957 F.2d 1138 (4th Cir. 1992), 90-5240, United States v. Brooks

Docket Nº:90-5240 to 90-5242, 90-5247 and 90-5733.
Citation:957 F.2d 1138
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael Denard BROOKS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Johnny X. WILLIAMSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Melvin Eugene FLINT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Russell FORD, Def
Case Date:February 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1138

957 F.2d 1138 (4th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Denard BROOKS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Johnny X. WILLIAMSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Melvin Eugene FLINT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Charles Russell FORD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Linda Mitchell PEAY, Defendant-Appellant.

Nos. 90-5240 to 90-5242, 90-5247 and 90-5733.

United States Court of Appeals, Fourth Circuit

February 28, 1992

Argued Oct. 29, 1991.

As Amended March 5, 1992.

Rehearing and Rehearing En Banc Denied March 12, 1992.

Page 1139

[Copyrighted Material Omitted]

Page 1140

Susan Hayes, Greensboro, N.C., argued (Walter T. Johnson, Jr., Greensboro, N.C., for defendant-appellant Brooks; Charles O. Peed, Jr., Winston-Salem, N.C., for defendant-appellant Williamson; J. Matthew Martin, Martin & Martin, P.A., for defendant-appellant Ford; Thomas H. Johnson, Jr., Greensboro, N.C., for defendant-appellant Flint; Anne R. Littlejohn, Greensboro, N.C., for defendant-appellant Peay, on the brief), for defendants-appellants.

David Bernard Smith, Asst. U.S. Atty., Senior Litigation Counsel, Greensboro, N.C., argued (Robert H. Edmunds, Jr., U.S. Atty., Greensboro, N.C., on the brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, LUTTIG, Circuit Judge, and RESTANI, Judge, United States Court of International Trade, sitting by designation.

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OPINION

LUTTIG, Circuit Judge:

Appellants were convicted of conspiracy to distribute cocaine. All five appellants challenge their convictions. We affirm all five convictions. Two appellants also challenge their sentences. We affirm one of these sentences, vacate the other sentence, and remand for resentencing.

I.

This case arises out of the prosecution of five principals of a large drug operation for conspiracy to distribute cocaine hydrochloride. See 21 U.S.C. §§ 841(a)(1), 846. 1 Trial was held in federal district court in the Middle District of North Carolina beginning August 13, 1990. The defendants were convicted on all counts on August 20, 1990, and thereafter sentenced to various terms of incarceration.

Defendants collectively raise five sets of claims on appeal. First, all five defendants contend that the district court erred in denying their motions for a mistrial following the jury's accidental exposure to allegedly prejudicial material. Second, defendants Brooks and Peay claim that the district court erred in denying their request that the court ask prospective jurors during voir dire whether they believed that young black men were more likely to commit crimes than men of other races. Third, defendants Brooks, Williamson, and Peay claim that the district court erred in denying their motions for severance. Fourth, defendants Brooks, Williamson, Flint, and Ford claim that the Government's evidence was insufficient to support their convictions, and thus that the district court erred in denying their motions for judgment of acquittal. Fifth, defendants Brooks and Peay claim that the district court committed numerous errors in calculating their sentences.

Only Brooks' claim that his sentence was improperly enhanced has merit, and only the challenge to the district court's refusal to order a mistrial warrants extended discussion.

II.

Immediately before concluding its case in chief, the Government sought to play a tape recording of a May 9, 1989, conversation between defendant Williamson and two federal agents who were posing as drug dealers. The jury was provided with copies of what the Government represented to be an accurate seventy-three page transcript of the recording prior to the playing of the tape. The district court explained to the jury that "the transcripts [were] being provided for [their] convenience and guidance as [they] listen[ed] to the tapes [sic] for purpose [sic] of clarifying portions of the tape which may be difficult to hear; and for the further purpose of identifying speakers." J.A. at 817.

Shortly after the Government began to play the tape, it became apparent that the transcript that had been distributed to the jury did not correspond to the tape recording. When the dissimilarity between the transcript and the recording was discovered, the jury was excused. Counsel for each of the defendants then moved for a mistrial. The Assistant United States Attorney ("AUSA") thereafter informed the court that the jury had been provided with a version of the transcript that mistakenly included two pages from a transcript of a different conversation between Williamson and the agents. The AUSA explained that the two pages had apparently been inserted into the transcript inadvertently when copies of the transcript were being prepared for distribution to the jury. Id. at 826.

