pounds of marijuana in the Cavalier after

the car stalled and they arrested Garcia. No cocaine, however,

was found in the car. 

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chase, Garcia.2 Others were also arrested, but they are not

parties to this appeal. 

II. PROCEDURAL HISTORY

The appellants were charged with two counts of federal

narcotics violations. The first count charged the appellants with

conspiracy to possess cocaine with intent to distribute, in

violation of 21 U.S.C. sections 841(a)(1) and 846. The second

count charged the appellants with possession of cocaine with intent

to distribute, in violation of 21 U.S.C. section 841(a)(1).

The case went to trial on July 20, 1992 and on July 22, 1992,

the jury convicted Sotelo and Garcia on both counts. The jury

convicted Renteria on count one, but acquitted him on count two.

On December 1, 1992, Garcia was sentenced to 136 months of

imprisonment and to a five-year term of supervised release. Garcia

was also ordered to pay $100 for special assessments. Renteria was

sentenced to 121 months of imprisonment and to a five-year term of

supervised release; he was also specially assessed $50. Sotelo was

sentenced to concurrent 151-month terms of imprisonment on each

count and to a five-year term of supervised release. Sotelo was

also specially assessed $100.

After the trial, defense counsel made two motions for a new

trial. First, defense counsel asked for a new trial based on the
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affidavit of a trial juror that the jury had been exposed to an

improper extraneous influence that tainted the verdict. The juror

attested that another "juror drove by the residence of one

defendant who lived on Mockingbird [Street], and complained during

deliberations that the defendants must be drug dealers, otherwise

they couldn't afford to live in houses like the one on Mockingbird

[Street]." 

Garcia moved for a new trial on the basis of ineffective

assistance of counsel. He asserted that his lawyer failed to call

certain prisoners who overheard Filemon state that Garcia was not

involved in the conspiracy. In a recorded conversation, his lawyer

stated that he did not call the witnesses because the government

could have rebutted with the confession of Garcia's co-defendants.

The district court denied both motions without an evidentiary

hearing. The district court denied the motion regarding extraneous

influence because it stated that the house on Mockingbird Street

belonged to Filemon who pled guilty and was not tried with the

defendants. Accordingly, the district court viewed the information

as not material to the guilt or innocence of the defendants and not

possibly prejudicial to the defendants. The district court denied

the motion regarding ineffective assistance of counsel because it

viewed the claim as "border[ing] on the frivolous" and because even

if proffered, the claim would have been inadmissible as "pure

hearsay."
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Appellants filed for reconsideration of the district court's

order. Appellants attached a supplemental affidavit in which the

juror stated that the jurors assumed that the house on Mockingbird

Street belonged to one of the defendants on trial, but not

necessarily Filemon. The district court denied the motion for

reconsideration without a hearing because the allegations related

to the mental processes of the jurors and were not admissible under

Federal Rule of Evidence 606(b). 

III. DISCUSSION

The appellants claim the district court erred in: (1) finding

sufficient evidence to support their convictions for conspiracy to

possess cocaine and possession of cocaine with intent to

distribute; (2) allowing an undercover agent to comment on her

tape-recorded conversations referencing Sotelo; (3) not declaring

a mistrial with respect to the prosecutor's closing remarks; (4)

not defining "knowingly" or "intent" in its jury charge; and (5)

denying their motion for new trial based on evidence of an

extraneous influence on the jury.

Garcia also claims that the district court erred in denying

his motion for new trial based on ineffective assistance of

counsel.

The district court did not err in: (1) finding sufficient

evidence to support the appellants' convictions for conspiracy and

possession with intent to distribute; (2) allowing the undercover

agent to comment on her tape-recorded conversations; (3) refusing
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to declare a mistrial; (4) declining to define "knowingly" and

"intent"; and (5) denying all of the appellants' motions for

mistrial. Finding no error, we AFFIRM.

A. Sufficiency of the evidence

Appellant Sotelo asserts that there was insufficient evidence

to support his conviction for the possession of cocaine with the

intent to distribute. Appellant Renteria asserts that there was

insufficient evidence to convict him of conspiracy with intent to

distribute cocaine. Appellant Garcia asserts that there was

insufficient evidence to convict him of either conspiracy to

possess cocaine or possession of cocaine with intent to distribute.

