IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-11080

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JAMES MCDANIEL,

Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

U.S.D.C. No. 3:08-cr-00051-L-ALL

Before JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.

PER CURIAM:*

The defendant, James McDaniel, was convicted of (1) managing or

controlling a drug-involved premises; (2) possessing a firearm in furtherance of

his maintenance of a drug-involved premises; (3) possessing cocaine with intent

to distribute; (4) possessing a firearm in furtherance of a drug trafficking crime;

and (5) distributing an illegal drug the use of which resulted in a person’s death.

He appeals, arguing that (1) the district court erred in rejecting his Batson

claim; (2) the district court abused its discretion denying his request for a

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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mistrial after a prosecution witness gave what McDaniel argues was unfairly

prejudicial testimony; (3) the district court abused its discretion in denying his

request for a mid-trial voir dire to ask jurors about their exposure to prejudicial

news coverage of the trial; and (4) the district court abused its discretion in

refusing to instruct the jury that it had to agree unanimously on the dates on

which he possessed the cocaine and firearms. We AFFIRM. 1

I. 

The district court held a two-day voir dire in order to select the jury. At

one point, the judge inquired of the entire venire whether they “had any

experience involving yourself, a member of your family, or any close friend that

relates to the use or possession of illegal drugs or narcotics.” As relevant to this

appeal, two prospective jurors, Keith Slyter, who is white, and Teresa Johnson,

who is the same race as McDaniel, black, responded in the affirmative. Later,

the prosecution asked Slyter to elaborate on his answer and Slyter stated that

his brother had gone to prison for selling narcotics, an action which Slyter

characterized as “totally idiotic.” Slyter further stated that he is “not that close

to” his brother and therefore could hear the case without being influenced by his

brother’s experience. There was no similar follow-up questioning of Johnson.The

prosecution used one of its peremptory strikes against Johnson, but did not

strike Slyter. 

Based on these events, and on the fact that the prosecution had exercised

a disproportionate number of its peremptory strikes against prospective jurors

who were black, the defense made an objection under Batson v. Kentucky, 476

U.S. 79 (1986). The judge explained, “The Supreme Court and Fifth Circuit make

McDaniel also argues that the district court erred in concluding that it was required 1

to sentence him to a term of imprisonment for his firearms charges that ran consecutive to his

term of imprisonment for distributing narcotics resulting in a death. However, he

acknowledges that this claim is foreclosed by United States v. London, 568 F.3d 553 (5th Cir.

2009), cert. denied 131 S. Ct. 631 (2010). Therefore, it is not addressed further in this opinion.

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it clear that the first part of the analysis [for such an objection is] that the

person making the challenge [must] make a prima facie case that a potential

juror is being excluded because of race. And if a prima facie case is made, then

the burden then shifts to the other side to provide a race neutral explanation.

And at the third stage, the person making the challenge must show that there

[was] purposeful discrimination.” 

Applying this framework, the judge stated that in light of defense counsel’s

argument, “I think the defense has made a prima facie case of excluding black

jurors. Forty percent of the government’s strikes were African American.

Fourteen percent of the eligible pool to constitute the twelve person jury was

African American.” 

The judge then indicated that he was proceeding to the second step of the

analysis and heard from the government. The prosecutor explained that he had

struck Teresa Johnson because “she indicated that she had a close family

member with a . . . recent drug conviction. . . . The government struck all jurors

within the strike panel . . . that indicated that they had close family members

with drug convictions.”The prosecutor then explained that Slyter was not struck

because “he was not close to his brother. . . . He indicated that he was estranged

from his brother at the time his brother was incarcerated for the drug conviction

and even went so far as to say his brother lives in Michigan. . . . That indicated

to me that was a distance - - enough distance that that would not qualify as a

close family member[,] [t]hat caused me concern.” The judge then inquired

whether the prosecutor had asked any follow-up questions of Johnson to

determine the nature of her relationship with her cousin who had been convicted

of selling drugs, and the prosecutor responded that he had not. As a result, the

judge asked, “why did you find it necessary to call Mr. Slyter forth and question

him and not do the same as to Ms. Teresa Johnson?” The prosecutor replied that

the further questioning related to Slyter’s relationship with his brother was “an

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afterthought.” The prosecutor had selected Slyter for additional questioning

regarding whether he was personally acquainted with one of the government’s

attorneys, and had only made additional inquiries about Slyter’s relationship

with his brother following this other questioning.

