Case Information
*2 Before TACHA , LUCERO and MURPHY , Circuit Judges.
LUCERO , Circuit Judge.
Today we are asked to consider the requirements for waiver of a defective jury composition, what constitutes sufficient evidence of materiality under 18 U.S.C. § 1623, whether it is appropriate to issue a false exculpatory statement instruction when the defendant is charged with perjury, and whether it is misconduct for the government to request a modification to an official transcript without notifying the court or opposing counsel. In addition, we revisit our jurisprudence under Bailey v. United States, 116 S. Ct. 501 (1995), to determine whether the erroneous “use” instruction in this case requires this court to reverse Danny Evans’s conviction under 18 U.S.C. § 924(c)(1).
In addition to the § 924(c) appeal, Evans appeals his conviction for one count of conspiracy with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Lee Durham appeals his convictions for participating in the same conspiracy and for four counts of perjury in violation of 18 U.S.C. § 1623. Durham claims that the government did not present sufficient evidence to support his convictions for perjury; that the district court erred in giving a false exculpatory statement jury *3 instruction; that his trial was defective as a result of prosecutorial misconduct; and that he was tried before an improperly constituted jury. In addition to joining all grounds raised by Durham, Evans argues that the district court abused its discretion by refusing to sever his trial from Durham’s; that the Supreme Court’s decision in Bailey mandates reversal of his conviction under 18 U.S.C. § 924(c); and that the district court contravened his Sixth Amendment right to confront adverse witnesses by refusing to allow inquiry into prior assaults committed by Mark Montgomery, the government’s key witness. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I
Mark Montgomery began selling cocaine in Okmulgee, Oklahoma in 1989. Early in his career, Montgomery’s great uncle informed him that he was paying too much for his cocaine from his Okmulgee sources. Soon thereafter, Montgomery developed alternative cocaine sources in both California and Texas. At trial, Montgomery testified he first obtained cocaine from Evans, a resident of Arlington, Texas, in either 1990 or 1991. From 1991 to 1994, he and Evans ran the cocaine venture as partners.
In early 1991, Montgomery enlisted Durham to broker his purchases of cocaine in
Houston. Durham, a Houston native, would pick Montgomery’s couriers up at one of the
city’s airports and provide them with a place to stay. He would then take their money,
exchange it for cocaine, and transport them back to the airport. Durham was paid “small
amounts of money” for his services as a “middle man.”
Montgomery introduced Evans and Durham sometime before August 1991. Thereafter, Evans would contact Durham to arrange cocaine purchases without Montgomery’s intervention. In mid-1992, Evans and Montgomery ceased employing Durham’s services and there is scant evidence suggesting any contact between Durham and either Montgomery or Evans for the latter half of 1992 and all of 1993 and 1994.
In June 1994, Evans was stopped in Oklahoma for speeding. During that stop, an officer of the Oklahoma Highway Patrol found a nine millimeter pistol between the driver’s and passenger’s seats. In addition, the officer found $13,500 in three separate bundles. Because Evans admitted that the pistol was his, he was arrested for carrying a loaded weapon in violation of Oklahoma law. On the theory that the $13,500 represented the proceeds of drug transactions, Evans was subsequently charged with using or carrying a firearm during and in relation to a drug offense in violation of 18 U.S.C. § 924(c)(1).
Montgomery was arrested in October 1994 for illegal distribution of narcotics. In an attempt to limit the amount of prison time he would serve, he agreed to assist the government in obtaining evidence against other suspected drug dealers. He was therefore released on bond the following month. Initially, Montgomery had little success in contacting his former sources and he surmised that they suspected him of cooperating with the government. In March 1995, however, Montgomery successfully contacted Durham. In a taped conversation that was played for the jury, Durham agreed to locate a *5 cocaine seller for Montgomery. Later that month, the government obtained an indictment against both Evans and Durham for conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Montgomery was the government’s key witness at the defendants’ trial.
