UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ANTHONY DANIELS, Defendant - Appellant. No. 17-1380 (D.C. No. 1:17-CR-00047-RM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , O’BRIEN , and CARSON , Circuit Judges.

________________ _________________ Anthony Daniels was indicted a nd went to trial on a single cou nt of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). D uring deliberations, a juror shared extraneous informati on with the rest of the jury a bout the manner in which her husband stored his gun . Mr. Daniels moved for a mist rial, but the district court polled the jury, determin ed there was no prejudice, and d enied the motion. The court then excused the juror in question and instructed the rem aining jurors to base

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 28, 2018
Elisabeth A. Shumaker Clerk of Court2 their decision solely on the evid ence presented at trial. Afte r further deliberation, the jury reached a unanimous guilty v erdict, and the court sentence d Mr. Daniels to 63 months in prison. He appeals, c laiming the court should have d eclared a mistrial. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. D aniels’ conviction. 1
I Mr. Daniels was stopped shortly after 11:00 PM on November 29, 2016, by Aurora, Colorado police officers Doug Pearson and Eugene VanDyk . He was driving a 1982 Chevy El Camino bearing co llector vehicle l icense plates . As the officers approached the car, it lurched forward several feet, requiring the officers to yell to the driver to stop. The driver, Mr. Daniels, opened the driver ’s side door as he spoke on the phone and asked Officer P earson if he could move the car . Officer Pearson said he could not and repeatedly ordered him to turn off the ig nition. Meanwhile, Officer VanDyk, who approached from the passenger side, observe d a handgun—a .380 Hi-Point—wedged between the passenger armrest and the pass enger seat, with the muzzle pointed forward and up. Relevant to our purposes, i t was later determined that the gun was loaded and cont ained one live round in the cha mber. Upon seeing the weapon, Officer VanDyk yelle d, “[T]here’s a gun right there .” R., Vol. 3 at 84, line 24; id. at 107, line 12. Mr. Daniels the n looked down and to the righ t, where the gun was located. At that point , Officer Pearson, who was appro aching on the driver’s

1 Mr. Daniels’ appellate counsel w ithdrew after filing his openi ng brief. We granted Mr. Daniels leave to file a pro se supplemental brief, but his pleading, entitled, “Bill of Equity,” is uni ntelligible, as is his pro se reply brief. Because we cannot act as his attorney, we do not consider his pro se mater ials any further.3 side, forcibly removed Mr. Daniels from the car. Mr. Daniels n ever denied owning the gun or knowing it was in the car. Instead, he told the off icers he was a sovereign citizen who had the right to arm and protect himself. At trial, the government had t o prove the essential elements o f a § 922(g)(1) violation, which “are: (1) the defendant was convicted of a fe lony; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possessio n was in or affecting interstate commerce,” United States v. Griffin , 389 F.3d 1100, 1104 (10th Cir. 2004). The parties stipulated to the fi rst element, and the governmentpresented undisputed evidence for purposes of the thi rd element that the gun had tra veled in and affected interstate commerce. Thus, the principal dispute was the secon d element and whether Mr. Daniels knowingly possessed the gun. The defense theory was that Mr. Daniels did not knowingly poss ess the gun and that it belonged to his adult son, Elijah. 2 Elijah testified on direct examination that the weapon belonged to him and he accidently left it in th e El Camino after borrowing the car that day. He explained that guns and cars we re his hobbies, he owned three handguns, including th e .380 Hi-Point, and he held a concealed-carry permit. He said he often wentto the firing range to practice shooting his guns and he always kept his guns loaded with one round in the chamber. Fur ther, Elijah testified that the El Camino would be his “ baby” when his father restored it. Id. at 287, line 13; id. at 288, lines 9-11. He told the jury that he frequently borro wed the car and

2 We use Elijah’s first name to di stinguish him from his father, who shares the same last name.4 drove it earlier the day his fa ther was arrested. Although he did not know his father’s address and could not identify th e name of his father’s apartme nt complex where he picked up the car, he stated that whenever he drove the El Cami no, he “stuffed” his gun “between the cente r column and the seat ” so it would not mo ve. Id. at 295, lines 8-10. Elijah testified that he ha d the gun in the car that day , when his father called and said he needed the car backso he could help Elijah’s grand father. According to Elijah, “[i]t was suc h a rushed situation,” he dropped off the El Camino for his dad, picked up his green Ford Expedi tion, and continued with his day , not noticing the
