[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No . 12

- 10407

________________________ D.C. Docket No. 1:09

- cr - 00320

- TCB

- GGB

- 2

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus GEORGE WASHINGTON DUNN, Defendant

- Appellant

.

________________________ No . 12

- 10672

________________________ D.C. Docket No. 1:09

- cr - 00320

- TCB

- GGB

- 5

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus Case: 12-10407 Date Filed: 08/14/2013 Page: 1 of 82 GRANT DECATUR ALLEN, JR., Defendant

- Appellant.

________________________ Appeal s from the United States District Court for the Northern District of Georgia

_________________________ (August 14, 2013) Before PRYOR and ANDERSON, Circuit Judges, and WALTER, * District Judge.
PER CURIAM: We have carefully considered the briefs and arguments of each Appellant, and we have had the benefit of ora l argument. We cannot conclude that the district court committed reversible error. We address in turn the several issues raised, first the issues raised by Appellant George Washington Dunn, and then the issues raised by Appellant Grant Decatur Allen , Jr

. A. Dunn’s challenge to the district court’s exclusion of Agent Kahn as a defense witness Dunn ackn owledges his obligation under 28 C.F.R. § 16.21 et. seq. (the “Touhy Regulations”) to give notice to the D epartment of J ustice of his intent to call the g overnment agent, Douglas Kahn, to testify, and his obligation to provide a summary of the testimony sought. Dunn did provide the required notice of his

* Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana, sitting by designation.

Case: 12-10407 Date Filed: 08/14/2013 Page: 2 of 83 intent to call Agent Kahn as a defense witness to impeach the testimony of Grady Douglas. However, Dun n concedes that he did not give the required notice of his
intent to call Agent Kahn as a witness to impeach the testimony of Alfredo Beeks. We conclude that Dunn’s indication of an intent to use Agent Kahn to impeach the testimony of Douglas does not ope rate to satisfy the requirement of providing a summary of the testimony sought per the Touhy Regulations , when the testimony is sought to impeach Beeks rather than Douglas. This Circuit has upheld the validity of the Touhy Regulation s . See United States v. Bizzard , 674 F.2d 1382 , 1387 (11th Cir. 1982). We reject Dunn’s argument that the government’s delay in producing Agent Kahn’s report of his debriefing of Beeks should excuse Dunn from providing the required notice. Although Dunn argue s that he only received Agent Kahn’s report of debriefing Beeks “on the eve of trial,” he had the report six or seven days before he attempted to call Agent Kahn to testify

— ample time to supplement his notice regarding Agent Kahn’s testimony

. Moreover, we c onclude that the testimony that Dunn now asserts he would have elicited from Agent Kahn is so insignificant that, even if there were error, it would be harmless.
B. Dunn’s challenge to the district court’s exclusion of his character evidence During the testimony of Polly Biasucci, Dunn’s attorney asked if the witness was familiar with Dunn’s reputation in the community. The governm ent objected,

Case: 12-10407 Date Filed: 08/14/2013 Page: 3 of 84 and t he district court granted the government’s objection on the basis “ previous ly discussed

. ” The court late r clarified that it had sustained the government’s motion in limine to exclude impermissible character evidence

— namely, specific instances of Dunn’s good conduct in the community. Defense counsel failed to clarify the basis of the district court’s ruling at the time the objection was sustained , and failed to argue that, although specific instances of good conduct were inadmissible, Dunn’s reputation in the community as a law abiding citizen would have been admissible. No objection was made by defense coun sel until later, after the jury had begun deliberations. We cannot conclude that Dunn has demonstrated plain

error.

C. Dunn’s challenge to the district cou rt’s admission of Rule 404(b) evidence For several reasons we reject Dunn’s argument that certain Rule 404(b) evidence should have been excluded because Dunn had no notice of the government’s intent to introduce the prior bad acts. Dunn concedes that he failed to object contemporaneously. Fur thermore, w e doubt there was error because the evidence of his prior marijuana transactions wa s intrinsic to the conspiracy, but even assuming error, there was no plain error.
D. Dunn’s remaining arguments on appeal We reject summarily Dunn’s challenge t o the manner in which the district court handled voir dire. The points raised by Dunn’s counsel were substantially

Case: 12-10407 Date Filed: 08/14/2013 Page: 4 of 85 covered, and the district court gave the attorneys the opportunity for follow

