United States v. Marcus Williams ( 1996 )

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No. 95-2968
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United States of America, *
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Appellee, *
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v. *
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Marcus Williams, *
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Appellant. *
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Appeals from the United States
No. 95-2972 District Court for the
___________ Eastern District of Missouri.
United States of America, *
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Appellee, *
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v. *
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Cortez Williams, *
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Appellant. *
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Submitted: January 9, 1996
Filed: March 5, 1996
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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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BEAM, Circuit Judge.
Marcus Williams (Marcus) and Cortez Williams (Cortez) appeal their
convictions and sentences for conspiracy to distribute and distribution of
crack cocaine. Both appellants challenge the sufficiency of the
government's evidence regarding the quantity of
drugs for which they were held responsible at sentencing. Marcus also
challenges the qualifications of a member of his jury.
I. BACKGROUND
Marcus and Cortez Williams were charged with conspiracy to distribute
and distribution of cocaine base. A woman named Mary Williams was on the
jury venire. During voir dire the court asked defendant Marcus Williams
to stand and inquired, "Do any members of the jury panel know Marcus
Williams?" Mary Williams did not respond. Later during voir dire, the
government asked Mary Williams specifically, "Have you ever run across the
names of these two defendants?" Mary Williams responded, "Not that I know
of." At the conclusion of voir dire, Mary Williams was selected to be on
the jury.
At trial, the government called Highway Patrol Trooper Paula Woodruff
and an informant, James Suggs, as witnesses. Woodruff testified that, with
the help of Suggs, she bought drugs from the defendants on October 1, 1993,
in a school parking lot. Even though she purchased only one-quarter ounce
of cocaine base, she testified that the defendants were in possession of
at least one ounce at that time.
Marcus's defense was one of misidentification. He claimed he was not
involved in the alleged transaction, but that another man, also named
Marcus Williams, was the real culprit.1 The jury did not believe the
misidentification defense. Following a three-day trial, it convicted the
defendants of both counts. After trial, Marcus claimed that the "other"
Marcus Williams, upon whom he tried to blame the drug transaction, was the
grandson of juror Mary
1
This theory appears to be stronger in hindsight than at
trial. In fact, the trial testimony regarding the "other" Marcus
Williams consisted solely of tidbits from the defense's cross-
examination of Suggs and its direct examinations of Marcus and
Cortez. At best, this testimony merely established that another
Marcus Williams existed.
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Williams. Subsequently, Marcus moved for a new trial alleging juror Mary
Williams withheld information during voir dire which would have
disqualified her from serving on the jury. The motion was denied.
At sentencing, Suggs testified to many drug transactions, in addition
to the school parking lot sale, in which he and the defendants were
involved.2 Suggs was the only witness who testified to these transactions.
The district court held the defendants responsible for the entire one ounce
(28.35 grams) of cocaine base involved in the school parking lot sale. The
district court also accepted part of Suggs's testimony and used it to set
the defendants' base offense levels.3 Marcus was sentenced to 240 months
imprisonment and five years supervised release. Cortez was sentenced to
156 months imprisonment and five years supervised release. Marcus and
Cortez appeal their convictions and sentences.
II. DISCUSSION
A. Drug Quantity
Both appellants maintain that their sentences are improper because
the government failed to prove, by a preponderance of the
2
Suggs estimated he had purchased at least one kilogram of
cocaine base from Marcus, typically in one-sixteenth ounce or one-
quarter ounce quantities. Suggs further estimated 30 to 40
purchases from Cortez, in similar quantities. This suggests that
over 100 sales of cocaine base occurred between the defendants and
Suggs.
3
Marcus's presentence report recommended a base offense level
of 38. At sentencing, the district court found that 36 was a more
appropriate base offense level. U.S.S.G. §2D1.1(c)(2) (at least
500 grams, but less than 1.5 kilograms of cocaine base). Cortez's
presentence report recommended a base offense level of 36. At
sentencing, the district court found that 32 was a more appropriate
base offense level. U.S.S.G. §2D1.1(c)(4) (at least 50 grams, but
less than 150 grams of cocaine base).
