United States v. Myers ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4687
SPENCER T. MYERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-00-62-3)
Argued: December 6, 2001
Decided: February 7, 2002
Before WILKINSON, Chief Judge, and MICHAEL and
TRAXLER, Circuit Judges.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Michael and Judge Traxler joined.
COUNSEL
ARGUED: Garrett Michael Heenan, ARNOLD & PORTER, Wash-
ington, D.C., for Appellant. John Castle Parr, Assistant United States
Attorney, Charleston, West Virginia, for Appellee. ON BRIEF:
Charles T. Miller, United States Attorney, John K. Cecil, Third-Year
Law Student, William Crichton, VI, Third-Year Law Student,
Charleston, West Virginia, for Appellee.
2 UNITED STATES v. MYERS
OPINION
WILKINSON, Chief Judge:
Spencer T. Myers was charged in a five-count federal indictment
with various drug and weapons offenses, and the jury convicted him
on all counts. For the reasons that follow, we affirm the judgment.
I.
On February 1, 2000, Spencer Myers was at his mother’s home in
Huntington, West Virginia. Robert Shilot, a nursing student with a
drug problem, went there to purchase crack cocaine from Myers.
After making the purchase, Shilot, Myers, and Myers’ girlfriend,
Kelly Ward, smoked some of the crack together.
Approximately an hour later, Myers accused Shilot of stealing
some of his crack, and demanded that Shilot pay him for it. When
Shilot refused, Myers retrieved a gun from his car, re-entered the
house, and held Shilot at gunpoint. In an effort to find the crack,
Myers made Shilot strip. Shilot again denied taking the drugs and
refused to give Myers any money. Sensing he was in danger, Shilot
called 911 from his cell phone. Moments later, Myers shot Shilot in
the head and killed him. Myers dragged the body around the house,
ultimately leaving it in the kitchen and fleeing the scene. Ward even-
tually called the police, and Myers was arrested a few miles from his
mother’s home. Myers was then charged by the state with murder.
While incarcerated, Myers wrote Ward letters suggesting she should
testify to a false version of events before the grand jury.
Myers was later charged in a five-count federal indictment with
drug and weapons offenses stemming from the incident. After a two-
day trial, the jury convicted him on all counts charged in the indict-
ment: (1) being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2) and (e)(1); (2) distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1); (3) possession and use
of a firearm in furtherance of drug trafficking, in violation of 18
U.S.C. § 924(c)(1)(A); (4) knowing possession of a firearm with an
obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and
UNITED STATES v. MYERS 3
924(a)(1); and (5) corruptly persuading another to hinder an investi-
gation, in violation of 18 U.S.C. § 1512(b)(3).
Myers filed a post-trial motion for judgment of acquittal or, in the
alternative, a new trial. He argued that the government’s evidence at
trial was insufficient to sustain the jury’s verdict, and that the district
court made various evidentiary errors. The court disagreed, finding
that the evidence of Myers’ guilt was overwhelming. The court fur-
ther concluded that not only was the evidence regarding the shooting
of Robert Shilot relevant, but its probative value was also not substan-
tially outweighed by the danger of unfair prejudice. The court thus
denied Myers’ motion.
Though Myers challenged the foregoing actions by the district
court, he did not object to the court’s decision to allow an alternate
juror to remain in the jury room to deliberate and vote as a thirteenth
juror. When the court submitted the case to the jury, it forgot to dis-
charge the alternate juror. The court soon realized its mistake, and
after deliberations had begun, it summoned all parties, including
Myers, to the courtroom to inform them that it had inadvertently
neglected to discharge the alternate. The court said that the two
options under the circumstances were either to allow all thirteen
jurors to deliberate and require a unanimous verdict of thirteen for a
conviction, or bring the jury out and discharge the alternate in the
middle of deliberations. Myers’ counsel expressed a preference for
the former option while Myers was seated next to him, though the
court did not consult with Myers himself and obtain his consent. The
court agreed that proceeding with a jury of thirteen was the best
course. The jury was thus allowed to continue its deliberations, and
it returned guilty verdicts on all counts. Myers makes numerous
claims on appeal. We address each in turn.