- up questions and counsel for Dunn asked no follow

- up questions . We also summarily reject Dunn’s severance argument and his argument that the district court erred in failing to give a multiple conspiracy instruction. Both arguments are frivolous. We also reject Dunn’s challenge to the sufficiency of the evidence on the gun charge. There was ample evidence to support the charge, including the fact that a gun was on the dryer next to the enclosed garage in which the jury could have found that Dunn either witnessed or participated in loading the cocaine and the cash i nto the secret compartment of the vehicle that Dunn drove out of the
garage. E. Allen’s argument that the jury was tainted by extrinsic information After jury deliberations began, Juror McCorvey consulted his cousin, an attorney, with respect to the definition of conspiracy and conveyed that information to the jury. The district court questioned McCorvey, who admitted having talked with his attorney cousin but stated that what he was told did not differ from what the judge had instructed. After the district court’s inquiry of McCorvey, Allen’s counsel said only that he did not know what was heard, did not know what McCorvey was told or what he told the jury, and he took the position that the jury was contaminated. The district court then brought in the other eleven jurors, and ascertained that what they were told was not inconsistent with what the

Case: 12-10407 Date Filed: 08/14/2013 Page: 5 of 86 court had charged the jury in the written charge (which was in the jury room during deliberations). The district court also ascertained that the jury was not affected by what McCorvey had said and that they would reach a verdict based solely on the evidence and the charge given by the district court. After the district court’s colloquy with the other eleven jurors, Allen’s counsel made no further objection s. In particular, until this appeal, Allen’s counsel never suggested that the jurors should have been interviewed individually, and never requested any additional question be asked of McCorvey or the other eleven jurors. Considering the totality of the c ircumstances, we cannot conclude that the district court abused its discretion in concluding that any presumption of prejudice had been rebutted. We consider the totality of the circumstances surrounding the introduction of the extrinsic evidence to the jury. These include: (1) the nature of the extrinsic evidence; (2) the manner in which the information reached the jury; (3) the factual findings in the trial court and the manner of the court’s inquiry into the juror issues; and (4) the strength of the g overnment’s case. Boyd v. Allen , 592 F.3d 1274, 1305 (11th Cir. 2010). W ith respect to the first
factor

— the n ature of the extrinsic evidence

— we agree with the district court that its nature tends toward the innocuous because what McCorvey learned from his attorney cousin and passed on to the jury was not different from what the district court charged in the jury instructions. With respect to the second factor, we do not believe (and Allen does not argue) that the manner in which the infor mation reached the jury adds any force at all to Allen’s challenge. Rather, Allen’s

Case: 12-10407 Date Filed: 08/14/2013 Page: 6 of 87 challe nge focuses on the third factor

— the manner of the district court’s inquiry. Although we would not proffer as a model the manner of the district court’s inquiry here , we are satisfied that it fairly elicited the substance of what the attorney cousin told McCorvey and the substance of what was conveyed to the other eleven jurors; moreover, Allen’s counsel failed to request a more thorough inquiry. Finally, we believe that the strength of the government’s case was close to overwhelming. We are satisfied that, with the exclusion of Juror McCorvey and the district court’s instructions, the extrinsic evidence did not affect the jury’s deliberations.
F. Allen’s challenge to the district court’s exclusion of character evidence We cannot conclude that the district court abused its discretion in this regard. The district court properly excluded specific instances of prior good conduct. The district court allowed testimony by the witnesses who were in recovery from addiction in the facility nearby the Game Room. Only the fact of Allen’s addi ction and his participation in Narcotics A nonymous were excluded. In light of the fact that neither fact is inconsistent with Allen’s activities in selling narcotics, and in light of the fact that Allen was actually convicted in 2007 o f drug distribution (after his Narcotics A nonymous experiences in 1995), we cannot conclude that the district court committed reversible error. G. Allen’s remaining arguments on appeal Case: 12-10407 Date Filed: 08/14/2013 Page: 7 of 88 We summarily reject Allen’s challenge to the district court’s failure to give a multiple conspiracy instruction. Allen’s prior drug convictions in 1990, 1994, and 2007 were properly admitted under Rule 404(b) as relevant to intent. The evidence with respect to the shooting at the Game Room was properly admitted as intrinsic evidence. Allen’s failure to file income tax returns was properly admitted under Rule 404(b) as evidence that the Game Room was not a legitimate busine ss. Allen’s hearsay challenge to the statement by Man is without merit; it was a non

hearsay statement by a co

- conspirator in furtherance of the conspiracy. 1 Allen’s challenge to the sufficiency of the evidence is without merit; the evidence against
Alle n was close to overwhelming. Finally, Alle n’s challenge to his sentence i s frivolous. For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED.

1 Finding no error on the part of the district court to introduce this evidence, we reject Allen’s claim of cumulative error.

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