U.S. v. Herndon

• Citation: 156 F.3d 629
• Decision Date: 02 September 1998
• Docket Number: No. 97-5254,97-5254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Julian HERNDON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 629

156 F.3d 629

UNITED STATES of America, Plaintiff-Appellee, v. William Julian HERNDON, Defendant-Appellant.

No. 97-5254.

United States Court of Appeals Sixth Circuit.

Argued June 18, 1998.

Decided Sept. 2, 1998.

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

Elgin L. Crull (argued and briefed), Crull & Crull, Louisville, KY, for Defendant-Appellant.

Before: MOORE, CLAY, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

William Julian Herndon appeals from his jury conviction on one count of conspiracy to possess with intent to distribute cocaine, three counts of possession with intent to distribute cocaine, two counts of aiding and abetting the distribution of cocaine, and one count of carrying a firearm during and in relation to a drug-trafficking crime. On appeal, Herndon argues that the district court erred in not permitting his attorney to question a juror who recalled during jury deliberations that he may have had prior business dealings with Herndon. He also contends that the district court erred by allowing the statements of his alleged co-conspirators to be admitted into evidence. Finally, Herndon claims that the evidence offered at trial was insufficient to prove beyond a reasonable doubt that he conspired to distribute cocaine aided and abetted in the distribution of cocaine, and carried a firearm during a drug-trafficking crime.

For the following reasons, we AFFIRM the rulings of the district court relating to the admission and sufficiency of the evidence, but VACATE Herndon's conviction and sentence, and REMAND the case for a hearing to determine if Herndon was prejudiced by the juror's belated acknowledgment that he may have had prior dealings with Herndon. If prejudice is found, then Herndon is entitled to a new trial. If no prejudice is found, then the district court should reinstate Herndon's conviction and sentence.

I. BACKGROUND

In the summer of 1994, the Kentucky State Police, in cooperation with the Federal Bureau of Investigation, began an undercover investigation into the possible distribution of cocaine through the Roadhouse Bar ("Roadhouse") located in Bullitt County, Kentucky. They suspected that Herndon, the proprietor of the bar, was involved in the drug trafficking. After commencing their investigation, the state officers came to believe that Dan Bailey was also distributing cocaine and using the Roadhouse as a base of operations.

Officers Wayne Hedgespeth and Daniel Triplett conducted the investigation. Hedgespeth and Triplett first met Bailey on August 8, 1994, when they purchased one ounce of cocaine from Bailey in exchange for $1,900. After the first transaction, the officers agreed to meet Bailey on August 18, 1994 at the Roadhouse. When they arrived, Bailey was leaning against the far wall. Upon seeing the officers, Bailey whispered to a Roadhouse employee, Neil Williams. Williams made a phone call and then whispered back to Bailey. Bailey approached the officers and informed them that the cocaine was "on its way." A few minutes passed, and then Herndon entered the Roadhouse through the back entrance. Bailey and Herndon went into the kitchen. Bailey then returned to the table where the officers were sitting and said, "It's here whenever you want to do it." Bailey and the officers proceeded to the rear parking lot. Bailey walked over to a pickup truck and retrieved a plastic bag. The officers exchanged $3,800 for the bag, which was filled with two ounces of cocaine.

The next meeting occurred on August 23, 1994. When the officers arrived in Bullitt County later that day, after receiving a page from Bailey, they called him about obtaining tickets to a boxing match that Bailey was promoting in Louisville, Kentucky. During the call, Bailey asked if they needed "a couple ounces" of cocaine. The officers responded by telling Bailey that they were headed to the Roadhouse. When they arrived at the Roadhouse, Hedgespeth recalls Herndon approaching them and saying that "he didn't know that [they] were coming, and that it would be 8:00 p.m. before [they] could do anything." Bailey arrived a little while later. He approached the officers and informed them that the "stuff" would not be available for an hour. Hedgespeth responded by informing Bailey that Herndon had already told them. Bailey did not reply to Hedgespeth's comment. The officers purchased tickets to the fight promoted by Bailey, left the bar, and then returned around 8:30 p.m. Upon returning to the bar, Bailey handed Hedgespeth a plastic bag filled with one ounce of cocaine. Hedgespeth went into the bathroom and counted out $1,900, which he handed to Bailey.

