[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 6, 2006
No. 05-15913 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00033-CR-T-26-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEBERT DIXON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 6, 2006)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Lebert Dixon appeals his convictions stemming from the robbery of two
Publix grocery stores. He was convicted by a jury of two counts of robbery in
violation of 18 U.S.C. §§ 1951-2, and two counts of possession of a firearm in
furtherance of a violent crime, in violation of 18 U.S.C. § 924 (c)(1)(A)-(c)(2). In
this appeal he contends that the district court abused its discretion in three different
ways. Specifically, Dixon contests the court’s refusal to conduct separate trials for
each alleged robbery, its failure to dismiss for cause two members of the venire,
and its rejection of a proposed jury instruction.
I.
Dixon argues that he was entitled to separate trials for each of his two
robberies, primarily because the evidence against him was stronger in regard to the
second robbery, and he could not take the stand and deny his guilt of the first
robbery without being questioned about the second one. His argument has no
merit, because even if the counts had been severed he still could have been cross-
examined about the second one during the trial of the first one; he would have had
no right to have the weaker case tried first. In any event, where joinder is proper
the defendant has no right to severance even if it would enable him to testify about
one of the charges and avoid testifying about the other. United States v. Hersh, 297
F.3d 1233, 1243 n.15 (11th Cir. 2002); United States v. Forrest, 623 F.3d 1107,
1115 (5th Cir. 1980). A defendant does not have a right to avoid being in what
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Dixon calls “a proverbial bind.” The chances of acquittal is not the standard by
which the right to severance is measured. Instead, the standard on appeal is
whether the defendant has carried his “heavy burden” of demonstrating that he
“suffered compelling prejudice” and received an unfair trial. United States v.
Walser, 3 F.3d 380, 386 (11th Cir. 1993) (internal citations omitted); see also
United States v. Gardiner, 955 F.2d 1492, 1496 (11th Cir. 1992). Dixon has not.
II.
Dixon also contends that the district court erred by refusing to dismiss two
members of the venire–jurors Olson and Kilian–for cause. Both had themselves
been victims of robbery in the past. Among other things, those jurors told the
district court that they did not “believe” or “think” (respectively) that their prior,
personal experiences as victims of robbery would taint their ability to be fair. The
main thrust of Dixon’s argument is that their arguably equivocal expressions of
impartiality reveal impermissible bias.
A court must dismiss a prospective juror for cause when he or she reveals
actual bias1 or when bias is implied because the juror has some special relationship
1
A prospective juror would be impermissibly biased if she would be affected by matters not
in evidence or she might presume guilt rather than innocence. See United States v. Dickerson, 248
F.3d 1036, 1045 (11th Cir. 2001). An example of actual bias is found in United States v. Martin,
749 F.2d 1514 (11th Cir. 1985). There, a prospective juror in a bank robbery case said that her
status as a former teller and current bank employee would have a “big impact” on her decision. Id.
at 1516. We called the juror’s predisposition “wholly inconsistent with deciding on the evidence
presented in the courtroom.” Id. at 1517.
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to a party. United States v. Rhodes, 177 F.3d 963, 965 (11th Cir. 1999). On the
other hand, dismissal is not required if the prospective juror demonstrates that he
or she can lay aside any preconceived opinions and render a judgment based solely
on the evidence presented in court. Id. Like the issue of severance, these
determinations are committed to the discretion of the trial judge. United States v.
Carlin, 698 F.2d 1133, 1135 (11th Cir. 1983). And, as the Government points out,
we have said that “there are few aspects of a jury trial where we would be less
inclined to disturb a trial judge’s exercise of discretion than in ruling on challenges
for cause in [the] empanelling of a jury.” United States v. Tegzes, 715 F.2d 505,
509 (11th Cir. 1983). Such deference to the district court’s discretion stems from
that court’s unique position to evaluate demeanor evidence and other factors
relevant to the qualifications of a juror. United States v. Hurley, 746 F.2d 725, 727
(11th Cir. 1984). The district court judge was there; we were not. He talked with
the jurors; we did not.
When the district court asked juror Olson whether being a robbery victim
would impair her ability to be fair, she replied, “I don’t believe so, no.” When
Dixon’s counsel spun this response as so hesitant as to “kind of raise[] a question”
about her capacity for fairness, the court reasonably concluded that such an
argument was “just a matter of semantics.” In juror Kilian’s case, Dixon’s
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argument ignores an important piece of the voir dire exchange. After Kilian told
the court that he did not “think” his past robbery experience would affect his
ability to render a fair judgment, the judge followed up:
THE COURT: Okay.... [C]an you assure all of us that if you’re on this
jury, ... you won’t let that prior experience influence you in any way?
JUROR KILIAN: Yes, sir.
THE COURT: All right. Fair enough.
Even if equivocation necessarily implied bias, which it does not, juror Kilian did
not equivocate. Instead of demonstrating bias, the responses of both jurors
demonstrated the capacity to be impartial.
