USA v. Willie James Morgan

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10042
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00005-RS-LB-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER MATHIS,
Defendant-Appellant.
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No. 13-10055
Non-Argument Calendar
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D.C. Docket No. 5:12-cr-00005-RS-LB-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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WILLIE JAMES MORGAN,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Florida
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(February 6, 2014)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Christopher Mathis and Willie Morgan appeal their convictions for
conspiracy to distribute and possess with intent to distribute five or more kilograms
of a substance containing a detectable amount of cocaine. 21 U.S.C.
§ 841(b)(1)(A)(ii). Morgan also appeals his conviction for being a felon in
possession of a firearm and ammunition. 18 U.S.C. §§ 922(g)(1), 924(a)(2).
Mathis and Morgan argue, for the first time, that the district court should have
questioned and replaced a juror who allegedly slept during the first day of trial and
that their trial attorneys were ineffective for failing to object to the juror’s
inattentiveness. We affirm Mathis’s and Morgan’s convictions, but we decline to
review their arguments about ineffective assistance of trial counsel.
Because Mathis and Morgan did not object to the juror’s alleged sleeping in
the district court, our review is for plain error. See United States v. Moriarty, 429
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F.3d 1012, 1018 (11th Cir. 2005). “To establish plain error, a defendant must
show there is (1) error, (2) that is plain, and (3) that affects substantial rights.” Id.
at 1019. “[T]he law of this circuit [is] that . . . there can be no plain error where
there is no precedent from the Supreme Court or this Court directly resolving” the
issue. United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005).
The district court did not plainly err by failing to question and replace the
juror. “Defense counsel [has] a duty to call a juror’s inattentiveness to the court’s
attention.” United States v. Curry, 471 F.2d 419, 422 (5th Cir. 1973). Mathis’s
and Morgan’s attorneys observed the juror allegedly sleeping during voir dire, but
decided to “keep him” because he was one of the only men on the jury panel.
When the district court learned that the juror might have neglected to respond to a
question during voir dire, the district court and Morgan’s attorney speculated that
the juror had been sleeping during voir dire and the first day of trial. Mathis’s
attorney, who was concerned that the juror was the “sole African-American” on the
petit jury, commented that the juror might have been “concentrating.” The
prosecutor suggested the juror’s behavior was “something . . . that possibly needs
to be addressed,” but the district court decided not to question the juror about
sleeping. Neither defense counsel objected to that decision. “There is no per se
rule requiring an inquiry in every instance of alleged [juror] misconduct,” United
States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir. 1991), and we cannot fault the
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district court for failing to investigate the juror’s alleged sleeping when defense
counsel failed to object to it. When examined about his potential knowledge of
any witnesses, the juror’s responses suggested that he was awake and attentive
during the trial. See id. at 1577–78; United States v. Holder, 652 F.2d 449, 451
(5th Cir. 1981). We will not permit Mathis and Morgan to disregard the juror’s
behavior to “sew[] a defect into the trial, and later claim its benefit,” Curry, 471
F.2d at 422, particularly when they fail to cite any precedent that requires the
district court sua sponte to remove a sleeping juror.
We decline to address Mathis’s and Morgan’s arguments that their attorneys
were ineffective. Mathis and Morgan failed to develop a record that would allow
us to evaluate their arguments that their attorneys should have made a “formal
motion to remove or object[] to the presence of the sleeping juror.” See United
States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). Mathis and Morgan can
raise their arguments in a postconviction motion. See 28 U.S.C. § 2255.
We AFFIRM Mathis’s and Morgan’s convictions.
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