Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 94-00005-George W. White, Chief District Judge.
Before: Jones, Ryan, and Moore, Circuit Judges.
The opinion of the court was delivered by: Ryan, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24
The defendants, Darnell L. Walker and William A. McKinley, appeal from the judgments of conviction and sentences imposed following a jury trial on various drug and firearm charges in connection with a conspiracy to distribute cocaine and cocaine base in Youngstown, Ohio. The appeals present numerous issues, none of which warrant setting aside the defendant's convictions. We will, therefore, affirm both defendants' convictions, and Walker's sentence. We conclude, however, that McKinley's sentence must be vacated because the district court clearly erred in finding that McKinley was a leader of the conspiracy.
Between April and October 1993, Walker and McKinley were members of a Youngstown, Ohio, gang known as the Ready Rock Boys. The raison d'ître of the Ready Rock Boys was the processing and distribution of cocaine and cocaine base, also known as "crack." The defendants, along with nine others, were named in a 13-count indictment handed down in January 1994, charging them with conspiracy to possess cocaine and cocaine base with the intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1). The indictment alleged that various co-defendants sold cocaine or cocaine base in furtherance of the conspiracy, in a total amount of 25.2 grams of cocaine and 175.2 grams of cocaine base.
Walker was also charged with one count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B); two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g), 924(a)(2); and one count of using and carrying a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C.§ 924(c)(1). McKinley was charged with an additional count of possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), 842(b)(1)(B).
Walker and McKinley proceeded to trial and, in September 1994, were convicted on all counts. Walker's conviction under 18 U.S.C. § 924(c)(1), however, was dismissed prior to sentencing, following the Supreme Court's decision in Bailey v. United States, 116 S. Ct. 501 (1995). Both defendants filed timely appeals.
Immediately following the return of the jury's verdict finding the defendants guilty, counsel for defendant McKinley moved for a mistrial. The motion was made to U.S. District Judge Solomon Oliver, as Judge George White, who had presided over the trial, was unavailable at the time the verdict was returned. The motion contained four separate grounds, only one of which is at issue here;
[W]ith regard to the individual jurors, during the course of the proceedings Judge White had requested that I speak to my client, Mr. McKinley, because [Judge White] was approached by a member of the jury, and the member of the jury is seated in the seventh seat, which would be the back row, all the way to the left, an African American woman, who made a statement to the Judge that she felt uncomfortable because she was in the same elevator with my client previously.
Judge White had asked me to speak to my client. I assured the Judge that I was present during that time, we both were on the elevator. I got off before my client and remained on the elevator with her.
During the course of closing arguments, and also during the course of the trial, that juror . . . was often seen making a series of facial expressions and rolling her eyes, and things like that, which brought to mind the fact she was either predisposed or was not paying attention to the facts before her.
McKinley's attorney added that "Judge White [had] addressed [him] off the bench and off the record, and at that time just indicated that the juror had made that statement to him." The attorney had not thought "anything of it at the time because . . . [he] was present [in the elevator], there was no conversation; but in light of the fact of the rest of that particular juror's attitudes and demeanors in the case, . . . [he now] believe[d] that those culmination of facts have caused her to rule against [his] client or otherwise have a preDisposition towards conviction."
We note that McKinley's attorney's statement is somewhat ambiguous as to who got off the elevator, and whether McKinley was at any point left alone with the juror. Since, however, McKinley's attorney affirmatively stated that there was "no conversation" with the juror, and since, in a post-trial proceeding on another matter, McKinley testified that he had no "contact" with the juror, we presume that the attorney simply misspoke in suggesting that his client had been left alone with the juror.
Walker's attorney joined the motion for mistrial, noting: "This is the first that I have heard about any problem with your Mr. McKinley and a juror." He elaborated:
Your Honor, I had no knowledge of this incident . . ., and I am greatly troubled by it, and I ask that judgment on this verdict be withheld until Judge White returns to the bench and can consider it more fully, in light of the speed in which the verdict was returned, and the participation of this juror in that verdict.
Judge Oliver denied the defendants' motion, stating:
[Judge White] spoke to [McKinley's attorney], but he obviously didn't feel on the basis of the comments which he received at that time that those were sufficient to declare mistrial or to take other steps.
And so I feel compelled at this point, in the light of my hearing what you describe here, to let the verdict stand.
I really don't think that a strong enough case has been made to overturn the verdict or to withhold the verdict pending further inquiry by Judge White, but you have made your record. I think you are entitled to make that.
Although McKinley later filed a motion for new trial, he did not rely upon this incident as a basis for his requested relief; Walker never filed any motion at all.
The record reveals that the elevator incident was preceded by another juror-contact incident that resulted in one juror's dismissal. That juror also was dismissed from the jury at the request of the AUSA, over the defendants' objections, on the basis of her admitted Discussions regarding the trial with a friend who had been driving her to and from the trial, as well as watching it himself as a spectator. On this occasion, the district Judge had held a hearing in chambers and thoroughly questioned the juror, as well as her friend, to ascertain the extent of the prejudice. The court then ruled that it would remove her "out of an abundance of caution."
