F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH
UNITED STATES COURT OF APPEALS

January 27, 2006

Elisabeth A. Shumaker

TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

v.

Plaintiff-Appellee,

COBY DWAYNE GREEN,

No. 05-5053

Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OKLAHOMA
(D.C. No. 04-CR-87-CVE)
Leena Alam, Assistant United States Attorney (David E. OMeilia, United States
Attorney, with her on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.
Art Fleak, Tulsa, Oklahoma, for Defendant-Appellant.
Before OBRIEN, BALDOCK, and McCONNELL, Circuit Judges.
BALDOCK, Circuit Judge.
Tulsa police obtained a search warrant for Defendant Coby Greens home. Tulsa
Police Officer William Wolthuis affidavit in support of the warrant contained
information provided by a confidential informant indicating Defendant was selling drugs
from his home. The police executed the warrant and found two digital scales; $1,105 in

cash; 1.77 grams of methamphetamine; 12.27 grams of cocaine; 450.16 grams of

marijuana; a sawed-off shotgun; and ammunition for the shotgun. Defendant was hiding
in the garage near where police found the shotgun, ammunition and marijuana. A jury
convicted Defendant of possession of cocaine and marijuana with the intent to distribute
in violation of 21 U.S.C. 841(a)(1), possession of an unregistered sawed-off shotgun in
violation of 26 U.S.C. 5861(d), and possession of a firearm after former conviction of a
felony in violation of 18 U.S.C. 922(g)(1). On appeal, Defendant argues the district
court erred in: (1) denying his motion for a new trial because the Government and/or its
witness engaged in misconduct; (2) denying his motion to dismiss based on the
composition of the district courts jury pool; (3) instructing the jury that Defendant could
be convicted of either of two offenses charged in the conjunctive; and (4) denying his
motion for judgment of acquittal based on an insufficient showing Defendant knew the
sawed-off shotgun he possessed was of illegal length. We have jurisdiction pursuant to
28 U.S.C. 1291 and affirm. We discuss the facts as relevant to our discussion of the
issues.
I.
Defendant first argues the district court erred in denying his motion for a new trial
based on alleged prosecutorial and/or witness misconduct. Where, as here, a defendants
motion for a new trial or mistrial is based on alleged prosecutorial misconduct during trial
and the defendant objects contemporaneously, this court reviews for an abuse of
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discretion. United States v. Villa-Chaparro, 115 F.3d 797, 803 (10th Cir. 1997).
Prosecutorial misconduct is considered harmless unless there is reason to believe it
influenced the jurys verdict. United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir.
1996). In assessing whether the misconduct [influenced the jurys verdict] we consider
the trial as a whole, including the curative acts of the district court, the extent of the
misconduct, and the role of the misconduct within the case. Id.
A.
In this case, a pre-trial ruling prohibited the Government from introducing
evidence concerning the confidential informant. The district courts order permitted the
Government to introduce the search warrant and introduce evidence concerning the
process by which it was procured. On the first day of trial, the Government assured the
court that Officer Wolthuis, its first witness, had been instructed not to get into any
connection with the informant at all. Shortly after the Government began its direct
examination of Officer Wolthuis, the following exchange took place:
Q:

In March of this year did you begin an investigation of an individual

named Coby Dwayne Green?

A:

Yes, Maam I did.

Q:

What led you to begin that investigation?

A:

I was given information about Mr. Green selling cocaine.

Defendant immediately objected and requested a mistrial. The court denied the motion
and attempted to remedy any prejudice by prohibiting the Government from introducing
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any testimony concerning the search warrant. The court also limited the scope of Officer
Wolthuis testimony by prohibiting him from testifying about his subsequent surveillance
and investigation and the process of obtaining the search warrant. The court further
instructed the jury to disregard the witnesss statement, stating we are going to move
ahead chronologically in time to matters which are, in fact, relevant to these
proceedings.
The Government later called Tulsa Police Sargent Luke Sherman as an expert in
the field of drug distribution. In establishing Sargent Shermans credentials, the
Government asked, Okay, as part of your capacity in narcotics investigations, have you
been involved in investigations of rap artists and producers involvement in drug
dealing? Defendant objected on the basis that the Government was attempting to paint
him a drug dealer because he operated a music studio from his home. A bench
conference ensued. The court instructed the Government to question Sargent Sherman
about his experience with drug trafficking generally and refrain from commingling
questions about the music business. Defendant did not request a limiting instruction.
B.
Defendant argues the foregoing instances infected the trial with unfairness.
Even assuming the two instances Defendant complains about were improper, the district
courts determination that neither instance influenced the jurys verdict was not an abuse

