___________ No. 95-2968

___________ United States of America, * * Appellee, * * v. * * Marcus Williams, * * Appellant. *

___________ Appeals from the United States No. 95-2972 District Court for the

___________ Eastern District of Missouri. United States of America, * * Appellee, * * v. * * Cortez Williams, * * Appellant. *

___________ Submitted: January 9, 1996 Filed: March 5, 1996

___________ Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ BEAM, Circuit Judge.

Ma rcus Williams (Marcus) and Cortez Williams (Cortez) appeal thei r convictions and sentences for conspiracy to dist ribute and distribution of crack cocaine. Both appellants challenge the sufficiency of th e government's evidence regarding the quantity of

### This theory appears to be stronger in hindsight than a t 1 

### trial. In fact, the trial testimony regarding the "other" Marcus Wi lliams consisted solely of tidbits from the defense's cross

examination of Suggs and its direct examinations of Marcus an d Cor tez. At best, this testimony merely established that anothe r Marcus Williams existed. -2- drugs for which they were held responsible at sentencing. Marcus als o challenges the qualifications of a member of his jury.

I. BACKGROUND Marcus and Cortez Williams were charged with conspiracy to dist ribute and distribution of c ocaine base. A woman named Mary Williams was on the jury venire. During voir dire the court asked defendant Marcus Williams to sta nd and inquired, "Do any members of the jury panel know Marcu s Williams? " Mary Williams did not respond. Later during voir dire, th e government asked Mary Williams specifically, "Ha ve you ever run across the names of these two defendants?" Mary Williams r esponded, "Not that I know of." At the conclusi on of voir dire, Mary Williams was selected to be on the jury.
At trial, the government called Highway Patrol Trooper Paula Wo odruff and an informant, James Suggs, as witnesses. Woodruff testified that, wit h the help of Suggs, she bought drugs from the defendants on October 1, 1993 , in a school parking lot. Even though she purcha sed only one-quarter ounce of cocaine base, she testified that the defendants were in possession of at least one ounce at that time. Marcus's defense was one of misidentification. He claimed he w as not involve d in the alleged transaction, but that another man, also name d Ma rcus Williams, was the real culprit. The jury did not believe th e 1 misidentification def ense. Following a three-day trial, it convicted the defendants of both counts. After trial, Marcus claimed that the "other" Marcus Williams, upon whom he tried to blame the drug transaction, was the grandson of juror Mary

### Suggs estimated he had purchased at least one kilogram o f 2 

### cocaine base from Marcus, typi cally in one-sixteenth ounce or onequarter ounce quantities. Suggs further estimated 30 to 4 0 purchases from Cortez, in similar quantities. This suggests that over 100 sales of cocaine base occurred between the defendants and Suggs. Marcus's pr esentence report recommended a base offense level 3 

### of 38. At sentencing, the dis trict court found that 36 was a more approp riate base offense level. U.S.S.G. §2D1.1(c)(2) (at leas t 500 grams, but less than 1.5 k ilograms of cocaine base). Cortez's presentence report recommended a base offense level of 36. A t sentencing, the district court found that 32 was a more appr opriate base offense level. U.S.S.G. §2D1.1(c)(4) (at least 50 grams, but less than 150 grams of cocaine base). -3- Williams. Subsequent ly, Marcus moved for a new trial alleging juror Mary Williams withheld information during voir dire which would hav e disqualified her from serving on the jury. The motion was denied.
At sentencing, Suggs testified to many drug transactions, in ad dition to the sc hool parking lot sale, in which he and the defendants wer e involved. Suggs was the only witness who testified to these t ransactions.

2 The district court held the defendants responsible for the entire one ounc e (28.35 grams) of cocaine base involved in the school parking lot sale. Th e district court also a ccepted part of Suggs's testimony and used it to set the defend ants' base offense levels. Marcus was sentenced to 240 months 3 imprisonment and five years supervised release. Cortez was sentenced to 156 months imprisonment and five years supervised release. Marcus an d Cortez appeal their convictions and sentences. II. DISCUSSION

A. Drug Quantity

Bo th appellants maintain that their sentences are improper becaus e the government failed to prove, by a preponderance of the

