UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4775

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WALTER BABB, a/k/a B, a/k/a Brian, a/k/a WB,

Defendant - Appellant.

No. 07-4776

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES MOORE, a/k/a Duffy, a/k/a Fat James,

Defendant - Appellant.

Appeals from the United States District Court for the District 

of Maryland, at Baltimore. Andre M. Davis, District Judge. 

(1:04-cr-00190-AMD)

Argued: January 28, 2010 Decided: March 15, 2010

Before TRAXLER, Chief Judge, and KING and GREGORY, Circuit 

Judges.
2

Affirmed by unpublished opinion. Judge Gregory wrote the 

opinion, in which Chief Judge Traxler and Judge King joined.

ARGUED: Joseph Murtha, MILLER, MURTHA & PSORAS, LLC, 

Lutherville, Maryland; William Collins Brennan, Jr., BRENNAN, 

SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellants. 

John Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY, 

Baltimore, Maryland, for Appellee. ON BRIEF: William A. 

Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt, 

Maryland, for Appellant Walter Babb. Rod J. Rosenstein, United 

States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

GREGORY, Circuit Judge:

James Moore and Walter Babb were convicted in the United 

States District Court for the District of Maryland for their 

participation in a large drug conspiracy which involved the use 

of firearms. On appeal, they jointly argue that the district 

court erred in refusing to give multiple conspiracies and 

reasonable doubt instructions, the District of Maryland was not 

the proper venue for the prosecution of one of the firearms 

offenses, and the district court should have conducted voir dire 

to determine whether jurors had been intimidated by spectator 

conduct.1

 1 James Moore sought, and we granted, permission to file a 

pro se supplemental brief after this case was calendared for 

oral argument. In it he raises arguments concerning speedy 

trial, double jeopardy, and failure to indict on conduct used as 

other acts evidence at sentencing. Because settled circuit 

precedent controls on these issues, see United States v. Keith, 

42 F.3d 234, 238-39 (4th Cir. 1994) (holding that where a 

defendant acquiesces in a continuance, that time is excluded 

from the speedy trial calculation), United States v. Camps, 32 

F.3d 102, 106 (4th Cir. 1994) (holding that multiple sentences 

for offenses under 18 U.S.C. § 924(c) are appropriate when 

multiple, separate acts of firearm use have occurred even if 

they are related to the same underlying offense), and United 

States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009) (citing 

United States v. Watts, 519 U.S. 148, 157 (1997)) (holding that 

uncharged conduct may be considered at sentencing when that 

conduct is proven by a preponderance of the evidence)

respectively, we decline to address these issues further and 

find the district court did not err on those grounds.

 Because we find none of petitioners’ arguments 

persuasive, we affirm both Babb and Moore’s convictions in their 

entirety.
4

I.

During the mid-1990s, Richard Jackson (“Jackson”) began 

selling cocaine in the Danville, Virginia area. Beginning in 

1999 or 2000, Willie Robinson (“Robinson”), a friend of 

Jackson’s from when they both lived in New Rochelle, New York 

but who now resided in Danville, began buying cocaine from 

Robinson. Jackson sold the cocaine to Robinson in powder form 

and then taught Robinson how to “cook” it into crack for sale. 

By January 2003, Robinson was buying approximately one kilogram

of cocaine per week from Jackson.

Jackson met Walter Babb (“Babb”) in 1996 or 1997 in North 

Carolina. Babb purchased cocaine from Jackson from 1996 until 

Babb was incarcerated. When he was released in 2000, Jackson 

again became his supplier. In the spring of 2002, Babb 

regularly bought several ounces of crack from Jackson a couple 

times a week for his own distribution. Adrian Williamson 

(“Williamson”) then sold the crack for Babb. Babb continued to 

buy from Jackson until Jackson was arrested for drug trafficking 

offenses in January 2003. At that time, Babb owed Jackson about 

$12,000 for crack sold on consignment, and Jackson, from jail, 

arranged for Robinson to collect payment from Babb. Even though 

Jackson had been a source of their cocaine, Babb and Williamson 

continued to distribute crack in the Greensboro area after 

Jackson’s arrest.
5

Walter Moore (“Moore”) was also from New Rochelle and was 

involved in drug trafficking with Robinson before Robinson moved 

to North Carolina. When Moore subsequently moved to Andrews, 

South Carolina, he contacted Robinson again, offering to connect 

him with a source for cheaper cocaine so that Robinson could 

continue his drug trafficking operations after Jackson’s arrest. 

