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 conviction for forcible assault on a federal 

agent with a dangerous weapon. 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 submitted for decision on the briefs. 

This order and judgment is an unpublished decision, not binding precedent. 10th 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 Citation to unpublished decisions is not prohibited.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 the 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Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).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notation B (unpublished).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
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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 court 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 during deliberations to 

show juror dishonesty during voir dire, 2) whether the statements to which the jurors 

testified fit within one of the 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 conclusively 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 juror to assent to or dissent from the 

verdict or indictment or concerning the juror's mental processes in 

connection therewith. But a juror may testify about (1) whether extraneous 

prejudicial information was improperly brought to the jury's attention, (2) 

whether any outside influence was improperly brought to bear upon any 

juror, or (3) whether there was a mistake in entering the verdict onto the 

verdict form. A juror's affidavit or evidence of any statement by the juror 

may not be received on a matter about which the juror would be precluded 

from testifying. 
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statements on which the district court relied in granting a new trial, no exception to the 

rule applied, and none was constitutionally required. Id. at 1236, 1238, 1241. We 

reversed the district court’s grant of a new 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) (then-Chief Judge Henry and Judges 

Briscoe, Lucero, and Murphy dissented and would have granted rehearing en banc). The 

Supreme Court denied certiorari. Benally v. United States, 130 S. Ct. 738 (2009) (mem.) 

On remand, Benally renewed his motion for a new trial. [R. Vol. I at 89.] The 

district court denied the motion as untimely and because the issues 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 followed by 36 months of supervised release. 

[Id. at 98-100.] We, like the district court, are bound by the holdings 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 prior appeal as law of the case). AFFIRMED.

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge