*

The Honorable Adrian G. Duplantier, United States District

Judge for the Eastern District of Louisiana, sitting by

designation.

___________

No. 95-2009

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

Bruce Raymond Swinton, * 

*

Appellant. *

___________

 Submitted: November 14, 1995

 Filed: January 31, 1996 ___________

Before FAGG, BRIGHT, and DUPLANTIER,* Circuit Judges. ___________

BRIGHT, Circuit Judge.

A jury convicted Swinton of seven counts of bank fraud in

violation of 18 U.S.C. § 1344, and he was sentenced to thirty-seven

months imprisonment. Swinton raises three issues on appeal: (1)

the court violated Fed. R. Evid. 404(b) by allowing the government

to introduce evidence of other, uncharged transactions in which he

was involved; (2) the evidence was insufficient to support the

conviction; and (3) the jury considered extraneous evidence in

reaching the verdict. We reject Swinton's first two claims and

remand to the district court for an evidentiary hearing on his

third. 
 1

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident, provided

that upon request by the accused, the prosecution in a

criminal case shall provide reasonable notice in advance

of trial, or during trial if the court excuses pretrial

notice on good cause shown, of the general nature of any

such evidence it intends to introduce at trial. 

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I. BACKGROUND

Swinton, a real estate entrepreneur and building contractor,

was charged with seven counts of causing misrepresentations to be

made to financial institutions in violation of 18 U.S.C. § 1334.

The indictment alleged that Swinton was engaged in a sham sale

scheme in which he persuaded friends and acquaintances to take out

loans in their own names to buy residential properties for him.

Swinton promised the buyers that he would make all payments on the

loans. The purported buyers typically would falsely represent

their qualifications for the loan and their intention to reside on

the property. The purported buyers would also state that they had

made a downpayment on the property which they, in fact, had not

made. Immediately after the sale of the property, the purported

buyer would "transfer" the property to Swinton via a quitclaim

deed. Swinton eventually defaulted on the loans. Since the loans

were all insured, the losses ultimately fell on the Department of

Housing and Urban Development. 

Prior to trial, defense counsel filed a motion requesting

disclosure of any "prior bad acts" evidence that the Government 

intended to introduce pursuant to Fed. R. Evid. 404(b).1 The

Government responded by stating that they had opened their files

and that any 404(b) material sought by Swinton would be in those

files. The files contained information on the seven charged
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properties and approximately twelve additional uncharged

transactions. 

At trial, the Government produced three witness who testified

that they participated as the purported buyer in transactions for

which Swinton was charged. The Government also introduced evidence

concerning several other uncharged property transactions occurring

within the same approximate time period. The district court

admitted these uncharged transactions into evidence over defense

counsel's objection that the pretrial notice was insufficient to

satisfy the requirements of Rule 404(b). The court determined that

the Government need not satisfy the Rule 404(b) requirements

because the evidence tended to prove the existence of the plan,

scheme, or artifice for which Swinton was charged, and was thus not

"other acts" evidence governed by that rule. 

The jury convicted Swinton on all seven counts. The court

sentenced Swinton to thirty-seven months imprisonment followed by

three years of supervised release. Swinton moved for a new trial

claiming that the evidence of the other property transactions

should not have been admitted.

After the trial, a member of the jury contacted Swinton and

indicated that, during jury deliberations, another juror had

mentioned that Swinton had a prior record. No evidence had been

introduced at the trial concerning any prior conviction. Swinton's

counsel filed a motion requesting that he be allowed to discuss the

matter with the jurors and renewed a motion for a new trial based

upon the jury considering extrinsic evidence. The district court

denied both motions, determining that the information was not

"extraneous", as required by Rule 606(b), because any discussion or

speculation about the prior conviction would have originated within

the jury room and not from an extraneous source. 
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II. DISCUSSION 

A. EVIDENCE OF "PRIOR BAD ACTS"

During trial, the Government introduced evidence concerning

seven property transactions in which Swinton was involved but for

which he had not been indicted. Defense counsel objected to the

evidence asserting that the Government had failed to provide the

notice required by Fed. R. Evid. 404(b). Citing United States v.

Bass, 794 F.2d 1305, 1312 (8th Cir. 1986), cert. denied, 479 U.S.

869 (1986), the district court stated that the evidence was not

Rule 404(b) evidence and admitted the evidence pursuant to Rule

402. We review a district court's decision to admit evidence for

an abuse of discretion. United States v. Severe, 29 F.3d 444, 447

(8th Cir. 1994), cert. denied, 115 S.Ct. 763 (1995). 

Rule 404(b) governs the admission into evidence of "other

crimes, wrongs, or acts." The rule applies only to "extrinsic"

and not to "intrinsic" evidence. See, United States v. Oakie, 12

F.3d 1436, 1441-42 (8th Cir. 1993); Bass, 794 F.2d at 1312; United

States v. Deluna, 763 F.2d 897, 913 (8th Cir.), cert. denied, 474

U.S. 980 (1985); see also, Rule 404(b) Senate committee notes, 1991

amendment. In Bass, we explained this distinction stating, 

We have held that where evidence of other crimes is

"so blended or connected, with the one[s] on trial as

that proof of one incidentally involves the other[s]; or

explains the circumstances; or tends logically to prove

any element of the crime charged," it is admissible as an

integral part of the immediate context of the crime

charged. When the other crimes evidence is so

integrated, it is not extrinsic and therefore is not

governed by Rule 404(b).

Bass, 794 F.2d at 1312 (quoting United States v. Derring, 592 F.2d

1003, 1007 (8th Cir. 1979) (citations omitted). 
-5-

The Government further argues that the evidence concerning the

other uncharged transactions went directly to an element of the

crime -- the existence of a scheme or artifice -- and thus must be

considered as "intrinsic" evidence. Section 1344, the violation of

which Swinton was convicted, provides: 

Whoever knowingly executes, or attempts to execute,

a scheme or artifice --

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits,

assets, securities, or other property owned by, or under

the custody or control of, a financial institution, by

means of false or fraudulent pretenses, representations,

or promises; 

shall be fined not more than $1,000,000 or imprisoned not

more than 30 years, or both. 

18 U.S.C. § 1344 (1994). Thus, as one of the elements of bank

fraud, the government must establish that the defendant knowingly

executed (or attempted to execute) a "scheme or artifice". The

indictment alleged that Swinton was involved in a single scheme to

defraud financial institutions, and that in furtherance of this

scheme, he "would cause misrepresentations and false information in

the mortgage loan applications and closing documents." Superseding

Indictment, p. 2. Although Swinton was charged with seven separate

counts of bank fraud, this court has previously held that each

execution of a single scheme to defraud constitutes a separate

offense. See United States v. Barnhart, 979 F.2d 647, 651 (8th

Cir. 1992).

In this case, Swinton was charged with conducting a continuing

scheme to defraud. Where the charged offenses were not isolated

acts, but rather, were part of the series of transactions involving

the same principal actors, in the same roles, and employing the 

same general modus operandi, the various acts may be considered to

constitute a single scheme. See United States v. Muscatell, 42

F.3d 627, 630-31 (11th Cir.), cert. denied, 115 S.Ct. 2617 (1995).
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"An uncharged act may not be extrinsic if it was part of the scheme

for which a defendant is being prosecuted." United States v. Oles,

994 F.2d 1519, 1522 (10th Cir. 1993) (quoting United States v.

Record, 873 F.2d 1363, 1372 n.5 (10th Cir. 1989).

In sum, the uncharged transactions are "intrinsic" to the

charged counts of bank fraud if (1) the collected transactions were

all part of a single scheme, or (2) the uncharged transactions were

"so blended or connected, with the one[s] on trial as that proof of

one incidentally involves the other[s]." Bass, 794 F.2d at 1312.

With these principles in mind, we examine the specific uncharged

transactions introduced at trial.

Three of the seven uncharged transactions introduced at trial

concerned loan transactions in which Courtney Washington was the

purported buyer of the property. Washington was also the purported

buyer in four of the charged transactions. At trial, Washington

testified that in each of the charged transactions, he had no

intention of acquiring an ownership interest in the properties but

rather purchased the properties for Swinton because Swinton had

"bad credit". He also stated that although the loans indicated

that he made a downpayment, no such payment was actually made.

