___________

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.

Marcus Williams (Marcus) and Cortez Williams (Cortez) appeal their

convictions and sentences for conspiracy to distribute and distribution of

crack cocaine. Both appellants challenge the sufficiency of the

government's evidence regarding the quantity of
 This theory appears to be stronger in hindsight than at

1

trial. In fact, the trial testimony regarding the "other" Marcus

Williams consisted solely of tidbits from the defense's crossexamination of Suggs and its direct examinations of Marcus and

Cortez. At best, this testimony merely established that another

Marcus Williams existed.

-2-

drugs for which they were held responsible at sentencing. Marcus also

challenges the qualifications of a member of his jury. 

I. BACKGROUND

Marcus and Cortez Williams were charged with conspiracy to distribute

and distribution of cocaine base. A woman named Mary Williams was on the

jury venire. During voir dire the court asked defendant Marcus Williams

to stand and inquired, "Do any members of the jury panel know Marcus

Williams?" Mary Williams did not respond. Later during voir dire, the

government asked Mary Williams specifically, "Have you ever run across the

names of these two defendants?" Mary Williams responded, "Not that I know

of." At the conclusion of voir dire, Mary Williams was selected to be on

the jury. 

At trial, the government called Highway Patrol Trooper Paula Woodruff

and an informant, James Suggs, as witnesses. Woodruff testified that, with

the help of Suggs, she bought drugs from the defendants on October 1, 1993,

in a school parking lot. Even though she purchased 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 was not

involved in the alleged transaction, but that another man, also named

Marcus Williams, was the real culprit. The jury did not believe the

1

misidentification defense. 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 of

2

cocaine base from Marcus, typically in one-sixteenth ounce or onequarter ounce quantities. Suggs further estimated 30 to 40

purchases from Cortez, in similar quantities. This suggests that

over 100 sales of cocaine base occurred between the defendants and

Suggs. 

 Marcus's presentence report recommended a base offense level 3

of 38. At sentencing, the district court found that 36 was a more

appropriate base offense level. U.S.S.G. §2D1.1(c)(2) (at least

500 grams, but less than 1.5 kilograms of cocaine base). Cortez's

presentence report recommended a base offense level of 36. At

sentencing, the district court found that 32 was a more appropriate

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. Subsequently, Marcus moved for a new trial alleging juror Mary

Williams withheld information during voir dire which would have

disqualified her from serving on the jury. The motion was denied. 

At sentencing, Suggs testified to many drug transactions, in addition

to the school parking lot sale, in which he and the defendants were

involved. Suggs was the only witness who testified to these transactions. 2

The district court held the defendants responsible for the entire one ounce

(28.35 grams) of cocaine base involved in the school parking lot sale. The

district court also accepted part of Suggs's testimony and used it to set

the defendants' 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 and

Cortez appeal their convictions and sentences. 

II. DISCUSSION

A. Drug Quantity

Both appellants maintain that their sentences are improper because

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 base

offense level, the sentencer is to consider all acts and omissions that

"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 Suggs's testimony. Appellants claim that Suggs's status

as an informant, exchanging information for leniency in his own sentencing,

proves the unreliability of his testimony. Because Suggs was the only

witness who testified to these other drug transactions, the appellants

argue that the government's evidence was insufficient to prove their

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 purpose

of sentencing, by a preponderance of the evidence. United States v.

Smiley, 997 F.2d 475, 481 (8th Cir. 1993). The district court's

calculation of drug quantity is reviewed under a clearly erroneous standard

and will be upheld absent a definite and firm conviction that a mistake has

been made. United States 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 district

court, established Marcus's rather extensive involvement in drug

trafficking from October 1992 to September 1993 and Cortez's similar

involvement from July 1993 to September 1993. To arrive at 36 for

4

Marcus's base offense level, the district court found that Marcus was

responsible for at least 500 grams of cocaine base, based on the testimony

of Woodruff and Suggs. Similarly, to arrive at 32 for Cortez's base

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 alone

established 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 claims that he should be given a new trial due to juror Mary

Williams's alleged failure 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. 1363

(1995). Under McDonough, the party challenging the juror's qualifications

must show that the juror failed to honestly answer a material question on

voir dire and that a correct response would have provided a valid basis for

a challenge for cause. McDonough, 464 U.S. at 556. The district court has

broad discretion in handling allegations of juror misconduct and its

decision will be affirmed absent an abuse of discretion. United States v.

Wiley, 997 F.2d 378, 383-84 (8th Cir.), cert. denied, 114 S. Ct. 600

(1993). Upon review of the record, we find no abuse of the district

court's discretion in denying the new trial motion. 

 

There has been no showing that juror Mary Williams deliberately

concealed information or failed to honestly answer any question on voir

dire. She was not asked 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. Apparently, 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. However, the

defense was most familiar with the claim of misidentification and was in

the best position to question the jury regarding the "other" Marcus

Williams. Instead, the defense did not ask any questions during voir dire

regarding the "other" Marcus Williams or mention him during its opening

statement. See, e.g., United States v. Hoelscher, 914 F.2d 1527, 1542 (8th

Cir. 1990) (defense counsel's failure to question juror on voir dire raised

"strong suspicion" that counsel deliberately gambled on possibility of

favorable juror), cert. denied, 498 U.S. 1090 (1991). Thus, the defense

assumed the risk that it would get jurors familiar with the "other" Marcus

Williams. We have considered the remainder of appellants' claims and find

them to be without merit. 

III. CONCLUSION

We find no error in the district court's calculation of drug

quantities for sentencing or in its refusal to grant a new trial for

alleged juror misconduct. Accordingly, we affirm. 

A true copy.

Attest:

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