To this end, Moore traveled to El Paso, Texas in August of 2003. 

While there, he attempted to get a friend he met in jail, Rey 

Sanchez (“Sanchez”), to give him several kilograms of cocaine on 

consignment. However, Sanchez refused to front any drugs, and 

Moore returned home after a week. During this time, Moore made 

several telephone calls from Sanchez’s body shop in El Paso to 

his longtime girlfriend, Davita Bush (“Bush”), the records of 

which were admitted at trial.

In October 2003, Moore again attempted to secure cocaine 

from Mexico and traveled to El Paso for three weeks. This time 

he went with Robinson to broker a deal between Robinson and 

Sanchez, though Moore complained to Bush during a phone call 

that Robinson was being greedy. Babb also accompanied them, and 

sent money via Western Union to Bush, the record of which was 

admitted at trial. While Babb was in Mexico, Porsha Harper 

(“Harper”), one of his girlfriends, looked after his apartment. 

Harper met Babb in 2001 in Greensboro, and they had an on-againoff-again relationship. In October 2003, Babb called her and 
6

asked her to check on his house and do his laundry while he was 

away, which she did. In late October when Moore, Babb and 

Robinson returned to Greensboro, Moore stayed with Babb in his 

apartment. That was the first time Harper met Moore, and they 

became friends.

On November 5, 2003, Moore asked Harper if she would drive 

him to New York, and she agreed. Very early the next morning, 

Moore and Babb arrived at Harper’s house driving a Dodge 

Intrepid. Harper had seen the Intrepid before and knew that 

Babb used in his drug business, so she asked Babb if there were 

drugs in the car. He said no. Babb also told her that 

something had come up and that he was no longer going to be 

going on the trip to New York. Harper then left with Moore and 

drove for several hours until they entered Maryland, then Moore 

took over driving. During the drive, Moore told her that he was 

the “connect” on a drug deal with Babb in Mexico. He also told 

her there was $300,000 in the car.

At approximately 10:28 a.m. that day, Moore and Harper were 

stopped by Trooper Cameron, a Maryland State Police Officer, for 

a speeding violation while traveling on Interstate 95. Moore 

was unable to produce any identification or a driver’s license, 

and he and Harper gave conflicting stories. Trooper Cameron 

noticed that the trunk of the car was riding low and asked 

Harper about it. She stated the trunk was full of clothing and 
7

offered to show him. Harper got the keys from inside the car, 

walked to the trunk, and opened it. Trooper Cameron and the 

backup officers he had called saw two dead bodies wrapped in 

blankets and garbage bags laying in the trunk. Harper 

immediately noticed that the blankets the bodies were wrapped in 

were the same blankets she had previously laundered at Babb’s 

house.

Harper and Moore were arrested. Moore waived his Miranda 

rights and spoke with police. He told them he was running drugs 

for Rey Sanchez and that he had hundreds of thousands of dollars 

in the car. He denied knowledge of the bodies. The victims 

were identified as Robinson and Alexandria Withers, another 

participant in the drug conspiracy. Both had been shot multiple 

times at close range. Upon forensic examination, Moore’s 

fingerprints were on the garbage bags the victims were wrapped 

in.2

After Moore was arrested, Babb spoke with Bush via

telephone and started sending her significant amounts of money 

via Western Union. Bush in turn arranged three-way phone calls 

between Moore in jail and Babb. During these calls, Moore and 

Babb arranged for payments to Bush, as well as for her to come 

 2 There was myriad other evidence concerning the murders 

presented at trial that is not pertinent for the questions 

before this Court.
8

to Greensboro to get drugs for sale from Babb. She traveled to 

Greensboro in early 2004 and received 200 grams of crack cocaine 

from Babb. In another visit she received crack and cocaine 

powder. Bush was arrested on July 14, 2004, for her involvement 

in the drug trafficking scheme.

On June 9, 2004, a search warrant was executed on Babb’s 

former apartment, which was uninhabited after he had moved out. 