After the sale transpired, Washington quitclaimed the properties

back to Swinton. Union Modern Mortgage made each of the loans in

the charged transactions, and the same closing agent ran all the

closings.

The three uncharged transactions involving both Swinton and

Washington which were introduced at trial were clearly part of the

same scheme as the four charged counts. Union Modern Mortgage made

each loan, and the closing agent that closed the charged

transactions closed these uncharged counts as well. Washington

also quitclaimed these properties to Swinton following the sale.

Finally, Washington testified that he had no intention to assume an

ownership interest in any of these properties. Such evidence did
 2

An uncharged transaction involving Swinton, Brooks and a

property located at 5418 W. 33rd was also discussed at trial. That

property, however, was first introduced by defense counsel. 

-7-

not concern "other acts" but rather acts belonging to the charged

scheme. See Severe, 29 F.3d at 447. The evidence of the other,

uncharged transactions did not necessarily implicate Rule 404(b)

because this evidence related to the existence of a scheme, an

element of the charged crime. 

Swinton was convicted on one count relating to the purchase

and sale of a property at 2601 Rock Street in which Herbert Brooks

was the purported buyer. At trial, the Government introduced

evidence about a prior uncharged transaction regarding a property

at 1817 Shiller in which both Swinton and Brooks participated. The

Shiller property was a part of the overall scheme and employed the

same modus operandi in which Brooks misrepresented the existence of

a downpayment, purchased the property for Swinton, and then

quitclaimed the property to Swinton after the closing.

Furthermore, the Shiller property was closely integrated into the

Rock Street transaction. First, the earlier transaction explained

how Brooks came to be involved with the Rock Street transaction.

Secondly, the real estate contract for the Rock Street property

indicated that Brooks would be trading his equity in the Shiller

property as a source of downpayment. The Government introduced

evidence surrounding the Shiller property to show that Brooks

believed he had no equity in that property, and thus was not

contributing any value to the subsequent purchase.2

Finally, the Government introduced uncharged transactions

concerning 2505 Marshall, 1322 Jones, and 1824-26 Pulaski. In all

these instances, the purported buyer was Janette Jackson. Jackson

was the purported buyer in one of the indicted transactions, 917

College. In obtaining the loan for the College property, Jackson

indicated that she would occupy that property for her home and that
 3

Apparently the evidence was not withdrawn and no limiting

instruction was subsequently given so the materials remained in

evidence. 

-8-

funds for the purchase came from her sale of the Marshall property.

The Government introduced evidence concerning the 1322 Jones

property because the loan file for that transaction, which followed

the College transaction, indicated that Jackson's home was 2201

Center and not 917 College. The uncharged transaction thus

presented evidence tending to show that Jackson had not intended to

occupy the College property. The Government introduced evidence

surrounding the Marshall property which indicated that the property

had been quitclaimed from Jackson to Swinton. This evidence thus

called into question the existence of any proceeds from the

Marshall property. Thus the Marshall and Jones transactions were

"so blended or connected" with the charged count "so that proof of

one incidentally involves the other[s]." Bass, 794 F.2d at 1312.

The evidence submitted surrounding the 1824-26 Pulaski

transaction, however, is more problematic. Although the district

court conditionally admitted evidence regarding that transaction,3

the Government never established that a quitclaim deed had been

used in that instance, nor that any of the representations in the

file were false. Accordingly the Government did not show that this

property was a part of the same overall scheme or that it was

blended with one of the charged counts in any way other than the

fact that Jackson and Swinton were both participants. 

Although evidence surrounding this transaction should not have

been admitted into evidence, in light of the entire record, we

determine that its admission constituted harmless error.

Discussion of the Pulaski transaction consisted of a series of

hypothetical questions to a bank officer concerning the loan.

Little, if any, prejudice flowed from the admission of the

evidence, given that the Government never developed any evidence of
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wrongdoing. The introduction of the Pulaski transaction into

evidence cannot be said to have prejudiced Swinton. 

We add a comment. The issue here is a close one, and the

Government ought not to have risked prejudicial error in the trial.

