Unpublished Disposition, 904 F.2d 42 (9th Cir. 1990)

MEMORANDUM^* 

Ruben Solorzano-Salazar was indicted for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a) (1) and 841(b) (1) (D). The jury found Solorzano-Salazar guilty as charged. Solorzano-Salazar appeals the district court's denial of both his motion for a new trial based on juror misconduct and his Rule 29 motion for a judgment of acquittal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

* Juror Misconduct

At the hearing on appellant's motion for a new trial, appellant attempted to introduce testimony from juror Frances Thompson that during deliberations (1) the jury discussed the fact that the defendant did not testify; (2) the jury mentioned that the defendant probably had prior convictions; and (3) juror David Dunn drew a scaled map of the Nogales port of entry, where Solorzano-Salazar was arrested. Appellant contends that he was denied a fair trial due to the jury's consideration of extraneous, prejudicial information. We disagree.

It is well established that juror testimony is inadmissible to impeach a jury verdict. Tanner v. United States, 483 U.S. 107, 117 (1987). It is equally well established that jurors may consider only the evidence presented to them in open court. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965); Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986). Accordingly, although jurors may not give evidence on their internal deliberations, they may testify about any extraneous influence on their verdict. See Tanner, 483 U.S. at 117; Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980). These principles are codified in Federal Rule of Evidence 606(b), which provides in part:

Upon inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations ..., 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.

The fact that Solorzano-Salazar did not testify is hardly "extraneous" information or an "outside influence." To the contrary, any statements concerning appellant's failure to testify fall squarely within the rule prohibiting testimony about juror conduct and statements during deliberations. See Fed.R.Evid. 606(b). Thus, the district court properly refused to hear and consider testimony on this matter.

A similar analysis applies to Solorzano-Salazar's offer of proof that the jury mentioned that defendant probably had prior convictions. Appellant's reliance on Dickson v. Sullivan, 849 F.2d 403 (9th Cir. 1988), is misplaced; Dickson is distinguishable on its facts. In that case, the deputy sheriff responsible for escorting the jury told two jurors that the defendant " 'had done something like this before.' " 849 F.2d at 404. Here, on the other hand, appellant sought to have Mrs. Thompson testify about the jury's "feeling" that defendant "probably" had prior convictions, "but that courts never allow them into evidence." Excerpt of Record at 16. This sort of speculation within the jury room is qualitatively different from the deputy's statement in Dickson; no extrinsic facts about appellant's prior convictions were obtained or used by the jury here. The district court was correct in refusing to consider the appellant's offer of proof on this issue.

Unlike the statements involved in appellant's first two examples of juror misconduct, Dunn's map is more readily characterized as "extraneous" information. Nonetheless, we have indicated that Rule 606(b) precludes inquiry into the validity of a verdict unless appellant shows prejudice. See United States v. Marques, 600 F.2d 742, 747 (9th Cir. 1979), cert. denied, 444 U.S. 1019 (1980). In his brief, Solorzano-Salazar states only that " [t]he circumstances reveal that the map was extremely prejudicial." Appellant's Brief at 24. In light of this conclusory assertion, we cannot say that the district court abused its discretion in denying appellant's motion for a new trial.

Furthermore, our independent review of the record confirms that the layout of the port of entry was not critical to the government's case. Although agent Cruz testified that Solorzano-Salazar moved behind another car in order to "get out of my path," Reporter's Transcript (R.T.) at 69, both agents Agnosttini and Cruz testified that appellant made no attempt to evade agent Cruz, R.T. at 26, 53. Thus, even if juror Thompson was competent to testify about the presence of the map in the jury room under Rule 606(b), we find that there was no "reasonable possibility that the extrinsic material could have affected the verdict." United States v. Hernandez-Escarsega, 886 F.2d 1560, 1580 (9th Cir. 1989).

II

Sufficiency of the Evidence

Substantial evidence to support the jury's verdict exists if, viewing the evidence in the light most favorable to the government, a rational juror could have found that Solorzano-Salazar knowingly possessed the marijuana. See United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988). Solorzano-Salazar was driving a car containing approximately one hundred pounds of marijuana. By virtue of his exclusive dominion and control of the car, there is no question that appellant possessed the marijuana. See United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986) (constructive possession demonstrated when defendant has the ability to produce or dispose of drug, or has exclusive dominion and control over property where contraband found).

There was sufficient evidence from which the jury could infer appellant's knowledge of the marijuana. Mere possession of a large quantity of drugs is sufficient to support a finding of knowing possession. United States v. Collins, 764 F.2d 647, 652 (9th Cir. 1985); see also United States v. Mora, 876 F.2d 76, 77-78 (9th Cir. 1989). Moreover, the exercise of exclusive dominion and control over a vehicle " 'is a potent circumstance tending to prove knowledge of the presence of [a controlled substance].' " Castillo, 866 F.2d at 1087 (quoting Arellanes v. United States, 302 F.2d 603, 607 (9th Cir.), cert. denied, 371 U.S. 930 (1962); see also United States v. Sutton, 446 F.2d 916, 920 (9th Cir. 1971), cert. denied, 404 U.S. 1025 (1972). Accordingly, the district court properly denied Solorzano-Salazar's motion for judgment of acquittal.

AFFIRMED.