U.S. v. Easter

• Decision Date: 10 December 1992
• Docket Number: No. 91-6103,91-6103
• Citation: 981 F.2d 1549
• Parties: 37 Fed. R. Evid. Serv. 823 UNITED STATES of America, Plaintiff-Appellee, v. James EASTER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1549

981 F.2d 1549

37 Fed. R. Evid. Serv. 823

UNITED STATES of America, Plaintiff-Appellee, v. James EASTER, Jr., Defendant-Appellant.

No. 91-6103.

United States Court of Appeals, Tenth Circuit.

Dec. 10, 1992.

Frank B. Kirk, Jr., Oklahoma City, OK, for defendant-appellant.

Timothy D. Leonard, U.S. Atty., Leslie M. Kaestner, Asst. U.S. Atty., Oklahoma City, OK, for plaintiff-appellee.

Before SEYMOUR, ANDERSON, and BALDOCK, Circuit Judges. ^*

BALDOCK, Circuit Judge.

Defendant James Easter appeals his conviction and sentence following a jury verdict on various conspiracy and substantive charges relating to distribution and possession of cocaine base. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).

This prosecution originates from Defendant's arrest by Drug Enforcement Administration (DEA) officials outside an Oklahoma City, Oklahoma hotel room. Prior to Defendant's arrival at the hotel room, Fenetrius Alexander had been arrested for possession of approximately one kilogram of cocaine base at the Los Angeles International Airport. Alexander then agreed to cooperate with DEA agents and made a controlled delivery of the cocaine base to Defendant, her contact in Oklahoma City.

Alexander was accompanied to the hotel room in Oklahoma City by DEA agents, and the room was placed under video, audio, and personal surveillance. Alexander then contacted Defendant and arranged to have him meet her at the room. Defendant arrived at the designated hotel room where he received the cocaine base from Alexander. When he left the room, he was immediately arrested by DEA agents.

Defendant agreed to cooperate with law enforcement officials, and he contacted Roderick Piggee, later identified as the source of the cocaine base. Piggee directed Defendant to deliver nine ounces of the cocaine base to Lamonte Kirksey. Defendant then contacted Kirksey who appeared at the same monitored hotel room, received his share of the cocaine base, and was promptly arrested. Piggee was later arrested at Will Rogers World Airport in Oklahoma City.

Piggee entered a plea of guilty and is currently appealing his conviction and sentence. Kirksey signed a plea agreement with the government and testified at trial against Defendant. Alexander was convicted in California for her participation in the offense and also testified at Defendant's trial.

Defendant was charged in a four count indictment. Count 1 charged Defendant with conspiracy to possess with intent to distribute and conspiracy to distribute cocaine base. 21 U.S.C. § 846. Count 2 charged Defendant with unlawful travel in interstate commerce with intent to promote illegal activity. 18 U.S.C. §§ 1952(a)(3) and (2). Count 3 charged Defendant with use of the telephones to facilitate a conspiracy. 21 U.S.C. § 843(b). Count 4 charged Defendant with unlawful possession with intent to distribute approximately one kilogram of cocaine base. Id. § 841(a)(1); 18 U.S.C. § 2.

Following a jury trial, Defendant was convicted on all four counts. On appeal, Defendant raises the following issues: (1) the district court erred in denying his motions for an evidentiary hearing and new trial based on juror bias; (2) the admission of prior acts evidence under Fed.R.Evid. 404(b) was improper; (3) his sentence violates the Eighth Amendment; (4) 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2D1.1 are void for vagueness; and (5) 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2D1.1 violate equal protection principles.

I.

Defendant's claim of juror bias is based on his allegation that after the jury returned its verdict, his sister recognized one of the jurors as a school bus driver who had driven Defendant to and from junior high school, at a time in his life when Defendant admits to being "unruly." Defendant claims he then, for the first time, recognized the juror and made a motion for an evidentiary hearing in order to interview or question the particular juror about potential bias toward Defendant based on the alleged prior contact. Defendant also moved for a new trial under Fed.R.Crim.P. 33 alleging that he was deprived of a fair and impartial jury. The district court denied both motions. We review for an abuse of discretion. United States v. Ware, 897 F.2d 1538, 1542 (10th Cir.), cert. denied, 496 U.S. 930 110 S.Ct. 2629, 110 L.Ed.2d 649 (1990).

A.