II
Prior to trial, Durham’s counsel moved the court to dismiss the indictment for
improper venue or, in the alternative, to transfer the case pursuant to Rule 21(b) of the
Federal Rules of Criminal Procedure. Durham testified at a hearing held on June 14,
1995 in support of this motion. His testimony prompted the government to file a
superseding indictment that added four counts of perjury. The first perjury count was
based on Durham’s representation at the venue hearing that he had not been in Oklahoma
since December of 1990, see
A
Durham argues that all of his perjury counts must be reversed because the
government did not produce sufficient evidence that his statements were “material” to the
proceedings. “[I]n reviewing the sufficiency of the evidence to support a jury verdict,
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this court must review the record de novo and ask only whether, taking the
evidence—both direct and circumstantial, together with the reasonable inferences to be
drawn therefrom—in the light most favorable to the government, a reasonable jury could
find the defendant guilty beyond a reasonable doubt.” United States v. Voss, 82 F.3d
1521, 1524-25 (10th Cir.) (internal quotations omitted), cert. denied,
Materiality is an element of the crime of perjury, which must be submitted to the
jury and proven by the prosecution beyond a reasonable doubt. See 18 U.S.C. § 1623(a);
United States v. Regan,
Because “[v]enue is proper in conspiracy offenses in any district where the
agreement was formed or an overt act occurred,” United States v. Scott,
Durham’s contentions that he had left Oklahoma before the alleged conspiracy was formed and had no contact with the principal alleged conspirators had the capacity to *8 affect the district court’s decision as to whether an agreement had occurred in Oklahoma. Moreover, Durham’s motion before the court argued that he was inappropriately being tried in Oklahoma for acts that had allegedly taken place in Texas. If the court had credited Durham’s testimony at the venue hearing, it might have concluded that no agreement was formed in Oklahoma and that the overt acts occurred outside of that state. Such findings could certainly have influenced the court’s venue decision, and it is therefore reasonable for the jury to have found the statements material to that decision. [3]
B
Durham also claims that the government presented insufficient evidence to show that his claim not to have been in Oklahoma since 1990 was “knowingly” false. More specifically, he argues that his testimony as to when he left Oklahoma shows such confusion and equivocation that no jury could reasonably conclude he made a willful misstatement. [4] We cannot agree.
A perjury conviction that rests on a defendant’s responses to leading questions
should be “strictly scrutinize[d] for fairness” to ensure that the statements are those of the
witness and not the prosecutor. See United States v. Boberg,
III
Our review of this appeal is complicated by the government’s improper submission of an altered transcript to the jury. To prove Durham perjured himself in testifying that he left Oklahoma in 1990, the prosecution read the following statement to the jury:
ANSWER: I left Oklahoma in December of ’92, probably December of ’90, I believe.
ANSWER: I left Oklahoma in December of ’92 -- probably December of 2’90, I believe.
Supp. R. (Letter from Eldon R. Simpson, U.S. Court Reporter, to Patrick Fisher, Clerk of the 10th Circuit Court of Appeals, of 8/1/97, at 1).
The government tells us that the Assistant United States Attorney assigned to this case noticed what he believed to be an error in the original transcript of the venue proceeding and brought it to the attention of the court reporter, Eldon Simpson. According to the government, Mr. Simpson then “corrected the transcript” prior to filing *10 it, but forgot to save the “corrections” on his computer, thus leaving the defense with an erroneously nonconforming copy of the transcript. Appellee’s Br. at 22. The government’s request to modify the official transcript was made without informing the court or opposing counsel.
Because neither defendant objected to the use of the altered transcript, we review
the claim of prosecutorial misconduct for plain error. See United States v. Sands, 968
F.2d 1058, 1063 (10th Cir. 1992). We may not correct the alleged error unless there is:
(1) an error; (2) that is plain, and (3) that affects substantial rights. Johnson v. United
States,
There is no question but that the prosecutor acted inappropriately. Although the Federal Rules of Criminal Procedure provide that “[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time,” Fed. R. Crim. P. 36 (emphasis added), nothing in the rule may be read to allow counsel to request modification of a transcript without informing the court or opposing counsel. It makes no difference that the transcript had not yet been filed. The potential for severe misconduct is such that all requests concerning an alteration of a transcript must be made through the court.
That said, we do not accept Durham’s contention that such behavior requires
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reversal in the case before us because it did not “affect[] substantial rights.” Johnson, 117
S. Ct. at 1549. Indeed, upon review of the record, we see no possibility that the
misconduct at issue affected the verdict. Both the original and modified transcripts
indicate that Durham was initially confused about when he left the state of Oklahoma. In
his testimony following the disputed section, however, Durham consistently maintained
that the last time he had been in Oklahoma was in 1990. See
IV
Durham and Evans both appeal the district court’s decision to instruct the jury that
it could consider false exculpatory statements made by Durham as evidence of Durham’s
consciousness of guilt. The defendants claim that this instruction erroneously relieved the
jury of its obligation to determine the falsity of Durham’s statements. Thus, defendants
contend, the instruction effectively directed a verdict on the perjury counts and tainted the
conspiracy conviction by informing the jury that Durham’s claim to have had no drug
dealings with either Evans or Montgomery was false.
