United States v. Anthony Haynesworth ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4606
ANTHONY HAYNESWORTH, a/k/a Yuk,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-99-286-DWS)
Submitted: June 27, 2000
Decided: July 21, 2000
Before WILKINS and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Garryl L. Deas, WEEKS, DEAS & HADSTATE, L.L.C., Sumter,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Jane B. Taylor, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Anthony Haynesworth was convicted for conspiracy to possess
with intent to distribute and distribution of cocaine base, in violation
of 21 U.S.C.A. § 841(a)(1) (West 1999), and 21 U.S.C.A. § 846(West 1999). He was sentenced to 375 months imprisonment, to be
followed by five years of supervised release.
On appeal, Haynesworth raises four issues. First, he asserts that the
district court erred in allowing the jurors to use a transcript as they
listened to an audiotaped drug transaction. We review for abuse of
discretion the district court's decision to allow the jury to use a tran-
script during the presentation of recorded evidence, United States v.
Collazo, 732 F.2d 1200, 1203-04 (4th Cir. 1984), and find no such
abuse in this case.
Next, Haynesworth claims that the district court erred in enhancing
his sentence after finding him a leader or organizer in the offense,
pursuant to U.S. Sentencing Guidelines § 3B1.1(a) (1998). We review
the district court's assessment of a defendant's role in the offense for
clear error. Here, there was adequate evidence that Haynesworth
acted as a leader of at least one other person, and that the criminal
activity involved five or more participants. See U.S.S.G. § 3B1.1,
comment. (n.2).
Haynesworth seeks to assert on appeal that his trial counsel was
constitutionally ineffective. A claim of ineffective assistance of coun-
sel must be raised in the district court in a motion under 28 U.S.C.A.
§ 2255 (West Supp. 2000), unless the record on direct appeal conclu-
sively establishes ineffective assistance. United States v. Gastiaburo,
16 F.3d 582, 590 (4th Cir. 1994). The record in this case does not sat-
isfy that standard. Therefore, the claim should be raised under § 2255,
where the necessary factual record can be established.
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Finally, Haynesworth argues that the district court erred in failing
to excuse a juror whose husband had some contact with members of
Haynesworth's family during the trial. A claim of private contact,
communication or tampering with a juror creates a presumption of
prejudice. Remmer v. United States, 347 U.S. 227, 229 (1954). A
defendant must support a claim of extrajudicial juror contact by com-
petent evidence, and show that the contact was more than innocuous.
Howard v. Moore, 131 F.3d 399, 422 (4th Cir. 1997). Haynesworth
fails to support his burden, as he made no showing of extrajudicial
juror contact. The district court acted properly when the situation
came to its attention, and we find no error here.
We therefore affirm Haynesworth's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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