gun was gone. Id. at 297, lines 1-3, 15-16. On cross-examination, Elijah conf irmed that his training for a concealed-carry permit covered the safe handling of firearms, including loaded and unloaded guns. He emphasized, however, that the way he kept the gun in the El Camino was his own personal preference. He repeat ed, “I put it barrel up, stashed right between the center column and the passenger seat, a nd it was always loaded. It’s always a full clip and always one in the chamber[], always.” Id. at 303, lines 5-7. Counsel for the government asked Elijah to describ e the center column in the El Camino, to which Elijah replied, “I gue ss [it] would be between the driver’s sea t and the passenger seat, whatever is in the way there[.]” Id. , lines 9-11. He said the center console was right next to the driver and “it’s le ather, you can open it, you can stuff my change, you know what I mean, my t oys, my kids[’] toys.” Id. at 304, lines 4-5. Elijah continued to testify that the center cons ole had a “lid” on it and he cou ld “just pop it open.” Id. at 304, lines 21-22; id. at 305, line 3. He testified th at he could have stored the gu n5 in the center console, but he ch ose not to because it would hav e moved around, just as it did in the center consol e of his Expedition. He testifie d that he did not want the gun to move because it had a sens itive safety that would deacti vate if he “bl[e]w on it.” Id. at 306, lines 2-3. On further cross-examination, E lijah conceded there was no evi dence he borrowed the El Camino the day hi s father was arrested. He als o conceded he did not know where he drove the car that day, he did not know the addre ss where he dropped it off, and he did not know the ti me he left it for his father. Additionally, he could not recall what was in the back o f the car, nor did he know whe n he discovered that the gun was missing, although he acknowledged it was a long tim e after the arrest. On redirect, defense counsel att empted to rehab ilitate Elijah’s testimony, in particular his testimony about the El Cami no’s center console. Defense co unsel showed him a photo of the car’s interior and pointed to what Elijah describe d as the center console of the car, asking, “Do you see a place right there where you c an actually put change or anything?” Id. at 329, lines 5-6. Elijah repl ied, “Yeah, little zipper rightthere.”
Id. , line 7. Defense counsel clarif ied, “That zipper and stuff?” Id. , line 10. Elijah replied, “Yeah,” to which defe nse counsel responded, “Okay. Go od enough.” Id. , lines 11-12. During summation, however, the government cited t his testimony and argued that the zipper identifie d by defense counsel was actual ly the zipper to the upholstery of the seat’s armres t and there was no center consol e in the El Camino. The case went to the jury, and af ter the first day of delibera tions, the district court advised the jurors not to discuss the case with spouses o r anyone else. Id. at6 424-26. The next day, however, t he court received a note from a juror indicating that another juror shared extraneous information with the jury. Acc ording to the note, a juror asked her husband “if his g un in their safe was loaded wi th on[e] bullet in the chamber?” Id. , Vol. 2 at 17 (internal quotati on marks omitted). The juror’s husband replied, “No, never! Why?” Id. (internal quotation marks omitted). The note concluded, “I feel this to be a disregard for your instruction and rules. I felt she was talking about the case.” Id. The district court stopped delib erations and informed counsel on both sides that it could either declare a mistrial or individually poll th e jurors to determine whether they were aware of the e xtraneous informa tion and wheth er they could continue deliberations without p rejudice to Mr. Daniels. The d efense moved for an immediate mistrial, but the cour t deferred ruling on the motion until after it questioned the jury. Most of the jurors confirmed hearing the extraneous information but all of them confirmed it woul d have no impact on their deci sion. Thus, the court denied the motion for a mistri al, concluding there was no preju dice to Mr. Daniels. The court then excused the jur or who introduced the extraneous information and instructed the remaini ng jurors to disregard it and base their verdict solely on the evidence presented during the tr ial. After resuming deliberati ons, the jury unanimously found Mr. Daniels guilty.
II We review the district court’s denial of a motion for mistrial for an abuse of discretion. United States v. Day , 830 F.2d 1099, 1103, 11 06 (10th Cir. 1987). The7 Sixth Amendment guarantees a cri minal defendant t he right to a “‘public trial[] by an impartial jury.’” United States v. Scull , 321 F.3d 1270, 1278 (10th Cir. 2003) (quoting U.S. Const. amend. VI). “When a trial court is appris ed of the fact that an extrinsic influence may have tai nted the trial, the proper reme dy is a hearing to determine the circumstances of t he improper contact and the ext ent of prejudice, if any, to the defendant.” Id. at 1280 (internal quotation mark s omitted). This circuit “has developed two different sta ndards to assess the impact of exposure to extraneous material on a jury.” United States v. Muessig , 427 F.3d 856, 865 (10th Cir. 2005) (ellipsis and internal quotati on marks omitted). Under one sta ndard, “a new trial is appropriate if the slightest pos sibility exists that the exposu re to extraneous material affected the verdict.” Id. (internal quotation marks omitted). Under the second standard, “jury exposure to extra neous information creates a pr esumption of prejudice which may be rebutted by a showing that the exposure was harmless.” Id. (internal quotation marks omitted). We need not decide which standard to apply in this case becaus e under either standard, the extraneous informa tion was harmless. As an initi al matter, the information that the juror’s hus band never stored his gun with a round in the chamber was not probative of the princ ipal issue before the jury— viz. , whether Mr. Daniels possessed the gun recovered from the El Camino. Of course, the re is an inference that the gun belonged to Elijah because it had a round in the c hamber and he testified that he always stored his guns w ith a round in the chamber, butthis inference is unnecessary, or at least redundant, because Elijah expressly te stified that the gun was8 his. The true relevance of the information, as Mr. Daniels con tends, goes to Elijah’s credibility and whether a reasonable gun owner would have store d the weapon as he did. For the reasons discussed b elow, we conclude that Elijah’ s credibility was materially undermined, not by th e extraneous information, but b y his own incredible testimony. First, Elijah told the jury he took a concealed-carry course t hat covered the safe handling of firearms, yet h e emphasized that his personal preference was to stash the gun between the El Camino’s cen ter console and the passenge r seat, loaded with a round in the chamber and the mu zzle pointing forward and up, no twithstanding a safety that he said would deactiv ate if he blew on it. The jury could have easily found it irreconcilable that he took a concealed-carry course a nd yet stored the gun in such a reckless fashion. Second, after repeatedly testifyi ng that he stored the gun bet ween the El Camino’s center console and th e passenger seat, Elijah descr ibed the center console, saying it had a zipper and lid that could pop open, he could store the gun in it, and he could put his children’ s toys inside it. He testifi ed that he chose not to keep the gun in the center cons ole because it would move around too much. Defense counsel attempted to rehabilit ate this testimony and accepted a s “[g]ood enough” Elijah’s statement that the cen ter console was the “zipper and stuff,” R., Vol. 3 at 329, lines 10-12. Never theless, the jury sa w photos of the car ’s interior, see, e.g. , Supp. R. (Gov’t Ex. 1 at 3-7), a nd could have credited the gove rnment’s position that there was no center console in t he El Camino. This would have undermined Elijah’s9 entire testimony that he drove t he car frequently, intentionall y stored the gun between the center console and the armr est, and accidentally left it in the car the day his father was arrested. Third, there were numerous gaps in Elijah’s testimony. He did not know where his father lived or where he picked up the El Camino, whi ch he claimed was his “baby,” id. at 287, line 13, that he “al ways [took] for a ride,” id. at 321, lines 3-4, nor could he identify the name of the apartments where his fath er lived. Likewise, he did