The district court then provided the defense an opportunity to respond.

Defense counsel stated, “Ms. Johnson didn’t say anything about this family

member being close to her. . . . Nothing about Ms. Johnson’s demeanor or what

she said or the way she said it indicated to this [sic] was an issue for her or that

this was as the government has stated a close family member. . . . The

government propounded no question to [Johnson to examine this issue].” 

The court then recessed. Upon returning, the judge explained that, having

concluded that the defense had established a prima facie case, “[w]e move to the

next phase and the Court heard the explanation given by the government. . . .

After hearing [the government’s] explanation as to why the individuals in

question were stricken, the Court is satisfied that [the government] has

articulated or set forth a race neutral basis for excluding [Johnson]. As the

Supreme Court said . . . , the explanation does not have to be persuasive or

plausible, but the Court states on the record that the explanation given by [the

prosecution] is plausible, therefore, the defense’s challenge to the juror[] based

upon the Batson case is denied.”

At trial, the prosecution presented overwhelming evidence on each count. 

It introduced a videotape showing McDaniel retrieving bags of cocaine from a

safe he kept in his apartment. Numerous witnesses testified to McDaniel’s drug

trafficking and that they had seen him with firearms when they bought drugs

from him. One witness testified that Meaghan Bosch—the young woman who 

the prosecution alleged had died as a result of drugs distributed by

McDaniel—was at McDaniel’s apartment and under the influence of narcotics 

the night she disappeared. Another witness testified that he had seen Bosch

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unconscious and slumped over in McDaniel’s residence and had urged McDaniel

to let her be taken to the hospital, but that McDaniel had refused. The same

witness testified that McDaniel later admitted to him that Bosch had died. The

prosecution also presented DNA evidence indicating that McDaniel could not be

excluded as the source of DNA found on Bosch’s body, and that dog hairs found

on a blanket found wrapped around Bosch’s body matched dog hairs found in

McDaniel’s apartment. 

At one point, the defense moved for a mistrial in light of testimony

presented by the prosecution that carried sexual connotations, presenting a risk

of unfair prejudice. Prior to trial, the prosecution had indicated that it intended

to present evidence “regarding [McDaniel’s] alleged sexual assault of 12 young

women,” in addition to evidence suggesting that McDaniel had sexually

assaulted Bosch. The district court held this evidence inadmissible under

Federal Rule of Evidence 403 because the risk of unfair prejudice from the

evidence substantially outweighed its probative value. The judge stated that “I

expect there will be testimony concerning statements about drug use or what

was going on . . . , but let me make it unequivocally clear, any witness who

comes, I do not want that witness talking about any alleged rapes.” Nonetheless,

as the trial progressed, the judge felt the need to reprimand the prosecution for

“slip up after slip up after slip up” in eliciting testimony that, at the very least,

implied that McDaniel had had sexual contact with Bosch. This included

testimony from one witness that she was afraid of McDaniel because she was a

“single white female,” and an expert’s testimony about a DNA sample taken from

the “crotch” of McDaniel’s shorts. Finally, Tiffany White, a former employee in

McDaniel’s illegal operations, testified that McDaniel possessed “GHB.” The

prosecutor then asked, “What do you understand GHB to be?” and White

responded, “A date rape drug.” Following this statement, defense counsel moved

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for a mistrial. The judge held a bench conference and admonished the

prosecutors, but denied the motion. 

Also during the trial, the Dallas Morning News published several articles

on the front page of its metro section containing information that was prejudicial

to McDaniel. Those articles revealed the allegation that McDaniel had sexually

assaulted 12 women, and also revealed that he had previously spent 22 years in

prison for murdering a former police officer. 

Recognizing that the media would report on the trial, the district judge

had taken numerous steps to prevent this coverage from influencing the jury.

