UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KERRY DEAN BENALLY, Defendant - Appellant. No. 10-4124 (D.C. No. 2:07 -CR-00256-DAK-1) (D. Utah)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Circuit Judge, TACHA , and O'BRIEN , Circuit Judges.
Kerry Dean Benally appeals from his conv iction for forcible assault on a federal agent with a dangerous weap on. Concluding we are bound by the decision of a prior panel of this Court on all issues, we affirm. The underlying facts are set forth at length in our prior opinion, United States v. Benally , 546 F.3d 1230, 1231-32 (10th Cir. 2008 ), and need not be repeated here.

* The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is submitte d for decision on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### March 4, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - Benally was convicted by a jury but moved for a new trial because he claimed two jurors did not disclose their racial prejudices during voir dire and the deliberations were tainted by their racially biased comments. [Vol. I at 42-43.] Relying on affidavits describing the deliberations, the district c ourt granted him a new trial. [Vol. I at 51-53, 56-57, 79- 82.] Benally raises the following issues: 1 1) whether Federal Rule of Evidence 606(b) prohibits admission of juror testimony about statements made duri ng deliberations to show juror dishonesty during voir dire , 2) whether the statemen ts to which the jurors testified fit within one of th e enumerated exceptions to the rule, and 3) whether the Sixth Amendment requires an exception to Rule 606 (b) for testimony about racial bias. These are the same issues addressed in our prior review. See Benally , 546 F.3d

. at 1234, 1239,
1241. [Appellant’s Brief at 5-7; Govt. Brief at 1.] In that proceeding, we held Rule 606(b) 2 prohibited admission into evidence of the

1 The parties agree the issues now raised have been conclusive ly decided but filed cursory briefs for the sole purpose of preserving the issues for further review.

2 Rule 606(b) states: 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 ju ror to assent to or dissent from the verdict or indictment or concerni ng the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly br ought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mist ake in entering the verdict onto the verdict form. A juror's affidavit or ev idence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.- 3 - statements on which the district court relied in granting a new trial, no exception to the rule applied, and none wa s constitutionally required. Id. at 1236, 1238, 1241. We reversed the district court’s grant of a ne w trial and remanded for reinstatement of the verdict. Id. at 1241-42. This Court denied rehearing and rehearing en banc. United States v. Benally , 560 F.3d 1151 (10th Cir. 2009) (t hen-Chief Judge Henry and Judges Briscoe, Lucero, and Murphy dissented and wo uld have granted rehe aring en banc). The Supreme Court denied certiorari. Benally v. United States , 130 S. Ct. 738 (2009) (mem.) On remand, Benally renewed hi s motion for a new trial. [R. Vol. I at 89.] The district court denied the motion as untimel y and because the issu es had already been determined by this Court on appeal. [Id. at 97.] It reinstated the jury’s verdict and sentenced him to 57 months imprisonment followe d by 36 months of supervised release. [Id. at 98-100.] We, like the district court, ar e bound by the holdi ngs in our prior opinion, which are the law of this case. See Ford v. Pryor , 552 F.3d 1174, 1179 (10th Cir. 2008) (following holdings of prio r appeal as law of the case). AFFIRMED. Entered by the Court: Terrence L. O’Brien United States Circuit Judge