US v. Maynard

• Citation: 236 F.3d 601
• Decision Date: 27 December 2000
• Docket Number: No. 99-5094,99-5094
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JIMMY LEE MAYNARD, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 601

236 F.3d 601 (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JIMMY LEE MAYNARD, Defendant-Appellant. No. 99-5094 UNITED STATES COURT OF APPEALS TENTH CIRCUIT December 27, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 98-CR-21-C)

Page 602

R. Thomas Seymour (C. Robert Burton and F. Randolph Lynn with him on the brief), of R. Thomas Seymour, Attorneys, Tulsa, Oklahoma, for Appellant.

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Allen J. Litchfield, Assistant United States Attorney, Northern District of Oklahoma, (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Appellee.

Before TACHA, HOLLOWAY and BALDOCK, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant/Appellant Jimmy Lee Maynard appeals his conviction for operating a continuing criminal enterprise in violation of 21 U.S.C. 848. The Second Superseding indictment charged in Count One that beginning in or around 1988 in the Northern District of Oklahoma and elsewhere, Maynard knowingly engaged in a continuing series of felony violations which constituted a continuing criminal enterprise by committing offenses of conspiracy to possess with intent to distribute and distribution of methamphetamine, a Schedule II controlled substance, and to manufacture or attempt to manufacture methamphetamine, in violation of 21 U.S.C. 846, as set forth in Count Two of the Indictment. The continuing violations were alleged to have been knowingly and intentionally undertaken by Jimmy Maynard in concert with five or more persons, with respect to whom Maynard occupied a position of organizer, supervisor, and other positions of management. The indictment alleged that Maynard obtained from the violations substantial income or resources, all in violation of 21 U.S.C. 848 (a), (c) and (d).

Count Two alleged that Jimmy Maynard and several other defendants knowingly and intentionally conspired to commit offenses against the United States in violation of 21 U.S.C. 841 (a)(1) and (d)(1)(A), namely possession with intent to distribute and manufacture methamphetamine, all in violation of 21 U.S.C. 846. Count Two of the Second Superseding Indictment was vacated on April 19, 1999, as the judgment of April 29, 1999 reflects. I App. at 62.

At trial, Maynard testified in his defense. His defense was that although he had used methamphetamine, he did not sell it, and that those who testified that he did were lying. He testified that he never sold drugs and had never been involved in any drug conspiracy. IV App. at 776, 782, 787-88, 792, 795-97, 802. Following a lengthy jury trial, Maynard was found guilty on Count One of the Second Superseding Indictment and was sentenced on April 30, 1999 to incarceration for 360 months, a fine of $10,000, an assessment of $100, and five years of supervised release. Maynard filed a notice of appeal on April 30, 1999. We have jurisdiction under 28 U.S.C. 1291.

Maynard's appeal presents two principal claims of error: (1) that prosecutorial misconduct, which viewed as singular or cumulative error, denied him a fair trial under the Due Process Clause of the Fifth Amendment; and (2) that there was insufficient evidence, taken in the light most favorable to the government, to establish the elements of an offense under 21 U.S.C. 848.

I PROSECUTORIAL MISCONDUCT

Maynard contends that he was denied due process by a pattern of egregious prosecutorial misconduct. Specifically, Maynard alleges that the prosecutor, Assistant United States Attorney Litchfield, engaged in the following acts of misconduct: (1) deliberately and knowingly creating a false implication before the jury that Maynard caused a murder; (2) creating the false impression that Maynard had threatened a witness for testifying; (3) creating the false impression that a testifying witness was registered in a motel under a false name to protect her from Maynard; and (4) eliciting improper testimony from a witness that Maynard had been in jail.

A

We turn first to Maynard's most serious claim of prosecutorial misconduct, that the

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prosecutor asked questions of a government witness in such a way as to intentionally and falsely create the impression before the jury that Maynard had caused a murder. The improper questioning occurred as follows.

The prosecutor called to testify Mr. Reginald Eugene Patterson, then serving a twenty-seven year term in prison for manufacturing a controlled substance. II App. at 368 et seq. Patterson testified that he knew Maynard and identified him in court. Id. at 371. During direct examination, the prosecutor asked Patterson about a conversation that took place in Tulsa amongst himself (Patterson), Maynard, and Chris Henson (an associate of Maynard). Patterson testified that in the course of the conversation Maynard became very upset upon learning that Henson, unbeknownst to Maynard, had sent a "youngster," a very young man, on a drug run to California. Id. at 377.