During voir dire, the judge indicated that he had “instructed that the TV be

turned off in the jury room and also any newspaper or other media type material

be removed from the jury room.” At the end of the first day of voir dire, he

informed the prospective jurors: “You are instructed that you are not to read,

listen to, or watch any media accounts about this trial. If something comes on

TV, you are not to watch it. If there is something in the paper, once you start

reading something in the paper and you find out about this trial, you are not to

read that matter. . . . Do not talk to the media about the case. In fact, do not even

talk to coworkers about the case. Do not talk to your spouse or friends.”

At the start of the trial on May 27, the judge gave the jury a lengthier

instruction stating:

[D]o not read or listen to anything touching on this case in any

way. If anyone tries to talk to you about this case, bring it to the

Court’s attention promptly and the way you do that is to contact . . .

Court security officers and that person in turn will contact me.

It is very important that you not listen to, read, or watch any

accounts of this case. As I stated before, you took an oath to decide

this case based upon the evidence that is presented here during the

course of this trial. And it is very important that you follow that

oath. Keep in mind the media accounts and other accounts you may

read do not show the entire picture. You are here. You see the entire

case from beginning to end and you are in the best position to assess

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the evidence. So there is no need to go to any other source as to what

is taking place in this trial. 

. . . [D]o not try to do any research or make any investigation

about the case on your own. Once again, everything you need to

know about this case will be presented during the course of this trial

in the way of evidence either oral testimony or exhibits and

documents.

At the end of the next day, May 28, the judge stated: “Remember my earlier

discussion. . . . Do not watch, listen to or read any media accounts about the case

if there are any. Do not let anybody discuss the case with you.” On June 1, the

judge again issued a similar instruction. He did the same at the close of the next

day’s testimony. The judge again gave a similar instruction at the close of the

evidentiary phase of the trial on June 4. 

Nonetheless, attimes,the judge expressed skepticism that his instructions

were being followed. At a bench conference the judge stated: “We have to hope

- - although I don’t believe that the jury doesn’t read [the paper] - - but I have no

proof of that.” Moreover, near the close of evidence, the judge requested that the

defense make its Rule 29 motion for judgment of acquittal “in chambers because

everything that you say is going to be in the paper and the Court’s ruling will be

in the paper also. I don’t think that is something the jury needs to hear . . . .”

On the second-to-last day of the evidentiary phase, following the

prosecution’s DNA expert’s statement that DNA was found on the “crotch” of

McDaniel’s shorts, defense counsel asked “the Court [to] ask individual jurors

if they read today’s or other news accounts about the trial.” The court did not

immediately rule on the motion and defense counsel renewed it the next day, at

which point the motion was denied.

The judge stated:

The law is that jurors are presumed to follow the Court’s

instructions. That is, they are presumed to adhere to them and

abide by them. Unless there is some type of evidence that I get to

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the contrary I do not believe there is any reason for me to

individually talk to the jurors at this time. This is a high profile

case. There are all types. There are high profile cases, and I find for

the most part that once a person becomes a juror, at least in my

experience, they do attempt to follow the court’s instructions. 

As I stated before, I have talked to every juror after a trial

whether civil or criminal, and on several of those occasions, they

have told me we were wondering about this, but you instructed us

judge not to consider this, and we didn’t take it into account. But we

are human, but we did follow your instructions.

Finally, immediately prior to closing arguments, the district court

announced that it would strike from its jury instruction on count 3—charging

McDaniel with possessing cocaine with the intent to distribute—a statement

that “for you to find Defendant McDaniel guilty you must unanimously agree on

the occasion that he committed the offense.” The court explained that this

language was superfluous in light of the other instructions it planned on giving

to the jury. Indeed, the court instructed the jury that “The government does not

have to prove that the crimes were committed on [the] exact date [listed in the

Indictment], so long as it proves beyond a reasonable doubt that Defendant

McDaniel committed the crimes on a date reasonably near the date stated in the

Indictment.” (emphasis added).Moreover, the court informed the jury that “Your

verdict must be unanimous.” Nonetheless, the defense objected to the omission

from the instruction on count 3 of the language that the verdict must be

unanimous, and the court overruled the objection. 

The jury found McDaniel guilty on all counts. The district court sentenced

McDaniel to life imprisonment on count five—selling drugs the use of which

resulted in Bosch’s death—and an additional thirty years related to the other

charges. 

