U.S. v. Durham

• Decision Date: 24 March 1998
• Docket Number: Nos. 96-5107,96-5108 and 96-5118,s. 96-5107
• Parties: 98 CJ C.A.R. 1434 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Monson Lee DURHAM, also known as Lee Durham, Defendant-Appellant Cross-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray EVANS, also known as Danny Taylor, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1325

139 F.3d 1325

98 CJ C.A.R. 1434

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Monson Lee DURHAM, also known as Lee Durham,

Defendant-Appellant Cross-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray EVANS, also known as Danny Taylor, Defendant--Appellant.

Nos. 96-5107, 96-5108 and 96-5118.

United States Court of Appeals Tenth Circuit.

March 24, 1998.

Jenine M. Jensen, Assistant Federal Public Defender (Michael J. Katz, Federal Public Defender with her on the briefs), Denver, CO, for Defendants--Appellants Durham and Evans.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney and Ann P. Dooley, Assistant United States Attorney, on the Brief), Tulsa, OK, for Plaintiff--Appellee.

Before TACHA, LUCERO and MURPHY, Circuit Judges.

LUCERO, Circuit Judge.

Today we are asked to consider the requirements for waiver of a defective jury composition, what constitutes sufficient evidence of materiality under 18 U.S.C. § 1623, whether it is appropriate to issue a false exculpatory statement instruction when the defendant is charged with perjury, and whether it is misconduct for the government to request a modification to an official transcript without notifying the court or opposing counsel. In addition, we revisit our jurisprudence under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), to determine whether the erroneous "use" instruction in this case requires this court to reverse Danny Evans's conviction under 18 U.S.C. § 924(c)(1).

In addition to the § 924(c) appeal, Evans appeals his conviction for one count of conspiracy with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Lee Durham appeals his convictions for participating in the same conspiracy and for four counts of perjury in violation of 18 U.S.C. § 1623. Durham claims that the government did not present sufficient evidence to support his convictions for perjury; that the district court erred in giving a false exculpatory statement jury instruction; that his trial was defective as a result of prosecutorial misconduct; and that he was tried before an improperly constituted jury. In addition to joining all grounds raised by Durham, Evans argues that the district court abused its discretion by refusing to sever his trial from Durham's; that the Supreme Court's decision in Bailey mandates reversal of his conviction under 18 U.S.C. § 924(c); and that the district court contravened his Sixth Amendment right to confront adverse witnesses by refusing to allow inquiry into prior assaults committed by Mark Montgomery, the government's key witness. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I

Mark Montgomery began selling cocaine in Okmulgee, Oklahoma in 1989. Early in his career, Montgomery's great uncle informed him that he was paying too much for his cocaine from his Okmulgee sources. Soon thereafter, Montgomery developed alternative cocaine sources in both California and Texas. At trial, Montgomery testified he first obtained cocaine from Evans, a resident of Arlington, Texas, in either 1990 or 1991. From 1991 to 1994, he and Evans ran the cocaine venture as partners.

In early 1991, Montgomery enlisted Durham to broker his purchases of cocaine in Houston. Durham, a Houston native, would pick Montgomery's couriers up at one of the city's airports and provide them with a place to stay. He would then take their money, exchange it for cocaine, and transport them back to the airport. Durham was paid "small amounts of money" for his services as a "middle man." 13 R. at 1603-04. He never brokered any of Montgomery's drug transactions in other source cities.

Montgomery introduced Evans and Durham sometime before August 1991. Thereafter, Evans would contact Durham to arrange cocaine purchases without Montgomery's intervention. In mid-1992, Evans and Montgomery ceased employing Durham's services and there is scant evidence suggesting any contact between Durham and either Montgomery or Evans for the latter half of 1992 and all of 1993 and 1994.

In June 1994, Evans was stopped in Oklahoma for speeding. During that stop, an officer of the Oklahoma Highway Patrol found a nine millimeter pistol between the driver's and passenger's seats. In addition, the officer found $13,500 in three separate bundles. Because Evans admitted that the pistol was his, he was arrested for carrying a loaded weapon in violation of Oklahoma law. On the theory that the $13,500 represented the proceeds of drug transactions, Evans was subsequently charged with using or carrying a firearm during and in relation to a drug offense in violation of 18 U.S.C. § 924(c)(1).