of discretion.1 The evidence the Government presented included information regarding

quantities and varieties of drugs Defendant possessed, their packaging and their
concealment. Detective Sherman testified the quantity of drugs, their packaging, and the
amount and denominations of cash recovered from Defendants home were indicative of a
drug distributor, not a user. The amount of evidence presented against Defendant
satisfies us the alleged misconduct had a minuscule effect, if any, on the jurys verdict.
See Gabaldon, 91 F.3d at 94 (To warrant reversal, the misconduct must have been
flagrant enough to influence the jury to convict on grounds other than the evidence
presented.). This is especially true when viewed in conjunction with the judges curative
acts, his limiting instruction and the larger context of the entire trial. Id. Accordingly, the
district court did not abuse its discretion in denying Defendants motion for a new trial.
II.
Defendant next argues the district courts method for selecting its jury pool
violates his Sixth Amendment right to a pool comprised of a fair cross-section of the
community. When a defendant challenges the constitutionality of a jury pool, we review
the district courts factual findings for clear error. United States v. Chanthadara, 230 F.3d
Without citation to legal authority, Defendant claims the judge ruling on his
motion for new trial was not fit to do so because she did not preside over the jury trial.
This argument is without merit. We rejected a due process challenge in United States v.
Diaz, 189 F.3d 1239, 1243-44 (10th Cir. 1999) where five different district judges
handled various portions of defendants criminal proceedings. See also United States v.
Smith, 997 F.2d 674, 682 (10th Cir. 1993) (no abuse of discretion where one judge
presided over the trial and a different judge ruled on a motion for new trial).
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1237, 1256 (10th Cir. 2000). We review de novo the district courts legal determination
of whether a prima facie violation of the fair cross-section requirement has occurred.
United States v. Shinault, 147 F.3d 1266, 1271 (10th Cir. 1998).
The district court summarily dismissed Defendants Motion to Dismiss Due to
Violation of Right of Fair-Cross-Section Jury of Peers as both untimely and meritless.
On appeal, the Government submits Defendants failure to comply with the procedures
and time limitations found in the Jury Selection and Service Act (Act) forecloses his
claim. See 28 U.S.C. 1867. According to the Act, a defendant wishing to challenge a
jury pool must file a motion to dismiss or a motion to stay before voir dire begins or
within seven days after the defendant discovered or could have discovered the basis for
the motion, whichever is first. Id. Defendant argues the constraints of 1867 only apply
to challenges brought under the Act, not Sixth Amendment challenges such as his.2
A.
Whether Defendants failure to comply with the time limits under the Act bars his
Sixth Amendment challenge presents a difficult issue. Section 1867(e) of the Act

