21 F.3d 133 (6th Cir. 1994), 93-5547, United States v. Glover

Docket Nº:93-5547.
Citation:21 F.3d 133
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Charles GLOVER, Defendant-Appellant.
Case Date:April 12, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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21 F.3d 133 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles GLOVER, Defendant-Appellant.

No. 93-5547.

United States Court of Appeals, Sixth Circuit

April 12, 1994

Argued Jan. 24, 1994.

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Joseph C. Murphy, Jr., Asst. U.S. Atty., Memphis, TN (argued and briefed) Daniel A. Clancy, Asst. U.S. Atty., Jackson, TN, for U.S.

Melvin G. Turner, Memphis, TN (argued and briefed) for Charles T. Glover.

Before: MARTIN and BATCHELDER, Circuit Judges; and HULL, District Judge. [*]

BOYCE F. MARTIN, Jr., Circuit Judge.

Charles Glover appeals his conviction by a jury on charges of possession of cocaine with the intent to distribute, carrying and using a firearm in relation to a drug trafficking crime, and possession of an unregistered sawed-off shotgun. Glover argues that the district court committed several plain errors at trial, contends that the evidence presented was insufficient to support the jury's verdict, and challenges the district court's denial of his motion for a new trial. For the following reasons, we affirm Glover's convictions.

I

Shortly after nightfall on December 12, 1991, officers with the Organized Crime Unit of the Memphis Police Department executed a search warrant at a house located at 225 Cedar Avenue in Memphis, Tennessee. As the officers ascended the stairs leading to the front porch, they could see through the glass front door and into the lighted living room. Glover, the room's only occupant, was seated on the couch and talking on the telephone.

After Glover ignored the officers' repeated requests for entry, they forced their way into the residence. Glover immediately dropped the telephone, emitted a stream of curses, and ran into the kitchen. He was apprehended moments later.

The officers subsequently searched the house. In a bag underneath the kitchen sink, the officers found $6,800.00 in cash. The stove's broiler pan concealed approximately forty-seven grams of cocaine. A pager sat on the kitchen table and a digital scale sat on a shelf above the sink. In the living room, the officers found a loaded sawed-off shotgun sticking out from underneath the couch and two shotgun shells less than four feet away from the weapon. The search also produced a utility bill addressed to Glover, travel documents bearing Glover's name,

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men's clothing, and a watch and ring belonging to Glover.

On January 13, 1992, a federal grand jury charged Glover with one count of possession of cocaine with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), one count of carrying and using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. Sec. 5861(d). After Glover's first trial ended in a mistrial, a second trial began on October 5. Following three days of proceedings, a jury found Glover guilty of all charges. On April 2, 1993, the district court sentenced Glover to a term of imprisonment of eleven years and nine months. This timely appeal followed.

II

Glover challenges his conviction, maintaining first that the district court erred when it dismissed an ill juror and allowed the eleven remaining jurors to deliberate to a verdict. Several hours after the jury began to deliberate the charges against Glover, one of the jurors reported that she felt ill. In the presence of counsel for both parties, the district court conferred with a Public Health Service nurse and with the sick juror. After conducting a thorough inquiry, the district court determined that the juror was unable to continue to serve and excused her. Jury deliberations continued with eleven jurors pursuant to Federal Rule of Criminal Procedure 23(b), which provides, in relevant part, "if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors." FED.R.CRIM.P. 23(b).

The analysis under Rule 23(b) involves two distinct questions: first, did the district court err in excusing the juror; and second, did the district court abuse its discretion in permitting the jury to deliberate to a verdict with only eleven members. Glover does not challenge the district court's decision to excuse the ill juror. Instead, relying largely on the advisory committee notes to Rule 23(b), Glover argues that, given the limited duration and complexity of his trial, the district court abused its discretion by continuing the jury deliberations with fewer than twelve jurors. In addressing the 1983 amendment to Rule 23(b) that authorized eleven-member juries, the advisory committee commented:

The amendment provides that if a juror is excused after the jury has retired to consider its verdict, it is within the discretion of the court whether to declare a mistrial or to permit deliberations to continue with 11 jurors. If the trial has been brief and not much would...

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