Both defendants contend that the trial Judge's handling of the juror complaint concerning the elevator incident requires the conviction to be overturned. Specifically, Walker argues that the ex parte communication between the trial Judge and the juror, and the trial Judge and McKinley's counsel, violated his right to a fair trial by impartial jurors, his right to be present at all stages of the trial, and his right to effective assistance of counsel. He also contends that, because the district court failed to inquire on the record into the juror's state of mind, Walker was deprived of any opportunity to show actual bias. McKinley characterizes the problem as one of "outside influence" on a juror, and improper juror contact, that denied him the right to an impartial jury. He argues that when a defendant alleges that an unauthorized contact with a juror has tainted a trial, a hearing must be held.
It is a "`basic requirement of due process'" that a "defendant in a criminal case receive `a fair trial by a panel of impartial, "indifferent" jurors.'" Rigsby, 45 F.3d at 122 (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)). The landmark case on the topic of jury taint is Remmer v. United States, 347 U.S. 227 (1954), where the Court "affirmed that juries in criminal cases must be free of outside influences and announced the procedure to be followed when a party alleges that a jury has been subjected to such influences," Rigsby, 45 F.3d at 122-23, namely, the holding of a hearing "`with all interested parties,'" rather than ex parte resolution of the problem by the Judge, id. (quoting Remmer, 347 U.S. at 229-30).
At the outset, we reject the government's argument that Walker is not an "interested party" with standing to complain here. The government argues that the incident involved McKinley only, not Walker. It is clear to us, however, that were we to conclude that the incident resulted in some prejudice to McKinley, the possibility of spillover for McKinley's alleged coconspirator would be palpable. We conclude, therefore, that Walker has sufficient interest in this incident to have standing to complain.
We have articulated four points to consider in cases of possible improper juror contact:
United States v. Rugiero, 20 F.3d 1387, 1390 (6th Cir. 1994) (citations and footnotes omitted). In Rugiero, we emphasized that it is the defendant's obligation to "prove . . . actual bias . . . on the part of the jury . . . , [or to demonstrate] `actual prejudice.'" Id. at 1391. And the rule established in United States v. Rigsby is that "[w]hen there is a credible allegation of extraneous influences, the court must investigate sufficiently to assure itself that constitutional rights of the criminal defendant have not been violated." 45 F.3d at 124-25 (emphasis added). But a district court is not obligated to conduct a hearing on every allegation of jury taint, because "not all communications with jurors warrant a hearing for a determination of potential bias." Rigsby, 45 F.3d at 124. And a defendant who waits until appeal to request a hearing bears a heavy burden, since the defendant has thereby effectively deprived this court of any basis for concluding that a hearing would be necessary, and asks us to presume that the district court would not have acceded to such a request, and would have done so for erroneous reasons. See United States v. Griffith, 17 F.3d 865, 880 (6th Cir. 1994); United States v. Walton, 908 F.2d 1289, 1296-97 (6th Cir. 1990); cf. United States v. Walker, 1 F.3d 423, 430-31 (6th Cir. 1993).
We first conclude that the district court mishandled this incident. At a minimum, the court should have informed Walker's counsel of the incident and then allowed all counsel to make a record of their objection, if any. The court should then have declared whether it thought a hearing was necessary, and if not, why not. We suspect that the court handled the juror complaint as it did largely because it assessed the complaint as having de minimis significance. The court handled the first incident of alleged juror bias in textbook fashion; clearly, then, the court was aware of the appropriate process and was not disinclined to employ it when necessary.
In all events, we are satisfied that the court's failure to handle the incident more carefully was harmless under the circumstances, because there is simply nothing in this record that leads us to conclude that the elevator incident created a danger of juror bias. There is no evidence of actual "contact" or "communication," and the district court would therefore have been well within its discretion in declining to hold a hearing even if one had been requested. The defendants' failure to develop an adequate record compounds their problem. Both had the opportunity to request a hearing, and neither did so; McKinley had the chance to ask for a hearing at the time of his counsel's ex parte conference with the district Judge, and it was open to Walker to make such a request, following the verdict, when he learned of the incident. We note too that neither party filed a motion for a new trial on this basis. For these reasons, we conclude that the district court's handling of this incident does not provide a basis for reversal.