Montgomery was arrested in October 1994 for illegal distribution of narcotics. In an attempt to limit the amount of prison time he would serve, he agreed to assist the government in obtaining evidence against other suspected drug dealers. He was therefore released on bond the following month. Initially, Montgomery had little success in contacting his former sources and he surmised that they suspected him of cooperating with the government. In March 1995, however, Montgomery successfully contacted Durham. In a taped conversation that was played for the jury, Durham agreed to locate a cocaine seller for Montgomery. Later that month, the government obtained an indictment against both Evans and Durham for conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Montgomery was the government's key witness at the defendants' trial.

II

Prior to trial, Durham's counsel moved the court to dismiss the indictment for improper venue or, in the alternative, to transfer the case pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure. Durham testified at a hearing held on June 14, 1995 in support of this motion. His testimony prompted the government to file a superseding indictment that added four counts of perjury. The first perjury count was based on Durham's representation at the venue hearing that he had not been in Oklahoma since December of 1990, see 13 R. at 1631-32, 1640; the second, on his confirmation that he had "never taken any money from" Evans, see id. at 1632-33; the third, on his adoption of the statement that he had never sold drugs to Evans, see id. at 1633; and the final count, on his confirmation that he had never engaged in a drug transaction with Montgomery, see id. at 1641.

A

Durham argues that all of his perjury counts must be reversed because the government did not produce sufficient evidence that his statements were "material" to the proceedings. "[I]n reviewing the sufficiency of the evidence to support a jury verdict, this court must review the record de novo and ask only whether, taking the evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.) (internal quotations omitted), cert. denied, --- U.S. ----, 117 S.Ct. 226, 136 L.Ed.2d 158 (1996).

Materiality is an element of the crime of perjury, which must be submitted to the jury and proven by the prosecution beyond a reasonable doubt. See 18 U.S.C. § 1623(a); United States v. Regan, 103 F.3d 1072, 1081 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2484, 138 L.Ed.2d 992 (1997); United States v. Keys, 95 F.3d 874, 877 (9th Cir.1996) (en banc); United States v. Littleton, 76 F.3d 614, 617 (4th Cir.1996); United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996); see also United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 2319-20, 132 L.Ed.2d 444 (1995) (conviction for making false statements on federal loan documents in violation of 18 U.S.C. § 1001 only sustainable if jury finds statements material beyond a reasonable doubt). To be material under § 1623(a), a false statement must have "a natural tendency to influence, or [be] capable of influencing, the decision ... required to be made." United States v. Girdner, 773 F.2d 257, 259 (10th Cir.1985) (quoting United States v. Moore, 613 F.2d 1029, 1038 (D.C.Cir.1979)); see also Gaudin, 515 U.S. at 509, 115 S.Ct. at 2313 (applying this same standard in prosecution under 18 U.S.C. § 1001). Because Durham made the disputed statements at a venue hearing, the government must prove the statements were material to the court's venue decision. See United States v. Allen, 892 F.2d 66, 68 (10th Cir.1989) ("The materiality test is determined at the time and for the purpose for which the allegedly false statement was made.").

Because "[v]enue is proper in conspiracy offenses in any district where the agreement was formed or an overt act occurred," United States v. Scott, 37 F.3d 1564, 1580 (10th Cir.1994) (citations omitted), Durham's testimony was material to the venue decision. ¹ The indictment in effect at the time of the venue hearing did not allege any specific overt acts. Rather, it merely charged Evans and Durham with conspiring to violate 21 U.S.C. § 841(a)(1) "in the Northern District of Oklahoma and elsewhere." 1 R., Doc. 2 at 1. It would be consistent with the charges in that indictment for the government to establish that the agreement was formed in Oklahoma but that all overt acts occurred outside of the state. ² It is for that reason that Durham's statements were material to the venue decision.

Durham's contentions that he had left Oklahoma before the alleged conspiracy was formed and had no contact with the principal alleged conspirators had the capacity to affect the district court's decision as to whether an agreement had occurred in Oklahoma. Moreover, Durham's motion before the court argued that he was inappropriately being tried in Oklahoma for acts that had...