The police found evidence of bloodstains on the carpet and 

elsewhere in the apartment. On August 17, 2004, Babb was 

arrested in Greensboro. His current residence was searched, and 

two assault rifles were recovered from a crawl space in the 

ceiling right next to the door. A Taurus forty-five caliber 

handgun was recovered from the insulation, and other guns were 

found in a bag in the attic.

Babb and Moore were charged in the District of Maryland in 

a seven-count indictment with: Count One conspiracy to possess 

with intent to distribute five kilograms or more of cocaine base 

in violation of 21 U.S.C. § 841(a)(1); Count Two conspiracy to 

carry and use firearms during and in relation to a drug 

trafficking crime in violation of 18 U.S.C. § 924(o); Count 

Three knowingly carrying and discharging a firearm against 

Willie Robinson in relation to a drug trafficking crime in 

violation of 18 U.S.C. § 924(c); Count Four knowingly using and 

discharging a firearm against Alexandria Withers in relation to 
9

a drug trafficking crime in violation of 18 U.S.C. § 924(c); 

Count Five causing the death of Willie Robinson by discharging a 

firearm during a drug trafficking crime in violation of 18 

U.S.C. § 924(i); Count Six causing the death of Alexandria 

Withers by discharging a firearm during a drug trafficking crime 

in violation of 18 U.S.C. § 924(i); and Count Seven knowingly 

possessing firearms in furtherance of a drug trafficking crime 

in violation of 18 U.S.C. § 924(c).

At trial, the United States dismissed Counts Five and Six 

of the indictment at the close of evidence. The jury found 

Moore guilty of Counts One, Two, Three, Four and Seven. He was 

sentenced to life on Count One, 240 months on Count Two, 120 

months on Count Three, 120 months on Count Four, and 300 months 

on Count Seven. The jury failed to reach a verdict on Counts 

Three and Four as to Babb, and convicted him of Counts One, Two 

and Seven. Babb was sentenced to life on Count One, twenty 

years on Count Two, and sixty months on Count Seven. This 

appeal followed.

II.

On appeal, Babb and Moore raise questions concerning the 

jury instructions given at trial, venue, and jury intimidation. 

We address each of these issues in turn.
10

A.

A district court’s denial of a requested jury instruction 

is reviewed by this Court for abuse of discretion. United 

States v. Romer, 148 F.3d 359, 367 (4th Cir. 1996). Babb and 

Moore argue that the district court erred in failing to give 

both a multiple conspiracies instruction and a reasonable doubt 

instruction. We disagree.

1.

Babb and Moore first argue that the district court erred in 

failing to give a multiple conspiracies instruction when they 

requested it. They contend that there was no overarching 

conspiracy between them, just individual drug conspiracies, and 

even if they did conspire together, the evidence supports a 

finding that the conspiracy began in October 2003, and not 

earlier as charged. However, sufficient evidence exists to 

demonstrate that their drug trafficking activities were related 

and, thus a multiple conspiracies instruction was not warranted.

A district court need not instruct on multiple conspiracies 

each time a defendant requests it. Rather, “[a] court need only 

instruct on multiple conspiracies if such an instruction is 

supported by the facts.” United States v. Mills, 995 F.2d 480, 

485 (4th Cir. 1993). Thus, “[a] multiple conspiracy instruction 

is not required unless the proof at trial demonstrates that 

appellants were involved only in ‘separate conspiracies 
11

unrelated to the overall conspiracy charged in the indictment.’” 

United States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994) 

(quoting United States v. Castaneda-Cantu, 20 F.3d 1325, 1333 

(5th Cir. 1994)). Furthermore, even if one overarching 

conspiracy is not apparent, failure to give a multiple 

conspiracies instruction is reversible error only when it causes 

substantial prejudice to the defendant. United States v. 

Tipton, 90 F.3d 861, 883 (4th Cir. 1996). To find such 

prejudice, “the evidence of multiple conspiracies [must have 

been] so strong in relation to that of a single conspiracy that 

the jury probably would have acquitted on the conspiracy count 

had it been given a cautionary multiple-conspiracy instruction.” 

Id.