II.
Myers first argues that the inclusion of a thirteenth juror in jury
deliberations constitutes a glaring procedural error that warrants an
immediate reversal and remand. According to Myers, Federal Rule of
Criminal Procedure 24(c) required the district court either to dismiss
the alternate juror or to retain and insulate him, and Rule 23(b) left
the court with no discretion to allow more than twelve jurors to delib-
4 UNITED STATES v. MYERS
erate and render a verdict. In addition, Myers submits that controlling
decisions of this circuit hold that the presence of an alternate in the
jury room during deliberations constitutes plain error and mandates
reversal. See United States v. Chatman, 584 F.2d 1358, 1361 (4th Cir.
1978); United States v. Virginia Erection Corp., 335 F.2d 868, 870-
73 (4th Cir. 1964); see also Kuykendall v. S. Railway Co., 652 F.2d
391, 393 (4th Cir. 1981) ("We have adopted a per se rule of reversal
in criminal cases where alternate jurors were allowed to retire with
the jury."). Moreover, Myers contends that while our decisions have
recognized that a defendant may knowingly waive his right to a
twelve-member jury, those cases involved juries consisting of less
than twelve members, a situation expressly countenanced in Rule
23(b). See, e.g., United States v. Fisher, 912 F.2d 728, 731-32 (4th
Cir. 1990). Finally, Myers maintains that this court’s Rule 23(b)
waiver cases require a knowing waiver from the defendant himself,
not merely from his counsel. See Fisher, 912 F.2d at 732; United
States v. Evans, 635 F.2d 1124, 1127 (4th Cir. 1980).
The basic problem with Myers’ analysis is that all of the cases he
relies upon were decided before the Supreme Court’s decision in
United States v. Olano, 507 U.S. 725 (1993). In Olano, a case involv-
ing the presence of alternates in the jury room, the Court observed
that Rule 52(b)’s plain error standard of review, "which governs on
appeal from criminal proceedings, provides a court of appeals a lim-
ited power to correct errors that were forfeited because not timely
raised in district court." 507 U.S. at 731. Olano governs here because
Myers raises his thirteenth juror claim for the first time on appeal.
Emphasizing that "the authority created by Rule 52(b) is circum-
scribed," the Supreme Court in Olano held that in order for a court
of appeals to have the authority to correct forfeited objections: (1)
there must be an "error"; (2) the error must be "plain"; (3) the error
must "affect[ ] substantial rights"; and (4) the error must "seriously
affect the fairness, integrity or public reputation of judicial proceed-
ings." 507 U.S. at 732 (internal quotations omitted). Thus, Myers
overlooks a critical point: Olano makes quite clear that the rights set
forth in Chatman and Virginia Erection Corp. are subject to plain
error analysis. And even assuming that Myers can meet some of
Olano’s requirements, he cannot satisfy all of them.
UNITED STATES v. MYERS 5
There is no doubt that the presence of alternate jurors during jury
deliberations is a deviation from Rule 24(c). See Olano, 507 U.S. at
737. And we may assume without deciding that the consent of Myers’
counsel in Myers’ presence to the alternate’s participation in delibera-
tions does not constitute a valid waiver. This assumption removes any
question about the existence of error. See id. at 732-33. Further
assuming that the error was plain, Myers still cannot meet the require-
ments of the third and fourth prongs of Olano.