We review the appellants' claims under the well established

standard that the Court view the evidence, "whether direct or

circumstantial, and all the inferences reasonably drawn from it, in

the light most favorable to the verdict." U.S. v. Salazar, 958 F.2d

1285, 1991 (5th Cir.), cert. denied, ___U.S.___, 113 S.Ct. 185

(1992). "The ultimate test for the sufficiency of the evidence

challenges is whether a reasonable jury could find that the

evidence establishes guilt beyond a reasonable doubt." Id. (citing

United States v. Gonzales, 866 F.2d 781 (5th Cir.), cert. denied,

490 U.S. 1093, (1989)).

As to the substantive offense of possession, " the government

must prove beyond a reasonable doubt that the defendants knowingly

possessed [cocaine] and intended to distribute it. Possession may

be actual or constructive, may be joint among several defendants,
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and may be proved by direct or circumstantial evidence." U.S. v.

Valdiosera-Godinez, 932 F.2d 1093, 1095 (5th Cir. 1991) (citing

United States v. Gardera Carrasco, 830 F.2d 41, 45 (5th Cir. 1987),

cert. denied, ___U.S.___, 113 S.Ct. 2369 (1993). With regard to

the conspiracy offense, 

the government must prove beyond a reasonable doubt: (1)

the existence of an agreement between two or more persons

to violate the narcotics laws; (2) the defendant knew of

the conspiracy; and (3) the defendant voluntarily

participated in the conspiracy. . . . No element need be

proved by direct evidence, but may be inferred from

circumstantial evidence. An agreement may be inferred

from "concert of action."

Id. (citing United States v. Arzola-Amaya, 867 F.2d 1504, 1511 (5th

Cir.), cert. denied, ___U.S.___, 110 S.Ct. 322 (1989)).

1. Appellant Sotelo

Sotelo argues that insufficient evidence exists to

convict him for possession of cocaine. Since the district court

did not instruct the jury that Sotelo could be held liable for the

foreseeable acts of his co-conspirators, proof of the conspiracy

alone will not sustain the possession charge against Sotelo. United

States v. Pierce, 893 F.2d 669, 676 (5th Cir 1990) (requiring

Pinkerton instruction before defendant could be convicted of object

crime committed by co-conspirators). Furthermore, no evidence

exists that Sotelo actually possessed the cocaine. Therefore, the

Government's possession case against Sotelo requires that a jury

could have found beyond a reasonable doubt that Sotelo

constructively possessed the cocaine. "`Constructive possession'
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is ownership, dominion, or control over illegal drugs or dominion

over the premises where drugs are found." United States v. Pigrum,

922 F.2d 249, 255 (5th Cir.), cert. denied sub nom., Allen v.

United States, 111 S. Ct. 2064 (1991).

Sotelo argues that his brother's statement to undercover agent

Rodriguez that their meeting was delayed for two hours because

Sotelo "had sent the guy that takes care of the stash house on an

errand," is insufficient to prove his constructive possession of

the cocaine. Sotelo further argues that even if his brother's

statement is true, the fact that he sent the man on an errand does

not show that he had control over the stash house or its contents.

See Id. (holding that where the evidence was insufficient to show

that defendant resided at house, her presence during search where

drugs were found was insufficient to show constructive possession).

Finally, Sotelo argues that in this case, no drugs were found at

the "stash house."

Although each piece of evidence may not be sufficient in

isolation to reasonably find constructive possession, the

cumulative evidence against Sotelo is compelling. First, the

evidence regarding Filemon's and Sotelo's "hand[ling]" of the

majority of the ongoing drug business showed that Sotelo was

heavily involved in the control of their cocaine exchanges

generally. Second, Sotelo's presence at the planning and execution

stages with Filemon showed his participation in the specific

cocaine deals here at issue. Third, Sotelo's sending the person
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who controlled the stash house on an errand shows that he had some

control over the person who kept the specific cocaine used in at

least one of the drug deals here at issue. Finally, the evidence

at trial showed that although not generally available to handle the

cocaine, Sotelo was, on this occasion, available to help deliver

possession of the cocaine to the undercover agent via a drive-by

exchange. We hold that this evidence, in the aggregate, would

allow a reasonable juror to find that Sotelo had dominion and

control over the cocaine--constructive possession.