This Circuit has addressed several other large drug 

conspiracies where both the participants and the level of their 

involvement evolved during the time charged. In United States 

v. Tipton, 90 F.3d 861 (4th Cir. 1996), the drug conspiracy 

charged began in New York and moved to Richmond. As a 

consequence, the leadership changed over time, and new 

participants entered and left the conspiracy. The Court held 

that no multiple conspiracy instruction was due in that case, 

even for the participant who joined shortly before the 

conspiracy was interrupted by arrests, because the evidence 
12

demonstrated one enduring conspiracy dedicated to distributing 

drugs. Id. at 882-83.

Similarly in United States v. Banks, 10 F.3d 1044 (4th Cir. 

1993), the coconspirators charged were cocaine suppliers and 

distributors in the Tidewater Virginia area. Even though the 

dealers were actually in competition with one another, this 

Court held they were all properly joined in one conspiracy 

because they had the same goal of creating a large cocaine 

market in the area. Id. at 1054. The Court further held that 

“one may be a member of a conspiracy without knowing its full 

scope, or all its members, and without taking part in the full 

range of its activities or over the whole period of its 

existence.” Id.

These cases show that drug conspiracies, though they may 

have shifting membership, are one unit of prosecution when they 

have a common unifying goal. The evidence presented in this 

case demonstrates a single drug conspiracy during the time 

charged in the indictment. At the time the indictment charged 

as the beginning of the conspiracy, there was a well-established 

conspiracy involving Jackson, Robinson, Babb and Williamson. 

Jackson would sell powder cocaine to Robinson who would then 

cook it into crack. Babb would buy crack from Jackson, and then 

Williamson would sell it. This pattern of the conspiracy 

continued until Jackson was arrested in January 2003. At that 
13

time, Babb repaid the debt he owed to Jackson by giving it to 

Robinson. Babb and Williamson then continued their distribution 

activities. Meanwhile, Robinson reestablished contact with an 

old friend from New York, Moore, who promised to help him secure 

a replacement, cheaper source for cocaine. As a result, Moore 

traveled twice to El Paso, once alone and once with Babb and 

Robinson, in order to secure the cocaine. Moore was arrested on 

November 6, 2003 after Robinson was murdered, but he continued 

communicating with Babb and Bush to arrange for funds 

originating from the drug conspiracy to be transferred to Bush 

and for her to receive cocaine for sale. Bush was arrested in 

July of 2004, and finally Babb was arrested in August of 2004. 

Several firearms and a drug scale were found at his house.

Given the evidence enumerated above, there was sufficient 

evidence for a reasonable jury to determine that there was one 

continuous conspiracy. Williamson and Babb continued their 

distribution activities after Jackson’s arrest, while Robinson 

and Moore planned to secure another source of cocaine. That 

they shared the same goal is manifested by their joint trip to 

El Paso with the purpose of securing cocaine from Sanchez. 

Therefore, the evidence does not compel the conclusion that 

there were two separate conspiracies. Moore and Babb thus 

cannot demonstrate that the jury would have acquitted as to the 

conspiracy count if they had been given the cautionary multiple 
14

conspiracies instruction, and we find no prejudice to the 

defendants and hold that the district court did not abuse its 

discretion denying such an instruction.

2.

With regard to the question of whether a reasonable doubt 

instruction was required when requested by the defendants, this 

Court is bound by both Supreme Court and Circuit precedent 

directly contrary to the appellants’ contention. This Court 

held in United States v. Oriakhi, that no reasonable doubt 

instruction is constitutionally required, unless the jury 

requests it. 57 F.3d 1290, 1300 (4th Cir. 1995). Further, the 

Supreme Court held in Victor v. Nebraska that “the Constitution 

neither prohibits trial courts from defining reasonable doubt 

nor requires them to do so as a matter of course.” 511 U.S. 1, 

5 (1994). There has been no subsequent decision which would 

lead this Court to rethink its precedent that “the words ‘beyond 

a reasonable doubt’ have the meaning generally understood for 

them and that further efforts to restate their meaning with 

different words tend either to alter or to obfuscate that 

meaning.” Oriakhi, 57 F.3d at 1300.

B.

The second issue Moore and Babb raise on appeal concerns 

venue. As venue is a legal question, this Court reviews the 

decision of the district court de novo. United States v. 
15

Wilson, 262 F.3d 305, 320 (4th Cir. 2001). Moore and Babb argue 

that venue for the 924(c) offense charged in Count Seven was 

improper in the District of Maryland because the conspiracy had 

ceased at the time the firearms were seized from Babb’s home, 

and thus no element of those offenses occurred in Maryland. 

