United States v. N-Jie , 276 F. App'x 325 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4905
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHENOMUSA N-JIE,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
Senior District Judge. (5:05-cr-00064-FPS)
Argued: March 19, 2008 Decided: May 9, 2008
Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and
William L. OSTEEN, Jr., United States District Judge for the Middle
District of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Edward Lee Gillison, Jr., GILLISON LAW OFFICES, Weirton,
West Virginia, for Appellant. Randolph John Bernard, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON
BRIEF: Sharon L. Potter, United States Attorney, David J. Perri,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chenomusa N-Jie (“N–Jie”) appeals his conviction and sentence
for conspiracy to possess with intent to distribute in excess of
100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a),
846. N-Jie challenges his conviction by contending that the
district court failed to conduct an evidentiary hearing and award
a new trial on account of juror bias, and failed to award a new
trial on account of prosecutorial vouching. N-Jie challenges his
sentence by contending that the district court improperly applied
a two-level enhancement for obstruction of justice pursuant to U.S.
Sentencing Guidelines Manual (USSG) § 3C1.1 (2006). For the
following reasons, we affirm the district court’s judgment.
N-Jie was indicted by a grand jury on February 7, 2006, and
charged with conspiracy to possess with intent to distribute in
excess of 100 kilograms of marijuana, in violation of 21 U.S.C. §§
841(a), 846. The indictment also contained a forfeiture allegation
pursuant to 21 U.S.C. § 853. N-Jie entered a plea of not guilty
and a jury trial commenced on May 16, 2006. The district court
conducted an extensive voir dire at the outset of the trial. Among
other questions, the district court asked the jury panel the
following:
Have any of the attorneys in this case ever represented
you or any member of your immediate family on a regular,
retainer-fee basis?
Do any of you have any feelings or beliefs or attitudes
regarding attorneys in general and particularly defense
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lawyers who are charged with representing defendants in
a criminal case, that would prevent you from rendering a
fair and impartial trial in this case?
[C]an any of you think of any matters that you should
call to my attention at this time which may in some way
bear upon your qualifications to serve as a juror or
which for any reason might prevent you from rendering a
fair and impartial verdict based solely upon the evidence
and on this Court’s instructions as to the law which I
will give you at the end of the case?
J.A. 15, 52. A prospective juror, Ms. Rosohac, remained silent in
response to each of these questions, thereby indicating a response
of “No.” Ms. Rosohac was seated on the jury and ultimately became
its foreperson.
At trial, the Government presented evidence that N-Jie
distributed over 100 kilograms of marijuana during the course of a
three-year conspiracy, from August 2002 through August 2005.
Following the Government’s presentation of evidence, N-Jie took the
stand. N-Jie’s testimony directly contradicted the testimony of
the Government’s law enforcement witnesses. N-Jie specifically
denied ever selling marijuana. J.A. 602.
Following the presentation of the evidence, the parties
proceeded with closing arguments. During the Government’s opening
argument, N-Jie’s counsel thought he heard the prosecutor
improperly vouch for the testimony of the Government’s law
enforcement witnesses. Specifically, N-Jie’s counsel believed he
heard the prosecutor say “something to the affect [sic] of ‘[y]ou
are not going to believe the testimony of the defendant over the
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testimony of these police officers.’” J.A. 706. This improper
prosecutorial vouching was especially damaging, N-Jie claimed,
because multiple law enforcement officers testified for the
Government. The district court overruled the objection after a
brief bench conference, finding that the prosecutor’s remark did
not constitute an improper vouching for the testimony of the law
enforcement witnesses.
The jury convicted N-Jie on May 18, 2006, after a three-day
trial. On May 25, 2006, N-Jie filed a motion requesting an
evidentiary hearing and seeking a new trial on the basis of juror
bias and on account of the alleged prosecutorial vouching. The
Government filed a response on June 5, 2006. N-Jie’s motion
alleged that Ms. Rosohac was unable to be an impartial juror
because she was prejudiced against defense counsel. J.A. 706. In
support of that argument, N-Jie’s motion further claimed that at
some unspecified time before his trial, (1) Ms. Rosohac’s mother
had contacted defense counsel for the purpose of retaining defense
counsel for an unrelated matter, (2) Ms. Rosohac had offered to pay
$1500 as a retainer fee for her mother, (3) defense counsel’s firm
had declined the retainer fee and the representation, and (4) Ms.