The prosecutor should have disclosed the evidence in question to

the defendant as likely Rule 404(b) evidence. Simply making

available mountains of documents without specifying which will

likely be submitted has elements of unfairness causing needless

expense to the defendant. There is no reason for the prosecution

not to provide reasonable notice of such evidence prior to the

trial 

B. SUFFICIENCY OF THE EVIDENCE

Swinton argues that the evidence was insufficient as a matter

of law to support the jury's verdict. He argues that the

Government presented no evidence that directly established that he

intended to defraud the financial institutions or that he enlisted

others to further this scheme. 

In reviewing the sufficiency of the evidence, this court must

view the evidence in the light most favorable to the government,

resolving all conflicts in the government's favor. United States

v. Wonderly, 70 F.3d 1020, 1023 (8th Cir. 1995). Intent to defraud

need not be shown by direct evidence; rather, it may be inferred

from all the facts and circumstances surrounding the defendant's

actions. Id. (quoting United States v. Clausen, 792 F.2d 102, 105

(8th Cir.), cert. denied, 479 U.S. 856 (1986)). Upon reviewing the

evidence, we determine that the jury could reasonably have

concluded that Swinton knowingly executed a scheme to obtain funds

under false pretenses. Accordingly, we hold that the evidence was

sufficient to support the jury's verdict. 
-10-
 4

In fact, the trial judge prohibited any mention of Swinton's

prior felony conviction in the testimony of witness Washington.

Tr. at 467-82.

 5Fed. R. Evid. 606(b) provides:

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, 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 improperly brought to bear upon

any juror. Nor may a juror's affidavit or evidence of

any statement by the juror concerning a matter about

which the juror would be precluded from testifying be

received for these purposes. 

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C. JURY MISCONDUCT

Swinton states that, after the trial, one of the jurors

contacted him and informed him that during jury deliberations,

someone stated that Swinton had a criminal record. The juror did

not indicate the source of this information. Although Swinton did

have a prior conviction, no evidence introduced at the trial

contained any mention of this prior conviction.4

 

Swinton's counsel filed renewed motions requesting that he be

allowed to discuss the matter with the jurors and for a new trial

based upon the jury considering extrinsic evidence. The district

court denied both motions, determining that the information was not

"extraneous" because any discussion or speculation about the prior

conviction would have originated within the jury room and not from

an extraneous source.

Fed. R. Evid. 606(b) generally prohibits a juror from

impeaching his or her verdict.5

 See United States v. Krall, 835
-12-

F.2d 711, 715-16 (8th Cir. 1987). The only exception to this rule

is 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 upon any juror." Fed. R. Evid. 606(b).

Although Swinton does not contend that "any outside influence

was improperly brought to bear upon any juror", he argues that the

discussion of the prior conviction constitutes "extraneous

prejudicial information." In United States v. Bassler, 651 F.2d

600, 602 (8th Cir. 1981), cert. denied, 454 U.S. 1151 (1982), this

court stated, 

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. Extrinsic or extraneous influences may

be grounds for impeaching a verdict. 

Discussion of a prior conviction which was not introduced at trial

fits the category of "matters considered by the jury but not

admitted into evidence." 

The Government argues that if the jury improperly discussed

defendant's prior conviction, such a discussion is not a matter of

extrinsic evidence at all because it would have originated from

within the jury room. The Government's position, basically, is

that evidence coming from the jurors themselves is not "extrinsic."

The question of when a juror is resorting to knowledge

obtained outside the record presents some difficulties. Although

jurors are expected to bring commonly known facts to bear in

assessing the facts presented for their consideration, resort by a

juror to anything other than common knowledge or record facts might

be held to violate the right to confrontation. 3 Weinstein's

Evidence, ¶ 606[04], at 606-44, 46 (1995); see also United States
-13-

ex rel. Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied,

402 U.S. 906 (1971). 

In McMann, Judge Friendly provides a thorough discussion of

when statements by jurors regarding their personal knowledge of a

defendant may invalidate a verdict. First, Judge Friendly rejects

the juror/non-juror distinction that the Government suggests here,

stating, "There is no rational distinction between the potentially

prejudicial effect of extra-record information which a juror

enunciates on the basis of the printed word and that which comes

from his brain." 435 F.2d at 820. Judge Friendly instead adopts

a distinction between allegations of specific facts as opposed to

general knowledge or beliefs: 

In short, the inquiry is not whether the jurors "became

witnesses" in the sense that they discussed any matters

not of record but whether they discussed specific extrarecord facts relating to the defendant, and if they did,

whether there was a significant possibility that the

defendant was prejudiced thereby.