### In September 1993, Suggs was arrested for drug offenses and 4 

### began to assist the government as an informant. -4- evidence, the drug quantities for which they were held responsible. The sentencing guidelines provide that, in determining the appropriate bas e offense level, the sentencer is to consider all acts and omissions tha t "were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. §1B1.3(a)(2). In so doing, the district court considered Sugg s's testimony. Appellants claim that Suggs's status
as an informant, exchanging information for leniency in his own sentencing , prove s the unreliability of his testimony. Because Suggs was the onl y witnes s who testified to these other drug transactions, the appellant s argue that the government's evidence was insufficient to prove thei r involvement in those sales.
Although the government must prove all elements of a crime beyond a reasonable doubt, the government need only prove drug quantity, for purpos e of s entencing, by a preponderance of the evidence. United States v

. Sm iley , 997 F.2d 475, 481 (8th Cir. 1993). The district court' s calculation of drug quantity is reviewed under a clearly erroneous standar d and will be upheld absent a definite and firm conviction that a mistake ha s been made. United St ates v. Simmons , 964 F.2d 763, 773 (8th Cir.), cert. denied , 506 U.S. 1011 (1992). In this case, we are convinced that no such mistake was made.
Suggs 's testimony, although not entirely credited by the distric t court , established Marcus's rather extensive involvement in dru g traffi cking from October 1992 to September 1993 and Cortez's simila r involvem ent from July 1993 to September 1993. To arrive at 36 fo r 4 Marcus' s base offense level, the district court found that Marcus wa s responsible for at least 500 grams of cocaine ba se, based on the testimony of Woo druff and Suggs. Similarly, to arrive at 32 for Cortez's bas e offense level, the district court

### -5-

found that Cortez was responsible for at least fifty grams of cocaine base , also based on the testimony of Woodruff and Suggs. Suggs's testimony alon e esta blished ranges in excess of these amounts. The district court' s calculation was supported by sufficient evidence and, therefore, was not clearly erroneous.

B. Juror Misconduct

Marcus cl aims that he should be given a new trial due to juror Mary Williams's alleged fa ilure to disclose material information on voir dire. The test for whether a new trial should be given under such circumstances was set forth in McDonough Power Equip., Inc. v. Greenwood . 464 U.S. 548, 556 (1984). See also Bennett v. Lockhart , 39 F.3d 848, 853 (8th Cir. 1994 ) (application of McDonough in criminal case), cert. denied , 115 S. Ct. 136 3 (1995). Under McDonough , the party challenging the juror's qualifications must show that the ju ror failed to honestly answer a material question on voir dire and that a correct response would have provided a valid basis fo r a challenge for cause. McDonough , 464 U.S. at 556. The district court ha s broad discretion in handling allegations of juror misconduct and it s decision will be affirmed absent an abuse of dis cretion. United States v. Wiley , 997 F.2d 378, 383-84 (8th Cir.), cert. denied , 114 S. Ct. 60 0 (1993). U pon review of the record, we find no abuse of the distric t court's discretion in denying the new trial motion.

There has been no showing that juror Mary Williams deliberatel y con cealed information or failed to honestly answer any question on voi r dire. She was not as ked whether she had a grandson named Marcus Williams
or whether the name Marcus Williams, in general, was familiar to her

. Instead, she was asked whether the names of "these two" defendants meant anything to her. App arently, they did not. Because Marcus has failed to reveal any false or misleading answer to any question propounded on voir dire, a new trial is not warranted. For these same reasons, a post-trial

### -6-

evidentiary hearing on whether misconduct occurred is also unwarranted

. See , e.g. , United States v. Moses , 15 F.3d 774, 778 (8th Cir.), cert
. denied , 114 S. Ct. 2691 (1994).

What occurred here was not an ideal textbook voir dire. Howeve r, the defense was most familiar with the claim of misidentification and was in the best position to question the jury regarding the "other" Marcu s Williams. Instead, the defense did not ask any questions during voir dire reg arding the "other" Marcus Williams or mention him during its openin g statement. See , e.g. , United States v. Hoelscher , 914 F.2d 1527, 1542 (8t h Cir. 1990) (defense counsel's failure to question juror on voir dire raise d "str ong suspicion" that counsel deliberately gambled on possibility o f favorable juror), cert. denied , 498 U.S. 1090 (1991). Thus, the defense assumed the risk that it would get jurors famili ar with the "other" Marcus Williams. We have considered the remainder of a ppellants' claims and find them to be without merit.

III. CONCLUSION

We find no error in the district court's calculation of dru g quanti ties for sentencing or in its refusal to grant a new trial fo r alleged juror misconduct. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.