U.S. v. Myers

• Decision Date: 07 February 2002
• Docket Number: No. 00-4687.,00-4687.
• Citation: 280 F.3d 407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Spencer T. MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 407

280 F.3d 407

UNITED STATES of America, Plaintiff-Appellee, v. Spencer T. MYERS, Defendant-Appellant.

No. 00-4687.

United States Court of Appeals, Fourth Circuit.

Argued December 6, 2001.

Decided February 7, 2002.

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ARGUED:

Garrett Michael Heenan, Arnold & Porter, Washington, DC, for Appellant. John Castle Parr, Assistant United States Attorney, Charleston, WV, for Appellee.

ON BRIEF:

Charles T. Miller, United States Attorney, John K. Cecil, Third-Year Law Student, William Crichton, VI, Third-Year Law Student, Charleston, WV, for Appellee.

Before WILKINSON, Chief Judge, and MICHAEL and TRAXLER, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Judge TRAXLER joined.

OPINION

WILKINSON, Chief Judge.

Spencer T. Myers was charged in a five-count federal indictment with various drug and weapons offenses, and the jury convicted him on all counts. For the reasons that follow, we affirm the judgment.

I.

On February 1, 2000, Spencer Myers was at his mother's home in Huntington, West Virginia. Robert Shilot, a nursing student with a drug problem, went there to purchase crack cocaine from Myers. After making the purchase, Shilot, Myers, and Myers' girlfriend, Kelly Ward, smoked some of the crack together.

Approximately an hour later, Myers accused Shilot of stealing some of his crack, and demanded that Shilot pay him for it. When Shilot refused, Myers retrieved a gun from his car, re-entered the house, and held Shilot at gunpoint. In an effort to find the crack, Myers made Shilot strip. Shilot again denied taking the drugs and refused to give Myers any money. Sensing he was in danger, Shilot called 911 from his cell phone. Moments later, Myers shot Shilot in the head and killed him. Myers dragged the body around the house, ultimately leaving it in the kitchen and fleeing the scene. Ward eventually called the police, and Myers was arrested a few miles from his mother's home. Myers was then charged by the state with murder. While incarcerated, Myers wrote Ward letters suggesting she should testify to a false version of events before the grand jury.

Myers was later charged in a five-count federal indictment with drug and weapons offenses stemming from the incident. After a two-day trial, the jury convicted him on all counts charged in the indictment: (1) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and (e)(1); (2) distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); (3) possession and use of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A); (4) knowing possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1); and (5) corruptly persuading another to hinder an investigation, in violation of 18 U.S.C. § 1512(b)(3).

Myers filed a post-trial motion for judgment of acquittal or, in the alternative, a new trial. He argued that the government's evidence at trial was insufficient to sustain the jury's verdict, and that the district court made various evidentiary errors. The court disagreed, finding that the evidence of Myers' guilt was overwhelming. The court further concluded that not only was the evidence regarding the shooting of Robert Shilot relevant, but its probative value was also not substantially outweighed by the danger of unfair prejudice. The court thus denied Myers' motion.

Though Myers challenged the foregoing actions by the district court, he did not object to the court's decision to allow an alternate juror to remain in the jury room to deliberate and vote as a thirteenth juror. When the court submitted the case to the jury, it forgot to discharge the alternate juror. The court soon realized its mistake, and after deliberations had begun, it summoned all parties, including Myers, to the courtroom to inform them that it had inadvertently neglected to discharge the alternate. The court said that the two options under the circumstances were either to allow all thirteen jurors to deliberate and require a unanimous verdict of thirteen for a conviction, or bring the jury out and discharge the alternate in the middle of deliberations. Myers' counsel expressed a preference for the former option while Myers was seated next to him, though the court did not consult with Myers himself and obtain his consent. The court agreed that proceeding with a jury of thirteen was the best course. The jury was thus allowed to continue its deliberations, and it returned guilty verdicts on all counts. Myers makes numerous claims on appeal. We address each in turn.

II.

