U.S. v. Williams, s. 95-2968

• Decision Date: 03 April 1996
• Docket Number: 95-2972,Nos. 95-2968,s. 95-2968
• Citation: 77 F.3d 1098
• Parties: UNITED STATES of America, Appellee, v. Marcus WILLIAMS, Appellant. UNITED STATES of America, Appellee, v. Cortez WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1098

77 F.3d 1098

UNITED STATES of America, Appellee, v. Marcus WILLIAMS, Appellant.

UNITED STATES of America, Appellee, v. Cortez WILLIAMS, Appellant.

Nos. 95-2968, 95-2972.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 9, 1996.

Decided March 5, 1996.

Rehearing Denied April 3, 1996.

Appeals from the United States District Court for the Eastern District of Missouri; Stephen Limbaugh, Judge.

Bryan Sutter, St. Louis, Missouri, argued, for Marcus Williams.

Jeffrey J. Rosanswank, Assistant Federal Public Defender, Cape Girardeau, Missouri, argued, for Cortez Williams.

Curtis O. Poore, Assistant U.S. Attorney, of Cape Girardeau, Missouri, argued, for appellee.

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BEAM, Circuit Judge.

Marcus Williams (Marcus) and Cortez Williams (Cortez) appeal their convictions and sentences for conspiracy to distribute and distribution of crack cocaine. Both appellants challenge the sufficiency of the government's evidence regarding the quantity of drugs for which they were held responsible at sentencing. Marcus also challenges the qualifications of a member of his jury.

I. BACKGROUND

Marcus and Cortez Williams were charged with conspiracy to distribute and distribution of cocaine base. A woman named Mary Williams was on the jury venire. During voir dire the court asked defendant Marcus Williams to stand and inquired, "Do any members of the jury panel know Marcus Williams?" Mary Williams did not respond. Later during voir dire, the government asked Mary Williams specifically, "Have you ever run across the names of these two defendants?" Mary Williams responded, "Not that I know of." At the conclusion of voir dire, Mary Williams was selected to be on the jury.

At trial, the government called Highway Patrol Trooper Paula Woodruff and an informant, James Suggs, as witnesses. Woodruff testified that, with the help of Suggs, she bought drugs from the defendants on October 1, 1993, in a school parking lot. Even though she purchased only one-quarter ounce of cocaine base, she testified that the defendants were in possession of at least one ounce at that time.

Marcus's defense was one of misidentification. He claimed he was not involved in the alleged transaction, but that another man, also named Marcus Williams, was the real culprit. ¹ The jury did not believe the misidentification defense. Following a three-day trial, it convicted the defendants of both counts. After trial, Marcus claimed that the "other" Marcus Williams, upon whom he tried to blame the drug transaction, was the grandson of juror Mary Williams. Subsequently, Marcus moved for a new trial alleging juror Mary Williams withheld information during voir dire which would have disqualified her from serving on the jury. The motion was denied.

At sentencing, Suggs testified to many drug transactions, in addition to the school parking lot sale, in which he and the defendants were involved. ² Suggs was the only witness who testified to these transactions. The district court held the defendants responsible for the entire one ounce (28.35 grams) of cocaine base involved in the school parking lot sale. The district court also accepted part of Suggs's testimony and used it to set the defendants' base offense levels. ³ Marcus was sentenced to 240 months imprisonment and five years supervised release. Cortez was sentenced to 156 months imprisonment and five years supervised release. Marcus and Cortez appeal their convictions and sentences.

II. DISCUSSION

A. Drug Quantity

Both appellants maintain that their sentences are improper because the government failed to prove, by a preponderance of the evidence, the drug quantities for which they were held responsible. The sentencing guidelines provide that, in determining the appropriate base offense level, the sentencer is to consider all acts and omissions that "were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2). In so doing, the district court considered Suggs's testimony. Appellants claim that Suggs's status as an informant, exchanging information for leniency in his own sentencing, proves the unreliability of his testimony. Because Suggs was the only witness who testified to these other drug transactions, the appellants argue that the government's evidence was insufficient to prove their involvement in those sales.

Although the government must prove all elements of a crime beyond a reasonable doubt, the government need only prove drug quantity, for purpose of sentencing, by a preponderance of the evidence. United States v. Smiley, 997 F.2d 475, 481 (8th Cir.1993). The district court's calculation of drug quantity is reviewed under a clearly erroneous standard and will be upheld absent a definite and firm conviction that a mistake has been made. United States v. Simmons, 964 F.2d 763, 773 (8th Cir.), cert. denied, 506 U.S. 1011, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). In this case, we are convinced that no such mistake was made.

Suggs's testimony, although not entirely credited by the district court, established Marcus's rather extensive involvement in drug trafficking from October 1992 to September 1993 and Cortez's similar involvement from July 1993 to September 1993. ⁴ To arrive at 36 for Marcus's base offense level, the district court found that Marcus was responsible for at least 500 grams of cocaine base, based on the testimony of Woodruff and Suggs. Similarly, to arrive at 32 for Cortez's base offense level, the district court found that Cortez was responsible for at least fifty grams of cocaine base, also based on the testimony of Woodruff and Suggs. Suggs's testimony alone established ranges in excess of these amounts. The district court's calculation was supported by sufficient evidence and, therefore, was not clearly erroneous.

B. Juror Misconduct

Marcus claims that he should be given a new trial due to juror Mary Williams's alleged failure to disclose material information on voir dire. The test for whether a new trial should be given under such circumstances was set forth in McDonough Power Equip., Inc. v. Greenwood. 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). See also Bennett v. Lockhart, 39 F.3d 848, 853 (8th Cir.1994) (application of McDonough in criminal case), cert. denied, --- U.S. ----, 115 S.Ct. 1363, 131 L.Ed.2d 219 (1995). Under McDonough, the party challenging the juror's qualifications must show that the juror failed to honestly answer a material question on voir dire and that a correct response would have provided a valid basis for a challenge for cause. McDonough, 464 U.S. at 556, 104 S.Ct. at 850. The district court has broad discretion in handling allegations of juror misconduct and its decision will be affirmed absent an abuse of discretion. United States v. Wiley, 997 F.2d 378, 383-84 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 600, 126 L.Ed.2d 565 (1993). Upon review of the record, we find no abuse of the district...