not know where his grandfathe r lived, he could not rememberwhere he drove the car the day his father was arre sted, and he could not recall th e time or place he left the car. Moreover, he could not s ay for sure what he did after wards, he did not know what, if anything, was in the b ack of the El Camino, and he did not know when he discovered that his gun was mi ssing. These and other holes in his testimony, coupled with the significant inconsiste ncies discussed above, provided ample reason to discredit Elijah’s testimony. C onsequently, the extraneous inf ormation did not appreciably undermine his credi bility, and even i f it did, it m erely provided a cumulative basis for doing so. T hus, the jury’s exposure to th e extraneous information was harmless. See Muessig , 427 F.3d at 865 (conc luding that jury’s exposure to cumulative extrane ous material was harmless). Notwithstanding Elijah’s lack o f credibility, there are other reasons why the extraneous information was harm less. After the district court excused the juror who provided the information, the cou rt instructed the remaining ju rors not to consider it. The court reiterated that they were not permitted to engage in independent10 investigation and must base thei r decision solely on the eviden ce presented at trial. “We generally presume that curativ e instructions are followed.” Id. Also, there is overwhelming ev idence of Mr. Daniels’ guilt. See United States v. Hornung , 848 F.2d 1040, 1045 (10th Cir . 1988) (“[T]he presumption [of prejudice] is overcome by the overwhelming evidence of defendant’s guilt . . . .”). It is undisputed that the gun was insi de the El Camino and in close p roximity to Mr. Daniels when he was stopped . When Officer VanDyk yelled th at there was a gun, Mr. Daniels looked down and to the right, directly to wher e the gun was located. And after he was removed from the car, rather than deny knowing that the gun was in the car or deny that it was his, he told the officers he was a sovereign citizen who had the right to arm and defend hims elf. Given this evidence, the jury could have reasonably rejected his theory of defense and convicted him of the count charged in the indictment. Mr. Daniels offers one final arg ument: he contends the distri ct court applied the wrong test to determine the prejudicial effect of the extra neous information. He says the court improperly polled the jurors for their subjectiv e impressions of the extraneous information but shoul d have instead objectively eval uated its true prejudicial impact. This argumen t confuses the governing legal standards. To prevent impeachment of jury v erdicts, Federal Rule of Evide nce 606(b) prohibits jurors from testifying, post-verdict, about the subje ctive effect of extraneous information on their decision. Hornung , 848 F.2d at 1044-45 & n.3. In that situation, the trial court is limited to an objective inqu iry into the nature and11 circumstances of the juror’s expos ure to the extraneous informa tion to assess its prejudicial effect. Id. Here, however, the court questioned the jury before it reached a verdict. Thus, Rule 606(b) was inapplicable and nothing prevented the court fr om inquiring into whether the jurors heard the ext raneous information, what they understood it to mean, and what impact, if any, i t would have on their impartial ity. As we have explained: It is one thing to prohibit a ju ror from testifying directly ab out the effect of outside contacts on jury delib erations leading to a verdict, and entirely another to permit a ju ror to appear at a pre-verdict

. . . hearing and to give testimony relative to what an improper contact stat ement meant or imparted to the juror a nd whether the statement affect ed his or her impartiality. Day , 830 F.2d at 1105 (citations omitt ed). In this case, the dist rict court properly inquired into the jurors’ unders tanding of the extraneous information and obtained their individual reassurances t hat it did not affect their impa rtiality. We therefore conclude that the court did notabuse its discretion in denying the motion for a mistrial.
III The judgment of the distric t court is affirmed. Entered for the Court Jerome A. Holmes Circuit Judge