U.S. v. Love

• Decision Date: 20 January 1998
• Docket Number: Nos. 95-5760,95-5825,s. 95-5760
• Citation: 134 F.3d 595
• Parties: 48 Fed. R. Evid. Serv. 828 UNITED STATES of America, Plaintiff-Appellee, v. Rex Eugene LOVE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne SHEPPARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 595

134 F.3d 595

48 Fed. R. Evid. Serv. 828

UNITED STATES of America, Plaintiff-Appellee, v. Rex Eugene LOVE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne SHEPPARD, Defendant-Appellant.

Nos. 95-5760, 95-5825.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 27, 1997.

Decided Jan. 20, 1998.

ARGUED: Michael Smith Scofield, Charlotte, NC, for Appellant Love; Alice Carson Stubbs, Stubbs, Pahl & Perdue, P.A., Raleigh, NC, for Appellant Sheppard. Jane H. Jackson, Assistant United States Attorney, Raleigh, NC, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, NC, for Appellee.

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge HAMILTON and Senior Judge MERHIGE joined.

OPINION

WILKINSON, Chief Judge:

Rex Love and Jerry Sheppard were convicted of conspiracy to possess with intent to distribute marijuana and cocaine in violation of 21 U.S.C. § 846. Love also was convicted of possession with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1). Love and Sheppard appeal their convictions and sentences on several grounds. They argue principally that the district court's method of jury selection violated Fed.R.Crim.P. 24(c) and therefore constituted reversible error. Finding each of the defendants' contentions without merit, we affirm the judgment of the district court.

I.

Love and Sheppard were members of a multimillion dollar marijuana and cocaine ring. The organization imported the drugs from Mexico into Texas or Arizona and then transported them to North Carolina for distribution. In its closing argument, the government estimated that the conspiracy handled over 10,000 pounds of marijuana and at least 200 kilograms of cocaine. Love aided in distributing the drugs in North Carolina, employing others to unload large marijuana shipments at different storehouses within the state. Sheppard served as both a courier and enforcer for the organization. The evidence showed that he helped transport drugs from Arizona to North Carolina and, mainly, that he served as a hit man.

One coconspirator, Clyde Smith, testified at trial that Charles Glenn Parker, another coconspirator, hired Sheppard to intimidate and then arrange the assassination of two former associates. Parker feared that the two men, Harry Gautier and Donald Ray Thompson, would testify against him in his own state court trial. Parker first purchased a car for Sheppard so that he could surveil Gautier and Thompson in Goldsboro, North Carolina. Smith recalled that Parker told him that ultimately Sheppard did go to Gautier's residence to kill him, but failed in the effort because the gun would not fire. Gautier confirmed that an attempt was made on his life. When asked why Parker chose Sheppard to serve in this capacity, Smith testified, over the defense's objection, that Parker had told him "that Jerry Sheppard had a prior record for murder, that he had killed a rat and went to prison for it."

While in jail awaiting trial, Sheppard became friends with a federal prisoner, Raeford Carr. Carr testified at trial that Sheppard spoke to him on various occasions concerning his participation in the activities of the conspiracy. According to Carr, Sheppard told him that he drove to Arizona to transport marijuana, that he traveled to Arkansas to find a lawyer for one of the organization's couriers, and that he participated in an attempted hit on a witness. Carr testified that he contacted federal agents himself after having the above jailhouse conversations with Sheppard.

The government originally filed an indictment in September 1994 against eleven members of the conspiracy, not including Love or Sheppard. In January 1995, the government filed a superseding indictment against twenty persons, including the eleven originally named defendants and Love and Sheppard. Of the first eleven codefendants, only two pled not guilty. Both were tried before a jury in a trial beginning February 27, 1995, and both were convicted. Love and Sheppard were tried in June 1995 in a separate trial with four other codefendants, two of whom were fugitives at the time of trial. The jury found Love and Sheppard guilty on the conspiracy charge, and found Love guilty of possession with intent to distribute both marijuana and cocaine. The jury further found a sum of $300,000 subject to criminal forfeiture by Love, but not Sheppard. The court sentenced Love to 360 months in prison plus five years supervised release, and Sheppard to 210 months plus five years supervised release.