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II. 

Batson Issue

McDaniel argues that the district court erred in denying his Batson

challenge regarding the prosecution’s strike of prospective juror Johnson because

(1) the district court failed to carry out the third step of the Batson analysis,

failing to rule on whether the strike of prospective juror Johnson was racially

motivated, and (2) even if the court did rule upon this issue, the record

demonstrates that the strike was racially motivated and thereby violated

Batson. 

“[I]t is a fixed part of our constitutional landscape that ‘[t]he use of

peremptory challenges to strike venire-persons based on their race violates the

equal protection component of the Due Process clause of the Fifth Amendment.’”

United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008) (quoting United

States v. Montgomery, 210 F.3d 446, 453 (5th Cir. 2000)). “Batson v. Kentucky

establishes a three-pronged inquiry to determine whether a peremptory

challenge was based on race: ‘First, a defendant must make a prima facie

showing that a peremptory challenge has been exercised on the basis of race[;

s]econd, if that showing has been made, the prosecution must offer a

race-neutral basis for striking the juror in question[; and t]hird, in light of the

parties’ submissions, the trial court must determine whether the defendant has

shown purposeful discrimination.’” Id. (alterations in original) (quoting Snyder

v. Louisiana, 552 U.S. 472, 476-77 (2008)). 

“We review the district court’s conclusion on whether the peremptory

strikes were racially motivated for clear error.” Id. (quoting United States v.

Williams, 264 F.3d 561, 571 (5th Cir. 2001)) (internal quotation marks omitted).

This circuit and the Eighth Circuit have also recognized that a district court may

make “implicit” findings while performing the Batson analysis. See Stevens v.

Epps, 618 F.3d 489, 499 (5th Cir. 2010) (noting that trial courts sometimes make

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“implicit[]” findings when carrying out the Batson analysis); U.S. Xpress Enter.,

Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 814 (8th Cir. 2003) (concluding that

the district court did not err in performing the Batson analysis because

“[a]lthough the trial court did not articulate for the record that Bush proved

purposeful racial discrimination, we are convinced such a determination was

necessarily made”); United States v. Hughes, 50 F.3d 1033, 1995 WL 136200, at

*2 (5th Cir. Mar. 9, 1995) (unpublished table opinion) (noting that a trial court

could make “implicit” findings supporting a Batson analysis). Therefore, a

district court will not be reversed for failing to explicitly detail its findings at

each step in the Batson analysis, if we are convinced that the necessary

determinations were “implicitly” made. 

Based on the record recounted above, we conclude that the district court

proceeded through each step of the Batson analysis, explicitly ruling on the first

two steps and implicitly passing on the third. As explained above, at the start of

the hearing on the defense’s motion, the judge explicitly laid out the proper

three-step Batson inquiry. He then undertook the first two steps in

order—finding that the defense had established a prima facie case, then

inquiring of the prosecutor why he had struck prospective juror Johnson and not

prospective juror Slyter, and concluding that the prosecutor’s explanation for

this facially disparate treatment was plausible. The judge also provided defense

counsel an opportunity to respond to the prosecutor’s explanation, indicating

that he was considering the third step of the Batson analysis. Further, after both

parties’ submissions, the court recessed, providing the judge time to weigh the

arguments and evidence. After returning, the judge explained that because he

found the prosecution’s explanation for the strike plausible, the motion was

denied. While the judge did not specifically state the conclusion that the

prosecution’s strike was not racially motivated, we conclude that on this record

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that the judge implicitly made such a finding and therefore it did not

procedurally err in performing the Batson analysis. 