[5]
We review jury instructions as a
*12
whole and apply a de novo standard of review to determine the propriety of an individual
jury instruction to which objection was made at the time of trial. See United States v.
Scarborough,
*13
To prove perjury, the government must establish beyond a reasonable doubt that:
(1) the defendant made a declaration under oath before a federal court; (2) such
declaration was false; (3) the defendant knew the declaration was false; and (4) the
declaration was material. See 18 U.S.C. § 1623(a); United States v. Neal,
Yet defendants’ argument is not entirely without merit. The statements made by
Durham in which he denied participating in any drug transactions with Evans and
Montgomery were essentially denials of the conspiracy charged in the indictment. The
only way the jury could find that the statements at issue in this case were false would be
to conclude that Durham was a member of Montgomery's cocaine distribution conspiracy.
That conclusion would necessarily render irrelevant consciousness of guilt. This
circularity problem recurs whenever a jury can only find an exculpatory statement false if
it already believes other evidence directly establishing guilt. Under such circumstances, it
is error to give a false exculpatory statement instruction. See United States v. Littlefield,
Nevertheless, a faulty jury instruction only requires reversal if the error is
prejudicial. See Dikeman v. National Educators, Inc.,
V
The defendants claim that the use of a juror from outside of the district in which
the trial occurred is constitutional and statutory error that requires this court to reverse
their convictions. The Sixth Amendment provides that a criminal defendant is entitled to
a trial “by an impartial jury of the State and district wherein the crime shall have been
committed.” U.S. Const. amend. VI. The Jury Selection and Service Act of 1968, 28
U.S.C. §§ 1861-1878, also guarantees the right of a criminal defendant to a “petit jur[y]
selected at random from a fair cross section of the community in the district or division
wherein the court convenes.” 28 U.S.C. § 1861. During the second week of trial, the
district court became aware that one of the jurors on the panel had moved out of the
Northern District of Oklahoma. Outside the presence of the defendants, the district judge
informed counsel for the government and the defense that the juror would have to be
*15
replaced “unless you all waive the situation.”
The defendants argue that their right to a properly constituted jury is fundamental
and that any waiver that appears in the record is inadequate because there is no evidence
that the defendants personally waived such rights. “Whether a particular right is
waivable; whether the defendant must participate personally in the waiver; whether
certain procedures are required for waiver; and whether the defendant’s choice must be
particularly informed or voluntary, all depend on the right at stake.” United States v.
Olano,
This analogy is misplaced. The issue here is not the deprivation of trial by jury,
but the question of what constitutes a valid waiver to defective jury composition. When a
defense attorney decides for reasoned strategic purposes not to make a constitutional or
statutory objection to the composition of a petit jury, the defendant is bound even if the
*16
attorney fails to consult him or her about the choice. See United States v. Stewart, 700
F.2d 702, 704-05 (11th Cir. 1983); Winters v. Cook,
As soon as the vicinage defect was discovered, the court brought the problem to
the attention of trial counsel. Asked to consider the possibility of waiver, Evans’s counsel
announced that the decision would have to be made on “tactical” grounds.
Although the better practice would be for the court to inform the defendant
personally on the record of the nature of the right and the consequences of a waiver, an
attorney need not consult with his client on every possible decision that has constitutional
implications. See Estelle v. Williams,
VI
Evans claims he was prejudiced by the trial court’s refusal to sever his trial from
Durham’s after the government charged Durham with four counts of perjury. Keeping in
mind that there is a “preference in the federal system for joint trials of defendants who are
indicted together,” see Zafiro v. United States,
We perceive no abuse of discretion. Evans advances nothing more than
conclusory allegations concerning the existence of prejudice. Substantially the same
evidence that was used to demonstrate the falsity of the statements made by Durham was
used to demonstrate that Evans was part of the conspiracy. See United States v. Shorter,
VII
Evans also claims that the district court unconstitutionally refused to permit him to
inquire into Montgomery’s prior misdemeanor convictions for assault and battery in an
effort to show how much prison time Montgomery was avoiding through his plea
agreement. “‘[T]he exposure of a witness’[s] motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination.’”
