On February 5,1983, the jury in this case returned verdicts of guilty on one count of mail fraud and two counts of obstruction of justice against the defendant, Michael H. O’Keefe. On February 18, 1983, a local news station aired a story suggesting, inter alia, that one of the jurors “knew about O’Keefe’s first trial and conviction.” 1 After due consideration and in response to a motion of the defendant for an in camera evidentiary hearing under the supervision of the court, I determined to bring in the twelve jurors and question them about the possibility of outside influence on their deliberations. With both sides present, this hearing was held in chambers on February 28, 19832
The Scope of the Inquiry3
Rule 606(b) of the Federal Rules of Evidence limits the competency of juror testimony in the following manner;
*1000(b) INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT.—
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 his or any other jur- or’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his 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.
In accordance with this rule, the Fifth Circuit has considered the proper scope of a district court’s inquiry in a proceeding of this nature.
The evidentiary inquiry before the district court on remand must be limited to objective demonstration of extrinsic factual matter disclosed in the jury room. Having determined the precise quality of the jury breach, if any, the district court must then determine whether there was a reasonable possibility that the breach was prejudicial to the defendant.
United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975). My questioning of the jurors was guided by the essential distinction in this area of the law between extraneous information and a juror’s mental processes. Though some jurors inevitably mentioned the workings of their mind or the effect something had on them, I attempted to confine their answers as much as possible to the issue of whether improper extraneous information was somehow injected into the jury’s deliberations.
The Incident
Based on the jurors’ responses under oath and my assessment of each juror’s credibility, I have made the following findings of fact:
1. After a verdict had been reached on all three counts and the jury had returned to the jury room, Mrs. Bell made a comment which contained a reference to a statement made by Senator O’Keefe after his first trial in July had ended in three guilty verdicts. The statement was “something to the effect that housewives didn’t understand business ... about the first trial that the housewives didn’t understand it but we understand it, or something of that nature.” (Tr. 9)4
2. Mrs. Bell made her comment once and only once — after deliberations were over. Although two of the jurors, Mrs. Peters and Mrs. Verda, said that the remark had been made during deliberations, based on my observation and evaluation of their testimony I find they were mistaken.5
*10013. Mrs. Bell learned of the defendant’s remark during the course of the trial — after the jury’s selection but before their deliberations. She overheard a conversation on the streetcar in which the defendant’s “housewives” comment was mentioned.6
4. Apart from the “housewives” comment, there was no hint or suggestion that any other extraneous matter had come to the attention of the jury at any time.
5. Over the course of the trial and the deliberations in this case, no juror — including Mrs. Bell — knew that Senator O’Keefe had been convicted in his previous trial.
Discussion
1. Seven jurors remembered hearing the “housewives” comment. Of that number, four jurors (Owens, Bell, Baker, Ramirez) testified that the comment was made after deliberations were over. Two jurors (Peters, Verda) stated that the comment was made during deliberations. And one juror, Mrs. Ross, believed the “housewives” were mentioned during the trial itself.7
For several reasons, I have concluded that Mrs. Bell’s comment was made after the jury’s verdict had been rendered. First, and most obviously, twice as many jurors recalled the comment being made at this time.8 Secondly, both the person who made the comment and the person to whom the comment was apparently directed (Owens, the foreman)9 — the two people most “engaged” in the conversation — remembered that the comment was made after the verdict. Moreover, I found these jurors — the “after-verdict” jurors — more credible than the “during-deliberations” jurors. In particular, I was impressed with the acuity of the foreman Owens and Mr. Baker.10
2. Of the seven jurors who recalled the incident, not one suggested that the statement had been made on two separate occasions.11 Nor did anyone suggest that they heard the statement in a one-on-one conversation (which would have left open the possibility of the statement being made several times). On the contrary, Mr. Owens surmised “that probably all of them heard *1002her say it.” (Tr. 12). Mrs. Verda stated that “it just came up and several people agreed.” (Tr. 60). And Mrs. Peters recalled that, at the time, “there was a lot of conversation.” (Tr. 35). Having found that the statement was made but once and that it was made after deliberations, it necessarily follows that the statement could not have been made during deliberations as well.
Nevertheless, Mrs. Peters and Mrs. Verda remembered just that. I did not, however, find their version of the incident credible insofar as the time when the statement occurred was concerned.
Besides the fact that four jurors remembered events differently, there were two main reasons to question Mrs. Peters’ testimony. First, she admitted that “I really wasn’t paying too much attention to it.” (Tr. 33). Mrs. Peters stated that “guess” was her “pet word” (Tr. 35) and, unlike Mr. Baker who was somewhat struck by the “housewives” comment, it did not seem that Mrs. Peters had concerned herself when the comment was made. More importantly, however, Mrs. Peters was the only juror who remembered that someone had also mentioned the verdict of the previous trial during deliberations (Tr. 35). This was patently incorrect, as no other juror remembered hearing or making such a remark. Mrs. Peters’ perceptions about this incident were, quite simply and innocently, inaccurate.
The same holds for Mrs. Verda. At one point, this colloquy occurred between the court and Mrs. Verda:
Mrs. Verda: ... The only thing — can I tell you what I heard mentioned?