This claim relates to their unsuccessful multiple conspiracies 

argument above and is similarly unavailing.

1.

Article III of the Constitution provides, as is relevant 

here, that “[t]he Trial of all Crimes . . . shall be held in the 

State where the said Crimes shall have been committed.” U.S. 

Const. art. III, § 2, cl. 3. The Sixth Amendment reinforces 

this command, stating that “[i]n all criminal prosecutions, the 

accused shall enjoy the right to a speedy and public trial, by 

an impartial jury of the State and district wherein the crime 

shall have been committed.” U.S. Const. amend. VI; see Fed. R.

Crim. P. 18 (“Unless a statute or these rules permit otherwise, 

the government must prosecute an offense in a district where the 

offense was committed.”). When multiple counts are alleged in 

an indictment, venue must be proper on each count. See United 

States v. Bowens, 224 F.3d 302, 308 (4th Cir. 2000). Venue on a 

count is proper only in a district in which an essential conduct 

element of the offense took place. Id. at 309. The burden is on 

the government to prove venue by a preponderance of the 
16

evidence. See United States v. Barsanti, 943 F.2d 428, 434 (4th 

Cir. 1991).

For episodic crimes, venue is proper in the district where 

an essential element of the crime occurred. In continuing 

crimes, such as conspiracy, venue is proper in the location of 

any of the criminal acts. United States v. Rodriguez-Moreno, 

526 U.S. 275, 279, 282 (1999). Further, in continuing offenses

that are based upon some underlying criminal offense, venue for 

the continuing offense is proper in any district where venue 

lies for the underlying offense. United States v. Robinson, 275 

F.3d 371, 379 (4th Cir. 2001). In Robinson, this Court held 

that where the defendant was charged with a violation of 18 

U.S.C. § 924(j) (causing the death of a person during and in 

relation to a crime of violence) he could be charged in any 

district in which the underlying offense, a violation of 18 

U.S.C. § 924(c), could have been prosecuted. Id. at 378. 

Additionally, and most important for this case, in RodriguezMoreno, the Supreme Court held that for charges of a violation 

of 18 U.S.C. § 924(c), venue for the weapons charge is proper 

anywhere the underlying crime of violence or drug crime could be 

prosecuted. 526 U.S. at 281-82.

2.

Thus, whether venue was proper for the section 924(c) 

violation charged in Count Seven depends on whether an overt act 
17

occurred in Maryland. Babb and Moore argue that the conspiracy 

had been terminated by the arrests of Moore, Babb, and Bush at 

the time the weapons were seized. However, because there was no 

termination of the conspiracy and an overt act occurred in 

Maryland, venue was proper there.

A conspiracy is not terminated merely because its 

participants are arrested. United States v. Urrego-Linares, 879 

F.2d 1234, 1240 (4th Cir. 1989). Even if substantial time has 

passed between the formation of the conspiracy and the last 

overt act, the conspiracy has not necessarily ended. Joyner v. 

United States, 547 F.2d 1199, 1203 (4th Cir. 1977) (holding that 

the end of a conspiracy must be “affirmatively shown”). 

Instead, the defendant bears the burden to show that the 

conspiracy terminated when “the former coconspirator acted to 

defeat or disavow the purposes of the conspiracy.” United 

States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986). Mere 

withdrawal is not enough.

Here, even though Bush had been arrested a month before the 

weapons were seized and there was no evidence of contact between 

Babb and Moore, the conspiracy had not terminated. The weapons 

and drug scale found inside Babb’s home are evidence that the 

conspiracy was ongoing, with Babb as its source outside of jail. 

The defendants presented no evidence which suggests termination 

other than the arrests, and there was no evidence of disavowal. 
18

Therefore, there was sufficient evidence for the jury to 

conclude that the possession of the weapons was in furtherance 

of the drug trafficking conspiracy.

The conspiracy also had an overt act in the District of 

Maryland, which Babb and Moore concede in their brief. They 

acknowledge that venue was proper in Maryland for the 

substantive drug traffic charge in Count One. Venue was proper 

in Maryland because an overt act of the drug conspiracy, the 

carrying of money and bodies into the state on Interstate 95, 

occurred there. Therefore, under Robinson and Rodriguez-Moreno, 

venue for the section 924(c) counts is proper as well because 

those charges could be brought in any district in which the 

underlying drug offense had venue.