To the extent Defendant based his claim on a violation of the Jury Selection and
Service Act, it was untimely. The court appointed Defendants first attorney on May 20,
2004. Defendant did not file his motion to dismiss until October 1, 2004, after the court
appointed his third attorney. Because defense counsels knowledge of the local rules,
including the rules regarding the manner in which jury pools are selected, is imputed to
Defendant, he had seven days from the time his first attorney was appointed to raise his
objection to the jury pool composition. See United States v. Windrix, 405 F.3d 1146,
1157 (10th Cir. 2005).
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provides:
The procedures prescribed by this section shall be the exclusive means by
which a person accused of a Federal crime . . . may challenge any jury on the
ground that such jury was not selected in conformity with the provisions of this
title. Nothing in this section shall preclude any person or the United States
from pursuing any other remedy, civil or criminal, which may be available for
the vindication or enforcement of any law prohibiting discrimination on
account of race, color, religion, sex, national origin or economic status in the
selection of persons for service on grand or petit juries.
The Fifth and the Eighth Circuits read 1867 to mean a defendant pursing a
constitutional challenge to a jury pool need not comply with its provisions. See United
States v. De Alba-Conrado, 481 F.2d 1266, 1270 n.5 (5th Cir. 1973) (citing the plain
language of the statute and the legislative history in holding the procedures set forth in the
Act are not applicable to constitutional challenges to a jury venire); United States v.
Jones, 687 F.2d 1265, 1269 (8th Cir. 1982) (holding the failure to comply with the Act
does not bar defendant from raising a constitutional challenge to jury selection
procedures). The Eleventh Circuit, meanwhile, applies 1867s requirements to
constitutional challenges. United States v. Green, 742 F.2d 609, 612 (11th Cir. 1984)
(holding that [i]n the absence of strict compliance [with 1867, defendants] attempt to
challenge the jury venire on constitutional grounds is without legal effect and is futile.).
Our cases addressing this question have not been a model of clarity. We have
broadly stated 1867 provides the exclusive means for a party charged with a federal
crime to challenge a jury. United States v. Bedonie, 913 F.2d 782, 794 (10th Cir. 1990)
(applying the requirements of 1867 to a constitutional challenge to a jury pool); see also
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United States v. Cooper, 733 F.2d 1360, 1366 (10th Cir. 1984). More recently we have
not taken this approach where defendants have raised both statutory and constitutional
challenges to jury selection procedures. In United States v. Contreras, 108 F.3d 1255,
1265-68 (10th Cir. 1997), we concluded the defendants statutory claim was invalid for
failure to comply with the procedural requirements of the Act. But we did not apply the
requirements of the Act to defendants Sixth Amendment claim. Rather, we reached the
merits of the claim. Thus, we did not treat failure to comply with the procedures of the
Act fatal to the constitutional challenge. See also United States v. Morales, 108 F.3d
1213 (10th Cir. 1997). Fortunately, we need not address this tension between our prior
decisions because Defendant cannot prevail on the merits of his claim. See Shinault, 147
F.3d at 1271 (declining to address defendants failure to comply with 1867, because
the merits dispute properly raised, briefed, and argued by the parties, and carefully
considered by the district court, presents an insurmountable barrier for the appellant.).
B.
The Sixth Amendment guarantees a defendant the right to a jury pool comprised of
a fair cross-section of the community. United States v. Ruiz-Castro, 92 F.3d 1519, 1527
(10th Cir. 1996). A defendant does not have a right to a jury of any particular
composition and the jury actually chosen does not have tomirror the community.
Taylor v. Louisiana, 419 U.S. 522, 538 (1975). To establish a prima facie violation of a
defendants right to a jury drawn from a fair cross-section of the community, a defendant
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must show: (1) the group alleged to be excluded is a distinctive group in the
community; (2) the representation of this group in jury venires is not fair and reasonable
in relation to the number of such persons in the community; and (3) the
underrepresentation is due to systematic exclusion of the group in the jury selection
process. Duren v. Missouri, 439 U.S. 357, 364 (1979). We need not look beyond the first
elementwhether the group alleged to be excluded is a distinctive groupto
determine that Defendants Sixth Amendment claim lacks merit.
The district courts jury selection procedures are set forth in Northern District of
Oklahoma Local Rule 47.1. According to the rule, fifty percent of the master jury wheel
is comprised of individuals on voter lists in each county in the district. The other fifty
percent of the master jury wheel is comprised of individuals on the driver license list of
Tulsa County, the most urban county in the district. The names drawn from the voter lists
comprise the primary source of names within the district. N.D. LR 47.1(E). The names
drawn from the driver license list in Tulsa County are considered a supplementary
source of names . . . . Id. Defendant argues this policy systematically excludes a
distinct groupnamely drivers who live outside of Tulsa county, but do not vote.
Defendant essentially asks the court to take judicial notice that rural people who have a
drivers license and are not registered to vote are anti-government and, therefore, more
friendly toward defendants. Defendant offers no support for his position other than
conclusory statements, and we can locate no case law to support the notion that those who
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drive, but do not vote, are considered a distinct group.