We first address Defendant's claim that the district court erred in denying his motion for an evidentiary hearing based on the allegation of juror bias. When confronted with a claim of juror bias, the trial court has wide discretion in deciding how to proceed. United States v. Bradshaw, 787 F.2d 1385, 1389 (10th Cir.1986). Although the ordinary course is to require a hearing or inquiry into nonfrivolous allegations of juror misconduct, United States v. Ramsey, 726 F.2d 601, 604 (10th Cir.1984), such an inquiry is not warranted when only "thin allegations of jury misconduct" are present. United States v. Cattle King Packing Co., 793 F.2d 232, 243 (10th Cir.), cert. denied, 479 U.S. 985, 107 S.Ct. 573, 93 L.Ed.2d 577 (1986).

In its order denying Defendant's motion for an evidentiary hearing, the district court found that Defendant's allegations were insufficient to warrant a full investigation into the juror's alleged bias. The court found the record devoid of any indications that the juror knew or even recognized Defendant, and further noted that the juror never gave any indication that he was unable or unwilling to remain impartial despite the court's numerous inquiries into the jury's ability to remain fair and impartial. Absent evidence to the contrary, we presume that jurors remain true to their oath and conscientiously observe the instructions and admonitions of the court. United States v. Greschner, 802 F.2d 373, 381 (10th Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987).

In Cattle King Packing Co., we affirmed the trial court's refusal to conduct an evidentiary hearing based on possible jury misconduct despite a post-conviction letter from a juror to defense counsel stating that she had not based her verdict on the testimony of key witnesses in the case. 793 F.2d at 243. We held that the charge of misconduct based on the juror's letter amounted to a "thin" allegation that did not warrant an evidentiary hearing. Id. Likewise, Defendant's post-verdict claim of possible juror misconduct is based on pure conjecture that a juror may have recognized Defendant and may have based his vote on something other than the evidence before him. Defendant's allegations here are even "thinner" than those in Cattle King. We conclude that the district court's denial of Defendant's motion for an evidentiary hearing was not an abuse of discretion.

B.

Defendant also contends that the district court erred in denying his motion for a new trial based on the same allegation of juror bias. We disagree.

A new trial based on juror misconduct is appropriate only where there is either a showing of actual bias or circumstances "compel an imputation of inherent bias to the juror as a matter of law." Bradshaw, 787 F.2d at 1390 (quoting Williams v. United States, 418 F.2d 372, 377 (10th Cir.1969)). In the instant case, there was no express admission by the juror that he was biased or that he even recognized Defendant. Moreover, Defendant does not allege that the juror deliberately concealed, or had any motive to conceal, previous contact with Defendant. See United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir.1984) (bias presumed where juror intentionally concealed prior business relationship with Defendant). Defendant fails to allege any facts that would require a finding that the juror was actually or presumptively biased. For these reasons, we affirm the district court's dismissal of Defendant's motion for a new trial.

II.

Defendant also challenges the district court's denial of his motion for a mistrial based on the admission of prior acts evidence under Fed.R.Evid. 404(b). We review for abuse of discretion. United States v. Record, 873 F.2d 1363, 1373 (10th Cir.1989).

During the government's case in chief, the district court, over Defendant's objection, admitted evidence of Defendant's prior dealings in cocaine base with coconspirator Alexander dating back to the Spring of 1990. Initially, the district court allowed the evidence as "part of the conspiracy within the time frame;" however, after the noon recess, Defendant renewed his objection stating that the evidence was "arguably 404(b) material," and he motioned for a mistrial. After hearing from the government that the evidence was proper 404(b) evidence and that there was no prejudice, the court denied Defendant's motion. After a careful review of the record, we find that the evidence is clearly admissable under Fed.R.Evid. 404(b). ¹

The admissability of 404(b) evidence is guided by the Supreme Court's decision in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). In Huddleston, the Supreme Court explained that protection from unfair prejudice of 404(b) evidence comes from: (1) Rule 404(b)'s requirement that the evidence be offered for a proper purpose; (2) Rule 402's relevancy requirement; (3) Rule 403's requirement that the probative value of the evidence not be substantially outweighed by its potential for unfair prejudice; and (4) Rule 105's requirement that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. Id. at 691-92, 108 S.Ct. at 1502. See also Record, 873 F.2d at 1373-76.

The prior acts evidence in the instant case satisfies the Huddleston test. ² "We have previously recognized the highly probative value of uncharged prior acts evidence to show motive, intent, knowledge or plan in the context of a conspiracy prosecution." Record, 873 F.2d at 1375. This is especially true where the uncharged prior acts are close in time and similar...