C.

Finally, for the first time on appeal, Babb and Moore argue 

that the district court erred in failing to voir dire the jury 

concerning possible juror intimidation. As they did not object 

at trial, this Court reviews the district court’s actions for 

plain error. Fed. R. Crim. P. 52(b). In order to prevail under 

plain error review, a petitioner must demonstrate that: (1) an 

error occurred; (2) the error was plain; and (3) the error 

affected his substantial rights. United States v. Olano, 507 

U.S. 725, 732 (1993). If these three elements are met, this 

Court may exercise its discretion to notice error only if the 
19

error “seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings.” Id. (internal quotation 

marks and citations omitted); see also United States v. Hughes, 

401 F.3d 540, 555 (4th Cir. 2005).

1.

The defendant’s right to a fair trial by an impartial jury 

free from the potentially prejudicial influence of third parties

includes the right to have a jury free from contact by third 

parties. Mattox v. United States, 146 U.S. 140, 150 (1892) 

(“Private communications, possibly prejudicial, between jurors 

and third persons, or witnesses, or the officer in charge, are 

absolutely forbidden, and invalidate the verdict, at least 

unless their harmlessness is made to appear.”). There is a 

presumption of prejudice to the defendant when there is “any 

private communication, contact, or tampering, directly or 

indirectly with a juror during trial about the matter pending 

before the jury.” Remmer v. United States, 347 U.S. 227, 229

(1954). However, this presumption only arises when the 

defendant establishes that extra-judicial contacts occurred 

which cast doubt on the validity of the jury’s verdict. 

Stockton v. Virginia, 852 F.2d 740, 747 (4th Cir. 1988). The 

only case where this prejudice was said to arise because of 

intimidation in the courtroom was in the Ninth Circuit’s 

decision in United States v. Rutherford, 371 F.3d 634 (9th Cir. 
20

2004). The court held that when the intimidation inside the 

courtroom was coming from the government, there was a 

presumption of prejudice due to the “heightened concern that the 

jurors will not ‘feel free to exercise [their] functions’ with 

the Government ‘looking over [their] shoulder[s].’” Id. at 643 

(quoting Remmer, 347 U.S. at 229).

Further, even if improper influence is suggested, there is 

no requirement that the court conduct individualized voir dire 

each time. The Seventh Circuit has held that individual 

questioning, which may tend to unsettle the jury, is only 

warranted in cases where there is a strong indication of bias or 

irregularity. United States v. Stafford, 136 F.3d 1109, 1112-13 

(7th Cir. 1998.)

2.

In this case, the conduct complained of was not mentioned 

by defense counsel, but rather the district court, and as a 

result this Court has very little information on what the 

improper influence could have been. The evidence of any bias 

comes in the form of this brief statement by the district judge 

outside of the presence of the jury and spectators:

Be seated. Counsel, there have been some regular 

attendees at this trial who I take it are family 

members, acquaintances of one or both of the 

defendants. It would appear that perhaps jurors 

believe too much attention is being paid to them. 

It’s a rather unusual circumstance, but I’ve heard it 

before. Obviously, it’s not unusual for participants 
21

in a trial to watch the jury, but we want to be sure 

that the jury is not made uncomfortable.

So if I’m correct that the regular attendees have been 

members of the family or friends of the defendants, I 

would appreciate counsel commenting to them when and 

as appropriate that we don’t want to make the jurors 

uncomfortable, and what’s actually a lot more 

interesting about a trial is what goes on in the well 

of the court and from the witness stand as opposed to 

the jury. So I share that with you just so you can 

convey the court’s mild concern that the jurors not be 

made uncomfortable. It’s nothing more than that. 

Okay?

J.A. 915-16. There was no evidence that the judge had been 

notified by the jury that they were uncomfortable or whether he 

noticed it on his own.

On this evidence alone, the defendant has certainly not 

carried his burden of showing that the jury was improperly 

influenced, much less that the influence was so serious that it 

required individual voir dire by the judge.

III.

For the foregoing reasons, both Babb and Moore’s 

convictions are

AFFIRMED.