United States v. Barlow ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4455
ISAAC BARLOW, a/k/a Jason Taylor,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-01-363)
Submitted: February 13, 2003
Decided: March 4, 2003
Before WIDENER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Strom Thurmond, Jr., United States Attorney, Mar-
shall Prince, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BARLOW
OPINION
PER CURIAM:
Isaac Barlow appeals his conviction and sentence pursuant to viola-
tions of 21 U.S.C. §§ 841(a)(1) (2000) and 846 (2000). On appeal,
Barlow argues that the district court abused its discretion by failing
to dismiss a juror following an improper communication with counsel
and by denying his motion for mistrial after subsequently dismissing
the juror for misconduct. We find no error and affirm.
A district court may deal with claims of juror misconduct as it feels
the particular circumstances require and will be reversed only for an
abuse of discretion. See United States v. Gravely, 840 F.2d 1156,
1159 (4th Cir. 1988); see also United States v. Duncan, F.2d 839, 866
(4th Cir. 1979). Here, after questioning the juror regarding the
improper communication, the juror assured the court that no other
such incident would occur, and he stated that he realized the commu-
nication was in violation of the judge’s prior instructions. The juror
further assured the court that he never intended to talk to counsel
about the case. No evidence was introduced showing that Barlow was
in any way prejudiced by the communication. Accordingly, the dis-
trict court did not abuse its discretion by declining to dismiss the juror
for misconduct as a result of the communication.
We review the grant or denial of a mistrial for an abuse of discre-
tion. See United States v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997);
see also United States v. Hayden, 85 F.3d 153, 158 (4th Cir. 1996);
United States v. Smith, 44 F.3d 1259, 1267 (4th Cir. 1995). In order
to show an abuse of discretion, a defendant must show prejudice, and
no prejudice exists if the jury could make individual guilt determina-
tions by following the court’s cautionary instructions. See United
States v. West, 877 F.2d 281, 288 (4th Cir. 1989). Barlow failed to
show that he was prejudiced in any way as a result of the juror’s
improper comments. Individual questioning revealed that the majority
of the other jurors had not heard any comments regarding the case,
and those who had assured the court, without hesitation, that they had
not been influenced by the comments in any way and could continue
to perform their jury duties with an open mind. Thus, the district court
UNITED STATES v. BARLOW 3
did not abuse its discretion by denying Barlow’s motion for mistrial.
Accordingly, Barlow’s conviction and sentence are affirmed.
Moreover, Barlow’s motion for the appeal to be held in abeyance
is denied for the following reasons. First, he has waived the indict-
ment and Fourth Amendment suppression issues pursuant to Fed. R.
Crim. P. 12(b)(1), 12(b)(3), and 12(f). Furthermore, because he is rep-
resented, he must request whatever portion of the record he desires
from counsel. Finally, because Barlow failed to demonstrate any
error, his request for remand to the lower court for an evidentiary
hearing is denied. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED