Evidentiary, Sufficiency and Jury Selection Challenges to Drug Conviction Rejected

U.S. v. Green, 2006 WL 205374 (1/27/06) - The d.ct. did not abuse its discretion in denying a mistrial where prosecution witness testified he received information the defendant was selling cocaine and prosecutor asked a question about rap artists' involvement in drug dealing and the defendant was involved in the music business. At most the incidents had a minuscule effect on the verdict, given that the evidence the defendant distributed drugs was strong, and the court gave curative and limiting instructions. The 10th pointed out a statutory challenge to jury selection procedures must be made within 7 days of defense counsel's appointment under the Jury Selection and Service Act, 28 U.S.C. § 1867. The 10th noted the conflicting circuit law as to whether a defendant's Sixth Amendment challenge to such procedures is similarly limited, but did not resolve the question. Instead, the 10th held the defendant's right to a jury pool comprised of a fair cross-section of the community was not violated because the defendant had not shown the jury selection procedures excluded a "distinctive" group. The district court used voter lists for all parts of the state and, in addition, driver's licenses for Tulsa County, the most urban county in the state. The group of rural non-voters did not have a common thread in attitude or common experience. Neither the fact of not voting or geographic location can establish a cognizable group. As everyone knows, jury instructions in the disjunctive are okay, even though the indictment charged in the conjunctive. The government presented sufficient evidence the defendant knew the sawed-off nature of the shotgun because the shotgun was found in arm's reach of the attic stairs, it was not dusty, (unlike other items in the attic), and an ATF agent testified anyone looking quickly at the gun would notice it was short.