U.S. v. Dotson

• Decision Date: 13 May 1987
• Docket Number: No. 85-4952,85-4952
• Parties: 23 Fed. R. Evid. Serv. 85 UNITED STATES of America, Plaintiff-Appellee, v. Frederick Leon DOTSON, and Reginald Owens, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1127

817 F.2d 1127

23 Fed. R. Evid. Serv. 85

UNITED STATES of America, Plaintiff-Appellee, v. Frederick Leon DOTSON, and Reginald Owens, Defendants-Appellants.

No. 85-4952.

United States Court of Appeals, Fifth Circuit.

May 13, 1987.

Rehearing Denied July 1, 1987.

Robert Glass, New Orleans, La., for defendants-appellants.

John Hailman, Asst. U.S. Atty., Robert O. Whitwell, U.S. Atty., Oxford, Miss., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Mississippi.

Before RUBIN, RANDALL and JOHNSON, Circuit Judges.

RANDALL, Circuit Judge:

Defendants Frederick Leon Dotson and Reginald Owens appeal their convictions for conspiring to distribute cocaine and marijuana in violation of 21 U.S.C. Sec. 846, and for distribution of and possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841. Dotson further appeals his conviction for willfully attempting to evade payment of federal income taxes in violation of 26 U.S.C. Sec. 7201. We affirm the convictions entered by the district court.

I.

The Mississippi Bureau of Narcotics ("MBN") began in 1982 to investigate tips that defendant Dotson was running a marijuana selling operation. In 1983, the Bureau's suspicions were corroborated by the arrest and conviction of I.V. Young, later a government witness at Dotson's trial, who stated to police that he transported marijuana for Dotson and was carrying the fifty-three pounds of marijuana found in his vehicle in that capacity. Continuing its investigation, the MBN over the next two years infiltrated Dotson's operation with a number of informants and undercover agents who, posing as small-scale drug dealers, bought wholesale quantities of marijuana from Dotson. Information obtained in these undercover encounters indicated that defendant Owens had taken over Young's position as Dotson's "runner" after Young's conviction.

During this same period, the United States Internal Revenue Service ("IRS") investigated Dotson for tax evasion. Dotson, who claimed to run a construction and a real estate business, had neither an office, nor books or records, nor a telephone. In contrast to the prevailing poverty in the rural area in which he lived, Dotson owned two new Cadillacs, a new Lincoln Town Car, and a Rolls-Royce sedan, and had recently bought a Mercedes turbo-diesel sedan for his girlfriend.

Late in the summer of 1985, a grand jury returned a ten-count indictment against Dotson, including charges against Owens in four of the counts. The indictment charged Dotson and Owens with one count of conspiracy to distribute and possess with intent to distribute marijuana and cocaine and three counts of distribution of and possession with intent to distribute marijuana. In addition, Dotson was charged with two counts of willful evasion of federal income taxes, three additional counts of distribution of and possession with intent to distribute marijuana, and one count of possession of cocaine.

After a one-week trial, a jury returned a verdict that, on its face, convicted Dotson of all ten of the counts in the indictment. The jury convicted Owens of the conspiracy count and of one count of distribution of and possession with intent to distribute marijuana, but acquitted him on two counts of distribution of and possession with intent to distribute marijuana. The district court informally polled the jury and received in response a nodding of twelve heads. The court then discharged the jury.

Later that evening, the trial judge received a telephone call from two of the jurors. The jurors stated that, contrary to the verdict read in court, the jury had unanimously voted to acquit Dotson on count ten of the indictment. The judge then telephoned the foreman of the jury, who confirmed that this was the case. Based on the foreman's affidavit, the district court, acting ex parte, corrected the verdict to acquit Dotson on count ten. Post-trial motions for judgment of acquittal and for a new trial were denied, and this appeal followed.