Our review of the record, therefore, indicates that sufficient

evidence exists to affirm Sotelo's conviction for possession of

cocaine with intent to distribute.

2. Appellant Renteria

Appellant Renteria argues that there was insufficient evidence

to convict him of conspiracy to distribute cocaine. Renteria

argues that the only evidence implicating him was: (a) a Deputy

Sheriff's identification of him at a brief meeting with Sotelo,

Juan Sanchez and Garcia at the La Quinta motel; and (b) that he

parked his blue truck next to Sotelo's maroon pickup in the toy

store parking lot, and then drove to the center of the parking lot.

Renteria also argues that although there was some circumstantial

evidence connecting him to the conspiracy, "the critical missing

element of proof is some adequate indication that [he] was ever

aware of the existence of the conspiracy or intentionally joined
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it." See United States v. Basey, 816 F.2d 980, 1002-03 (5th Cir.

1987).

We find that the evidence establishes that Renteria met with

Filemon, Sotelo, and Garcia in a motel room prior to the four-kilo

exchange. Renteria then followed Filemon and Sotelo back to the

toy store parking lot. In the parking lot, Renteria parked his

blue truck beside Filemon's maroon truck and met with Filemon.

Renteria then parked his truck in another part of the parking lot

and waited in his truck for one hour until the exchange took place.

During that time he acted as if he were a look-out. 

Based on this evidence, a reasonable jury could determine

beyond a reasonable doubt that Renteria participated in the

conspiracy. See United States v. Fernandez-Roque, 703 F.2d 808,

814-15 (5th Cir. 1983) (conspiracy only requires that the defendant

was aware of the unlawful agreement and was associated somehow with

the plan). 

Our review of the record, therefore, indicates that sufficient

evidence exists to affirm Renteria's conspiracy conviction.

3. Appellant Garcia

Garcia argues that the evidence was insufficient to prove

beyond a reasonable doubt that he knew of and voluntarily

participated in the conspiracy to distribute cocaine or that he

constructively possessed cocaine. First, Garcia argues that the

only evidence that he was a conspirator was that the Cavalier used

in the one-kilo exchange was registered to his girlfriend, that he
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drove the Cavalier around the parking lot before the four-kilo

exchange, and that Filemon referred to him as a "business partner."

Garcia argues that although this may constitute association and

presence at the scene of the four-kilo exchange, it does not prove

beyond a reasonable doubt that he knew of and participated in the

conspiracy to possess cocaine. See United States v. Maltos, 985

F.2d 743, 746-47 (5th Cir. 1992). Second, Garcia argues that there

is no evidence that he actually possessed cocaine, and that the

evidence with respect to constructive possession is too speculative

to support a conviction. Garcia argues that he entered the

Cavalier after the one-kilo exchange, and that no cocaine was found

in the car after the exchange. 

Garcia correctly points out that since the district court did

not give a Pinkerton instruction, the jury could not use the

possession of cocaine by other conspirators to convict him. His

possession conviction, therefore, rests on evidence of constructive

possession. 

Based on the circumstantial evidence of Filemon calling Garcia

his "business partner," Garcia's meetings with Filemon after the

one-kilo exchange and before the four-kilo exchange, Garcia's

riding in the maroon truck with Filemon and Sotelo to the toy store

parking lot, his driving of the Cavalier around the parking lot,

and his high speed flight from the arrest scene, a reasonable jury

could determine beyond a reasonable doubt that Garcia knew of and
 

3Defense counsel for Fred Smalley.

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joined in the conspiracy, and that he had constructive possession

of the cocaine.

Our review of the record, therefore, indicates that sufficient

evidence exists to affirm Garcia's conviction for conspiracy and

possession.