Because we conclude that the district court implicitly found that the strike

of prospective juror Johnson was not purposefully discriminatory, McDaniel

must show that this finding was clearly erroneous in order to prevail in his

Batson challenge. Williamson, 533 F.3d at 274. He argues that the strike was

necessarily discriminatory because the prosecutor’s proffered reason for striking

prospective juror Johnson, a black person—that she indicated she had friends

or family who had been convicted of drug-related offenses—was also true of

prospective juror Slyter, a white person, who the prosecutor did not strike. He

further argues that the prosecutor treated Johnson and Slyter disparately by

giving Slyter, but not Johnson, a chance to explain away his family tie to

someone with a drug conviction. However, McDaniel points to nothing in the

record that undermines the district court’s implicit finding that—as the

prosecutor stated—any disparate treatment between prospective jurors Johnson

and Slyter was a product of happenstance, rather than purposeful

discrimination: namely, that the prosecutor asked Slyter follow-up questions

about his brother as an “afterthought” to unrelated questioning. We therefore

conclude that McDaniel has failed to show that the district court clearly erred

in finding that the strike was not purposefully discriminatory. 

Denial of Motion for Mistrial

McDaniel argues that the district court erred in denying his motion for a

mistrial after the prosecution elicited testimony that McDaniel possessed a “date

rape drug,” thereby implying that McDaniel was a rapist. 

“When improper evidence is introduced to the jury but a defendant’s

subsequent motion for mistrial is denied, we review the denial for abuse of

discretion and, if we find error, we apply harmless error review.” United States

v. Lucas, 516 F.3d 316, 345 (5th Cir. 2008) (citing United States v. Valles, 484

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F.3d 745, 756 (5th Cir. 2007)). Without deciding whether improper evidence was

introduced or whether the district court abused its discretion in denying the

motion for a mistrial, we conclude that any error was harmless and therefore

affirm on this issue. As stated above, the evidence against McDaniel was

overwhelming. It included a videotape of him possessing drugs at his residence,

the testimony of multiple witnesses that McDaniel sold drugs and possessed

firearms while he was distributing drugs, and the testimony of a witness that

Bosch was at McDaniel’s residence under the influence of narcotics the night

that she went missing. Another witness also testified that he had informed

McDaniel that Bosch needed medical attention, but that McDaniel had refused

to allow her to receive treatment. Forensic evidence further linked a blanket

found wrapped around Bosch’s corpse to McDaniel’s residence. Therefore, we

conclude that even if the testimony regarding McDaniel’s possession of a “date

rape drug” was improperly elicited and unfairly prejudiced the jury against

McDaniel, it was a harmless error.

Denial of Mid-Trial Voir Dire

McDaniel argues that the district judge erred in refusing to conduct a midtrial voir dire to determine whether the jury had been exposed to and influenced

by potentially unfairly prejudicial coverage of the case by the Dallas Morning

News. 

“The trial judge has broad discretion in ruling on the issue of prejudice

resulting from a jury’s exposure to news articles concerning a trial.” United

States v. Aragon, 962 F.2d 439, 443 (5th Cir. 1992). “[I]t is for the trial judge to

decide at the threshold whether news accounts are actually prejudicial; whether

the jurors were probably exposed to the publicity; and whether jurors would be

sufficiently influenced by bench instructions alone to disregard the publicity.”

Id. (quoting Gordon v. United States, 438 F.2d 858, 873 (5th Cir. 1971)) (internal

quotation marks omitted). Therefore, “[t]he standard for review of the exercise

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of the district court’s discretion in a case such as this is abuse of that discretion.”

Id. “[A] critical factor in weighing the probability that the jury was exposed to

the prejudicial publicity is the procedure adopted by the district judge to shield

the jury from the publicity. The cases place great emphasis on the particular

instructions given to the jury by the trial judge to minimize or eliminate the

danger of jury contamination by prejudicial publicity. For instance, we declined

to reverse convictions due to midtrial publicity in [United States v.] Faulkner, 17

F.3d [745,] 764 [(5th Cir. 1994)], in part because the judge gave preliminary jury

instructions regarding the need to avoid press reports which were ‘unusually

lengthy and emphatic,’ rather than ‘boilerplate or casual recitations of standard

jury instructions.’” United States v. Bermea, 30 F.3d 1539, 1558-59 (5th Cir.

1994); see also United States v. Harrelson, 754 F.2d 1153, 1164 (5th Cir. 1985)

(“Our painstaking examination of the entire record and the trial court’s repeated

instructions convinces us that the jury was effectively shielded from

contamination by publicity during the trial.”).