The officers returned to the Roadhouse on September 13, 1994. Herndon approached the officers and asked if they had seen Bailey since they were in town. The officers responded that they had not seen Bailey, but he knew that they were coming. Herndon gave them Bailey's telephone number. The officers intentionally dialed an incorrect telephone number, but told Herndon that they could not connect with Bailey. Herndon said, "Well, I hate for you all to make a trip for nothing," and then asked the officers "how many [they] wanted." Hedgespeth told Herndon that they would take one ounce. Herndon showed them a sample and requested that they "front" the $1,900. The officers agreed to the arrangement, but expressed concerns over angering Bailey. Herndon replied that the officers should not worry because "he was dealing with Dan [Bailey]." (During Hedgespeth's earlier testimony, he recalled that Herndon stated that "he was taking care of Dan [Bailey]"). They arranged to meet later at Gobel's Tavern ("Gobel's") to exchange the drugs. Hedgespeth and Triplett arrived early at Gobel's. Triplett temporarily left to go to their car. While there, he saw Herndon in the parking lot. Herndon gave Triplett the cocaine, and Triplett passed it to Hedgespeth.

The next encounter occurred on October 19, 1994. The officers went to the Roadhouse looking for Herndon. They waited for Herndon to arrive, and then asked him if any cocaine was available. Herndon agreed to supply the cocaine, but said he needed the money prior to delivery. The officers gave Herndon $1,900 and agreed to meet him later that evening. The officers met Herndon at Gobel's. Herndon asked Hedgespeth to reconvene outside next to his truck. Herndon handed Hedgespeth a plastic bag with what appeared to be one ounce of cocaine. After the transaction was completed, Herndon removed a fully loaded Glock nine millimeter handgun from his waistband, and said "I guess I won't be needing this now." Around the same time, Triplett came outside and approached the truck. Herndon handed the handgun to Hedgespeth and said "It was for nosey people." Hedgespeth examined the gun, passed it to Triplett, and then Herndon placed the gun back in his waistband.

The final meeting occurred on November 7, 1994. On that date, the officers met with both Herndon and Bailey. Initially Bailey proposed to sell marijuana to the officers. After the officers expressed doubt about purchasing the marijuana, they indicated an interest in procuring cocaine. Bailey and Herndon then left the table and met in the kitchen area. Bailey motioned to Hedgespeth to join them in the kitchen. Hedgespeth agreed to front Herndon $1,900 for one ounce of cocaine. At approximately 3:30 a.m., Herndon delivered the cocaine to Triplett's hotel room.

Herndon was subsequently arrested and indicted on several drug-related counts. Bailey fled the jurisdiction and was not located until after Herndon's trial had commenced. Anticipating that the government intended to use co-conspirator statements at trial, Herndon requested a hearing pursuant to United States v. Enright, 579 F.2d 980 (6th Cir.1978) (requiring a hearing to decide whether the statements of a co-conspirator should be admitted). In addition to the evidence discussed above, Hedgespeth testified at the Enright hearing that when they first entered the Roadhouse, they asked Kim, a Roadhouse employee, where they could obtain cocaine. She informed them that her supplier's name was Bill and that he was currently in Florida. Bill Herndon was in Florida when Kim made the statement. Kim also told Hedgespeth that Bill left his supply with another person to distribute in his absence. At the completion of the hearing, the district court held that a preponderance of the evidence supported the conclusion that a conspiracy between Herndon and Bailey existed.

The trial began on October 28, 1996. At the end of the government's case, defense counsel moved for a judgment of acquittal on several of the substantive counts. The district court denied the motions. During the jury deliberations following the two-day trial, the jury foreman sent a note to the judge stating that "Juror # 1 now believes he may have had dealings with the defendant (in the defendant's home), approximately 4 years ago. # 1 does not believe that this impacts his ability to act as a juror." The judge returned a note to the jury, requesting them to continue deliberating. Defense counsel objected to the judge's response. The court revealed the name of juror # 1 and noted that the juror sold security systems. Defense counsel then requested to interview the juror, which the district court rejected. All of the jurors had been asked during voir dire whether they knew Herndon, and none responded affirmatively.

The following day, defense counsel informed the court that Herndon had decided not to "make a motion." After the jury returned a guilty verdict, defense counsel made a motion for a new trial. The district court rejected Herndon's request for a new trial in a Memorandum Opinion and Order filed on January 17, 1997. The district court's opinion relied on the fact that the juror's note indicated uncertainty that he had had...