Myers first argues that the inclusion of a thirteenth juror in jury deliberations constitutes a glaring procedural error that warrants an immediate reversal and remand. According to Myers, Federal Rule of Criminal Procedure 24(c) required the district court either to dismiss the alternate juror or to retain and insulate him, and Rule 23(b) left the court with no discretion to allow more than twelve jurors to deliberate and render a verdict. In addition, Myers submits that controlling decisions of this circuit hold that the presence of an alternate in the jury room during deliberations constitutes plain error and mandates reversal. See United States v. Chatman, 584 F.2d 1358, 1361 (4th Cir.1978); United States v. Virginia Erection Corp., 335 F.2d 868, 870-73 (4th Cir.1964); see also Kuykendall v. S. Railway Co., 652 F.2d 391, 393 (4th Cir.1981) ("We have adopted a per se rule of reversal in criminal cases where alternate jurors were allowed to retire with the jury."). Moreover, Myers contends that while our decisions have recognized that a defendant may knowingly waive his right to a twelve-member jury, those cases involved juries consisting of less than twelve members, a situation expressly countenanced in Rule 23(b). See, e.g., United States v. Fisher, 912 F.2d 728, 731-32 (4th Cir.1990). Finally, Myers maintains that this court's Rule 23(b) waiver cases require a knowing waiver from the defendant himself, not merely from his counsel. See Fisher, 912 F.2d at 732; United States v. Evans, 635 F.2d 1124, 1127 (4th Cir.1980).

The basic problem with Myers' analysis is that all of the cases he relies upon were decided before the Supreme Court's decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Olano, a case involving the presence of alternates in the jury room, the Court observed that Rule 52(b)'s plain error standard of review, "which governs on appeal from criminal proceedings, provides a court of appeals a limited power to correct errors that were forfeited because not timely raised in district court." 507 U.S. at 731, 113 S.Ct. 1770. Olano governs here because Myers raises his thirteenth juror claim for the first time on appeal.

Emphasizing that "the authority created by Rule 52(b) is circumscribed," the Supreme Court in Olano held that in order for a court of appeals to have the authority to correct forfeited objections (1) there must be an "error"; (2) the error must be "plain"; (3) the error must "affect[ ] substantial rights"; and (4) the error must "seriously affect the fairness, integrity or public reputation of judicial proceedings." 507 U.S. at 732, 113 S.Ct. 1770 (internal quotations omitted). Thus, Myers overlooks a critical point: Olano makes quite clear that the rights set forth in Chatman and Virginia Erection Corp. are subject to plain error analysis. And even assuming that Myers can meet some of Olano's requirements, he cannot satisfy all of them.

There is no doubt that the presence of alternate jurors during jury deliberations is a deviation from Rule 24(c). See Olano, 507 U.S. at 737, 113 S.Ct. 1770. And we may assume without deciding that the consent of Myers' counsel in Myers' presence to the alternate's participation in deliberations does not constitute a valid waiver. This assumption removes any question about the existence of error. See id. at 732-33, 113 S.Ct. 1770. Further assuming that the error was plain, Myers still cannot meet the requirements of the third and fourth prongs of Olano.

To begin with, Myers has not made a specific showing of prejudice, and "[t]he presence of alternate jurors during jury deliberations is not the kind of error that `affect[s] substantial rights' independent of its prejudicial impact." Olano, 507 U.S. at 737, 113 S.Ct. 1770. Myers must make this showing because under Rule 52(b), "[i]t is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice." Id. at 734, 113 S.Ct. 1770. It is difficult to see how Myers could possibly prove that he was prejudiced by the participation of a thirteenth juror in jury deliberations when his attorney not only issued no objection to this manner of proceeding, but also affirmatively consented for strategic purposes, stating that "[f]rom the defendant's viewpoint, we would propose that all 13 jurors deliberate, Your Honor." And he did so for good reason: All other things being equal, it cannot possibly be less difficult for the government to get thirteen jurors to agree that a defendant is guilty beyond a reasonable doubt than it is to get twelve to so agree. See United States v. Reed, 790 F.2d 208, 210 (2d Cir.1986) ("[W]e are satisfied that there is no likelihood whatever that a thirteen-man jury would convict more readily than would a twelve-man jury.").

Moreover, we have no reason to believe that all other things were not equal in this case. "We presume that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." Olano, 507 U.S. at 740, 113 S.Ct. 1770 (internal quotation omitted). Myers has not offered us any proof that the alternate juror was...