To begin with, Myers has not made a specific showing of preju-
dice, and "[t]he presence of alternate jurors during jury deliberations
is not the kind of error that ‘affect[s] substantial rights’ independent
of its prejudicial impact." Olano, 507 U.S. at 737. Myers must make
this showing because under Rule 52(b), "[i]t is the defendant rather
than the Government who bears the burden of persuasion with respect
to prejudice." Id. at 734. It is difficult to see how Myers could possi-
bly prove that he was prejudiced by the participation of a thirteenth
juror in jury deliberations when his attorney not only issued no objec-
tion to this manner of proceeding, but also affirmatively consented for
strategic purposes, stating that "[f]rom the defendant’s viewpoint, we
would propose that all 13 jurors deliberate, Your Honor." And he did
so for good reason: All other things being equal, it cannot possibly be
less difficult for the government to get thirteen jurors to agree that a
defendant is guilty beyond a reasonable doubt than it is to get twelve
to so agree. See United States v. Reed, 790 F.2d 208, 210 (2d Cir.
1986) ("[W]e are satisfied that there is no likelihood whatever that a
thirteen-man jury would convict more readily than would a twelve-
man jury.").
Moreover, we have no reason to believe that all other things were
not equal in this case. "We presume that jurors, conscious of the grav-
ity of their task, attend closely the particular language of the trial
court’s instructions in a criminal case and strive to understand, make
sense of, and follow the instructions given them." Olano, 507 U.S. at
740 (internal quotation omitted). Myers has not offered us any proof
that the alternate juror was in any way biased or prejudiced against
him. Rather, there is every indication that thirteen unbiased jurors
found Myers guilty on all counts.
It is true, as Myers argues, that Olano was a case in which the alter-
nate jurors were specifically instructed that they could sit in on delib-
6 UNITED STATES v. MYERS
erations but must not participate. Id. at 729. Under these
circumstances, the Supreme Court held that the presence of the alter-
nates in the jury room did not "affect[ ] substantial rights" of the
defendants. Id. at 739-41. But while the Court in Olano found no prej-
udice in the absence of evidence that the alternates either participated
or chilled deliberations by the twelve regular jurors, it did not hold
that mere participation was itself sufficient to establish prejudice.
Rather, under Olano the defendant must make a specific showing of
prejudice. Id. at 740 (not "presum[ing] prejudice for purposes of the
Rule 52(b) analysis here"). Mere participation by an alternate juror is
not by itself sufficient for that showing. And to reiterate, Myers has
not made a specific showing of prejudice in this case.
In addition, "a plain error affecting substantial rights does not,
without more," require us to find reversible error, "for otherwise the
discretion afforded by Rule 52(b) would be illusory." Id. at 737. Even
if it were the case that an alternate’s participation necessarily
amounted to prejudice, there is simply no way that Myers can meet
the fourth requirement of Olano. Courts may decline to notice a plain
error affecting substantial rights when the evidence of the defendant’s
guilt is overwhelming. See, e.g., United States v. Bowens, 224 F.3d
302, 314-15 (4th Cir. 2000); United States v. Johnson, 219 F.3d 349,
354 (4th Cir. 2000).
Myers neither claims that he is innocent nor that the judge or any
juror was biased against him. Moreover, as the district court found,
there was overwhelming evidence of his guilt:
There was considerable evidence adduced at trial that the
defendant distributed drugs to Robert Shilot; that in the pro-
cess of distributing drugs, the defendant used a firearm; that
the firearm which the defendant used had an obliterated
serial number and the defendant knew it; and that the defen-
dant attempted to corruptly persuade Kelly Ward to give
false information to authorities investigating the crime.
Ward testified that she saw Myers deal crack to Shilot, possess a fire-
arm, and shoot Shilot. In addition, the state’s chief medical examiner
testified to the presence of crack in Shilot’s system, corroborating
Ward’s testimony. Further, the police searched Myers’ car and found
UNITED STATES v. MYERS 7
the firearm that was shown to be the one used to kill Shilot, as well
as a bag containing crack cocaine. Finally, Myers confessed in a taped
statement to possessing a firearm while being a felon and shooting
Shilot. In view of the overwhelming evidence of Myers’ guilt, our
refusal to notice the error will not "seriously affect the fairness, integ-
rity or public reputation of judicial proceedings." Olano, 507 U.S. at
732. Nor will it result in any "miscarriage of justice." Id. at 736 (inter-
nal quotations omitted). In sum, we reject Myers’ claim that the pres-
ence of the thirteenth juror in his case requires a new trial.
