U.S. v. Lewis

• Decision Date: 08 December 1993
• Docket Number: Nos. 92-5670,92-5771,s. 92-5670
• Citation: 10 F.3d 1086
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Neal LEWIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ira Lee DICKERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1086

10 F.3d 1086

UNITED STATES of America, Plaintiff-Appellee, v. James Neal LEWIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Ira Lee DICKERSON, Defendant-Appellant.

Nos. 92-5670, 92-5771.

United States Court of Appeals, Fourth Circuit.

Argued Sept. 29, 1993.

Decided Dec. 8, 1993.

John Dewey Elliott, Columbia, SC, argued, for appellant Lewis.

Creighton B. Coleman, Columbia, SC, argued, for defendant-appellant Dickerson.

Mark C. Moore, Asst. U.S. Atty., Columbia, SC, argued (Margaret B. Seymour, U.S. Atty., on brief), for plaintiff-appellee.

Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.

OPINION

WILLIAMS, Circuit Judge:

James Neal Lewis was convicted by a jury of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1988), and two counts of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988). Ira Lee Dickerson was convicted by a jury of two counts of conspiracy to possess with the intent to distribute cocaine, also in violation of 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988).

Lewis and Dickerson appeal. Both contend that the Government improperly bolstered the testimony of its witnesses. In addition, Lewis contends that he was denied his right to trial by a jury selected from a fair cross-section of the community and he challenges the admission of hearsay testimony. Dickerson claims that the district court denied him his right of allocution and erred in failing to make a downward departure from the United States Sentencing Guidelines. Finding no error, we affirm.

I. FACTS

James Neal Lewis (a/k/a "48") and Ira Lee Dickerson ("Heavy D") were initially indicted with sixteen others in January 1991. The charges involved a conspiracy which was centered in Fort Lauderdale, Florida, and Kingstree, South Carolina. Most of the conspirators were arrested in January 1991. The Defendants at that time were known only by their street names and could not be found by authorities.

Lewis was eventually arrested in late 1991, Dickerson in early 1992, and they were tried together in May 1992. Claiming that the venire did not present a fair cross-section of the community, Lewis filed an objection to the jury panel and moved for an alteration or enlargement of the venire. This motion was denied, and the trial proceeded.

The Government's case against Lewis and Dickerson was primarily based on the testimony of cooperating witnesses who had reached plea or immunity agreements with the Government. Defense counsel attacked the credibility of these witnesses, claiming that they had motive to lie because they wished to "get out of a jam." (J.Supp.A. 13-14.) The Government called Special Agent Teresa Woods to rehabilitate these witnesses and to detail the Government's investigative techniques.

Following a two-day trial, Appellants were convicted. After determining Dickerson's total offense level under the United States Sentencing Guidelines, the district court asked if there were any motions for departure; both the defense and the prosecution said no. The court expressed its intention to sentence Dickerson at the bottom of the Guidelines and then inquired, "Anything from the defendant?" Dickerson's counsel addressed the court, but Dickerson did not speak. Dickerson was sentenced to the statutory minimum--262 months on each of the two counts, to be served concurrently. Lewis was sentenced to 360 months for each of the three counts against him, also to be served concurrently. Both appeal their convictions, and Dickerson appeals his sentence.

II. IMPROPER BOLSTERING

Appellants claim that the Government in this case improperly bolstered the testimony of its own witnesses. During trial, Appellants attacked the credibility of various witnesses by presenting prior inconsistent statements made by those witnesses to law enforcement officers. The Government sought to rehabilitate by having the case officer, Special Agent Teresa Woods, testify about the process of interrogating witnesses and the investigation of the case. Appellants contend that Woods's testimony amounted to a "law enforcement expert vouching for the integrity of the investigative process," and that admission of her testimony is reversible error. (J.A. 17.) We review the admission of this testimony under an abuse of discretion standard. See United States v. Clark, 986 F.2d 65, 68 (4th Cir.1993).

It is error for the Government to bolster or to vouch for its own witnesses. United States v. Samad, 754 F.2d 1091, 1100 (4th Cir.1984); United States v. Piva, 870 F.2d 753, 760 (1st Cir.1989). Vouching generally occurs when the prosecutor's actions are such that a jury could reasonably believe that the prosecutor was indicating a personal belief in the credibility of the witness. United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir.1992). Consequently, the prosecutor may not, among other things, make explicit personal assurances that a witness is trustworthy or implicitly bolster the witness by indicating that information not presented to the jury supports the testimony. United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984). Here, Appellants admit that the prosecutor neither gave explicit personal assurances that his witnesses were trustworthy, nor indicated that information not presented to the jury supported his witnesses' testimony.

While improper vouching must generally come from the prosecutor's own mouth, a prosecutor's solicitation of assertions of trustworthiness from government witnesses may also be impermissible vouching. Piva, 870 F.2d at 760. That did not take place in this case. Case officer Woods did not testify as to anyone's trustworthiness. Rather, she testified about the investigative techniques employed by the Government. The following is typical of the testimony to which the Appellants objected at trial:

Q: How did you make this case? ...

A: With this particular case, we never got drug buys, never had drugs on the table, that's what we always say. We had to use ex-dealers or drug users that has had [sic] experience with the Williams organization, and by the way I mean by that [sic], is that they have purchased drugs from them, they have sold drugs for them, or even if they were on the streets in which the drugs were being dealt. (J.A. 208.)

This testimony is not objectionable. As the district court pointed out in denying Appellants' objections to the testimony, the Government has a right to explain its procedures and the relationship between the Government and its witnesses. See United States v. Evans, 917 F.2d 800, 809 (4th Cir.1990) (undercover agent's testimony as to observation of his actions by supervisors not impermissible vouching); United States v. Henderson, 717 F.2d 135, 138 (4th Cir.1983), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984) (plea agreement is admissible to show the extent of a witness' relationship with the government and does not constitute bolstering).

Agent Woods merely explained the Government's procedures for locating and interviewing witnesses and thereby put evidence in front of the jury from which the jury could evaluate for themselves whether the witnesses were trustworthy. This is not vouching or bolstering, and the district court did not abuse its discretion in admitting this testimony.

III. FAIR CROSS-SECTION CHALLENGE

Appellant Lewis also claims that he was denied his right to trial by a jury selected from a fair cross-section of the community. In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), the Court outlined the test for such challenges:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Lewis contends that African-American residents have been disproportionately excluded from the venire in South Carolina. We find that while the group is concededly distinctive, Lewis has completely failed to establish the other two prongs of the Duren test.

Our analysis begins with a look at the process by which the jury venire is compiled. Pursuant to the Jury Selection Plan adopted by the District of South Carolina, jury venires in South Carolina are drawn from voter registration lists. The Plan specifically provides that potential jurors are to be selected at random from a cross-section of the community and that no citizen shall be excluded "on account of race, color, religion, sex, national origin or economic status." ¹ The plan was carefully considered and approved by this court. ² Furthermore, Congress has proclaimed that voter registration lists are the preferred source of names for prospective jurors. See The Jury Selection Act, 28 U.S.C. Sec. 1863(b)(2) (1988).

In United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert. denied, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 883 (1988), we held that use of current voter registration lists as the source for a jury pool from which random selection of jurors is made presumptively provides a fair cross-section, even if minorities are underrepresented on those lists, as long as there is no affirmative discrimination in registration. Id. at 1448 ("[T]here is no violation of the jury cross-section requirement where there is merely underrepresentation of a cognizable class by reason of failure to register, when that right is fully open.").

In reaching that conclusion, we said that in order to be fair and reasonable, the disparity " 'between the proportion of eligible...