* District Judge of the Western District of Louisiana, sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

December 22, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 02-30739

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BUTCH WILSON, also known as Calvin Odom,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

Before DAVIS and EMILIO M. GARZA, Circuit Judges, and LITTLE * , District Judge.

EMILIO M. GARZA, Circuit Judge:

Calvin Odom, a/k/a Butch Wilson (“Odom”), was convicted of conspiracy to possess with

intent to distribute 50 grams or more of cocaine base and five kilograms or more of cocai ne

hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and 846, and conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956(a)(1)(A). He timely appealed his conviction, challenging

three evidentiary rulings and the jury selection procedure. We AFFIRM Odom’s conviction, finding-2-

the evidentiary rulings were not an abuse of th e dist rict court’s discretion, and the jury selection

procedure was not reversible error.

I

The facts established at trial are as follows. Odom was the head of an organization that

dis t ribut ed cocaine from Los Angeles, California, where he resided, to Shreveport, Louisiana.

Packages of cocaine were sent from Los Angeles to Shreveport by car or in Federa l Express

packages. In Shreveport, Odom’s half-brother, James McDade (“McDade”), either sold the cocaine

or used other dealers to sell the cocaine. Wayne Kelly (“Kelly”) and Andre Osborne (“Osborne”),

who both pleaded guilty

prior t o t est ify

ing at trial, were sent to Shreveport by Odom to assist in

distributing the cocaine and launde ring t he profits generated. Odom occasionally traveled to

Shreveport to monitor the business.

The money was usually sent back to California through Weste r n Union in the name of

fictitious senders. The cash was retrieved by five women in California at thirty different locations.

The money was sent from approximately twelve different Western Union locations in the Shreveport

area. The women who picked up the money were all involved in romantic relationships with Odom.

They testified at trial they retrieved the money at his request and gave it to him. They also testified

they were abused by Odom.

At trial, most of

t he t est imo ny was by Odom’s co-conspirators. However, the evidence

regarding the wire transfers included a witness who identified and analyze d the Western Uni on

payment records, the records themselves, and expert testimony. Additionally, the arresting officers

testified that Odom tried to escape arrest by driving backwards out of the parking lot until his car was

rammed by the arresting agents.1 “Although relevant, eviden ce may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” F E D

. R. E VID . 403.

-3- II

Odom first challenges three evidentiary rulings by the district court : t he admission of

testimony about Odom’s physical abuse of his female co-conspirators, of a letter written by Osborne,

and of expert witness testimony by an Internal Revenue Service (“IRS”) special agent. We review

a district court’s evidentiary rulings for abuse of discretion. U nited States v. Griffin

, 324 F.3d 330,

347 (5th Cir. 2003).

Odom asserts the admission of testimony regarding his physical ab use o f his female coconspirators was erroneous under F ED

. R. E VID

. 403 because the probative value of the evidence was

substantially outweighed by the danger of undue prejudice. 1 Under Rule 403, relevant evidence can

be excluded only if the danger of unfair prejudice substantially outweighs its probative value. United

States v. Pace

, 10 F.3d 1106, 1115-16 (5th Cir. 1993). Here, although the physical abuse testimony

introduced the risk that a juror could have convicted Odom based on his behavior toward the women,

it also suggested the women were motivated by fear of Odom. Thus, the testimony made a central

issue, whether the women acted at Odom’s behest when they picked up the money, more likely. The

district court has broad discretion to weigh the relevance, probative value and prejudicial effect of

the evidence. U

nited States v. Bermea

, 30 F.3d 1539, 1562 (5th Cir. 1994). This evidence

substantiated a central issue in the case and accordingly the district court did not abuse that discretion

when it held the probative value of the testimony was not substantially outweighed by its danger of

unfair prejudice.-4-

Odom also challenges the district court’s admission of a letter written by Osborne as a prior

consistent statement under F ED

. R. E VID

. 801(d)(1)(B). Osborne testified at trial that Odom sent him

to Shreveport to assist McDade and Kelly in distributing cocaine. He also testified that he sold crack

for Odom. On cross-examination, the defense focused on the benefits Osborne derived from his plea

agreement with the government, implying these benefits were a m o t ivation to fabricate testimony.

On re-direct, t he government introduced a letter Osborne wrote to McDade while in prison three

years prior to the government’s plea bargain. In the letter, Osborne referred to cocaine that McDade

handled for Odom and threatened to tell Odom that McDade had been cheating him if McDade did

not provide Osborne with money to pay for an attorney.