III.
Myers next contends that the district court abused its discretion by
allowing the introduction and repeated use at trial of extremely preju-
dicial evidence. Myers claims that too much evidence regarding the
details of the shooting and death of Shilot was submitted to the jury.
He asserts that the court abused its discretion by not limiting what he
calls the "murder" testimony once his use of a firearm was firmly
established, and by refusing to exclude certain testimony about the
gruesome details of Shilot’s death.
Under Federal Rule of Evidence 403, relevant evidence "may be
excluded if its probative value is substantially outweighed by the dan-
ger of unfair prejudice." We must review the lower court’s application
of this balancing test with the broad deference that the abuse of dis-
cretion standard requires. See, e.g., United States v. Love, 134 F.3d
595, 603 (4th Cir. 1998).
The district court did not abuse its discretion. Given the testimony
of the state police firearms expert that Myers’ firearm was the one
used to kill Shilot, the court correctly found that evidence regarding
the shooting of Shilot had substantial probative value. It was directly
relevant to whether Myers was a felon in possession of a firearm
(Count I), whether he possessed and used a firearm in furtherance of
drug trafficking (Counts II and III), and whether he knowingly pos-
sessed a firearm with an obliterated serial number (Count IV). See,
e.g., Bailey v. United States, 516 U.S. 137, 144, 148 (1995) (holding
that the Government’s burden under 18 U.S.C. § 924(c)(1) is to
"show active employment of the firearm" during and in relation to a
8 UNITED STATES v. MYERS
drug trafficking offense, which "certainly includes . . . firing . . . a
firearm").
In addition, the district court did not abuse its discretion in deter-
mining that the probative value of the shooting was not "substantially
outweighed by the danger of unfair prejudice." Fed. R. Evid. 403.
This evidence was certainly damaging to Myers and possibly prejudi-
cial as well. But it was not unfairly prejudicial. See United States v.
Chin, 83 F.3d 83, 88 (4th Cir. 1996) (holding that murder evidence
is admissible under Rules 403 and 404(b) where it concerns "acts
intrinsic to the crime charged"); United States v. Melton, 970 F.2d
1328, 1336 (4th Cir. 1992) (holding that the probative value of evi-
dence of an alleged murder by defendant convicted of drug-related
offenses outweighed any potential prejudice). In fact, the court sought
to minimize any prejudice to Myers. It did not permit the government
to show inflammatory photographs depicting the body or bloody
scene. It required the government to obtain an advance ruling before
introducing any evidence depicting blood or any other indicia of vio-
lence. Far from committing any Rule 403 error, the district court
acted out of a sense of caution and solicitude for Myers’ rights.
IV.
Myers next argues that the district court committed reversible error
by failing to specifically instruct the jury that it must unanimously
agree upon which of four drug transactions in evidence satisfied the
distribution element necessary for a conviction on the Count II charge
of drug trafficking and on the Count III charge of possession and use
of a firearm in furtherance of drug trafficking.1 Citing Richardson v.
United States, 526 U.S. 813, 817-20 (1999), Myers claims the facts
indicate a significant probability that the jury was confused about
which transaction it found to be an element of Counts II and III, and
that there was no unanimous agreement on that element. Accordingly,
Myers submits that his convictions under these counts should be
reversed.
1
Testimony was introduced at trial that, in addition to the sale to Shi-
lot, Myers sold drugs three other times that same day.