McMann, 435 F.2d at 818 n.5. 

This court's opinion in United States v. Eagle, 539 F.2d 1166,

1170 (8th Cir.), cert. denied, 429 U.S. 1110 (1976), further

suggests that the jury's discussion of specific extra-record facts

can constitute grounds for challenging the verdict. In Eagle, a

juror speculated during the trial that the defendant might be one

of the men charged in an unrelated incident in which two FBI agents

had been killed. This court found that this "realization" did not

constitute an "extraneous influence" because the juror never voiced

his suspicions in the jury room. Because the allegations didn't go

beyond the mental processes of the juror they did not amount to

"extraneous influences." In this case however, the allegation

concerning Swinton's prior conviction was voiced. In this

instance, we have an allegation that the jury considered a specific

statement of fact that had not been admitted into evidence. We
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therefore conclude that the statement was "extraneous prejudicial

information" within the meaning of Rule 606(b). See also, United

States v. Perkins, 748 F.2d 1519, 1533-34 (11th Cir. 1984). 

The district court declined to investigate the purported

statement any further because it incorrectly determined that any

such testimony would be barred under Rule 606(b). Given the risk

that the jury's discussion of a prior conviction may prejudice the

defendant in a case where fraudulent intent is a key ingredient, we

believe it is appropriate to remand to the district court to hold

an evidentiary hearing. See United States v. Bagnariol, 665 F.2d

877, 885 (9th Cir. 1981), cert. denied, 456 U.S. 962 (1982) (noting

that where trial court learns of possible juror misconduct, it must

hold evidentiary hearing to determine precise nature of extraneous

information); United States v. Rhodes, 556 F.2d 599, 602 (1st Cir.

1977) (stating that denial of motion for new trial without any

investigation of exposure to extraneous materials was insufficient

response to serious matters raised in affidavit); cf. United States

v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988) (stating district

court properly conducted extensive hearing to determine effect of

extraneous material on jury deliberations); see also, 3 Weinstein's

Evidence, ¶ 606[05], at 606-52 (when sufficient showing is made of

type of misconduct which is not on its face barred by Rule 606(b),

further inquiry is warranted). 

 This circuit has established standards governing inquiries

into juror misconduct. First, where juror misconduct exposes the

jury to factual matters not in evidence, we presume prejudice and

require the government to prove beyond a reasonable doubt that the

inappropriate activity did not harm the defendant. Wyldes v.

Hundley, 69 F.3d 247, 252 (8th Cir. 1995); see also United States
 6

In Taylor v. Mabry, 593 F.2d 318, 320 (8th Cir. 1979)(per

curiam), this court stated that proof that one juror had informed

other jurors of defendant's prior convictions would constitute a

primae facie showing of prejudice. 

-15-

v. Rowley, 975 F.2d 1357, 1363 (8th Cir. 1992); Cheyenne, 855 F.2d

at 568.6

Second, this circuit applies an objective test to assess

whether the extraneous information would likely affect a typical

juror when the government must overcome a presumption of prejudice.

United States v. Blumeyer, 62 F.3d 1013, 1017 (8th Cir. 1995). The

relevant considerations include (1) whether the extrinsic evidence

was received by the jury and the manner in which it was received;

(2) whether it was available to the jury for a lengthy period of

time; (3) whether it was discussed and considered extensively by

the jury; (4) whether it was introduced before a verdict was

reached and, if so, at what point during the deliberations was it

introduced; and (5) whether it was reasonably likely to affect the

verdict, considering the strength of the government's case and

whether it outweighed any possible prejudice caused by the

extrinsic evidence. Id. 

III. CONCLUSION

We affirm the rulings of the district court that the uncharged

transactions were properly admissible and that the verdict was

supported by sufficient evidence. We remand to the district court

to hold an evidentiary hearing as to potential juror misconduct, to

make appropriate findings, and upon those findings to either grant

or deny the defendant's motion for a new trial. 
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A true copy.

Attest:

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