United States v. Dillon ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31320
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
BRYAN DILLON, also known as Brian Lott, also known as Slim
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CR-88-4-R
--------------------
October 7, 2002
Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Bryan Dillon appeals his jury-trial conviction for
conspiracy to possess cocaine with the intent to distribute, in
violation of 21 U.S.C. §§ 841 and 846. For the following
reasons, we AFFIRM his conviction.
Dillon challenges the Government’s use of peremptory
challenges to strike three African-American men from the jury
panel. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). He
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-31320
-2-
argues that the district court’s analysis did not reach the third
step of the Batson analysis, which requires the court to evaluate
whether the reasons proffered by the Government were merely a
pretext for racial discrimination. If the Government provides
“plausible” reasons for its use of peremptory challenges, whether
these reasons should be believed “is quintessentially a question
of fact which turns heavily on demeanor and other issues not
discernable from a cold record, such that deference to the trial
court is highly warranted.” United States v. Williams, 264 F.3d
561, 572 (5th Cir. 2001). We find no clear error in the district
court’s conclusion that the reasons given were “legitimate, non-
discriminatory,” and “rational.”
Dillon also challenges the reliability of the methodology of
an expert witness, an FBI agent who testified regarding the
contents of an alleged drug ledger. The testimony of expert
witnesses is governed by FED. R. EVID. 702, which provides in part
that expert testimony must be based upon “sufficient facts or
data,” “the product of reliable principles and methods,” and the
witness must have “applied the principles and methods reliably to
the facts of the case.” We conclude that the district court did
not abuse its discretion in finding the agent’s methodology
reliable. This court has stated that it is “well-established
that an experienced narcotics agent may testify about the
significance of certain . . . methods of operation unique to the
No. 01-31320
-3-
drug distribution business.” United States v. Buchanan, 70 F.3d
818, 832 (5th Cir. 1996).
Dillon also challenges an additional instruction given to
the jury after they had twice indicated that they were
deadlocked. See Allen v. United States, 164 U.S. 492 (1896). He
argues that the instruction deviated from the Fifth Circuit
Pattern Jury Instruction by adding language encouraging the
consideration of the views of other jurors, and omitting an
admonition not to “yield a conscientious opinion . . . as to the
weight or effect of the evidence,” thus upsetting the “delicate
balance” between the need to consider other views and the duty to
adhere to one’s own opinion. Although the instruction given did
deviate somewhat from this Circuit’s Pattern Jury Instructions,
we conclude that this deviation was not so significant as to
coerce the jury into reaching a verdict. After encouraging the
jurors to consider other views, the court reminded the jurors not
to “surrender[] your own conscientious conviction” in order to
agree on a verdict.
AFFIRMED.