U.S. v. Walker
| Decision Date | 19 November 1998 |
| Docket Number | 96-3938,Nos. 96-3073,s. 96-3073 |
| Citation | 160 F.3d 1078 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Darnell L. WALKER (96-3073); William A. McKinley (96-3938), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Linda M. Betzer, Asst. U.S. Attorney (argued and briefed), Office of U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee.
Jacqueline A. Johnson, Fed. Public Defender (argued and briefed), Federal Public Defender's Office, Cleveland, OH, for Defendant-Appellant in docket No. 96-3073.
William T. Doyle (argued and briefed), Cleveland, OH, for Defendant-Appellant in docket No. 96-3938.
Before: JONES, RYAN, and MOORE, Circuit Judges.
The defendants, Darnell L. Walker and William A. McKinley, appeal from the judgments of conviction and sentences imposed following a jury trial on various drug and firearm charges in connection with a conspiracy to distribute cocaine and cocaine base in Youngstown, Ohio. The appeals present numerous issues, none of which warrant setting aside the defendant's convictions. We will, therefore, affirm both defendants' convictions, and Walker's sentence. We conclude, however, that McKinley's sentence must be vacated because the district court clearly erred in finding that McKinley was a leader of the conspiracy.
Between April and October 1993, Walker and McKinley were members of a Youngstown, Ohio, gang known as the Ready Rock Boys. The raison d'etre of the Ready Rock Boys was the processing and distribution of cocaine and cocaine base, also known as "crack." The defendants, along with nine others, were named in a 13-count indictment handed down in January 1994, charging them with conspiracy to possess cocaine and cocaine base with the intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1). The indictment alleged that various codefendants sold cocaine or cocaine base in furtherance of the conspiracy, in a total amount of 25.2 grams of cocaine and 175.2 grams of cocaine base.
Walker was also charged with one count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g), 924(a)(2); and one count of using and carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1). McKinley was charged with an additional count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), 842(b)(1)(B).
Walker and McKinley proceeded to trial and, in September 1994, were convicted on all counts. Walker's conviction under 18 U.S.C. § 924(c)(1), however, was dismissed prior to sentencing, following the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Both defendants filed timely appeals.
Immediately following the return of the jury's verdict finding the defendants guilty, counsel for defendant McKinley moved for a mistrial. The motion was made to U.S. District Judge Solomon Oliver, as Judge George White, who had presided over the trial, was unavailable at the time the verdict was returned. The motion contained four separate grounds, only one of which is at issue here;
[W]ith regard to the individual jurors, during the course of the proceedings Judge White had requested that I speak to my client, Mr. McKinley, because [Judge White] was approached by a member of the jury, and the member of the jury is seated in the seventh seat, which would be the back row, all the way to the left, an African American woman, who made a statement to the Judge that she felt uncomfortable because she was in the same elevator with my client previously.
Judge White had asked me to speak to my client. I assured the Judge that I was present during that time, we both were on the elevator. I got off before my client and remained on the elevator with her.
During the course of closing arguments, and also during the course of the trial, that juror ... was often seen making a series of facial expressions and rolling her eyes, and things like that, which brought to mind the fact she was either predisposed or was not paying attention to the facts before her.
McKinley's attorney added that "Judge White [had] addressed [him] off the bench and off the record, and at that time just indicated that the juror had made that statement to him." The attorney had not thought "anything of it at the time because ... [he] was present [in the elevator], there was no conversation; but in light of the fact of the rest of that particular juror's attitudes and demeanors in the case, ... [he now] believe[d] that those culmination of facts have caused her to rule against [his] client or otherwise have a predisposition towards conviction."
We note that McKinley's attorney's statement is somewhat ambiguous as to who got off the elevator, and whether McKinley was at any point left alone with the juror. Since, however, McKinley's attorney affirmatively stated that there was "no conversation" with the juror, and since, in a post-trial proceeding on another matter, McKinley testified that he had no "contact" with the juror, we presume that the attorney simply misspoke in suggesting that his client had been left alone with the juror.
Walker's attorney joined the motion for mistrial, noting: "This is the first that I have heard about any problem with your Mr. McKinley and a juror." He elaborated:
Your Honor, I had no knowledge of this incident ..., and I am greatly troubled by it, and I ask that judgment on this verdict be withheld until Judge White returns to the bench and can consider it more fully, in light of the speed in which the verdict was returned, and the participation of this juror in that verdict.
Judge Oliver denied the defendants' motion, stating:
[Judge White] spoke to [McKinley's attorney], but he obviously didn't feel on the basis of the comments which he received at that time that those were sufficient to declare mistrial or to take other steps.
And so I feel compelled at this point, in the light of my hearing what you describe here, to let the verdict stand.
I really don't think that a strong enough case has been made to overturn the verdict or to withhold the verdict pending further inquiry by Judge White, but you have made your record. I think you are entitled to make that.
Although McKinley later filed a motion for new trial, he did not rely upon this incident as a basis for his requested relief; Walker never filed any motion at all.
The record reveals that the elevator incident was preceded by another juror-contact incident that resulted in one juror's dismissal. That juror also was dismissed from the jury at the request of the AUSA, over the defendants' objections, on the basis of her admitted discussions regarding the trial with a friend who had been driving her to and from the trial, as well as watching it himself as a spectator. On this occasion, the district judge had held a hearing in chambers and thoroughly questioned the juror, as well as her friend, to ascertain the extent of the prejudice. The court then ruled that it would remove her "out of an abundance of caution."
Both defendants contend that the trial judge's handling of the juror complaint concerning the elevator incident requires the conviction to be overturned. Specifically, Walker argues that the ex parte communication between the trial judge and the juror, and the trial judge and McKinley's counsel, violated his right to a fair trial by impartial jurors, his right to be present at all stages of the trial, and his right to effective assistance of counsel. He also contends that, because the district court failed to inquire on the record into the juror's state of mind, Walker was deprived of any opportunity to show actual bias. McKinley characterizes the problem as one of "outside influence" on a juror, and improper juror contact, that denied him the right to an impartial jury. He argues that when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held.
It is a " 'basic requirement of due process' " that a "defendant in a criminal case receive 'a fair trial by a panel of impartial, "indifferent" jurors.' " Rigsby, 45 F.3d at 122 (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). The landmark case on the topic of jury taint is Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), where the Court "affirmed that juries in criminal cases must be free of outside influences and announced the procedure to be followed when a party alleges that a jury has been subjected to such influences," Rigsby, 45 F.3d at 122-23, namely, the holding of a hearing " 'with all interested parties,' " rather than ex parte resolution of the problem by the judge, id. (quoting Remmer, 347 U.S. at 229-30, 74 S.Ct. 450).
At the outset, we reject the government's argument that Walker is not an "interested party" with standing to complain here. The government argues that the incident involved McKinley only, not Walker. It is clear to us, however, that were we to conclude that the incident resulted in some prejudice to McKinley, the possibility of spillover for McKinley's alleged coconspirator would be palpable. We conclude, therefore, that Walker has sufficient interest in this incident to have standing to complain.
articulated four points to consider in cases of possible improper juror contact:
... (1) when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held; (2) no presumption of prejudice arises from such a contact; (3) the defendant bears the burden of proving actual juror bias; and (4) juror testimony at the "Remmer hearing" is not inherently suspect.
United States v. Rugiero, 20 F.3d 1387, 1390 (6th Cir.1994) (citations...
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