U.S. v. Davis

• Decision Date: 21 May 1999
• Docket Number: Nos. 97-5363,97-5364,97-5366 and 97-5367,97-5365,s. 97-5363
• Citation: 177 F.3d 552
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andre Lee DAVIS (97-5363), Eric Rogers (97-5364), L.G. Catlett (97-5365), Mario Duerson (97-5366), and Kenneth Green (97-5367), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 552

177 F.3d 552

UNITED STATES of America, Plaintiff-Appellee, v. Andre Lee DAVIS (97-5363), Eric Rogers (97-5364), L.G.

Catlett (97-5365), Mario Duerson (97-5366), and

Kenneth Green (97-5367), Defendants-Appellants.

Nos. 97-5363, 97-5364, 97-5365, 97-5366 and 97-5367.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted July 29, 1998.

Decided May 21, 1999.

Terry M. Cushing, Asst. U.S. Attorney (briefed), Office of U.S. Attorney, Louisville, KY, for Plaintiff-Appellee.

James A. Earhart, Asst. U.S. Attorney (argued and briefed), Office of U.S. Attorney, Louisville, KY, for Plaintiff-Appellee in docket Nos. 97-5363, 97-5364 and 97-5367.

James A. Earhart, Asst. U.S. Attorney (briefed), Office of U.S. Attorney, Louisville, KY, for Plaintiff-Appellee in docket Nos. 97-5365 and 97-5366.

Jill Giordano (argued and briefed), Giordano Law Office, Princeton, KY, Tod D. Megibow, Megibow & Edwards, Paducah, KY, for Defendant-Appellant Andre Lee Davis.

Richard L. Walter (argued and briefed), Boehl, Stopher & Graves, Paducah, KY, for Defendant-Appellant Eric Lamont Rogers.

Andrew Terrian Coiner (briefed), Paducah, KY, L.G. Catlett, pro se, Manchester, KY, for Defendant-Appellant L.G. Catlett.

William L. Brown (briefed), Knoxville, TN, for Defendant-Appellant Mario Duerson.

Lester Bennett Guier (argued and briefed), Hopkinsville, KY, for Defendant-Appellant Kenneth Green.

Before: SUHRHEINRICH and DAUGHTREY, Circuit Judges DAUGHTREY, Circuit Judge.

McKEAGUE, ^* District Judge.

Five defendants, Andre Lee Davis, Eric Lamont Rogers, L.G. Catlett, Mario Duerson, and Kenneth Green, appeal from convictions entered against them in a joint trial on various drug, robbery, and firearm charges. All five allege error in the district court's handling of a juror's request to be excused from deliberations. Furthermore, Davis, Duerson, and Green challenge the sufficiency of the evidence of some of the offenses for which they were convicted; Rogers and Green contend that their trials should have been severed from those of their co-defendants; and Duerson claims prejudice from the mention of his involvement in criminal activity in a statement given to police by a non-testifying co-defendant. Because we conclude that the district court erred in not questioning all jurors about the effect upon them of prejudicial, extraneous information, we find it necessary to vacate the convictions of all five defendants and remand the cases to the district court for a further hearing. We also conclude that there is merit to the argument presented by defendant Duerson that his conviction for stealing property belonging to the United States should have merged into his conviction for robbery at gunpoint of that same money. In all other respects, we conclude that the district court did not err and that the evidence is sufficient to support the findings of guilt.

PROCEDURAL AND FACTUAL BACKGROUND

To do so, however, requires a summary of the facts presented at the trial. Testimony was offered to show that Detective Robby Kirk met with Angela Dillard, an informant in the Hopkinsville, Kentucky, area, on June 11, 1996. At that time, Dillard stated that she could lead Kirk to individuals involved in crack cocaine trafficking in Hopkinsville. She then accompanied Kirk, who was operating in an undercover capacity, to various locations in the area where, on various dates, Kirk purchased crack cocaine from Eric Lamont Rogers, Andre Lee Davis, and L.G. Catlett.

The last of these transactions occurred on June 26, 1996, when Kirk and Dillard drove to Carl Smith Road with money provided by the federal Drug Enforcement Administration to consummate a multiple-ounce crack cocaine transaction. After finding Davis, Kirk agreed with him on a $4000 purchase price for five ounces of crack cocaine. As had been their practice in past deals, the parties parted ways for 30 minutes to allow Davis to obtain the drugs. After the expiration of that time period, however, Davis told Kirk that one-half of the order was still "cooking" and that Kirk should return to Carl Smith Road in another hour. After an hour had passed, Kirk and Dillard drove to Carl Smith Road where Davis approached the vehicle with two other men, later identified as defendants Duerson and Green, and informed Kirk that he (Davis) was unable to secure the five ounces of crack cocaine, but that Kirk could negotiate a sale of that amount from Duerson and Green.

