[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13240 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:06-cr-14029-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DERRICK COOPER,
a.k.a. "Coop",
a.k.a. "Blackboy",
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 14, 2011)
Before TJOFLAT, PRYOR and KRAVITCH , Circuit Judges.
PER CURIAM:
In United States v. Stacy, 337 Fed.Appx. 837 (11th Cir. 2009), we affirmed
Derrick Cooper’s convictions at the hands of a jury for conspiracy to possess with
intent to distribute 50 or more grams of crack cocaine and possession with intent
to distribute 50 or more grams of crack cocaine, in violation of 21 U.S.C. §§ 846
and 841(a)(1), respectively. In affirming his convictions, the panel rejected
Cooper’s argument that the district court abused its discretion in denying
appellant’s motion for new trial based on newly discovered evidence of juror
misconduct. The panel described such evidence thusly: “General allegations came
to light during the trial that the juror . . ., Derrick Johnson, knew Cooper.” Id. at
840. It found no merit in Cooper’s motion because
Cooper did not exercise due diligence in pursuing the issue prior to
being found guilty. In addition, when the general allegations came to
light, at trial and in open court, Cooper objected to the Government’s
request to interview Johnson. Thus, Cooper invited any error
committed by the district court in declining to pursue the allegations.
Id. While the above appeal was pending, Cooper filed two more motions for new
trial based on newly discovered evidence. In the first of these, he reiterated what
he had alleged in the motion the Stacy panel was considering, and alleged that
Derrick Johnson was a friend of a witness for the Government, Tyrone Williams,
and therefore was biased against Cooper. Attached to his motion were the
affidavits of three individuals who said they had seen Johnson with Williams. In
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the second motion, Cooper alleged that, according to the affidavit of Cornelius
Brayboy, Antonio Ferguson, a witness for the Government, admitted to him that
his testimony against Cooper was false—specifically, Ferguson lied when he
testified that he had bought kilos of cocaine from Cooper. Ferguson said this to
Brayboy while the two men were inmates at the Federal Detention Center in
Miami.
The district court deferred ruling on these motions pending the disposition
of the appeal in Stacy. After the appeal concluded, the court denied both motions.
The court found that Cooper’s allegations regarding a friendship between
Williams and Johnson were mere speculation, and concluded that Cooper had
presented nothing to suggest that any such relationship influenced Johnson or the
other jurors in reaching their verdicts. The court then found that Brayboy’s
affidavit was not credible. The court noted, however, that, even if it credited
Brayboy’s allegations and disregarded Ferguson’s testimony, there was
nonetheless ample evidence to support the jury’s verdicts. The court concluded
nothing in the affidavits Cooper had presented would have changed the outcome
of the trial because the evidence of Cooper’s guilt was overwhelming. Cooper
now appeals the court’s denial of the two motions for new trial.
I.
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On appeal, Cooper argues that the district court abused its discretion in
finding that there was no evidence suggesting that Johnson was influenced by
Williams, because the affidavits established that Williams and Johnson knew each
other, and that any bond that the two had would have impacted Johnson’s ability
to objectively weigh Williams’s testimony and may have caused Johnson to
influence the other jurors. Cooper also argues that the district court abused its
discretion in finding that, aside from Williams’s testimony, there was ample other
evidence of Cooper’s guilt because Williams provided the most damaging
testimony against him.
We review a district court’s decision on whether to grant a new trial or an
evidentiary hearing for an abuse of discretion. United States v. Quilca-Carpio,
118 F.3d 719, 722 (11th Cir. 1997). A court should ignore errors that do not affect
the essential fairness of the trial. United States v. Carpa, 271 F.3d 962, 966 (11th
Cir. 2001). A defendant bears the burden of proving that he is entitled to a new
trial. United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc),
cert. denied, 129 S.Ct. 2790 (2009).
A motion for new trial based on juror misconduct is a form of a motion for
new trial based on newly discovered evidence. United States v. Calderon, 127
F.3d 1314, 1351 (11th Cir. 1997). “To obtain a new trial . . . a party must first
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demonstrate that a juror failed to answer honestly a material question on voir dire,
and then further show that a correct response would have provided a valid basis
for a challenge for cause.” McDonough Power Equip. Inc v. Greenwood, 464 U.S.