Here, while the district judge clearly believed that the news coverage was

prejudicial, it was within his discretion to conclude that a mid-trial voir dire was

unnecessary because his instructions were sufficient to prevent the jury from

being influenced by that coverage. He gave lengthy and repeated instructions

informing the jury that they were not to read any news coverage of the case.

Moreover, the judge took proactive steps to reduce the likelihood that the jury

would be exposed to such stories, removing media from the jury room even before

the trial started. Therefore, the judge did not abuse his discretion in denying

mid-trial voir dire. 

McDaniel highlights the two parenthetical remarks the judge made,

seeming to suggest that he believed the jury had been or would be exposed to the

Dallas Morning News stories—one stating that the judge hoped but did not

believe “that the jury doesn’t read [the paper],” and another indicating that the

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Rule 29 motion for judgment of acquittal should be made in chambers so that it

would not be reprinted into the papers and thus be read by the jury. However,

in denying the motion for mid-trial voir dire, the judge concluded that there was

no evidence the jury had been exposed to the Dallas Morning News stories and

stated that in his experience jurors do “attempt to follow a court’s instructions.”

In this manner, the judge clearly and specifically determined that, although

some jurors might have been exposed to the prejudicial coverage, he believed

that his instructions were effective to prevent the jury’s deliberations from being

affected. Neither McDaniel nor the record provides us with any reason to

question the district court’s conclusion.

McDaniel also points to this court’s decision in Aragon, in which a panel

wrote that “[i]n the absence of a poll, it is impossible to determine whether the

jurors were actually exposed to the article.” 962 F.2d at 445. The Aragon panel

continued that “indulging in such speculations,” id., was improper and therefore

“the district court abused its discretion in failing to undertake adequate inquiry

into whether the alleged tainting incident occurred and whether it was

prejudicial,” id. at 447. However, in Aragon, the district court “failed to make its

own independent determination as to” the possibly prejudicial newspaper

coverage’s “alleged intrusion upon jury impartiality.” Id. Moreover, the Aragon

panel did not indicate that the district court provided any special instructions

to the jury regarding prejudicial media coverage, stating only that “general

newspaper reading was allowed under instructions to the jury, although the jury

was told not to read about the trial.” Id. These facts distinguish Aragon from the

instant case, in which the district court clearly took the concern of prejudicial

news coverage seriously and gave multiple emphatic instructions attempting to

affirmatively prevent that coverage from infecting the jury’s deliberations. Based

on the instant record, unlike in Aragon, we cannot say that the district court

abused its discretion in denying mid-trial voir dire.

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Denial of Unanimity Instruction

Finally, McDaniel argues that the district court erred in refusing to

instruct the jury that it had to unanimously agree on the dates on which

McDaniel possessed narcotics and firearms in order to convict him of possession

with intent to distribute and the two firearm possession offenses.2

“[W]e review ‘all challenges to, and refusals to give, jury instructions for

abuse of discretion.’” United States v. Davis, 609 F.3d 663, 689 (5th Cir. 2010)

(quoting United States v. Webster, 162 F.3d 308, 321-22 (5th Cir. 1998)). “A

refusal to give a requested instruction constitutes reversible error only if the

proposed instruction (1) is substantially correct, (2) is not substantively covered

in the jury charge, and (3) pertains to an important issue in the trial, such that

failure to give it seriously impairs the presentation of an effective defense.” Id.

(quoting Webster, 162 F.3d at 321-22) (internal quotation marks omitted). Here,

we conclude that McDaniel has failed to establish the second element, that the

unanimity instruction he requested was not substantially covered elsewhere in

the jury charge. The court instructed the jury that when the prosecution alleged

that a crime occurred on a specific date, an element of that offense was that the

prosecution had to establish that the crime occurred on “a date reasonably near

the date stated in the Indictment.” (emphasis added). Moreover, it informed the

jury that “[y]our verdict must be unanimous.” Therefore, we conclude that the

district court did not abuse its discretion in refusing to give the requested

instruction. 

McDaniel acknowledges that he did not preserve some of these arguments below.

2

Because we conclude that McDaniel’s claims lack merit under the standard of review for

preserved errors, we need not differentiate the claims that he preserved from those that he

waived.

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III. 

For the foregoing reasons, the defendant’s convictions and sentences

are AFFIRMED. 

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