The opinion of the court was delivered by: ROBINSON, JR.
AUBREY E. ROBINSON, Jr., District Judge.
In an indictment filed July 26, 1977, the Grand Jury jointly charged Claude A. Johnson and Clarence Blair with two counts of distributing narcotics (heroin) in violation of Title 21, United States Code, Section 841(a). On November 16, 1977, defendant Johnson plead guilty to count two of the indictment. Defendant Blair was tried before a jury on November 29, 1977. No questions concerning Claude Johnson were asked the jury panel on voir dire because the Government and defense counsel had previously agreed that neither side would call Mr. Johnson as a witness. On December 1, 1977, following two days of trial and approximately ten (10) hours of deliberations, the jury returned a verdict of not guilty as to count one, and guilty as to count two.
The Government's case against Clarence Blair was based on circumstantial evidence tending to prove that defendant Blair supplied codefendant Johnson with heroin which was subsequently sold to undercover officers of the Metropolitan Police Department. The Government's evidence placed defendant Blair at the premises of codefendant Johnson at or about the time that the sales of heroin from Johnson to undercover police officers were allegedly occurring at that location. Defendant Blair was arrested shortly after the second alleged heroin transaction, charged in count two. Four Hundred Dollars ($400) in marked advanced Metropolitan Police Department funds was found in defendant Blair's possession at the time of his arrest. It should be noted that defendant Blair was never seen with heroin in his immediate possession.
Defendant Blair's alibi defense to the first count was that he was attending choir practice at the time of the alleged transaction. As for the second count, defendant Blair's defense was that he went to codefendant Johnson's apartment for the purpose of obtaining a loan. He disclaimed any knowledge of the alleged drug transactions.
The substance of the alleged discussions between defendant Blair and codefendant Johnson were excluded pursuant to the hearsay rule from presentation during trial, and the jury was so instructed. The existence of those discussions was disclosed, however.
Shortly after entry of the verdict on December 1, 1977, Phyllis A. Smith, juror number seven, advised the government prosecutor that she overheard Beryl H. Thompkins, juror number three, state during the deliberations that she (Ms. Thompkins) knew the codefendant Claude Johnson. Upon learning of this development, counsel for defendant Blair moved for a new trial.
This Court determined that a limited inquiry should be conducted to determine exactly what had occurred. See Southern Pac. Co. v. Klinge, 65 F.2d 85, 88 (10th Cir.), cert. denied, 290 U.S. 657, 54 S. Ct. 72, 78 L. Ed. 569 (1933). On January 25, 1978, a hearing was held pursuant to Federal Rule of Evidence 606(b).
Testimony was received from Ms. Smith and Ms. Thompkins.
Ms. Thompkins: "I can't answer that question (to Juror Number Four, later identified as John V. Moten). I know Claude Johnson personally."
Mr. Moten: "Are you sure it's the same one?"
Ms. Smith could not remember the question asked by Mr. Moten. There is no evidence that any more discussion pertaining to this matter took place. Ms. Smith further testified that at the time this discussion occurred, the jury had already reached a verdict of not guilty on count one, and all the jurors but Mr. Moten had voted for conviction on count two. She testified ...