UNITED STATES v. MYERS 9
Myers thus asks us to extend Richardson to his convictions under
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). We need not
decide this question. Assuming solely for the sake of argument that
there was an error in the district court’s instructions to the jury, we
do not agree that a reversal is in order here. Because Myers neither
objected to the instructions nor requested an instruction regarding
unanimity as to a specific transaction, Olano’s plain error standard
governs our review of this claim. See 507 U.S. at 731-32. Thus,
Myers is required to show actual prejudice — i.e., that the failure to
give the instruction resulted in his conviction. See, e.g., United States
v. Stitt, 250 F.3d 878, 884 (4th Cir. 2001); United States v. Hastings,
134 F.3d 235, 243-44 (4th Cir. 1998). Given the overwhelming evi-
dence of drug distribution canvassed above, especially with respect to
the transaction between Myers and Shilot, the likelihood that the jury
was confused or less than unanimous on all of the four transactions
in evidence is exceedingly remote. Indeed, it strains credulity to con-
clude that, in finding Myers guilty, the jury may not have been unani-
mous in concluding that he had distributed crack to Shilot. As a
consequence, Myers cannot satisfy Olano’s third criterion that the
error "affect[ ] substantial rights." 507 U.S. at 732. Nor can he meet
Olano’s final requirement that the error "seriously affect the fairness,
integrity or public reputation of judicial proceedings." Id.V.
Myers next maintains that 18 U.S.C. § 924(c)(1)(A) does not apply
to his use of a firearm in this case. He reasons that the statute requires
that the firearm be used "during and in relation to," or possessed "in
furtherance of," a drug trafficking crime, but that his use of a firearm
occurred well after all drug transactions had ended and did not relate
to any of them.
We disagree. As an initial matter, Myers misstates the standard of
review. He submits that we must determine de novo whether 18
U.S.C. § 924(c)(1)(A) encompasses his use of a firearm in this case,
citing United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995). But
this question concerns the sufficiency of the evidence to support
Myers’ conviction. As we stated in Lowe itself, in reviewing the suffi-
ciency of the evidence, "this court must view the circumstantial and
direct evidence in the light most favorable to the government and
10 UNITED STATES v. MYERS
determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." 65 F.3d
at 1142.
The issue Myers now raises on appeal is thus a jury argument. The
reasons for the jury’s rejection of it are not difficult to discern. Where
there is overwhelming evidence that the defendant sold drugs to
someone, proceeded to use the drugs with the same person to whom
he sold them, and then shot and killed that very same person for alleg-
edly taking more drugs than he paid for, there is ample reason for the
jury to reject the defendant’s contention that his sale of the drugs and
his use of the firearm somehow constituted two distinct, unrelated
incidents. Myers knew throughout the events in question that the fire-
arm was in his car, and that he could retrieve it if necessary to further
his drug distribution activities. And when he came to believe that Shi-
lot had payed for fewer drugs than he took, that is exactly what Myers
did. We therefore refuse to disturb the jury’s verdict on appeal.
VI.
In addition, Myers asserts that the imposition of a life sentence
without parole based on his conviction under Count I for possession
of a firearm by a convicted felon is disproportionate under Solem v.
Helm, 463 U.S. 277 (1983), and thus violates the Eighth Amendment.
He further argues that the finding of premeditated murder by a pre-
ponderance of the evidence violates the "spirit" of Apprendi v. New
Jersey, 530 U.S. 466 (2000).2
We review de novo Myers’ constitutional challenge to the propor-
tionality of his sentence. See United States v. Kratsas, 45 F.3d 63, 65
(4th Cir. 1995). Myers concedes that the life sentence imposed in this
case does not exceed the statutory maximum under 18 U.S.C.
2
In calculating Myers’ sentence under the Sentencing Guidelines, the
district court stated that it "would find by a preponderance of the evi-
dence that Mr. Myers committed first-degree, premeditated murder when
he shot Robert Shilot." The court thereby determined that a cross refer-
ence operated to cause his sentence to be considerably higher than it oth-
erwise would have been. See U.S.S.G. § 2K2.1(c)(1)(B).