II.

A.

The defendants' main contention is that the district court's failure to follow Fed.R.Crim.P. 24(c) in selecting a jury constitutes reversible error. Accordingly, some discussion of the background of this trial and of the jury selection procedure used by the district court is appropriate.

In a pretrial order, the district court found several extenuating factors requiring modification of traditional trial procedures. The district court first noted that in the prior February 1995 trial, the organization had been shown to be one with substantial financial resources and members "who would not hesitate to use money or violence to compromise witness integrity." The court specifically referred to testimony at the earlier trial that one of the codefendants there had intimidated a potential witness in a related state matter. The court also cited allegations concerning the murder of a witness in a related matter in another state, the attempted murder of a witness in a related North Carolina matter, and threats made against codefendants and their families, including the detonation of a pipe bomb at the home of a codefendant who testified for the government at the February trial. Finally, the court observed that two of the codefendants in the present case remained fugitives, one of whom was classified as "armed and dangerous." The district court therefore concluded: "The circumstances surrounding the trial, as evidenced above, have given rise to a serious potential threat to the integrity of the judicial process and to the safety of witnesses, jurors, court personnel and spectators."

Accordingly, the district court established trial parameters designed to respond to the potential security threats. The court specifically chose to employ a special jury selection procedure. The court impanelled an eighteen-person jury to hear the evidence in the case. At the close of evidence and prior to the start of deliberations, each side would eliminate three jurors by random draw, thereby leaving a regular jury of twelve to deliberate. Because of the unique procedure, the court assembled a larger-than-normal venire panel and allowed each side more peremptory challenges than legally mandated. The government received twelve challenges, twice as many as required, and each defendant received four challenges for a total of twenty-four, fourteen more than required.

Although acknowledging that its chosen procedure deviated from Rule 24(c), the district court reasoned that the special circumstances of this trial made the departure appropriate and conferred certain benefits. First, because of the anticipated length of the trial, waiting to designate alternates until the close of evidence would ensure that every juror would be more attentive throughout the trial. Second, the judge explained that the selection method minimized the threat of jury intimidation by requiring an interested party to target a greater number of jurors in order to affect just one who would ultimately deliberate. The district court also noted that the same procedure had been utilized without objection in the prior February trial. The defendants objected, however, to the chosen procedure before the instant trial.

B.

Defendants contend that the district court's failure to follow Fed.R.Crim.P. 24(c) requires reversal. More specifically, the defendants claim that the jury selection procedure employed here precluded the effective use of their peremptory challenges. Because it was impossible to know whether a juror would ultimately deliberate, defendants argue that the procedure forced them to waste their challenges.

Rule 24(c) provides, in part:

The court may direct that not more than 6 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.

The district court's jury selection procedure varied from Rule 24(c) in at least two respects. First, the rule authorizes the calling of additional jurors only "in addition to the regular jury" and designated "as alternate jurors." Here, the district court impanelled eighteen jurors, none of whom were designated as regulars or alternates until just prior to deliberations. Second, the rule requires that alternate jurors replace regular jurors "in the order in which they are called." Therefore, the last six persons placed on the jury of eighteen should have been discharged prior to deliberations as unnecessary alternates, rather than six determined by lot.

We cannot endorse or encourage the use of procedures that violate the Federal Rules. Rule 24(c) "represents a national consensus of bench and bar and ought not to be disturbed." United States v. Viserto, 596 F.2d 531, 540 (2d Cir.1979). Therefore, we join our sister circuits in "encouraging strict adherence" to Rule 24(c). United States v. Sivils, 960 F.2d 587, 594 (6th Cir.1992); see also United States v. Aguon, 851 F.2d 1158, 1171 (9th Cir.1988) (en banc), overruled on other...