In addition to having been a victim of a robbery in the past, juror Olson (and
her husband, although there was no extended discussion about that) was employed
at the time of the trial in the Publix corporate offices. Whether Dixon’s challenge
of juror Olson for cause because she was employed by the corporate victim of the
crime should have been granted on this basis is a much closer question, but we still
are not persuaded that the district court abused its discretion in failing to grant the
challenge. First, the “special relationship” that can be grounds for a juror’s
dismissal for cause is a relationship with a party, and Publix was not a party.
Rhodes, 177 F.3d at 965. Second, in the voir dire exchange, Olson assured the
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court she could be fair. Third, the court learned that: (a) juror Olson had never
heard of the case before, (b) she worked as a file clerk in the Publix corporate
office not as a mid- or high- level officer, and (c) she did not start working with
Publix until several years after the events at issue in this case occurred. There is
also the consideration that the jury was asked to ascertain whether the government
had proven beyond a reasonable doubt that Dixon was the robber; it was not asked
to assess punishment or set restitution.
Considering all of these factors together, we cannot conclude that the district
court abused its discretion in denying the challenge for cause as to Olson on this
ground.2 We might well have decided the matter differently if we were reviewing
it de novo, but the abuse of discretion standard means that there will be occasions
in which we affirm a district court’s decision even if we would have gone the other
way if it had been our call in the first instance. See United States v. Brown, 415
F.3d 1257, 1265 (11th Cir. 2005); In re Rasbury, 24 F.3d 159, 168 (11th Cir.
1994).
2
Dixon also contends that juror Olson’s experience as a robbery victim and employment by
Publix, when taken together, required her dismissal. We cannot say that the district court abused
its discretion in not removing her for cause whether the grounds were considered separately or in
combination.
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III.
Finally, Dixon asserts that the district court erred in instructing the jury.
Although he casts his complaint in terms of the district court’s rejection of his
proposed jury instruction number five on the burden of proof, the real issue is
whether the instructions actually given on that subject were fell short in some way.
We will reverse a district court’s rejection of a proposed jury instruction
only if the rejected instruction was substantively correct, the actual charge given to
the jury did not substantially cover the proposed instruction, and the failure to give
the requested instruction substantially impaired the defendant’s ability to present
an effective defense. United States v. Zlatogur, 271 F.3d 1025, 1030 (11th Cir.
2001) (quoting United States v. Orr, 825 F.2d 1537, 1542 (11th Cir. 1987)).
Dixon’s proposed instruction simply elaborated on the burden of proof.3
The district court had instructed the jurors about that at the beginning of the trial,
telling them:
3
Specifically, the proposed instruction read:
Even if you are uncertain whether or not the defense evidence is truthful in
whole or in part, you are not obligated to convict. If, after considering all the
evidence, the defense evidence, or any part of that evidence or testimony, leaves you
with a reasonable doubt as to any element of the charge you must acquit.
On the other hand, if you are uncertain whether or not to believe a prosecution
witness whose testimony is essential to the proof of any element of the charge, you
must vote to acquit.
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As I told you during the process of jury selection, an Indictment
in a criminal case is merely the accusatory paper which states the
charge or charges to be determined at the trial, but it is not evidence
against this Defendant or anyone else. Indeed, the Defendant has
entered a plea of not guilty and is presumed by the law to be innocent.
The Government has the burden of proving a Defendant guilty
beyond a reasonable doubt, and if it fails to do so, you must find that
Defendant not guilty.
Proof beyond a reasonable doubt, I remind you again, is proof
of such a convincing character that you would be willing to rely and
act upon it without hesitation in the most important of your own
affairs. Because the Government bears the burden of proof, it will go
forward and present its testimony and evidence first.
The court reiterated its instruction on the subject during its final charge to the jury,
stating:
I remind you again that the Indictment or formal charge against
any Defendant is not evidence of guilt. Indeed, as I’ve told you
before, every Defendant is presumed by the law to be innocent and the
law does not require a Defendant to prove innocence or produce any
evidence at all. The Government has the burden of proving a
Defendant guilty beyond a reasonable doubt, and if it fails to do so,
you must find the Defendant not guilty.
Now, while the Government’s burden of proof is a strict or
heavy burden, it is not necessary that a Defendant’s guilt be proved
beyond all possible doubt. It is only required that the Government’s
proof exclude any reasonable doubt concerning the Defendant’s guilt.
A reasonable doubt is a real doubt based upon reason and
common sense after careful and impartial consideration of all the
evidence in the case. Proof beyond a reasonable doubt, therefore, is
proof of such a convincing character that you would be willing to rely
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and act upon it without hesitation in the most important of your own
affairs.
If you are convinced that the Defendant has been proved guilty
beyond a reasonable doubt, say so. If you are not convinced, say so.
The court’s instructions were adequate. There was no error in failing to give
the additional one that Dixon requested.
AFFIRMED.
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