Our sister circuits have adopted a three-part test for determining whether a group is
distinctive. Factors considered include whether: 1) the group is defined by a limiting
quality (i.e. the group has a definite composition such as race or sex); 2) a common thread
or basic similarity in attitude, idea, or experience runs through the group; and 3) a
community of interests exists among members of the group such that the groups interest
cannot be adequately represented if the group is excluded from the jury selection process.
See, e.g., United States v. Raszkiewicz, 169 F.3d 459, 463 (7th Cir. 1999); United States
v. Fletcher, 965 F.2d 781, 782 (9th Cir. 1992); United States v. Canfield, 879 F.2d 446,
447 (8th Cir. 1989); Ford v. Seabold, 841 F.2d 677, 681-82 (6th Cir. 1988); Barber v.
Ponte, 772 F.2d 982, 986-87 (1st Cir. 1985); Willis v. Zant, 720 F.2d 1212 (11th Cir.
1983). Groups found not to have common interests such that they are considered a
distinct group include younger people, college students, and persons over 70. See Ford,
841 F.2d at 682 (younger persons); Fletcher, 965 F.2d at 782 (college students); Silagy v.
Peters, 905 F.2d 986 (7th Cir. 1990) (persons over 70). Compare Duren, 439 U.S. at 364
(recognizing women as a distinct group); Shinault, 147 F.3d at 1272 (recognizing Asians,
Blacks, and Hispanics as distinct groups); United States v. Yazzie, 660 F.2d 422, 426
(10th Cir. 1981) (recognizing Native Americans as a distinct group).
Like college students and certain age groups, we cannot say that persons who live
in rural counties and do not vote have a common thread in attitude or that a common
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experience runs through the group. See Fletcher, 965 F.2d at 782-83. Courts have
accepted voter registration lists as acceptable means for selecting jury venires. See
United States v. Gault, 141 F.3d 1399, 1402 (10th Cir. 1998) (citing Ruiz-Castro, 92 F.3d
at 1527). In United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir. 1985), we
specifically stated that persons who chose not to vote are not a cognizable group for jury
selection purposes. Neither does a persons geographic location place that person in a
distinct group. In United States v. Test, 550 F.2d 577, 582 n.4 (10th Cir. 1976), we stated
geographical imbalance . . . does not violate the statutory and constitutional requirement
that the jury panel represent a fair cross section of the community. See also Canfield,
879 F.2d at 447 (residents of Minneapolis are not a distinct group); Zicarelli v. Dietz, 633
F.2d 312, 320 (3rd Cir. 1980) (no violation of the Sixth Amendment where residents of
one county were excluded from the jury pool). Thus, persons holding a drivers license
but choosing not to vote simply do not comprise a distinct group. We reject Defendants
argument to the contrary.
III.
Defendant also claims the court improperly instructed the jury because the
indictment charged him in the conjunctive while the jury was instructed in the disjunctive.
Count One of the indictment charged Defendant with possessing with intent to distribute
cocaine and marijuana. Count Three of the indictment charged Defendant with
possessing a firearm and ammunition. The court instructed the jury it could find
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Defendant guilty as to Count One if they concluded he possessed either cocaine or

marijuana with the intent to distribute and guilty as to Count Three if it concluded he
possessed either a firearm or ammunition.
Our decision in United States v. Earls, 42 F.3d 1321, 1327 (10th Cir. 1994)
forecloses Defendants argument. In Earls, we held it is generally accepted procedure to
use and in an indictment where a statute uses the word or because this assures that
defendants are not convicted on information not considered by the grand jury. Id.
(internal citations and quotations omitted). Moreover, it is entirely proper for the
district court to instruct the jury in the disjunctive, though the indictment is worded in the
conjunctive. Id. (citing United States v. Hager, 969 F.2d 883, 890 (10th Cir. 1992)).
IV.
Defendant lastly argues the evidence was insufficient to support the jurys guilty
verdict on possession of an unregistered sawed-off shotgun. Sufficiency of the evidence
is a legal issue we review de novo. United States v. Lewis, 240 F.3d 866, 870 (10th Cir.
2001). On appeal, we ask only whether taking the evidence . . . together with the
reasonable inferences to be drawn therefromin the light most favorable to the
government, a reasonable jury could find the defendant guilty beyond a reasonable
doubt. United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999). The jury
convicted Defendant of possession of an unregistered sawed-off shotgun in violation of
the National Firearms Act. 26 U.S.C. 5861(d). Defendant alleges the Government did
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not prove he knew the feature of the shotgun (its length) that brought it within the scope
of the Act. See United States v. Staples, 511 U.S. 600, 602 (1994) (holding the
government must demonstrate the defendant knew of the characteristics of the firearm
that required it to be registered).
At trial, Defendant testified he had no knowledge of the gun found in his attic,
much less its length. Tulsa Police Officer Shawn Hickey testified he found Defendant
hiding in the garage near the entrance to the attic. After finding Defendant, Officer
Hickey searched the attic which was accessible by retractable stairs in the middle of the
garage. He found the shotgun within arms reach of the attic stairs. He also observed the
gun was the only item in the attic and it was clean while the rest of the attic was dusty.
ATF Special Agent Brandon McFadden testified he measured the shotgun barrel at 16.5
inches, that it appeared short, and that anyone who looked quickly at the gun would notice
it was short or that the barrel had been sawed off. Finally, the jurors were permitted to
examine the shotgun firsthand, allowing them to make their own conclusions as to
whether it was apparent the gun was sawed-off. Based on this evidence, a reasonable jury
could have concluded Defendant not only knew about the shotgun, but was aware of the
characteristics that made it subject to the Act.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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