United States v. Dillon

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 01-31320
                           Summary Calendar



UNITED STATES OF AMERICA

                 Plaintiff - Appellee

     v.

BRYAN DILLON, also known as Brian Lott, also known as Slim

                 Defendant - Appellant

                         --------------------
            Appeal from the United States District Court
                for the Eastern District of Louisiana
                        USDC No. 99-CR-88-4-R
                         --------------------
                            October 7, 2002

Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.

PER CURIAM:*

     Bryan Dillon appeals his jury-trial conviction for

conspiracy to possess cocaine with the intent to distribute, in

violation of 21 U.S.C. §§ 841 and 846.    For the following

reasons, we AFFIRM his conviction.

     Dillon challenges the Government’s use of peremptory

challenges to strike three African-American men from the jury

panel.    See Batson v. Kentucky, 476 U.S. 79, 89 (1986).     He


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 01-31320
                                 -2-

argues that the district court’s analysis did not reach the third

step of the Batson analysis, which requires the court to evaluate

whether the reasons proffered by the Government were merely a

pretext for racial discrimination.    If the Government provides

“plausible” reasons for its use of peremptory challenges, whether

these reasons should be believed “is quintessentially a question

of fact which turns heavily on demeanor and other issues not

discernable from a cold record, such that deference to the trial

court is highly warranted.” United States v. Williams, 264 F.3d

561, 572 (5th Cir. 2001).   We find no clear error in the district

court’s conclusion that the reasons given were “legitimate, non-

discriminatory,” and “rational.”

     Dillon also challenges the reliability of the methodology of

an expert witness, an FBI agent who testified regarding the

contents of an alleged drug ledger.    The testimony of expert

witnesses is governed by FED. R. EVID. 702, which provides in part

that expert testimony must be based upon “sufficient facts or

data,” “the product of reliable principles and methods,” and the

witness must have “applied the principles and methods reliably to

the facts of the case.”   We conclude that the district court did

not abuse its discretion in finding the agent’s methodology

reliable.   This court has stated that it is “well-established

that an experienced narcotics agent may testify about the

significance of certain . . . methods of operation unique to the
                            No. 01-31320
                                 -3-

drug distribution business.”   United States v. Buchanan, 70 F.3d

818, 832 (5th Cir. 1996).

     Dillon also challenges an additional instruction given to

the jury after they had twice indicated that they were

deadlocked.   See Allen v. United States, 164 U.S. 492 (1896).    He

argues that the instruction deviated from the Fifth Circuit

Pattern Jury Instruction by adding language encouraging the

consideration of the views of other jurors, and omitting an

admonition not to “yield a conscientious opinion . . . as to the

weight or effect of the evidence,” thus upsetting the “delicate

balance” between the need to consider other views and the duty to

adhere to one’s own opinion.   Although the instruction given did

deviate somewhat from this Circuit’s Pattern Jury Instructions,

we conclude that this deviation was not so significant as to

coerce the jury into reaching a verdict.   After encouraging the

jurors to consider other views, the court reminded the jurors not

to “surrender[] your own conscientious conviction” in order to

agree on a verdict.

     AFFIRMED.