Under Rul e 801, a prior statement of a declarant subject to cross-examination that is

consistent with the declarant’s testimony at t rial is admissible if offered to “rebut an express or

implied charge against the declarant of recent fabrication or improper influence or motive.” F E D

. R.

E VID

. 801(d)(1)(B). Osborne’s letter was consistent with his testimony at trial implicating Odom as

the head of the cocaine distribution organization and, as such, it rebutted the implication that Osborne

was lying to attain the benefits of his plea bargain. Rule 801 also contains a temporal requirement

that the prior consistent statement must have been made “before the charged recent fabric ation or

improper influence or motive.” S ee Tome v. United States , 513 U.S. 150, 167, 115 S. Ct. 696

(1995). Even though Osborne may have also had a motive to fabricate when he wrote the letter,

considering Osborne wrote his letter three years earlier, while in prison on an unrelated charge, to a

person who could not directly help Osborne avoi d prison time, the district court did not abuse its

discretion in concluding that the motive to write the letter was different than the motive to fabricate

arising from his plea bargains charged at trial. A prior consistent statement need not rebut all motives2 Enacted at 31 U.S.C. § 5313.

-5-

to fabricate, but only the specific motive alleged at trial. S ee United States v. Allison , 49 M.J. 54,

57 (C.A.A.F. 1998) (interpreting M IL

. R. E VID

. 801(d)(1)(B), the armed forces verbatim counterpart

to Rule 801(d)(1)(b)); Dow thitt v. Texas

, 931 S.W. 2d 244, 264 (Tex. Crim. App. 1996) (interpreting

T EX

. R. C RIM

. E VID

. 801(e)(1)(B), Texas’s prior counterpart to Rule 801 (d)(1)(B)). The l etter

rebutted the specific motive to fabricate charged at trial and accordingly, the admission of the letter

was not an abuse of discretion.

Odom also claims that the district court erred in admitting expert testimony by IRS Special

Agent Rick Adams (“Adams”). Adams testified that narcotics traffickers use Western Union to move

money and explained the reasons why they do so. He also testified that t he purpose of Currency

Transaction Reporting (“CTR”) requirements 2 is to track the movement of large amounts of currency

because such amounts are often related to some type of illegal activity. Adams opined that a CTR

should have been filled out in this case when Odom used mult iple small transactions to transact more

than $10,000 worth of currency in one day. This testimony is admissible because it was introduced

to help the jury understand methods of operatio n unique t o t he drug distribution business and the

significance of using Western Union in a series of structured transa ctions. S ee United States v.

Washington

, 44 F.3d 1271, 1283 (5th Cir. 1995) (finding that an expert witness may testify about

methods of operati on unique to the drug distribution business). The testimony made it more probable

that Odom and the oth er co nspirators structured their transactions using multiple small dollar

transactions to avoid CTR requirements. See United States v. Fuller

, 974 F.2d 1474, 1482-83 (5th

Cir. 1993) (permitting expert testimony explaining CTR requirement b ecause it made facts of

co nsequence more probable). Furthermore, as an expert, Adams was permitted to suggest3 See Minute Entry, February 15, 2002, Record on Appeal, Vol. II at 300.

4 “The government has 6 peremptory challenges and the defendant or defendants jointly have

10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment

of more than one year.” F ED

. R. C RIM

. P. 24(b)(2).

5 Rule 24(c) states:

(1) The court may impanel up to 6 alternate jurors to replace any jurors who are

unable to perform or who are disqualified from performing their duties . . . (2)(B)

Alternate jurors replace jurors in the same sequence in which the alternates were

selected

. . . (4) Each side is entitled to the number of additional peremptory

challenges to pros pect ive alternate jurors specified below. These additional

-6- appropriate inferences from facts in evidence because the average juror may n ot be aware of the

significance of Odom’s many small transactions with Western Union. See United States v. Willey

,

57 F.2d 1374, 1389 (5th Cir. 1995) (holding experts are permitted to suggest appropriate inferences

from facts in evidence if expert’s specialized knowledge is helpful in understand ing facts).

Accordingly, it was not an abuse of discretion to admit Adam's testimony.

Finally, Odom challenges jury selection procedure, claiming a violation of F ED

. R. C RIM

. P.

24 (“Rule 24”). B ecause Odom did not object to the jury selection procedure, 3 we review this claim

for plain error. See F ED

. R. C RIM

. P. 52(b). To correct the jury selection procedure under plain error

review: (1) there must be an error, which is a deviation from a legal rule; (2) the error must be plain

)) t hat is clear or obvious at the time of trial; (3) the plain error must affect substantial right s,

meaning that normally

t he defendant must make a specific showing of prejudice. S ee id. ; United

States v. Olano , 507 U.S. 725, 732-36; 113 S.Ct. 1770 (1993).