B. Sufficiency of the Evidence
McKinley challenges his conviction on the conspiracy count on the ground that there was insufficient evidence that he was a Ready Rock Boy. He may well be correct, but being a Ready Rock Boy is not a crime. However, conspiring to distribute cocaine is, and the record contains an enormous amount of evidence linking McKinley to the drug sales that were at the heart of this conspiracy, as well as evidence linking McKinley to other cocaine distributors who were members of the Ready Rock Boys. For example, in July 1993, a confidential informant purchased cocaine base, or crack, from McKinley at McKinley's home. The day prior to this successful sale, the CI had gone to McKinley's home, as he and McKinley had previously arranged; McKinley was not home, but co-defendant Tariton Callier was there, and Callier sold crack cocaine to the CI. In August 1993, the CI again purchased crack from McKinley at McKinley's home; while the CI was there, McKinley telephoned co-defendant Richard Edwards, arranged to buy some crack, went to Edwards's house to get the crack, and returned and sold it to the CI. Later in August, the CI again went to McKinley's house to buy crack; McKinley was not there, but co-defendants Walker and Edwards were. Edwards then went to his own house and returned with an ounce of crack. And the CI purchased crack from McKinley on three more occasions in late August and early September.
McKinley pins all his hopes on the testimony of one government witness, Willie Shepherd, a member of the Ready Rock Boys, who testified that McKinley was not a member of the group. Shepherd testified that other members of the Ready Rock Boys were defendant Walker, Brian Hunter, Aaron Rogers, Tariton Callier, Richard Edwards, Andre Rodriguez, and Rodney Johnson; when asked directly by McKinley's attorney, Shepherd testified that McKinley was "not a member of the Ready Rock Boys." We note that of the other people identified by Shepherd as Ready Rock Boys, all but Johnson-and Shepherd himself-were named in the indictment here. We further note that in addition to not identifying McKinley as a Ready Rock Boy, Shepherd did not mention indicted defendants Benjamin Parker, Michael Donley, Tracy Wilks, or Matthew Patterson, all of whom pleaded guilty.
Shepherd's testimony that McKinley was not a Ready Rock Boy was not uncontradicted. At least one other witness, Jackie Bennett Johnson-mother of co-defendant Richard Edwards-testified that McKinley was a member of the Ready Rock Boys. Further, Shepherd did not claim that McKinley was unknown to him; he identified government surveillance photos showing Edwards's car parked in front of McKinley's house; Edwards's car parked next to McKinley's car; and Edwards standing next to his car in front of McKinley's house. Shepherd also testified that McKinley sold drugs, although Shepherd claimed never to have bought drugs from him.
The essential elements of conspiracy under 21 U.S.C. § 846 are (1) an agreement by two or more persons to violate the drug laws, and (2) knowledge of, intention to join, and participation in the conspiracy on the part of each conspirator. See United States v. Elder, 90 F.3d 1110, 1120 (6th Cir.), cert. denied, 117 S. Ct. 529, 993 (1996). As we have on many occasions explained, we review a defendant's claim of insufficient evidence by evaluating the evidence in the light most favorable to the government, and by drawing all inferences and resolving all credibility disputes in the government's favor. See United States v. Riffe, 28 F.3d 565, 567 (6th Cir. 1994). Our task is simply "to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt." Id.; see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Thus, McKinley's task is a daunting one, but even if it were less so, his argument would be unsuccessful. Assuming arguendo that the evidence indisputably proved that McKinley was not a member of the Ready Rock Boys, that fact fails to establish that McKinley was not in a conspiracy with members of the Ready Rock Boys. The indictment did not charge McKinley with conspiring to be a member of the Ready Rock Boys, which, as we have said, is not a federal crime; it charged him with conspiring to possess cocaine and crack with the intent to deliver. And there was ample evidence to convict him of that. There is no question that he sold drugs on numerous occasions. There also is no question that other members of the conspiracy were at times with him while he sold drugs, and at times sold drugs to him to enable him to sell to others, and at times sold drugs without him while at his house. And there is no question that he was familiar with many members of the Ready Rock Boys, and that he had their names and numbers in his address book. In short, there can be no serious dispute that there was a surfeit of evidence supporting the jury's verdict against McKinley, not an insufficiency.
Walker challenges the government's method of proving the prior-conviction element of his two felon-in-possession charges under § 922(g(1), contending that there was a violation of the rule announced in Old Chief v. United States, 117 S. Ct. 644, 647 (1997).
For at least two decades, it was the rule in this court and elsewhere that "the government is not required to accept the defendant's offer to stipulate that he is a convicted felon in lieu of presenting evidence of defendant's prior felony convictions." United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Burkhart, 545 F.2d 14, 15 (6th Cir. 1976)). All that was changed last year, however, when the Supreme Court held that a district court abuses its discretion when it refuses a defendant's offer to stipulate as to a prior offense in a firearm felon-in-possession case, if the prior conviction raises the risk of improper considerations by the jury, and if the only rationale for admitting the offense is to prove that the defendant meets the relevant criterion of 18 U.S.C. § 922(g)(1). See Old Chief, 117 S. Ct. at 647. In Old Chief, the defendant had previously been convicted of assault causing serious bodily injury. He offered to stipulate to that fact but the prosecution refused, and the district court allowed the prosecution to introduce the order of judgment and commitment for Old Chief's prior conviction. Old Chief was ultimately convicted of violating 18 U.S.C. § 922(g)(1). Id.
The basis for the dispute was Fed. R. Evid. 403, which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste ...