*

 After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 13 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 03-2079

JAMES EARL MERIDYTH,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CR-00-557-LH)

Submitted on the Briefs: * 

Steven A. Harrell, Albuquerque, New Mexico for Defendant - Appellant.

David C. Iglesias, United States Attorney and Laura Fashing, Assistant United

States Attorney, Office of the United States Attorney, Albuquerque, New Mexico

for Plaintiff - Appellee.

Before HENRY , BARRETT , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.
1

 The crimes for which Meridyth was indicted and convicted related only to

the first two transactions, which took place on August 13, 1999, and September 2,

1999. The August sale involved approximately 237 grams of crack cocaine, and

the September sale 216 grams of powder cocaine. The third transaction took

place on January 27, 2000, and involved around 238 grams of powder cocaine.

-2-

Defendant-Appellant James Earl Meridyth appeals the district court’s denial

of his motion for mistrial. Specifically, Meridyth claims the court abused its

discretion by not declaring a mistrial after a prosecution witness testified that he

had moved because he felt his life was in danger. Exercising jurisdiction

pursuant to 28 U.S.C. §1291 and finding no abuse of discretion, we affirm.

I.

Following a multi-jurisdictional sting operation in Las Cruces, New

Mexico, James Meridyth was tried and convicted of three counts of violating 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 846 of the federal narcotics

trafficking laws. At trial, the prosecution introduced testimony from an

undercover police officer and a confidential informant detailing three transactions

in 1999 and 2000 in which Meridyth sold them over 600 grams of cocaine. 1

 Other

law enforcement officers who had conducted surveillance of the three transactions

corroborated this testimony. In addition, Meridyth’s brother Ronnie testified

about his and his brother’s drug sales in general, and particularly their

participation in the August 1999 transaction. 
2

 In fact, during the ensuing bench conference, the prosecutor tried mightily

to convince the court that certain statements made by Meridyth and his associates

were at least partly responsible for Williams’s fear. See Supp. App. at 335-56. 

The prosecution did not attempt to introduce such threats into evidence, however.

-3-

Meridyth moved for a mistrial after a brief exchange during the

government’s direct examination of the confidential informant, Michael Williams.

Williams had acted as an informant in approximately forty to fifty cases for a

variety of law enforcement agencies. The Assistant U.S. Attorney asked Williams

a series of questions about the various payments he had received for his work on

those cases, eventually leading to a discussion about Williams’s decision to move

from Carlsbad, New Mexico, in late 1999 or early 2000. Williams testified that

he was paid around $1000 by the U.S. Attorneys Office for that move. The

prosecutor then asked, “Why did you leave Carlsbad?” Williams responded,

“Because I felt my life was in danger, and I was being threatened at that time.” 

Supp. App. at 334.

Defense counsel for Meridyth and his co-defendant Edward Oliver

immediately objected and moved for a mistrial. The defense argued to the district

court, as here, that Williams’s statement could lead the jury to believe it was

Meridyth or his co-defendant who had threatened Williams, a proposition for

which there was no evidence in the record. 2

 After extensively discussing the
-4-

matter with counsel at a sidebar conference outside the hearing of the jury, the

district court denied the motion. 

The court did, however, give the following limiting instruction to the jury:

After an exhaustive discussion with counsel and my own

examination of this witness out of your hearing, I have determined a

couple of things. 

First, it appears that the United States Attorney asked the

question regarding why this witness moved to, in part, explain why the

United States Government, through the United States Attorney’s Office,

has provided $1000 in assistance for this individual to move. You will

recall that the witness said he moved because of threats made against

him. 

In part, an inference that you could draw from that statement was

that the threats were made by Mr. Oliver and Mr. Meridyth. I am

telling you now that that would be an improper inference, based on all

of the information I now know. You will recall that this witness was

working on at least 40 cases with the drug task force. That gives this

witness ample opportunity to make a lot of enemies. 

While I have no reason to doubt that – the likelihood that what

motivated him to move were threats, it can’t be said, based on any

credible evidence now known to the Court that those threats can be

connected to these defendants. And you may not infer that they do,

based on the evidence we now have.

Supp. App. at 360-61. The court then proceeded with the case, and the jury returned

guilty verdicts against Meridyth and his co-defendant.

II.

We review a district court’s refusal to grant a mistrial for abuse of

discretion. United States v. Kravchuk , 335 F.3d 1147, 1154 (10th Cir. 2003). 

The district court has discretion to grant a mistrial only when a defendant’s right

to a fair and impartial trial has been impaired. Id. at 1155. See also United States
3

 In Zuern v. Tate , 336 F.3d 478, 485 (6th Cir. 2003), the Sixth Circuit laid

out five factors, including those above, but added inquiries into whether the

improper remark was solicited by the government and whether the government’s

line of questioning was reasonable. These additional inquiries seem to us to be

(continued...)

-5-

v. Laymon , 621 F.2d 1051, 1053 (10th Cir. 1980) ("Whether a motion for mistrial

should be granted is within the discretion of the trial judge because he is in the

best position to evaluate the effect of the offending evidence on the jury.”) 

“While the Federal Rules of Criminal Procedure offer little guidance on when

judges should grant mistrial motions, we have focused on whether [the

defendant’s] right to a fair and impartial trial was impaired. . . . [M]otions for

mistrial . . . call for an examination of the prejudicial impact of an error or errors

when viewed in the context of an entire case.” United States v. Gabaldon , 91

F.3d 91, 93-94 (10th Cir. 1996) (internal quotations and citations omitted). 

Though Meridyth has not styled his complaint as one of prosecutorial

misconduct, in a case such as this, where the prosecutor asked a question her

witness answered in a potentially improper way, a similar analysis is appropriate. 

The relevant factors in this analysis include (1) whether the prosecutor acted in

bad faith, (2) whether the district court limited the effect of the improper

statement through its instructions to the jury, and (3) whether the improper remark

was inconsequential in light of the other evidence of the defendant’s guilt. See

Kravchuk , 335 F.3d at 1154-55. 3
3

(...continued)

helpful, but also subsumed within the “bad faith” factor.

-6-

Meridyth contends that the prosecutor knowingly solicited the response she

got, that the court’s admonition was insufficient to “remove the taint” of “the

horror of drug-related violence” that Williams’s statement would have planted in

the minds of the jury, and that a jury with that “indelible” image on its minds

could not give him a fair trial. He therefore says it was an abuse of the court’s

discretion not to declare a mistrial.

The government counters that the prosecutor’s question was not intended to

elicit improper testimony, but simply to explain why the U.S. Attorney’s office

had paid Williams $1000. In any case, the government says, the prosecutor did

have information that Meridyth had threatened Williams, so there was nothing

improper in Williams’s testimony. Furthermore, the court’s admonition and the

other evidence should remove any worry that the jurors improperly convicted

Meridyth because they thought he had threatened Williams.

As noted above, although much of the bench conference turned on whether

a few statements made by Meridyth could be interpreted as threats to Williams,

the government does not point us to any evidence it introduced to the jury – either

before or after the statement in question – that supported such an interpretation. 
-7-

The prosecutor’s private knowledge about some allegedly threatening remarks

cannot serve as the justification for eliciting otherwise improper testimony. 

Nor is it quite correct to say the prosecutor did not intentionally elicit the

statement in question, even if she arguably did so for a proper purpose. The

prosecutor likely knew that Williams would testify that he moved out of fear for

his safety. The government contends that the intent was merely to rebut any

inference that they had paid Williams to testify favorably, not to imply that the

defendants were responsible for that fear. Even this ostensibly innocent

explanation is somewhat belied, however, by the prosecutor’s response to the

motion for a mistrial, which focused mainly on trying to convince the judge that

the defendants had in fact threatened Williams. Still, the line of questioning did

give the jury legitimate information germane to their consideration of Williams’s

credibility, and does not appear to be a gratuitous attempt to improperly influence

the jury.

Nonetheless, the district court was correct to acknowledge that left

unchecked, Williams’s statement also could have led to a mistaken inference that

Meridyth was threatening Williams’s life. Though Meridyth’s brief perhaps

overstates the horror ordinary citizens sitting on a jury might feel about drug

dealers threatening each others’ lives, it is also true that such an inference might

lead some jurors to consider evidence and crimes outside the record. 
-8-

Importantly, however, Williams’s statement was not left unchecked. As

detailed above, the district court took great pains to instruct the jury not to infer

that Meridyth (or his co-defendant) had threatened Williams. Jurors are presumed

to follow their instructions, see Weeks v. Angelone , 528 U.S. 225, 234 (2000), and

doing so in this case would preclude the improper inference alleged by Meridyth . 

In addition, the likelihood of jurors making such an inference seems to us

rather slim in the context of the trial. As the district court emphasized to the jury,

Williams had been an informant in at least 40 other drug cases, which gave him

“ample opportunity to make a lot of enemies.” Williams made his statement in

the midst of the prosecutor’s inquiries into the remuneration he had received as an

informant, not during any kind of testimony about Meridyth’s behavior. A

thoughtful juror could also note that Williams continued to do business with

Meridyth even during the late 1999-early 2000 period when he said the threats

forced him to move. Given this context, there is only the “slightest possibility”

that a juror would allow Williams’s statement to overcome otherwise reasonable

doubt about Meridyth’s guilt. See United States v. Torres , 959 F.2d 858, 860

(10th Cir. 1992) (quoting United States v. Pinelli , 890 F.2d 1461, 1473 (10th Cir.

1989)).

This conclusion is bolstered by the other evidence against Meridyth. In

addition to Williams, the government produced testimony from undercover
-9-

Officer Paz, surveillance officers, and from Meridyth’s own brother. All of these

people offered direct testimony detailing Meridyth’s sales of cocaine. Meridyth

offers us no basis to think that to convict him a reasonable jury would have relied

on a tenuous inference from Williams’s remark, which it had been specifically

and clearly instructed not to make, rather than on this powerful evidence of his

guilt. 

The district court therefore was well within its discretion in deciding that in

the overall context of the trial, including particularly the court’s admonition to the

jury, Williams’s statement posed no threat to Meridyth’s right to a fair and

impartial trial. Judgment AFFIRMED.