Rosohac had become angry when defense counsel’s firm declined to
represent her mother. J.A. 704-05. Ms. Rosohac’s alleged enmity
toward defense counsel’s firm is the essence of N-Jie’s juror bias
claim.
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On August 2, 2006, the district court issued a memorandum
opinion and order denying N-Jie’s request for an evidentiary
hearing and denying the motions for a new trial. The district
court first found that Ms. Rosohac’s mother was not a “regular [or]
retainer-fee basis” client, thus Ms. Rosohac’s silence in response
to the first question was honest. J.A. 15, 722. The district
court also found, regarding the second and third questions, that
Ms. Rosohac honestly indicated that she could be impartial. J.A.
722. Accordingly, the district court concluded that N-Jie was not
entitled to relief under McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 850 (1984), because
Ms. Rosohac had answered all questions honestly.
The Probation Officer calculated a total offense level of 28
in the presentence report. That calculation included a two-level
adjustment for obstruction of justice, pursuant to § 3C1.1, based
on the fact that N-Jie gave false testimony at trial. N-Jie
objected to the inclusion of an adjustment for obstruction of
justice. The district court found that N-Jie committed perjury
during his trial testimony and that a two-level adjustment for
obstruction of justice properly applied. The application of the
obstruction of justice adjustment resulted in a total offense level
of 28 and an advisory guidelines range of 78-97 months’
imprisonment. The district court sentenced N-Jie to 78 months
imprisonment. N-Jie appeals the district court’s decisions.
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I. Juror Bias
Our analysis of N-Jie’s juror bias claims begins with the
Supreme Court’s holding in McDonough “that to obtain a new trial
[on a juror bias claim], a party must first demonstrate that a
juror failed to answer honestly a material question on voir dire,
and then further show that a correct response would have provided
a valid basis for a challenge for cause.” McDonough, 464 U.S. at
556, 104 S. Ct. at 850; Jones v. Cooper, 311 F.3d 306, 310 (4th
Cir. 2002) (recognizing the applicability of the McDonough standard
to federal criminal proceedings). We believe the district court
properly found that Ms. Rosohac answered each question honestly and
that N-Jie, therefore, was not entitled to relief under McDonough.
Specifically, N-Jie’s motion for a new trial alleged no facts to
support a finding that Ms. Rosohac’s mother was represented by
defense counsel’s firm “on a regular, retainer-fee basis.” J.A.
15. Additionally, N-Jie’s bare-boned allegation of Ms. Rosohac’s
enmity toward defense counsel’s firm at some indefinite time in the
past is insufficient, in this case, to show that Ms. Rosohac could
not be impartial and that she, therefore, answered the voir dire
questions dishonestly.
We have held, however, that a defendant’s “[f]ailure to
satisfy the requirements of McDonough does not end the court’s
inquiry . . . when the petitioner also asserts a general Sixth
Amendment claim challenging the partiality of a juror based upon
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additional circumstances occurring outside the voir dire.”
Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir. 1998). A
defendant is not automatically entitled to an evidentiary hearing.
Rather, “it remains within a trial court’s option, in determining
whether a jur[or] was biased, to order a post-trial hearing at
which the movant has the opportunity to demonstrate actual bias, or
in exceptional circumstances, that the facts are such that bias is
to be inferred.” Id. at 363 (quoting McDonough, 464 U.S. at
556-57, 104 S. Ct. at 850 (Blackmun, J., concurring)); see
Billings v. Polk, 441 F.3d 238, 245-46 (4th Cir. 2006) (The court
is not “obliged to hold an evidentiary hearing any time that a
defendant alleges juror bias.”). We review a district court’s
decision not to grant an evidentiary hearing to consider a juror
misconduct or juror bias claim for abuse of discretion. United
States v. Duncan, 598 F.2d 839, 866 (4th Cir. 1979) (Because “[t]he
circumstances in which juror misconduct can occur are probably as
varied as all of human experience[,] [w]e have followed the view
that the district court may deal with such claims as it feels the
particular circumstances require and have only reversed for abuse
of discretion.”). The district court denied N-Jie an evidentiary
hearing, holding that N-Jie “failed to establish actual bias” or
implied bias. J.A. 723. We agree with the district court.