Odom contends there were two errors in the jury selection procedure: (1) the court granted

the government an additional peremptory challenge beyond the six allotted in Rule 24(B)(2); 4 and (2)

the court did not comply with the Rule 24(c) 5 requirements that alternate jurors be separately seatedch a llenges may be used only to remove alternate jurors

. . . (A) One additional

peremptory challenge is permitted when one or two alternates are impaneled . . . .

F ED

. R. C RIM

. P. 24(c).

6 Only challenges actually used are considered to determine whether Odom’s rights were

prejudiced. Extra challenges that were granted, but not used are academic. S ee United States v.

Clark , 506 F.2d 416, 418 (5th Cir. 1975).

-7- and challenged and that alternates replace jurors in the same sequence as the alternates were selected.

At trial, the district court init ially allowed Odom eleven peremptory challenges and the Government

seven. Odom used all eleven of his challenges and the government used six of its seven. Fourteen

jurors were seated. At the conclusion of the trial, each party was permitted one addit io nal

peremptory challenge because all fourteen jurors still remained. This procedure is a deviation from

the jury selection procedure explained in Rule 24 because it granted the parties additional peremptory

challenges and excused two jurors as alternates at the end of trial instead of de signating them as

alternate jurors at the impanelment stage. Moreover, the procedure used by the district court was

in clear violation of Rule 24 and was, accordingly, a plain error. However, Odom cannot show that

this plain error affects his substantial rights.

The value of Odom’s peremptory challenge was not diluted by the district judge’s departure

from the requirements of Rule 24. Odom used all twelve challenges allotted to him by the district

judge. The Government used seven out of eight allotted challenges. This means that Odom used

thirteen out of nineteen total challenges, or 63% of the total challenges used. 6 If Rule 24 had been

followed, Odom could have used ten out of sixteen possible challenges, or 62.5% of total challenges.

Thus, the value of his challenge was actually marginally increased by the jury selection procedure

used.7 Odom concedes there is no basis for overturning the trial court’s denial o f his B atson

challenge to the excused juror.

-8- Odom also asserts the prosecution had a disproportionate abilit y to shape the jury with the

benefit of hindsight because it used a peremptory challenge on the body of the jury at the conclusion

of trial. The ability to shape the jury with the benefit of hindsight is a concern. Here, however, both

parties were given an equal abi lit y t o shape the jury with the benefit of hindsight. The Supreme

Court, “in analyzing the impartial jury requirement and peremptory challenges particularly, has long

indicated that the relative rights of the prosecution and peremptory challenges particularly, must be

at least equal .” U

nited States v. Harbin

, 250 F.3d 532, 541 (7th Cir. 2001) (emphasis added) (citing

Georgia v. McCollum

, 505 U.S. 42, 47; 112 S.Ct. 2348, (1992); Batson v. Kentucky

, 476 U.S. 79,

107 & 126; 106 S.Ct. 1712 (1986); Swain v. Alabama

, 380 U.S. 202, 220; 85 S.Ct. 824 (1965)

(noting in the context of peremptory challenges that between the defendant and the state “the scales

are to be evenly held”)). Because the ability to shape the jury at the end of the trial stage was equal,

Odom cannot show prejudice and thus his substantial rights were not affected by this departure. C f.

Harbin

, 250 F.3d at 538-41(reversing conviction when jury selection procedure granted prosecution

unilateral control over composition of jury during trial stage).

Furthermore, the prosecution’s use of its p eremptory challenge prior to deliberation to remove

one of three African-Americans from the jury did not prejudice Odom. In rejecting Odom’s B atson

challenge to the exclusion of the African-American juror, the district court confirme d that he was

tried by a jury whose members were selected pursuant to nondiscriminatory criteria. 7 Accordingly,

Odom has not established that his substantial rights were prejudiced and the violation of Rule 24 is

not reversible error.-9- III

The district court did not abuse its discretion in admitting evidence of Odom’s abuse of his

co-conspirators, nor did it abuse its discretion in admitting Osborne’s letter as a prior consi stent

statement, nor in admitting the expert witness testimony of Adams. Moreover, the error in the jury

selection procedures did not affect Odom’s substantial rights, and therefore is not a reversible error.

Accordingly, Odom’s conviction is AFFIRMED.