B. Undercover agent's testimony

Appellant Sotelo argues that the district court erred in

allowing the undercover agent's testimony regarding her recorded

conversations with Filemon, because this testimony constituted

improper lay opinion testimony that tainted his conviction for

conspiracy to possess cocaine. 

We review evidentiary errors at trial for abuse of discretion.

United States v. Lindell, 881 F.2d 1313, 1319 (5th Cir. 1989),

cert. denied, 496 U.S. 926, 110 S.Ct. 2621, 110 L.Ed.2d 642 (1990).

Although the government argues for the plain error standard, the

other defense counsel's objection3 is sufficient to invoke the

abuse of direction standard for Sotelo. See Howard v. Gonzales, 658

F.2d 352, 355 (5th Cir. Unit A 1983) (stating that where one party

objects, the court presumes the other parties have joined in the

objection). In addition, to reverse a conviction, this court must

find "a significant possibility that the testimony had a

substantial impact on the jury." United States v. Cain, 587 F.2d

678, 682 (5th Cir.), cert. denied, 440 U.S. 975, 99 S.Ct. 1543, 59
-15-

L.Ed.2d 793 (1979). During the trial, the prosecution

submitted the transcript of a recording of one of the meetings

between Filemon and the undercover agent. The transcripts related

that the undercover agent asked Filemon who was in the maroon truck

with him. Filemon answered, "[T]he guy that's with me is my

brother." The undercover agent testified that the above statement

meant Sotelo "would stay in the truck and would be watching the

whole thing." At a later meeting, the undercover agent asked

Filemon who was with him, and Filemon answered, "My brother." The

undercover agent testified that the above statement meant that

Filemon "and his brother [,Sotelo,] were going to do the deal." 

Sotelo contends that the district court admitted the

undercover agent's testimony in violation of Federal Rule of

Evidence 701, which prohibits explanatory commentary where the

language of the conversation would allow the jury to draw its own

conclusions. See United States v. Dicker, 853 F.2d 1103, 1108-11

(3d Cir. 1988) (holding that Rule 701 should be applied in a manner

that allows "the jury to draw its own conclusions" from the

language of the conversation itself and that "additional analysis

was irrelevant and should not be admitted"). Sotelo contends that

the jury had transcripts of the tape-recorded conversations and

that the undercover agent's testimony went beyond the meaning of

the transcripts. 

We find that the undercover agent's testimony goes beyond the

plain meaning of the recorded conversation with Filemon. Hence, we
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must determine whether there is a "significant possibility" that

the district court's admission of this testimony had a "substantial

impact on the jury." United States v. Cain, 587 F.2d at 682. Based

on the evidence outlined above, the jury could have inferred, from

evidence other than the undercover agent's interpretations, that

Sotelo was knowingly involved in the cocaine conspiracy.

Therefore, we find that the district court did not abuse its

discretion in admitting the undercover agent's testimony. 

C. Prosecutor's closing remarks

During closing remarks, the government asked the jury to "send

a message to these drug dealers," to "send a message to other drug

dealers," and to deter drug dealers from bringing "these drugs into

our communities and into our homes." The government further

pointed the jury's attention to the fact that the drug deal took

place in the parking lot of a toy store and stated that "[w]omen,

children, [and] parents" were in the parking lot. At this point,

defense counsel objected to the government's reference to "women

and children." The district court sustained the objection and

instructed the jury to disregard the comment. 

Appellants argue that the government's closing remarks

constitute reversible error for three reasons. First, the comments

had a prejudicial effect because they influenced the jury to

convict the appellants based on a broad policy against drugs rather

than on specific evidence of guilt. A juror's affidavit attests

that another juror stated during deliberations that the jury should
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convict the appellants in order to "send a message to the

community." Second, the court gave no cautionary instruction to

the jury to curtail the prejudicial effect of the comments. Third,

because the evidence of guilt was "extremely thin," the comments

harmed the appellants in the jury's determination of guilt. See

United States v. Lowenberg, 853 F.2d 295, 301-02 (5th Cir. 1988),

cert. denied, 489 U.S. 1032, 109 S.Ct. 103 L.Ed.2d 228 . 

