United States v. James McCaw ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1972
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
James McCaw, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 4, 2004
Filed: March 8, 2004
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Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
A superseding indictment charged James McCaw with transporting in interstate
commerce stolen goods and vehicles on various dates between January and May
2002, see 18 U.S.C. §§ 2312, 2314, and 2; and transferring without authorization
other persons’ social security numbers, with intent to commit and aid and abet
unlawful activity, see 18 U.S.C. § 1028(a)(7). A jury found McCaw guilty on
eighteen counts, and the district court* sentenced him to 262 months imprisonment
*
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
and three years supervised release, and ordered restitution of $229,993. On appeal,
McCaw contends the district court abused its discretion in admitting evidence under
Federal Rule of Evidence 404(b), and should have granted a mistrial when a juror
revealed she knew one of the government’s witnesses. We affirm.
The trial evidence included the testimony of ten accomplices who entered
guilty pleas and testified for the government. McCaw was the leader of a group that
would steal construction or farming equipment, steal a large truck to haul the
equipment, drive to another state to sell the property, abandon the truck, and return
home in a rented car. Among other things, McCaw chose the property to steal,
arranged for its sale, and paid his accomplices a portion of the proceeds. In addition,
McCaw provided stolen social security numbers to different accomplices, who used
them to obtain credit or store merchandise with instant credit.
Although some of the witnesses testified about uncharged criminal activity
McCaw had engaged in, the jury was properly instructed as to the limited use of this
evidence, and we find no abuse of discretion. See Fed. R. Evid. 404(b) (evidence of
other crimes may be admissible as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake); United States v. Claxton, 276 F.3d
420, 422-23 (8th Cir. 2002) (noting Rule 404(b) is rule of inclusion permitting
evidence of other crimes or acts relevant to any trial issue, unless it tends to prove
only criminal propensity). In addition, we agree with the government that some of
the evidence to which McCaw points--much of which drew no objection--was not
Rule 404(b) evidence. See United States v. Holliman, 291 F.3d 498, 501-02 (8th Cir.
2002) (evidence was connected to conspiracy involving interstate transportation of
stolen vehicles and was admissible under res gestae doctrine rather than Rule 404(b)),
cert. denied, 537 U.S. 1137 (2003); see also United States v. Guerra, 113 F.3d 809,
816 (8th Cir. 1997) (plain-error review for issue not raised at trial).
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Contrary to McCaw’s position on appeal, we also find the district court did not
abuse its discretion in declining to remove a juror after she advised the court she
recognized a witness. According to the juror, the witness’s name had not caught her
attention during voir dire, and she assured the court her knowledge of the witness
would have no effect on her ability to judge his testimony. Cf. United States v.
Tucker, 137 F.3d 1016, 1026 (8th Cir. 1998) (standard of review; to obtain new trial
for concealed juror bias, party needed to show (1) juror answered voir dire question
dishonestly, not just inaccurately, (2) juror was motivated by partiality, and (3) true
facts, if known, would have supported striking her for cause); United States v.
Melius, 123 F.3d 1134, 1138 (8th Cir. 1997) (trial court is obligated to use with great
caution its power to order mistrial in cases involving possible juror bias), cert. denied,
522 U.S. 1084 (1998).
We thus affirm McCaw's convictions.
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