Delaware v. Van Arsdall,
Thus, a district court may impose “reasonable limits on such cross-examination
*19
based on . . . interrogation that is repetitive or only marginally relevant.” Id. In this case,
the defense was permitted to question Montgomery in the following areas: (1) his
motivation to achieve a reduced sentence for the crimes to which he had pled guilty by
cooperating with the government, see
VIII
Evans was charged with using and carrying a firearm, during and in relation to the charged drug conspiracy, in violation of 18 U.S.C. § 924(c)(1). He argues that his § 924(c) conviction must be reversed because the court’s instruction on “use” of a firearm was erroneous in light of the Supreme Court’s decision in Bailey v. United States, 116 S. Ct. 501 (1995). We agree that the instructions were erroneous but find that such error does not require reversal of the jury’s verdict in this case.
To prove use under Bailey, the government must show that the “firearm [was] an
operative factor in relation to the predicate offense.” See id. at 505. Mere proximity and
accessibility of the weapon to the defendant is insufficient to establish use. See id. Here,
the district court instructed the jury that “[t]he phrase uses or carries a firearm means
having a firearm available to assist or aid in the commission of the crime charged.” 15 R.
at 1977. Both sides therefore agree that the instructions do not comport with Bailey’s
definition of use as “active employment.” See Bailey,
Nevertheless, “an erroneous ‘use’ instruction does not require reversal of the
conviction when the jury was also instructed without objection on ‘carry,’ the defendant
did not dispute that the firearm was carried on his person or in his vehicle, and the jury
verdict necessarily includes an inherent finding of ‘carrying during and in relation to the
drug crime.’” United States v. Holland,
Evans contends that the jury’s verdict could not necessarily include the requisite
findings because the district court administered an erroneous “carry” instruction when it
failed to instruct the jury that it had to find that Evans had “transported” the weapon. See
United States v. Spring,
The “carry” prong involves two elements: “possession of the weapon through the
exercise of dominion or control; and transportation of the weapon.” See United States v.
*22
Spring,
The only firearm the jury considered was the nine millimeter semi-automatic found
between the driver’s and passenger’s seats of the pickup truck being driven by Evans at
the time of the traffic stop on June 21, 1994. At that time, Evans told the arresting officer
that he had a gun in the truck; no other firearms were found during a subsequent search of
the vehicle. We can see no way for the jury to have found that Evans was in possession
of the firearm at the time of the stop without also finding that Evans had transported the
firearm to that location in the first place. See United States v. Richardson,
IX
The sentencing court found that Durham’s role in the conspiracy was that of a low-
paid broker and, as such, he was less culpable than the “average participant.”
“‘A trial court’s findings concerning a defendant’s role in a particular offense are
treated by an appellate court as factual findings, which are subject to deferential review
under the clearly erroneous standard.’” United States v. Santistevan,
AFFIRMED.
Notes
[1] Durham objects that none of the disputed testimony was relevant to the
convenience of holding trial in the Northern District of Oklahoma rather than in the
Southern District of Texas, rendering it immaterial to the venue proceedings because past
events could not have swayed the court’s evaluation of present inconvenience. That
objection is without merit because his motions to the court challenged the propriety of
venue as well as the convenience of that forum. See 1 R., docs. 18 & 19;
[2] In fact, Durham’s motion before the district court challenging the propriety of venue rested in part on the assertion that the “crimes alleged against . . . Durham were committed in the Southern District of Texas.” 1 R., Doc. 19, at 4.
[3] The jury was fully equipped to determine whether Durham’s statements were
material to the venue proceeding. It was aware that Durham was objecting to the
propriety and convenience of the forum. See
[4] Durham also argues that the ambiguous nature of that testimony is aggravated by the alteration of the transcript that was presented to the jury. See infra Part III.
[5] The government argues that Evans failed to preserve this issue because he did not object to the instruction at trial. We need not, and therefore do not, reach this issue.
[6] The instruction submitted to the jury stated in part: When a defendant voluntarily offers an explanation or voluntarily makes some statement tending to show his innocence and it is later shown that the defendant knew that the statement or explanation was false, the jury may consider this as showing a consciousness of guilt on the part on the part of the defendant Monson Lee Durham, Jr. . . . since it is reasonable to infer that an innocent person does not usually find it necessary to invent or fabricate an explanation or statement tending (continued...)
[6] (...continued) to establish his innocence. 3 R., doc. 108 at 49-50 (emphasis added). This instruction was taken from the Devitt & Blackmar treatise. See 1 Edward J. Devitt et al., Federal Jury Practice and Instructions § 14.06 (4th ed. 1992).
[7] Although neither defendant raises this issue precisely, we also note that the instruction on false exculpatory statements does not direct a verdict on the "knowing" element of the crime of perjury. By its own terms, the instruction does not become relevant to the jury's deliberations until the jury has already found that the defendant knew that the statement was false when he made it. See 3 R., doc. 108 at 49-50.