Because the appellants objected to the "women, children, [and]

parents" comments, this court reviews the district court's refusal

to grant a mistrial with respect to these comments for abuse of

discretion. United States v. Rocha, 916 F.2d 219, 234 (5th Cir.

1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2037, 114 L.Ed.2d 462

(1991). However, because the appellants did not object to the

government's "send a message" comments, this court reviews the

district court's refusal to grant a mistrial with respect to those

comments under the plain error standard. United States v. RoblesPantoja, 887 F.2d 1250, 1255 (5th Cir. 1989). In determining

whether the jury would have found the appellants guilty without the

government's comments, this court must look at three factors: (1)

the magnitude of the prejudicial effect of the comments; (2) the

efficacy of any cautionary instructions; and (3) the strength of

the evidence of the appellants' guilt. Lowenberg, 853 F.2d at 301-

02. 

First, a prosecutor may appeal to the jury to act as the

conscience of the community. United States v. Brown, 887 F.2d 537,
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542 (5th Cir. 1989). Second, the district court's instruction to

the jury to disregard the "women, children, [and] parents" comments

sufficiently curtailed the prejudicial effect of those comments.

See United States v. Garza, 887 F.2d 55, 57 (5th Cir.), cert.

denied, 495 U.S. 957 (1990). Third, because of the ample evidence

produced at trial, the "send a message" comments does not cast

serious doubt on the propriety of the jury's verdict. 

Accordingly, the district court did not abuse its discretion

or commit plain error by refusing to grant a mistrial with respect

to the prosecutor's closing remarks. 

D. Jury charge

The appellants argue that the district court committed

reversible error by not defining "knowingly" or "intent" with

respect to both the conspiracy charge and the possession charge.

They argue that this failure was critical because the central issue

in the their case was whether they "knowingly" participated in the

conspiracy, and "knowingly" possessed the cocaine with the intent

to distribute the drug. United States v. Ojebode, 957 F.2d 1218,

1228 (5th Cir. 1992), cert. denied, 113 S.Ct. 1291, 122 L.Ed.2d 683

(1993).

Because one appellant objected to the district court's failure

to give an extra instruction defining "knowingly" and "intent,"

this court reviews the instructions under the abuse of

discretion standard. See United States v. Bernal, 814 F.2d 175,

182 & n.14 (5th Cir. 1987). Furthermore, in deciding whether the
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district court abused its discretion, this court determines whether

the requested instruction: (1) was a correct statement of the law;

(2) was substantially given in the charge as a whole; and (3)

concerned an important point in the trial so that the failure to

give it seriously impaired the defendant's ability to effectively

present a defense. United States v. Rochester, 898 F.2d 971, 978

(5th Cir 1990).

As the Government points out, the district court used the

pattern jury instructions for criminal cases. Pattern Jury

Instructions, Criminal Cases, Special Instruction 2.81 at 192

(1990). Furthermore, these instructions accurately reflect the law

of sections 846 and 841(a)(1). Finally, "knowingly" and "intent"

are used in their common meaning in the conspiracy and possession

statutes and, therefore, do not require further instruction.

United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988).

Consequently, the district court did not abuse its discretion

by refusing to define "knowingly" or "intent," in its jury charge.

E. Motions for New Trial

1. Extraneous influence

Appellants argue that the district court erred in denying

their motion for new trial without an evidentiary hearing, based on

evidence of prejudicial extraneous information. This court reviews

the denial of a motion for new trial for abuse of discretion.

United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991), cert.
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denied sub nom., Garza v. U.S., ___U.S.___, 112 S.Ct. 2966 (1992).

The appellants argue that the juror's affidavits attesting the

material and prejudicial impact of another juror's comments

regarding the defendants' ability to afford the house on

Mockingbird Street was error that at least requires remand for an

evidentiary hearing to determine if this extrinsic evidence was

actually prejudicial to the appellants. The appellants further

argue that Fifth Circuit case law requires an evidentiary hearing

to investigate a colorable claim of prejudicial extrinsic jury

influence. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.),

cert. denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979);

United States v. Howard, 506 F.2d 865, 866 (5th Cir. 1975). 

