U.S. v. Owens

• Decision Date: 13 October 2005
• Docket Number: No. 04-1655.,04-1655.
• Citation: 426 F.3d 800
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ian Aza Jerome OWENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

426 F.3d 800

UNITED STATES of America, Plaintiff-Appellee, v. Ian Aza Jerome OWENS, Defendant-Appellant.

No. 04-1655.

United States Court of Appeals, Sixth Circuit.

Argued: September 20, 2005.

Decided and Filed: October 13, 2005.

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ARGUED:

Mark Diamond, New York, New York, for Appellant. Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

ON BRIEF:

Mark Diamond, New York, New York, for Appellant. Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: COLE and ROGERS, Circuit Judges; BECKWITH, Chief District Judge.^*

OPINION

COLE, Circuit Judge.

Defendant-Appellant Jerome Ian Owens appeals his conviction for armed bank robbery on the grounds that (1) the district court declined to investigate the possibility of jury bias, (2) prosecutorial misconduct deprived him of a fair trial, (3) the evidence underlying two counts of the indictment was insufficient, (4) the district court erred in its evaluation of restitution, and (5) he is entitled to remand for resentencing under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons that follow, this Court AFFIRMS the conviction and order of restitution but REMANDS for resentencing in light of Booker.

I.

Owens was arrested on September 21, 2002 in connection with a string of bank robberies. Owens was identified by his mother from a security photograph taken during the fourth and final robbery. Owens was indicted on, and pleaded not guilty to, fourteen related counts.

Over the course of the resulting trial, the Government put on evidence that Owens planned one robbery and physically participated in three others. Most of Owens's accomplices testified to committing a robbery alongside Owens or testified that Owens admitted to them that he had committed a specific robbery.

The accomplices largely corroborated one another. For instance, Damon Johnson, a participant in the fourth robbery, testified that he had once loaned Owens a gun that Owens returned stained by red dye. When Johnson asked about it, Owens described his participation in another of the four robberies. In that robbery, a dye pack exploded and a gun discharged. Lionel Sorrels, another accomplice, testified that Owens independently described a robbery wherein a gun discharged and a dye pack exploded.

Bank employees, customers, and law enforcement authorities confirmed certain details provided by the co-perpetrators about the various robberies. Stevie Jones described a robbery he committed with Owens wherein Owens pushed a woman to the ground and referenced Flint, Michigan with the words "This is how we do it in Flint." Bank employees and customers confirmed these two details. Adika Sutton claimed that she talked with Owens via a Nextel phone during a robbery on November 28, 2001, which Owens was alleged to have planned. Officer Valentine testified that when Sutton and her accomplice were caught driving away from the scene, police recovered a Nextel phone.

Owens denied any involvement in the November 2, 2000, May 10, 2001, and November 28, 2001 robberies. He admitted participation in the February 15, 2002 robbery, but claimed that he was coerced by the other robbers. The other perpetrators denied that they coerced Owens and bank employees singled out Owens as the leader of the February 15 robbery.

The trial did have several notable anomalies. First, a juror passed a note to the judge asking whether Owens could present a danger to the jury because "[h]e was staring at [the juror] uncomfortably." Defendant's counsel asked the court to question the juror about the note but the court declined. Upon agreement by both parties, the court instructed the courtroom deputy to advise the jury that "to the best of the Court's knowledge and all the parties' knowledge, [Owens] does not pose a security risk to anyone." Second, the court admonished a prosecutor for commenting on the credibility of a Government witness during his closing argument. Finally, a prosecutor asked the jury during her closing argument if they had ever been the victims of a crime and, if so, how they felt about Owens's claim that he was a victim.

On February 5, 2004, the jury convicted Owens on all but one of the fourteen counts charged. The court sentenced him to 1,411 months in prison based on the United States Sentencing Guidelines. The court adjusted the sentence upward for obstruction of justice and evidence of leadership. Of the 1,411 months, 1,260 were part of a statutory minimum imposed by 18 U.S.C. § 924(c). The court also ordered Owens to pay $229,900 in restitution under the Victim and Witness Protection Act.

Owens now appeals his conviction, sentence, and the order of restitution. We have jurisdiction to hear Owens's timely appeal under 28 U.S.C. § 1291.

II.

