United States v. Frye , 53 F. App'x 682 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4395
JAMES PRESTON FRYE, a/k/a Jamie
Frye,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-01-167)
Submitted: November 18, 2002
Decided: December 17, 2002
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Janipher W. Robinson, ROBINSON & GREENE, Richmond, Vir-
ginia, for Appellant. Paul J. McNulty, United States Attorney, John
S. Davis, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
2 UNITED STATES v. FRYE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
A jury convicted James Preston Frye, Jr., of one count of distribu-
tion of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(iii) (2000). After trial but before sentencing, Frye
moved to set aside the verdict and for a new trial based on juror mis-
conduct. The court did not grant the motions but did allow Frye to
subpoena telephone records and recordings in an attempt to build evi-
dentiary support for his motions. Frye later moved to interview jurors.
The court denied the motions and sentenced Frye to 120 months of
imprisonment and eight years of supervised release. Frye appeals the
denial of his post-trial motions, and we affirm.
Frye provided two affidavits in support of his motion. One was
from an inmate, Aaron Harley, who stated that Frye’s prior record,
not in evidence at trial, was the reason for Frye’s conviction. The affi-
davit contained no indication of the source of this knowledge. The
second affidavit was from Charles Pratt, a defense witness at trial,
who stated that Harley called him and told him the same information
concerning Frye’s trial and that Harley got this information from
another inmate, Timothy Taylor. In addition to the affidavits, Frye
submitted tape recordings of a telephone call between Taylor and his
father, who was married to a member of Frye’s jury. Taylor’s father
mentioned that by chance, he found out after the trial that Frye had
a prior record, and that "if the jurors had known that they probably
would have convicted him faster than they did."
Frye then moved to interview jurors, but the district court denied
the motions, finding "insufficient evidence based on this record to
establish the good cause for any kind of interview with the jurors,"
and that any notion of misconduct was "pure speculation."
Post-trial requests to impeach a jury verdict by contact with jurors
are disfavored and must be supported by a threshold showing of
UNITED STATES v. FRYE 3
improper outside influence on the jurors. See Fed. R. Evid. 606(b);
Tanner v. United States, 483 U.S. 107, 125 (1987); United States v.
Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988). Rule 606(b) precludes
testimony by jurors about "the effect of anything upon that or any
other juror’s mind or emotions as influencing the juror . . . or concern-
ing the juror’s mental processes in connection therewith." Fed. R.
Evid. 606(b). This court’s review is for abuse of discretion. Gravely,
840 F.2d at 1159.
We conclude Frye did not make the requisite showing. The evi-
dence presented was entirely speculative and did not in any way indi-
cate the jury knew about Frye’s record. The district court has wide
discretion in dealing with allegations of juror misconduct, and the
court did not abuse that discretion here. See Gravely, 840 F.2d at
1159; United States v. Duncan, 598 F.2d 839, 866 (4th Cir. 1979).
Nor did the court err in denying Frye’s motions to set aside the ver-
dict and for a new trial, as the only ground for these motions was
juror misconduct, which Frye failed to show. We therefore affirm. 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