The Court: During the trial?
A: Yes, sir.
Q: And before the verdict?
A. Not before the verdict.
Q. After the verdict?
A. It was during deliberations.
Q. During the deliberations.
A. But, I think it was mentioned in the defense’s presentation, whatever that was.
(Tr. 59-60). “Not before the verdict,” “during deliberations,” in the defense’s presentation” — Mrs. Verda’s recollection of this incident was slippery at best. Though she ultimately averred that the comment had been made during deliberations, she had no idea if it was on the first, second, or third day of those deliberations.12 When weighed against the testimony of the four jurors who heard the comment after the verdict, Mrs. Verda’s testimony was not persuasive.
3. There is no evidence to contradict Mrs. Bell’s testimony that she overheard a conversation on the streetcar in which the “housewives” statement was mentioned. Though counsel for the defense suggested that “there has to be more to it than that” (Tr. 72, remarks of Mr. Gravel), I fail to see why this “has to” be. Certainly, the situation did not sound illogical or improbable, and — though it was unfortunate for Mrs. Bell to be in the wrong place at the wrong time — without more, I did not see the need to cross-examine Mrs. Bell extensively on this point.
4. At the hearing, no one raised the spectre of any other extraneous information that might have been improperly brought before the jury. (Mrs, Peters stated that the verdict in the previous trial was mentioned as well, but this mentioning was linked to the “housewives” comment.)
5. During voir dire, I questioned each prospective juror individually and thoroughly about their knowledge of Senator O’Keefe and the pre-trial publicity in this case. Without going into detail as to each juror’s responses, suffice it to say that none of the people who finally served on the jury had any prior knowledge that the defendant had been convicted in a previous trial.
Once the trial began and during the course of the trial, the only possible extraneous information which could have come *1003to the jury’s attention was the “housewives” comment. However, to reiterate, this comment was made after the jury had finished its deliberations. Furthermore, no comment was made before or during deliberations to the effect that the defendant had been convicted in a previous trial, and Mrs. Bell swore that she did not possess such knowledge. In sum, there is not one scintilla of evidence to suggest that any juror knew — in the sense of finding this from some improper, outside source to be a fact — that the defendant had been convicted once before.
Having said as much, I am faced with the statements by Mrs. Peters and Mrs. Verda that they “found out” what they could not “know”. Mrs. Peters felt that another juror had mentioned the previous verdict, yet this portion of her testimony was wholly rebutted by the other jurors. Mrs. Verda was exceedingly vague and inconclusive about the “source” of her knowledge. She said the previous verdict was definitely not mentioned. (Tr. 65). At one point, she stated that her conclusion about the defendant’s earlier conviction was based on the “housewives” remark (Tr. 63); at another, “from the proceedings in court” (Tr. 61); and, at still another, “I know at some point in time I got to this assumption but I don’t remember exactly when I heard it.” (Tr, 63).
With the finding that no “extraneous information” affected the jury’s deliberations, it is not within my province to explore with Mrs. Peters and Mrs. Verda how they concluded during deliberations (if indeed they did) that the defendant had been convicted once before. I can, however, suggest one plausible train of events. For, in response to the lengthy voir dire questions posed to each juror by the court, the defense thereafter decided that an instruction about the previous trial should be given. The government acceded to this request, and, on the first or second day of trial, I instructed the jury as follows:
Ladies and gentlemen, as some of you may have gathered before or during the questions that were asked of you during the past couple of days, this case has been tried once before, some months ago. The result of that trial has no bearing whatsoever on this case. The fact that the ease was previously tried, and the reasons that we are trying it again, is absolutely irrelevant to you, and you must put it out of your mind and give it no thought whatsoever. Is there any juror who has any doubt in his mind that he or she can and will follow this instruction?
From the moment I gave this instruction, the entire jury knew of the previous trial. From then on, a juror could easily have drawn the inference that the defendant had been convicted, but that something had upset the previous verdict. Since no remark was made during trial or deliberations about that previous verdict, it may very well be that Mrs. Peters or Mrs. Verda drew just such an inference. However, though I raise this point as a possibility, whether .they did or did not do so marks precisely the boundary past which the court’s inquiry cannot go: the realm of a juror’s “mental processes.”
The Law
As previously stated, the law requires that an evidentiary inquiry such as this “be limited to objective demonstration of extrinsic factual matter disclosed in the jury room.” United States v. Howard, 506 F.2d at 869. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.1979). The reason for requiring an “objective demonstration,” i.e. some overt act that can be put to proof, was explained fully in United States v. Howard:
Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to disturb the expressed conclusions of twelve; its tendency is to produce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors; if one affirms *1004misconduct, the remaining eleven can deny; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard.
506 F.2d at 869, note 3. Accord, United States v. Eagle, 539 F.2d 1166, 1170 (8th Cir.1976).
In this case, nothing was disclosed in the jury room prior to a verdict on all three counts. As such, the inquiry mandated by United States v. Howard is complete13 and the motion for new trial due to misconduct affecting the jury must be denied.14