The prosecutor then asked Patterson "what happened when Mr. Jimmy Maynard found that out?" In response, Patterson testified that "all kinds of crap broke loose." Id. at 378. The questioning then proceeded as follows:

MR. LITCHFIELD: Were you present when he found out?

PATTERSON: Yes, sir, I was.

MR. LITCHFIELD: And what did he say, Mr. Patterson?

PATTERSON: You really want

MR. LITCHFIELD: Yes, I want you to tell us what he said.

PATTERSON: I want the little son of a bitch dead. I want him dead. I want him dead now.

MR. LITCHFIELD: And who said that?

PATTERSON: Jim Maynard. He threw a stereo receiver, if I remember right, too.

MR. LITCHFIELD: The defendant?

PATTERSON: Yeah.

Id. at 378 (emphasis added).

After cross-examination by defense counsel, the prosecutor conducted a very brief redirect examination, which concluded with the following exchange:

MR. LITCHFIELD: By the way, this boy that Chris Henson sent to California, where is he now?

PATTERSON: He's dead.

Id. at 387.

There was no immediate objection to this questioning or to the answers given. However, immediately after this testimony defense counsel asked permission to approach the bench, which was granted. Counsel then moved for a mistrial on the ground that "counsel's last question is an evidentiary harpoon" intended "to show that somehow or other Jimmy Maynard is responsible for that man's death. . . ." Defense counsel emphasized that "pre-jury discussion" had been held "to avoid that kind of thing."¹ II App. at 387. The judge told the prosecutor that his questioning of Patterson implied that the young man's death was related to the prior threat and the judge said that unless the prosecutor could "connect it up, it's a very serious matter." II App. at 389. When the prosecutor said that he did not intend to follow the matter up further, the judge said he would have to take the motion for a mistrial under advisement then. Id. at 389.²

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After the bench conference, the trial resumed before the jury, and the judge issued a curative instruction:

In the direct examination there was a matter testified to by Mr. Patterson concerning a young man who lived across from the apartment that made a trip to California and so forth, and there was testimony by Mr. Patterson that Mr. Maynard had heard of that. You heard that testimony.

In the redirect a question was asked, where is that young man now? And the answer you all heard. I want to instruct you that you must disregard that question. There is absolutely no evidence whatsoever that that gentleman's demise was in any way associated with the defendant here on trial, and I don't want you to get the wrong impression and make an assumption that is not supported in any way by any evidence. Can each of you, and will each of you do that? You all indicate in the affirmative. Very well. All right.

Id. at 392.

Later in comments before closing arguments and out of the presence of the jury, the judge returned to the motion for a mistrial. IV App. at 841-43. The judge said he had taken the motion for a mistrial under advisement; that the question (leading to the statement that the young man was dead) was inappropriate; and that after a conference with counsel, as requested the jury was directed to disregard the answer. Id. at 842. The judge noted he went further and told the jury there was absolutely no association nor evidence that Maynard was connected to the man's demise. The judge said he watched the jury very carefully and that it was apparent "every one of them fully understood that instruction and clearly was going to disregard any inference or suggestion that could have been otherwise taken from that evidence." Id. at 842. The judge then said he considered the evidence in this case to be "very strong" and when an error has occurred, it was his responsibility to look at all the evidence to determine the possible or probable effect such an instance might have. Id. at 842. He then overruled the motion for a mistrial, but added that he expected a little more care to be followed in the manner evidence is brought before a jury. Id. at 843.

Maynard now contends that the prosecutor's conduct, and the trial judge's subsequent denial of his motion for a mistrial, denied him a fair trial in violation of the Due Process Clause of the Fifth Amendment. We review a denial of a defendant's motion for a mistrial or a new trial for prosecutorial misconduct for an abuse of discretion. United States v. Gordon, 173 F.3d 761, 769 (10th Cir. 1999) ("We review the district court's denial of a motion for new trial based on prosecutorial misconduct for abuse of discretion."); United States v. Begay, 144 F.3d 1336, 1339 (10th Cir. 1998) ("Defendant next argues that the government committed prosecutorial misconduct that denied him a fair trial. We review the denial of a motion for mistrial on these grounds for abuse of discretion."); United States v. Villa-Chaparro, 115 F.3d 797, 803...