U.S. v. Williams-Davis

• Decision Date: 20 September 1996
• Docket Number: 93-3112 and 93-3147,93-3103,93-3101,Nos. 93-3100,WILLIAMS-DAVIS,s. 93-3100
• Citation: 319 U.S. App. D.C. 267,90 F.3d 490
• Parties: UNITED STATES of America, Appellee v. Kevin, et al., Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 490

90 F.3d 490

319 U.S.App.D.C. 267

UNITED STATES of America, Appellee v. Kevin WILLIAMS-DAVIS, et al., Appellants

Nos. 93-3100, 93-3101, 93-3103, 93-3112 and 93-3147.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 10, 1996.

Decided July 26, 1996.

Rehearing Denied Sept. 20, 1996.

Appeals from the United States District Court for the District of Columbia (Nos. 91cr00559-01, 91cr00559-02, 91cr00559-04, 91cr00559-06 and 91cr00559-20).

Stephen C. Leckar, appointed by the court, argued the cause, Washington, DC, for appellant Williams-Davis.

Jeffrey S. Jacobovitz, appointed by the court, argued the cause, Washington, DC, for appellant Williams.

William J. Garber, appointed by the court, argued the cause, Fairfax, VA, for appellant Boyd.

Daniel E. Ellenbogen, appointed by the court, argued the cause, Washington, DC, for appellant Restrepo.

Kenneth M. Robinson and Dennis M. Hart were on the briefs, Washington, DC, for appellant Nugent.

Geoffrey G. Bestor, Assistant United States Attorney, argued the cause, Washington, DC, for appellee. With him on the brief were Eric H. Holder, Jr., United States Attorney, John R. Fisher and Thomas C. Black, Assistant United States Attorneys, Washington, DC.

Before: WILLIAMS, SENTELLE and HENDERSON, Circuit Judges.

STEPHEN F. WILLIAMS, Circuit Judge:

According to a 115-count superseding indictment, appellants were major players in a sizable conspiracy to distribute drugs from 1983 to 1991 around the intersection of Lincoln Road and R Street in Northeast Washington, D.C.

The district court divided approximately twenty-four defendants into four groups for separate trials; the five appellants here comprise Group I. After a five-month trial and two weeks of jury deliberation, the jury on July 21, 1992 found all the appellants guilty of conspiring to distribute and possess with intent to distribute illegal drugs in violation of 21 U.S.C. § 846. Each appellant was also convicted of additional violations related to the drug conspiracy, including operating a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848 (Kevin Williams-Davis, Anthony Nugent, and Darryl Williams); second-degree murder in violation of 22 D.C.code § 2403 (williams-davis, nugent, anD williams); violating the Travel Act, 18 U.S.C. § 1952(a)(3) (Alba Restrepo); and money laundering in violation of 18 U.S.C. § 1956 (Williams-Davis, Joyce Boyd). The jury acquitted appellants of violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c).

Viewed in the light most favorable to the government, see United States v. Tarantino, 846 F.2d 1384, 1391 (D.C.Cir.1988), the evidence at trial established that Williams-Davis, Nugent, and Williams were the leaders of a large gang mostly made up of relatives and neighbors, the "R Street Crew." Following the familiar pattern, see United States v. Childress, 58 F.3d 693, 711 (D.C.Cir.1995), these three used lieutenants who in turn paid others to sell drugs. The R Street Crew stored and packaged the drugs in sundry homes throughout the area. The gang would shift configuration slightly as various members were arrested and occasionally did time for drug offenses--including Nugent and Darryl Williams--but the basic structure held. In 1987 the group began selling cocaine, which Williams-Davis and Nugent obtained mostly from New York (a total of about 500 kilograms) and in part from California (about 150 kilograms). Defendant Alba Restrepo supplied cocaine to the group as its New York contact. Defendant Joyce Boyd helped Williams-Davis, her nephew, launder his hefty profits from the illegal drug sales. The group's activities included bloody and sometimes deadly clashes with rival drug-peddling gangs. The R Street Crew came to the beginning of the end in 1990 after Jeffrey Williams (brother of Darryl) robbed a New York go-between, Claude Juggins, of his cocaine, prompting Juggins, caught between the R Street Crew and his Colombian suppliers (a rock and a hard place if ever there were), to turn FBI informant. The government was thereby able to tape and present to the jury telephone calls between Juggins and Williams-Davis, Nugent, and Restrepo.