Following the AUSA's explanation of how the error had occurred, the district court stated for the record that

the members of the jury had [the inaccurate transcript] in their possession for five, ten, twelve minutes while we were trying to set this up. When the [AUSA] attempted to play it, I sat here and tried

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to find out where we were on the transcript, went over as much as five pages; and I noticed that the jurors were doing the very same thing, trying to ... link up the transcript with what snatches they were hearing....

Id. at 821. The court told defense counsel to review the "first five to ten pages, and see if there is anything in there that could possibly be prejudicial to anyone," and that he would then hear further argument on the motion for a mistrial. Id.

Defendant Peay's attorney, Anne R. Littlejohn, in response to the court's invitation to review the transcript, identified as prejudicial a single reference to Terry Smith, a defendant in what Ms. Littlejohn characterized as "a fairly notorious [drug] case" that had been tried before the same court. Id. at 830. 2 Counsel for the other four defendants joined Ms. Littlejohn in objecting to the reference. Ms. Littlejohn apparently argued that the mere reference to Smith by Williamson prejudiced the defendants; she did not argue that they were prejudiced by the fact that Williamson said he was "trying to do" what Smith had done.

The court stated that the reference to Smith "standing by itself doesn't mean anything to me, even though I was the trial Judge in that case," and that he did not "see anything prejudicial" in the reference. Id. at 831. The court denied the motion for a mistrial, id. at 822, and ruled that neither the transcript nor the tape recording could be considered by the jury, id. at 838. It then instructed the jury to "disregard, eradicate, erase from your mind anything that you may have ... read or heard, during the aborted attempt to play the tape and get to the proper place in the transcript with the tape." Id. at 839.

Defendants argue on the authority of United States v. Barnes, 747 F.2d 246 (4th Cir.1984), and United States v. Greene, 834 F.2d 86 (4th Cir.1987), that the district court erred in denying their motion for a mistrial. In Barnes and Greene, this court held that a presumption of prejudice arises when a jury is exposed to exhibits that have not been admitted into evidence, and that the burden is upon the Government to show that the jury was not prejudiced. Barnes, 747 F.2d at 250-51; Greene, 834 F.2d at 88. Defendants argue that rather than imposing the burden on the Government to show the absence of prejudice, the district court impermissibly placed the burden on the defendants to prove prejudice when it required them to identify prejudicial statements in the transcript. Alternatively, the defendants argue that if in fact the court imposed the burden to overcome the presumption of prejudice on the Government, the Government failed to do so.

The Government argues that because the tape and the transcript had previously been received into evidence, Barnes and Greene are inapposite, and the case is controlled instead by United States v. Jones, 907 F.2d 456 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 683, 112 L.Ed.2d 675 (1991). The Government reads Jones to hold that where an admitted exhibit is subsequently withdrawn and a curative instruction given by the trial court, the defendant must make a "powerful showing of harm" to obtain a mistrial. Appellee's Br. at 20-21. The Government argues that the defendants failed to make such a showing of harm.

We agree with the defendants that Barnes and Greene control (although for reasons different from those posited by the defendants), but we conclude that the Government has successfully overcome any presumption of prejudice that arose from the jury's viewing of the inadvertently included transcript pages. 3

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The defendants concede that the transcript distributed to the jury had previously been admitted into evidence, but assert--essentially without authority--that there should be a presumption of prejudice nonetheless. See Appellants' Br. at 11. We disagree that the allegedly prejudicial transcript had been admitted into evidence. The court admitted into evidence an accurate transcript of the May 9, 1989, conversation. See J.A. at 656. The transcript distributed to the jury included portions of text from a transcript of a different conversation between Williamson and the agents. The transcript received by the jury thus was not the exhibit admitted into evidence. Therefore, contrary to the Government's assertion, this is not a case like Jones, in which an exhibit that had been admitted into evidence was subsequently withdrawn. It is, as the defendants contend...

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