UNITED STATES v. MYERS 11
3
§ 924(e)(1). Moreover, he is unable to direct our attention to any case
in which this court has reversed a sentence that fell within the statu-
tory range on grounds of disproportionality. The Eighth Amendment
prohibits only those sentences that are "grossly disproportionate" to
the crime. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Ken-
nedy, J., concurring in part and concurring in the judgment) (quoting
Solem, 463 U.S. at 288). It should be clear from our prior discussion
of Myers’ criminal misconduct that his Eighth Amendment claim has
no more merit than others we have rejected. See Kratsas, 45 F.3d at
68-69.
Likewise, Myers’ Apprendi argument fails in view of the fact that
the life sentence he received does not exceed the statutory maximum
under § 924(e)(1), and that this court does not extend Apprendi to
determinations under the Sentencing Guidelines that do not exceed
the statutory maximum. See United States v. Pratt, 239 F.3d 640, 648
(4th Cir. 2001) ("Apprendi . . . only applies to sentences ‘beyond the
prescribed statutory maximum.’") (quoting Apprendi, 530 U.S. at
490).
VII.
Finally, Myers submits that the district court erred in allowing vic-
tim allocution testimony from Shilot’s wife and mother and in impos-
ing restitution because he was not convicted of "a crime of violence"
within the meaning of Federal Rule of Criminal Procedure
32(c)(3)(E). He observes that the conviction on Count III for possess-
ing and using a firearm in furtherance of drug trafficking provided the
basis for the court’s allowance of victim impact statements and its
imposition of restitution, but that the predicate offense of drug traf-
ficking is not a "crime of violence." He further submits that posses-
sion and use of a firearm in furtherance need not involve violence or
a specific victim. Myers concludes that because there can be posses-
sion and use of a firearm in furtherance where no violence took place,
3
The district court found that Myers was exposed to "a maximum of
life" under Count One "because of his prior convictions." Myers has
prior felony convictions for: (1) grand larceny; (2) first degree arson; (3)
conspiracy to distribute cocaine; (4) use of a firearm during the commis-
sion of a drug offense; and (5) being a felon in possession of a firearm.
12 UNITED STATES v. MYERS
it follows that such possession and use of a firearm is not ipso facto
a crime of violence where the underlying predicate offense is a drug
trafficking crime.
We review questions of statutory interpretation de novo. Ford
Motor Credit Co. v. Dobbins, 35 F.3d 860, 865 (4th Cir. 1994). Rule
32(c)(3)(E) allows victim allocution testimony at a defendant’s sen-
tencing "for a crime of violence," which is defined as "a crime that
involved the use or attempted or threatened use of physical force
. . . ." Fed. R. Crim. P. 32(f)(2).
The dispositive inquiry, then, is whether the crime for which Myers
was convicted "involved the use or attempted or threatened use of
physical force." We conclude that it does. In view of the jury’s verdict
on Count III and the nature of the evidence in the record that sustains
it, there is no doubt that the crime for which Myers was convicted
falls within this statutory definition. Myers suggests that the relevant
question is whether the use of force is an element of the crime. But
that formulation flies in the face of the plain language of the Rule,
which uses the word "involved" and is silent with respect to the ele-
ments of the crime. It appears that Myers mistakenly relies upon defi-
nitions of crimes of violence used in Career Offender sentencing
guidelines, where reference is made to the use of physical force as an
element of the crime. See U.S.S.G. §§ 4B1.1 and 4B1.2(a)(1).
Because Myers was convicted of a crime of violence under the appro-
priate definition, the district court was correct to allow victim allocu-
tion testimony and impose restitution.4
4
As for the issue of restitution, 18 U.S.C. §§ 3663A(a)(1) and
(c)(1)(A)(i) require the district court to order "that the defendant make
restitution to the victim of the offense" where the offense is "a crime of
violence," as defined in 18 U.S.C. § 16. One definition of "crime of vio-
lence" in § 16 is a felony "that, by its nature, involves a substantial risk
that physical force against [a] person . . . may be used in the course of
committing the offense." § 16(b). Because using firearms to further one’s
drug business clearly presents a "substantial risk" of "physical force,"
Myers’ conviction on Count III falls within this definition.
UNITED STATES v. MYERS 13
VIII.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.