United States v. Quincy Jones, United States of America v. Phillip Patrick Butler

865 F.2d 188, 1989 U.S. App. LEXIS 350
Court of Appeals for the Eighth Circuit·Decided January 17, 1989·No. 88-1281, 88-1305·Published·Cited by 8 cases

Opinion

WOLLMAN, Circuit Judge.

Defendants Quincy Jones and Phillip Patrick Butler appeal from judgments entered in the district court 1 upon verdicts returned after a joint jury trial. Jones and Butler were found guilty of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1982). Jones alone was convicted of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1982) and of traveling in interstate commerce with intent to facilitate the distribution of narcotics in violation of 18 U.S.C. § 1952 (1982) (the Travel Act). We affirm.

I.

Although Jones has raised a number of challenges to his conviction, we conclude that only his challenge to certain jury instructions merits discussion.

Jones argues that the jury instructions given with respect to the conspiracy charge failed to adequately inform the jury of the element of agreement. We disagree. “A district court has wide discretion in formulating appropriate jury instructions. A defendant is not entitled to a particularly worded instruction where the instructions given adequately and correctly cover the substance of the requested instruction.” United States v. Walker, 817 F.2d 461, 463 (8th Cir.) (citations omitted), cert. denied, — U.S.-, 108 S.Ct. 181, 98 L.Ed.2d 134 (1987).

“An agreement to commit an illegal act is one of three elements the government must prove in a conspiracy case.” United States v. Raymond, 793 F.2d 928, 931-32 (8th Cir.1986). As part of the conspiracy instructions the court charged:

A conspiracy is a combination of two or more persons, by concerted action, to accomplish some unlawful purpose, or to accomplish some lawful purpose by unlawful means. So, a conspiracy is a kind of “partnership in criminal purposes,” in which each member becomes the agent of every other member. The gist of the offense is a combination or agreement to disobey, or to disregard the law.
Mere similarity of conduct among various persons, and the fact they may have associated with each other, and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy.
However, the evidence in the case need not show that the members entered into any express or formal agreement, or that they directly, by words spoken or in writing, stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be accomplished.

This adequately informed the jury of the requirement that they find an agreement to commit an illegal act. We have reviewed Jones’ additional argument that the conspiracy instruction improperly shifted the burden of proof and find it to be without merit. 2

We have considered Jones’ remaining contentions and find that they are without merit. Accordingly, we affirm Jones’ conviction on all counts.

II.

A.

We turn then to Butler’s arguments for reversal of his conviction. Butler first *190 contends the district court erred in refusing to strike a venire panel member for cause. Butler used one of the joint defense’s eleven peremptory challenges to strike her. He argues that he thus was denied his allotted number of peremptory challenges.

“The district court has broad discretion in determining whether to strike jurors for cause, and we will reverse only where actual prejudice has been demonstrated.” United States v. Huddleston, 810 F.2d 751, 753 (8th Cir.1987) (per curiam). We conclude that the district court did not abuse its discretion. During the voir dire examination by Butler’s counsel, Mr. Lawless, the following exchange took place:

MR. LAWLESS: And as a general question to all of you, is there anyone here who with regard to the whole subject of drugs is so offended by their use, possession, whatever, that they would have difficulty sitting here and judging this case solely on the evidence as it comes in at this trial? Yes, ma’am.
MS. DAHMAN: Dahman.
MR. LAWLESS: Yes, ma’am?
MS. DAHMAN: I do feel very strongly, raising teenagers.
MR. LAWLESS: I appreciate it. It’s a problem.
I guess the question is this: Has it been something that’s affected your family? Have your kids come home and said people have offered them drugs?
MS. DAHMAN: No.
MR. LAWLESS: Do you feel so strongly about drugs that you think it might color or influence the way you might listen to the evidence here if you were picked as a juror?
MS. DAHMAN: I honestly don’t know. I would try, you know. I would hope that it wouldn’t, but I don’t know.
MR. LAWLESS: I think everyone here would probably try. I guess the question is, how much doubt? We can’t obviously be inside you and know exactly what you’re thinking about. How much doubt do you have about your own ability to do that?
MS. DAHMAN: Well, enough that I spoke up.

Trial Transcript, Vol. I at 61-62 (emphasis added).

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United States v. Quincy Jones, United States of America v. Phillip Patrick Butler, 865 F.2d 188, 1989 U.S. App. LEXIS 350 (8th Cir. 1989).

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