548, 556, 104 S. Ct. 845, 850, 78 L.Ed.2d 663 (1984). The jury does not,
however, have the duty to respond to questions not posed during voir dire. United
States v. Kerr, 778 F.2d 690, 694 (11th Cir. 1985). The second prong, that a
correct response would have provided a valid basis for a challenge for cause,
requires a showing of actual bias. BankAtlantic v. Blythe Eastman Paine Webber,
Inc., 955 F.2d 1467, 1473 (11th Cir. 1992) (citing United States v. Perkins, 748
F.2d 1519, 1532 (11th Cir. 1984)). Actual bias may be shown either by express
admission or by proof of specific facts showing such a close connection to the
circumstances at hand that bias must be presumed. Id. A juror’s bias may be
implied if the juror has a special relationship with a party, such as a familial or
master-servant relationship. United States v. Rhodes, 177 F.3d 963, 965 (11th Cir.
1999).
Trial courts are not required to investigate every allegation of juror
misconduct. United States v. Cuthel, 903 F.2d 1381, 1382-83 (11th Cir. 1990). In
relevant part, Federal Rule of Evidence 606(b) provides that:
Upon an inquiry into the validity of a verdict or indictment, a juror
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may not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon that
or any other juror’s mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or concerning the
juror’s mental processes in connection therewith, except that a juror
may testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or whether
any outside influence was improperly brought to bear upon any juror.
Fed.R.Evid. 606(b); see also McElroy v. Firestone Tire & Rubber Co., 894 F.2d
1504, 1511 (11th Cir. 1990). Accordingly, to justify a post-trial hearing on juror
misconduct, a defendant “must show clear, strong, substantial and incontrovertible
evidence . . . that a specific nonspeculative impropriety has occurred.” Cuthel,
903 F.3d at 1383 (internal quotations omitted). “The more speculative or
unsubstantiated the allegation of misconduct, the less the burden to investigate.”
Id. (quoting United States v. Caldwell, 776 F.2d 989, 998 (11th Cir. 1985)).
Here, Cooper has not met the standard for a new trial based on juror
misconduct. Because Johnson was asked during voir dire only if he knew the
prosecutor, agents, defense attorneys or defendants, and was neither provided with
the names of witnesses nor asked whether he knew any of the witnesses, Cooper
cannot prove that Johnson failed to answer a material voir dire question
untruthfully. Additionally, because Cooper’s affidavits affirmed only that Johnson
and Williams knew each other, and because Cooper failed to provide any proof of
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specific facts showing that Johnson had a “close connection” to Williams, he has
not met the standard to imply that Johnson was a biased juror. Additionally, none
of the affidavits alleged that Johnson improperly credited Williams’s testimony or
led the other members of the jury to place undue weight on Williams’s testimony.
Accordingly, Cooper’s allegations of Johnson’s misconduct were mere
speculation, and the district court did not abuse its discretion in declining to
conduct further investigation and denying Cooper’s request for a new trial.
II.
Cooper next argues that Brayboy’s affidavit that Ferguson’s testimony was
false constituted material newly-discovered evidence that would probably have
changed the result of his trial, and that the district court’s adverse credibility
determination against Brayboy was improper. Cooper also argues that the court’s
conclusion that there was ample other evidence of his guilt is without support in
the record.
A new trial based upon newly discovered evidence is warranted only if:
(1) the new evidence was actually discovered after trial; (2) the defendant
exercised due care to discover the new evidence; (3) the new evidence is not
merely cumulative or impeaching; (4) the new evidence is material; and (5) the
new evidence is of such a nature that a new trial would probably produce a
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different result. United States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005).
If a defendant fails to satisfy any one of these elements, he is not entitled to a new
trial. Id.
Even if we treated Brayboy’s affidavit testimony as credible, we would
conclude, as the district court did, that Cooper failed to establish that he is entitled
to a new trial. The Government presented testimony from a number of witnesses
regarding Cooper’s drug trafficking activity. The jury was also provided with
transcripts of Cooper’s wiretapped phone calls, and a number of those calls were
played in open court. Additionally, because Cooper testified on his own behalf,
the jury was free to find that the opposite of Cooper’s testimony was true and
convict him, in part, on that basis. See United States v. Brown, 53 F.3d 312, 314
(11th Cir.1995) (holding that a statement by the defendant that the jury disbelieves
may be considered substantive evidence of his guilt because the jury is permitted
to conclude that the opposite of the defendant’s testimony is true). Thus, even
without Ferguson’s testimony, there was ample evidence presented at trial to
support the jury’s guilty verdicts, and it is accordingly improbable that a new trial
would result in Cooper’s acquittal. The district court thus did not abuse its
discretion in denying Cooper’s second motion for a new trial without an
evidentiary hearing.
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AFFIRMED.
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