N-Jie’s motion for a new trial attempts to depict Ms. Rosohac’s
sentiments toward defense counsel as bias against N-Jie. This
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depiction is purely conjectural, and N-Jie proffered nothing to
suggest otherwise. Given the speculative nature of N-Jie’s
allegations, we conclude that the district court did not abuse its
discretion in refusing to grant an evidentiary hearing.
We review a district court’s denial of a motion for a new
trial for abuse of discretion. United States v. Smith, 451 F.3d
209, 216 (4th Cir. 2006) (quoting United States v. Perry, 335 F.3d
316, 320 (4th Cir. 2003)). “Under the applicable legal principles,
a trial court ‘should exercise its discretion to award a new trial
sparingly,’ and a jury verdict is not to be overturned except in
the rare circumstance when the evidence ‘weighs heavily’ against
it.” Smith, 451 F.3d at 216-17. For the reasons we concluded an
evidentiary hearing was not warranted, we also find that the
district court did not abuse its discretion in denying the motion
for a new trial.
II. Prosecutorial Vouching
On May 25, 2006, N-Jie filed a post-trial motion seeking a new
trial on the basis of prosecutorial misconduct. N-Jie contended
that during closing arguments the prosecutor “stated something to
the affect [sic] of ‘[y]ou are not going to believe the testimony
of the defendant over the testimony of these police officers.’”
J.A. 706. The prosecutor denies having made this, or any, vouching
statement. The district court did not hear the prosecutor make a
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vouching statement, nor is such a statement reflected in the
transcript.1 The district court concluded that the prosecutor told
the jury only that “you once again use your common sense when you
basically weigh the testimony of the law enforcement agents that
were monitoring the conversation.” J.A. 677, 725-26. There is no
evidence to support N-Jie’s claim that the district court erred in
refusing to grant a new trial on this ground.
1
The transcript is as follows:
Mr. Bernard: Well, you once again use your common sense
when you basically weigh the testimony of the law
enforcement agents that were monitoring the conversation
--
Mr. Gillison: Objection, Your Honor. May we approach?
The Court: You may.
Mr. Gillison: I believe that that would be improper
argument to tell the jury. The jury has to [sic] judge’s
instruction with regards to what weight to give
testimony. And this man is, by last statement, he was
inferring that a law –- the law affords the agents’
testimony is more credible than just an average citizen.
I object to that. I object to that statement. I ask
that it be stricken from the record.
The Court: All right. Mr. Bernard?
Mr. Bernard: I said that you’ll have to weigh the
statements of law enforcement. I don’t -– I didn’t say
they’ll have to believe more than any other witness, Your
Honor.
The Court: I’m going to overrule the objection
because it leaves it to the discretion of the jury to
what weight it ascribes, and so I’m going to overrule the
objection.
J.A. 677-78.
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Assuming arguendo that the prosecutor improperly vouched for
the testimony of the law enforcement agents, the district court
properly concluded that a new trial was not warranted. “It is
improper for a prosecutor to directly express his opinion as to the
veracity of a witness.” United States v. Loayza, 107 F.3d 257, 262
(4th Cir. 1997) (internal punctuation omitted). To warrant a new
trial, a prosecutor’s statement must improperly vouch for a
witness’s veracity and it must be “more likely than not that the
remarks materially affected the appellant’s substantial rights.”
Id. “[C]omments made by a prosecutor during closing arguments will
not warrant a new trial unless they ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’” Id. (quoting United States v. Francisco, 35 F.3d 116,
120 (4th Cir. 1994), cert. denied, 513 U.S. 1133, 115 S. Ct. 950(1995)).