Following trial, the district judge sentenced Kevin Williams-Davis, Anthony Nugent, and Darryl Williams to life imprisonment. He sentenced Joyce Boyd to 78 months' imprisonment. On July 15, 1992 the case was reassigned to another district judge who sentenced Alba Restrepo to 360 months' imprisonment.

After the verdicts were returned, the district court evidently granted defense counsel permission to speak to such jurors as were willing. Appellants returned to court on September 21, 1992, filing a motion to dismiss or for a new trial based on affidavits from four jurors (a fifth juror affidavit was submitted a week later), claiming numerous instances of juror misconduct. On March 29, 1993, the court held a hearing to examine two of the alleged instances and issued an opinion denying the motions. United States v. Williams-Davis, 821 F.Supp. 727 (D.D.C.1993). (We discuss these allegations in detail later.)

In this consolidated appeal, appellants make both collective and individual arguments. This opinion first discusses jury misconduct claims, common to all appellants. The next section describes additional arguments that most of the appellants join--including allegations of prosecutorial misconduct and the adequacy of the trial court's jury instructions. The third section focuses on individual arguments. Specific facts are discussed as they become relevant. We have addressed the more deserving of appellants' claims; the rest do not warrant treatment. We find none of appellants' claims persuasive, except Nugent's uncontested challenge to the second of his convictions under 18 U.S.C. § 924(c)(1), and so affirm appellants' convictions on all counts but that one.

I. Jury Misconduct Issues

Appellants allege violations of their Sixth Amendment right to trial by an impartial jury and of their Fifth Amendment right to due process as a result of various forms of jury contamination and misconduct; independently they claim to be entitled to a new trial because of the trial court's failure to conduct a more searching inquiry into these allegations. We discuss each of the alleged violations in turn. First, we address private contacts between jurors and third parties, including alleged comments by the forewoman's husband and a telephone conversation between a juror and an alternate during deliberations. We then turn to juror exposure to more conventional sources of extrajudicial information, including media reports and use of a dictionary during deliberations. Finally, we examine a juror's failure to disclose information during voir dire and pre-deliberation discussions among the jurors.

A. Private Communications With Jurors (Third Party Contacts)

There are two main assertions of illicit private communications to the jurors, one revolving around the forewoman's husband, the other about an alternate who communicated with one of the jurors after having been dismissed for the deliberations. Four jurors gave affidavits after trial saying that the forewoman said that her husband told her to "nail" the defendants. One alternate juror supplied dim support, saying that the forewoman talked "a lot" about what her husband thought of the case, but that she could not remember specific comments. She also claimed that the husband came to court frequently, maybe three or four times a week. The district court held a hearing to question the forewoman, who stated that she had discussed the evidence once with her husband during the trial but that he had not commented, and that he had come to see the trial on two occasions. The court credited the forewoman's statement that her husband didn't say anything about defendants' guilt, and noted the tensions that had existed among some of the jurors because of the forewoman's strong personality. 821 F.Supp. at 746-47. The court did not call the jurors who had given affidavits, concluding that even if the forewoman had relayed the alleged remark, it would not have been adequate to support a finding of actual prejudice.

The second claim arises from the post-trial affidavit of alternate juror Shalita Isaac, who was dismissed before deliberations began, saying that juror Carl Biggs called her during deliberations and said that he was trying to tell the marshal he needed to talk to the judge about the forewoman. Isaac claimed that Biggs said the forewoman "wanted RICO badly," and that Isaac told Biggs not to take Nugent's houses and cars in forfeiture because Nugent had children who needed them. According to Isaac, Biggs said "he was going to do the best he could." In other words, by her own account the dismissed alternate weighed in on the side of the defendants on the only merits issue as to which she expressed an opinion.

We start with the obviously more serious episode, the forewoman's husband's supposed exhortation to "nail" the defendants. Here appellants argue first that prejudice must be presumed, and second that the judge should have held a more extensive hearing.

The claim of presumption rests largely on Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), where the Court spoke of a presumption of prejudice from private contacts with the jurors: "In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial...." Id. at 229, 74 S.Ct. at 451. The court stated that "[t]he presumption is not conclusive, but the burden rests heavily on the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant." In Remmer, a juror reported an attempt to bribe him to the judge, who then requested an FBI investigation....