On appeal, Dotson and Owens, represented by new counsel, raise four points of error. First, the defendants argue that the district court erred in changing the verdict ex parte. Citing Federal Rule of Criminal Procedure 31(d), defendants assert that the only proper course for the court to have taken would have been either to reconvene the jury for further deliberations or to order a new trial. Second, Dotson argues that Agent Baker, an expert witness whose testimony formed the basis of the government's tax evasion case, went beyond a mere summary of his testimony and impermissibly instructed the jury as to "whether the defendant did or did not have the mental state ... constituting an element of the crime charged." Fed.R.Evid. 704(b). Third, Dotson challenges the district court's admission of a 2,000-word hearsay document as a prior consistent statement, despite the fact that only one or two sentences in the document supported the testimony earlier impeached. Fourth, Dotson and Owens attack the district court's denial of their motion to suppress certain evidence relevant to the conspiracy count as the fruit of an unreasonable search and seizure.

II.

Defendants' attack on the district court's amendment of the jury verdict highlights a tension between the policies underlying Federal Rule of Criminal Procedure 31(d) and those underlying Federal Rule of Evidence 606(b). Defendants emphasize that, when a poll in open court reveals an inaccuracy in the jury's verdict, rule 31(d) provides two avenues by which the district court may permit the jury to resolve the discrepancy: the court may reconvene the jury for further deliberations, or it may order a new trial so that another jury may address the problems posed by the case. When the error in the verdict is discovered after the jury has been discharged, defendants argue, the policies of protecting the privacy of jury deliberations reflected in rule 606(b) prevent the district court from interrogating jurors as to their votes in an effort to piece together the true verdict. Since reconvening the jury is no longer possible, the court has no choice, according to rule 31(d), but to order a new trial, and the district court erred in refusing to do so.

The government responds that rule 31(d) is largely inapposite to the instant case, because the poll of the jury, such as it was, revealed no error in the verdict. To the contrary, the error was revealed well after the jury's discharge. Cases that address the problems of remedying a verdict discovered to be inadequate upon a poll in open court, the government asserts, are not relevant to the problems implicated here. Instead, rule 606(b)'s goal of ensuring the finality of verdicts prohibits, as a general rule, second thoughts, doubts, or vacillations of jurors from impeaching a verdict. If there was error in the district court's amendment of the verdict, the government argues, the error favored the defendants and certainly does not warrant reversal.

We agree with the government that rule 31(d) does not provide much guidance in the instant case for two reasons. First, the purpose of rule 31(d) is to ensure the unanimity of jury verdicts. See United States v. Edwards, 469 F.2d 1362, 1366 (5th Cir.1972). The record in this case does not indicate a lack of unanimity, but rather a unanimous jury whose opinion differed from that reflected in the written verdict. Second, the discrepancy sub judice was discovered after the district court's sketchy poll of the jury, ¹ and, more important, after the jury was discharged. While the questions of remedying a problematic verdict like that in this case are, on their face, similar to those of resolving problems discovered during a routine jury poll, the propriety of amending a verdict after the jury is discharged must respond to powerful considerations of finality that are not in issue in a routine jury poll. As the legislative history of rule 606(b) indicates, "[p]ublic policy requires a finality to litigation." S.Rep.No. 1277, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 7051, 7060. Moreover, "[j]urors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors." Id. This case does not present a jury poll problem.

This circuit has recognized an exception to rule 606(b)'s general principle that juror testimony may not impeach a verdict in cases like that presently before us: "An affidavit of a juror is admissible to show that the verdict delivered was not that actually agreed upon ... but a juror may not subsequently impeach a verdict by stating how it was reached." University Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 547-48 n. 43 (5th Cir.1974) (citing Fox v. United States, 417 F.2d 84, 89 (5th Cir.1969) ("It has long been well settled that the affidavit of a juror is admissible to show the true verdict or that no verdict was reached at all.")); accord Smith v. City of Seven Points, 608 F.Supp. 458, 462 (E.D.Tex.1985) ("Jurors may testify, however, to show that through inadvertence or mistake, the verdict actually entered differed from what the jury intended."). Our research indicates that cases to which this exception applies are few and far between. Nonetheless, courts have accepted that an appropriate means to remedy a clerical error in a verdict discovered by juror affidavits is to simply amend the verdict to reflect the intent of the jury, as the district court did here. See Young v. United States, 163 F.2d 187, 189-90 (10th Cir.) (rejecting defendants' demands for a new trial but implicitly agreeing that appropriate remedy would be "to have the causes remanded in order that the district court may reform the verdicts so that they will correctly express...