In Loayza, we instructed district courts to consider (1)
“whether the comments misled the jury and prejudiced the
appellant”; (2) “were [the comments] isolated or extensive”; (3)
“absent the remarks, what was the weight of the evidence against
the accused”; and (4) “were the prosecutor’s remarks deliberate.”
Loayza, 107 F.3d at 262 (citing United States v. Moore, 11 F.3d
475, 482 (4th Cir. 1993)). In United States v. Wilson, 135 F.3d
291, 299 (4th Cir. 1998), we instructed district courts to further
“consider (5) whether the prosecutor’s remarks were invited by
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improper conduct of defense counsel, and (6) whether curative
instructions were given to the jury.” Id. (internal citation
omitted). “These factors are examined in the context of the entire
trial, and no one factor is dispositive.” Id.Assuming that the prosecutor made an improper vouching
statement, the district court’s instructions prevented the
statement from misleading the jury or prejudicing N-Jie.2 See
Francisco, 35 F.3d at 120 (“[W]e follow the presumption that the
jury obeyed the district court’s limiting instructions.”). N-Jie
conceded that the prosecutor’s statement “was not deliberately
placed before the jury to divert attention to extraneous matters,”
that the statement was isolated, and that the government adduced
“strong competent proof” of N-Jie’s guilt; prongs 2, 3, and 4,
respectively. App. Br. at 24. There is no evidence that any
statement “was invited by improper conduct of defense counsel.”
Wilson, 135 F.3d at 299. Though no immediate curative instruction
was given, the district court’s final jury instructions prevented
the statement from misleading the jury or prejudicing N-Jie. Thus
2
The district court instructed the jury that:
In considering the testimony of witnesses who are police
officers or agents of the government, you may not give
more weight to the testimony of police officers or agents
of the government than you give to the testimony of other
witnesses for the mere reason that the witness is a
police officer or an agent of the government.
J.A. 648.
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even if the prosecutor made an improper vouching statement, we
would affirm the district court’s conclusion that the statement did
not materially affect N-Jie’s substantial rights or “‘so infect[]
the trial with unfairness as to make the resulting conviction a
denial of due process.’” Loayza, 107 F.3d at 262 (quoting
Francisco, 35 F.3d at 120).
III. Obstruction of Justice Enhancement
At the sentencing hearing, the district court found that N-Jie
committed perjury during his testimony. The district court
accordingly applied a two-level enhancement for obstruction of
justice, as set forth in USSG § 3C1.1. To apply an obstruction of
justice enhancement, the district court must find by the
preponderance of the evidence that the defendant gave “(1) false
testimony (2) concerning a material matter (3) given with the
willful intent to deceive (rather than as a result of, say,
confusion, mistake, or faulty memory).” United States v. Smith, 62
F.3d 641, 646 (4th Cir. 1995) (citing United States v. Dunnigan,
507 U.S. 87, 92-93, 113 S. Ct. 1111 (1993)). When reviewing the
district court’s application of the Sentencing Guidelines, we
accept the district court’s findings of fact unless they are
clearly erroneous and give due deference to the district court’s
application of the Guidelines to the facts. United States v.
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Cutler, 36 F.3d 406, 407 (4th Cir. 1994). The district court made
a specific finding as to each element, stating that:
I think it is clear to me as the presiding judge that the
defendant perjured himself when he testified as to his
involvement in the conspiracy of possession with intent
to distribute marijuana. That was false testimony. It
was involving material fact, and it was given in my
opinion with the willful intent to deceive. It wasn’t
confused testimony. It wasn’t mistaken testimony. And
it wasn’t faulty testimony in the sense that it was
somehow accidental. So I think independent of his
testimony . . . there is sufficient evidence to show
obstruction of justice.
J.A. 747. We conclude that the district court did not clearly err
in finding that N-Jie gave false testimony about a material matter
with the willful intent to deceive. Therefore, the two-level
adjustment for obstruction of justice was warranted.
IV. Conclusion
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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