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evidence, the drug quantities for which they were held responsible. The
sentencing guidelines provide that, in determining the appropriate base
offense level, the sentencer is to consider all acts and omissions that
"were part of the same course of conduct or common scheme or plan as the
offense of conviction." U.S.S.G. §1B1.3(a)(2). In so doing, the district
court considered Suggs's testimony. Appellants claim that Suggs's status
as an informant, exchanging information for leniency in his own sentencing,
proves the unreliability of his testimony. Because Suggs was the only
witness who testified to these other drug transactions, the appellants
argue that the government's evidence was insufficient to prove their
involvement in those sales.
Although the government must prove all elements of a crime beyond a
reasonable doubt, the government need only prove drug quantity, for purpose
of sentencing, by a preponderance of the evidence. United States v.
Smiley, 997 F.2d 475, 481 (8th Cir. 1993). The district court's
calculation of drug quantity is reviewed under a clearly erroneous standard
and will be upheld absent a definite and firm conviction that a mistake has
been made. United States v. Simmons, 964 F.2d 763, 773 (8th Cir.), cert.
denied, 506 U.S. 1011 (1992). In this case, we are convinced that no such
mistake was made.
Suggs's testimony, although not entirely credited by the district
court, established Marcus's rather extensive involvement in drug
trafficking from October 1992 to September 1993 and Cortez's similar
involvement from July 1993 to September 1993.4 To arrive at 36 for
Marcus's base offense level, the district court found that Marcus was
responsible for at least 500 grams of cocaine base, based on the testimony
of Woodruff and Suggs. Similarly, to arrive at 32 for Cortez's base
offense level, the district court
4
In September 1993, Suggs was arrested for drug offenses and
began to assist the government as an informant.
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found that Cortez was responsible for at least fifty grams of cocaine base,
also based on the testimony of Woodruff and Suggs. Suggs's testimony alone
established ranges in excess of these amounts. The district court's
calculation was supported by sufficient evidence and, therefore, was not
clearly erroneous.
B. Juror Misconduct
Marcus claims that he should be given a new trial due to juror Mary
Williams's alleged failure to disclose material information on voir dire.
The test for whether a new trial should be given under such circumstances
was set forth in McDonough Power Equip., Inc. v. Greenwood. 464 U.S. 548,
556 (1984). See also Bennett v. Lockhart, 39 F.3d 848, 853 (8th Cir. 1994)
(application of McDonough in criminal case), cert. denied, 115 S. Ct. 1363
(1995). Under McDonough, the party challenging the juror's qualifications
must show that the juror failed to honestly answer a material question on
voir dire and that a correct response would have provided a valid basis for
a challenge for cause. McDonough, 464 U.S. at 556. The district court has
broad discretion in handling allegations of juror misconduct and its
decision will be affirmed absent an abuse of discretion. United States v.
Wiley, 997 F.2d 378, 383-84 (8th Cir.), cert. denied, 114 S. Ct. 600
(1993). Upon review of the record, we find no abuse of the district
court's discretion in denying the new trial motion.
There has been no showing that juror Mary Williams deliberately
concealed information or failed to honestly answer any question on voir
dire. She was not asked whether she had a grandson named Marcus Williams
or whether the name Marcus Williams, in general, was familiar to her.
Instead, she was asked whether the names of "these two" defendants meant
anything to her. Apparently, they did not. Because Marcus has failed to
reveal any false or misleading answer to any question propounded on voir
dire, a new trial is not warranted. For these same reasons, a post-trial
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evidentiary hearing on whether misconduct occurred is also unwarranted.
See, e.g., United States v. Moses, 15 F.3d 774, 778 (8th Cir.), cert.
denied, 114 S. Ct. 2691 (1994).
What occurred here was not an ideal textbook voir dire. However, the
defense was most familiar with the claim of misidentification and was in
the best position to question the jury regarding the "other" Marcus
Williams. Instead, the defense did not ask any questions during voir dire
regarding the "other" Marcus Williams or mention him during its opening
statement. See, e.g., United States v. Hoelscher, 914 F.2d 1527, 1542 (8th
Cir. 1990) (defense counsel's failure to question juror on voir dire raised
"strong suspicion" that counsel deliberately gambled on possibility of
favorable juror), cert. denied, 498 U.S. 1090 (1991). Thus, the defense
assumed the risk that it would get jurors familiar with the "other" Marcus
Williams. We have considered the remainder of appellants' claims and find
them to be without merit.
III. CONCLUSION
We find no error in the district court's calculation of drug
quantities for sentencing or in its refusal to grant a new trial for
alleged juror misconduct. Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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