After preliminary discussions between Duerson and Kirk, and after exhibitions of the drugs and money, Duerson sat down in the front passenger seat of Kirk's vehicle, pulled out a four-inch revolver from his waistband, and pointed the gun at Kirk. When Kirk reached out and grabbed the barrel of the weapon, Kenny Green, who had been standing outside the driver's door of the car, placed a .25 caliber automatic pistol to Kirk's head and demanded the $4000 in the undercover officer's possession. Duerson then grabbed the money and jumped out the window of the car. Kirk immediately drove away, but saw through his rearview mirror that both Eventually, all five defendants were arrested by law enforcement authorities, charged with various offenses, and tried by a jury of their peers. At the conclusion of the trial, the jury convicted Davis, Rogers, Catlett, Duerson, and Green of all charges against them. Subsequently, Davis was sentenced to an effective life sentence for three counts of possession of crack cocaine with intent to distribute and one count of conspiracy with defendants Duerson and Green to distribute crack cocaine. Rogers received a 48-month prison sentence for possession of crack cocaine with intent to distribute, Catlett received a sentence of 104 months for his conviction for possession of crack cocaine with intent to distribute, and Duerson and Green received respective, effective sentences of 300 months and 308 months for conspiracy to distribute crack cocaine, stealing $4000 in United States currency, robbery of $4000 in United States currency at gunpoint, and using or carrying a firearm in the commission of a crime of violence or a drug trafficking offense.

Duerson and Green were shooting at him. After driving a short distance up the road, Kirk pulled his vehicle sideways across the street, drew his service revolver, and began firing back at the men. Davis, Duerson, and Green all fled into the nearby woods.

DISCUSSION

I. Taint of the Jury

Before this court, all five defendants contend that the district court erred in refusing to grant a mistrial in order to cure an instance of alleged juror misconduct. After completion of the presentation of evidence at trial, Alan Estes, one of the jurors, sent a note to the district judge requesting that the judge excuse Estes from further service on the jury. In the note, Estes explained that he lived in the Hopkinsville area and operated a used car business that catered to individuals in a section of town heavily populated by minority citizens. Because he had previously done business with some of the defendants, witnesses, and their families, and because he was a recognized figure in the community, Estes claimed that he feared for his own safety and that of his business should he be identified as a juror who participated in the decision leading to the defendants' incarceration. He also informed the court that his fear was prompted by the fact that, during the trial, he had heard from one of his employees that members of the community were already aware of Estes's jury service and were discussing his role in the proceedings. The district court apparently took no immediate action in response to the note.

Later, after the jury instructions were read, but before the jurors were actually charged, Estes stood up in open court and again requested that he be excused from deciding the fate of the defendants. The remainder of the panel was then removed from the courtroom and Estes, the district judge, and counsel for the defendants and for the government convened in the judge's chambers to discuss the situation more fully. At that time, Estes revealed that he had previously expressed his fears to the other jurors in the jury room and that a number of those individuals verbally empathized with his plight, stating that they did not blame Estes for seeking to be excused from further jury service. As a result of the hearing in chambers, the district court denied the defendants' motions for a mistrial, but discharged Estes as an alternate juror. The judge did so, however, without any explanation to the jury, without holding a hearing to investigate the scope of the problem, and, most significantly, without instructing the jury that anything they had learned from Estes was not to be considered during their deliberations.

As we recognized in United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.1985), the Sixth Amendment's right to trial by jury "is designed to ensure criminal defendants a fair trial by a 'panel We have recently noted that "[a] new trial will not be necessary every time a question of juror partiality is raised. Where a colorable claim of extraneous influence has been raised, however, a 'Remmer hearing' " must be held to afford the defendant an opportunity to establish actual bias. United States v. Herndon, 156 F.3d 629, 635 (6th Cir.1998) (referencing Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). At that hearing, the defendant bears the burden of proving actual juror bias, and no presumption of prejudice arises merely from the fact that improper contact occurred. See United States v. Zelinka, 862 F.2d 92, 96 (6th Cir.1988).

                of impartial, "indifferent" jurors.' "  (Quoting Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).)   Thus, "[w]hen possible juror misconduct is brought to the trial judge's attention he has a duty to investigate and to determine whether there may have been a violation of the [constitutional guarantee]."

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