"Post-verdict inquiries into the existence of impermissible

extraneous influences on a jury's deliberations are allowed under

appropriate circumstances, . . . so that a `jury-man may testify to

any facts bearing upon the existence of any extraneous influence,

although not as to how far that influence operated upon his mind.'"

Llewellyn v. Stynchcombe, 609 F.2d 194 (1980) (emphasis in

original). Furthermore, this court has stated:

Where a colorable showing of extrinsic influence appears,

a court must investigate the asserted impropriety:

the evidentiary inquiry before the district court . . .

must be limited to objective demonstration of extrinsic

factual matter disclosed in the jury room. Having

determined the precise quality of the jury breach, if

any, the district court must then determine whether there

was a reasonable possibility that the breach was

prejudicial to the defendant.... In this determination,
 

4 The juror commented that she had driven by the defendants'

apartment complex during the course of the trial and that "they

appeared to be very expensive condominiums not cheap apartments

and where was the money coming from to pay for these very

expensive condos." Ortiz, 942 F.2d at 913.

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prejudice is assumed in the form of a rebuttable

presumption, and the burden is on the Government to

demonstrate the harmlessness of any breach to the

defendant.

Winkle, 587 F.2d at 714 (quoting Howard, 506 F.2d at 869).

The appellants correctly point out that Howard and Winkle

require an investigation into the alleged jury breach before the

district court may deny a motion for new trial in this situation.

In United States v. Ortiz, 942 F.2d 903, 913 (5th Cir. 1991), this

court held that the district court did not abuse its discretion in

finding that a juror's report of a drive-by viewing of a

defendant's house was not prejudicial4. In Ortiz, the district

court made its determination only after it conducted an in camera

interview with the jury foreperson, one of three jurors who

submitted an affidavit and a juror chosen at random. In this case,

however, the district court made no such investigation. 

Therefore, the order denying the appellants' motion for new

trial based on extraneous jury influence is vacated and the cause

is remanded for further proceedings consistent with this opinion.

2. Ineffective assistance of counsel

With respect to Garcia's ineffective assistance of counsel

claim, he argues that the district court erroneously determined

that testimony by inmates regarding Filemon's alleged statement
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that Garcia was not involved in the conspiracy was inadmissible as

hearsay. Garcia argues that the statement was either admissible as

a declaration against interest under Federal Rule of Evidence

804(b)(3) or under the residual hearsay exception of Rule

804(b)(5). See United States v. Thomas, 571 F.2d 285 (5th Cir.

1978). Garcia further argues that his attorney's failure to call

the exculpatory inmate witnesses because the attorney thought the

government would respond with post-arrest statements by Garcia's

co-defendants was facially incorrect under the Bruton rule. See

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d

476 (1968) (requiring exclusion of codefendant's confession that

implicates a defendant unless the codefendant takes the stand and

submits to cross-examination). 

United States v. Briscoe, 742 F.2d 842, 846 (5th Cir. 1984),

imposes three requirements for the use of the hearsay exception of

Rule 804: "(1) the declarant must be unavailable; (2) the

statement must be against the declarant's penal interest; and (3)

corroborating circumstances must indicate the trustworthiness of

the statement." The inmates' testimony regarding Filemon's

statement does not qualify for the Rule 804(b)(3) exception to the

hearsay rule for two reasons. First, the declarant, Filemon, was

available to be cross-examined. Second, there were no

corroborating circumstances, because the statement was allegedly

overheard in prison. See Thomas, 571 F.2d 285. Furthermore, other

evidence of Garcia's guilt indicates that any error made by
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Garcia's counsel was harmless under Strickland v. Washington, 466

U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Therefore, the district court did not abuse its discretion in

denying Garcia's motion for new trial.

IV. CONCLUSION

We affirm the district court in all respects except we vacate

the order denying the appellants' motion for new trial based on

extraneous jury influence, and remand the cause to the district

court for further proceedings.

AFFIRMED in part, VACATED and REMANDED.