A. Jury Bias

When a juror passed a note to the district judge articulating her discomfort with Owens for "staring at her," Owens's trial counsel requested that the juror be investigated for the possibility of bias. The district judge denied the request but assured the jury that Owens did not present a danger. We review the district judge's decision not to question the juror for abuse of discretion. United States v. Davis, 177 F.3d 552, 557 (6th Cir.1999).

In Remmer v. United States, the Supreme Court held that a trial court, faced with an indication of jury bias, must conduct "a hearing with all interested parties permitted to participate." 347 U.S. 227, 230, 74 S.Ct. 450, 98 L.Ed. 654 (1954). When a district judge refuses to conduct a Remmer hearing under such circumstances, we routinely remand. See, e.g., Mason v. Mitchell, 320 F.3d 604, 636 (6th Cir.2003); Davis, 177 F.3d 552; United States v. Zelinka, 862 F.2d 92 (6th Cir.1988). Yet a defendant must do more than simply raise the possibility of bias. See United States v. Herndon, 156 F.3d 629, 635 (6th Cir.1998). Rather, a district court must conduct a Remmer hearing whenever the defense raises a "colorable claim of extraneous influence." Davis, 177 F.3d at 557.

We have defined an "extraneous influence" as "one derived from specific knowledge about or a relationship with either the parties or their witnesses." Herndon, 156 F.3d at 636. Examples include prior business dealings with the defendant, id. at 635, applying to work for the local district attorney, Smith v. Phillips, 455 U.S. 209, 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), conducting an out of court experiment, see Mason, 320 F.3d at 638, and discussing the trial with an employee. Davis, 177 F.3d at 557.

When a defendant stares at a juror during the course of his trial, however, he has introduced no outside contact with, nor special information about, a party or witness. In United States v. Lopez, 271 F.3d 472 (3d Cir.2001), a juror sent a note asking the court to instruct the defendant not to stare at her because, while it did not bother her, she "didn't like it." Id. at 489. The Third Circuit upheld the district judge's decision not to strike or question the juror because the defendant's conduct did not constitute an outside influence. Id. Although this case differs from Lopez in that here the juror expressed fear, the juror's emotional state does not make the conduct at issue any more extraneous.

To hold otherwise, moreover, is to create incentives for a defendant to make his or her jury uncomfortable. Although it was never determined whether Owens actually stared at the preoccupied juror during his trial, a defendant is not automatically entitled to a Remmer hearing because he has managed to insult or frighten a juror. Cf. United States v. Reesor, 2001 WL 523931, *6 (6th Cir.2001) (unpublished opinion) (upholding the denial of a Remmer hearing where defendant's own conduct during the course of the trial was the source of the implied bias).

Ultimately, the abuse of discretion standard is a highly deferential one. See Hardyman v. Norfolk & Western Railway, 243 F.3d 255 (6th Cir.2001) ("[D]eference to the district court's decision is the `hallmark of abuse of discretion review.'") (quoting General Electric v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). This Court should only find an abuse if it is "firmly convinced that the district court erred." Id. Cf. Lopez, 271 F.3d at 489-90 (noting that the trial judge was in the best position to determine whether a Remmer hearing was necessary).

We conclude that Owens's staring was not an extraneous influence, and we accordingly affirm the district court's refusal to question the juror who authored the note.

B. Prosecutorial Misconduct

1. Claim of improper challenge to defense witness credibility.

Defense counsel objected when, during closing argument, one prosecutor said that defense witness LaShawn Winston had "an incentive to make a deal with the defendant" because he might be a witness at her upcoming trial. When cross-examined, the witness had specifically denied entering into a quid pro quo with Owens. The trial judge nevertheless ruled that the prosecutor's comment constituted fair argument. We review allegations of prosecutorial misconduct to which trial counsel objected de novo. United States v. Barnett, 398 F.3d 516, 523 (6th Cir.2005).

"A prosecutor may not express a personal opinion concerning . . . the credibility of a trial witness" because to do so "exceeds the legitimate advocate's role by improperly inviting the jury to convict on a basis other than a neutral independent assessment of the record proof." Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir.1999), abrogated on other grounds by Mackey v. Dutton, 217 F.3d 399, 406 (6th Cir.2000). Counsel may argue for a reasonable inference that a witness is not credible, however, assuming there exists evidence from which to so infer. United States v. Collins, 78 F.3d 1021, 1040 (6th Cir.1996); United States v. Veal, 23 F.3d 985, 990 (6th Cir.1994).

In...