United States v. Larry D. Thatcher, 25 F.3d 1059, 10th Cir. (1994)
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Scribd Government DocsUnited States v. Larry D. Thatcher, 25 F.3d 1059, 10th Cir. (1994)
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Scribd Government Docs25 F.
3d 1059
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry D. THATCHER, Defendant-Appellant.
No. 93-4152.
United States Court of Appeals,
Tenth Circuit.
June 10, 1994.
ORDER AND JUDGMENT1
1
Before TACHA and McKAY, Circuit Judges, and SHADUR, 2 District Judge.
I. Introduction
2
Defendant-appellant Larry D. Thatcher and four other individuals were
indicted and charged with aiding and abetting the possession of cocaine with
intent to distribute, 21 U.S.C. 841(a)(1), 841(b)(1)(B) and 18 U.S.C. 2. Three of
the other four individuals, Pamela Greenhalgh, Dana Saltsman and Darren
Smith, pleaded guilty and testified against Mr. Thatcher at his jury trial. Mr.
Thatcher now appeals from the jury's guilty verdict. We exercise jurisdiction
under 28 U.S.C. 1291 and affirm in part and dismiss in part.
II. Discussion
3
Mr. Thatcher argues on appeal that the district court erred by not dismissing sua
sponte two potential jurors for cause, that the evidence is insufficient to support
the jury's verdict, and that his trial counsel was ineffective.
A. Sua Sponte Dismissal of Jurors for Cause
Mr. Thatcher argues that the district court erred by not dismissing sua sponte
jurors Adams and Neal for cause. We review the district court's decision not to
dismiss these potential3 jurors for an abuse of discretion. See United States v.
Gillis, 942 F.2d 707, 709 (10th Cir.1991).
The district court has the responsibility to guarantee that the jury is fair and
impartial. Id. The constitutional standard for juror impartiality is whether the
juror "can lay aside his opinion and render a verdict based on the evidence
presented in court." Patton v. Yount, 467 U.S. 1025, 1037 n. 12 (1984).
"Reversal is required if the specific circumstances suggest a significant risk of
prejudice and if examination or admonition of jurors fails to negate that
inference." Gillis, 942 F.2d at 710.
When asked about possible bias toward law enforcement, Juror Adams
informed the court that he "would maybe be a little in favor of law enforcement
and upholding the laws and the constitution." The court then inquired whether
Juror Adams thought he could "be fair and impartial to this defendant, Mr.
Thatcher, in judging the facts of his case." Juror Adams responded, "Yes, I
think so." The court then asked, "Do you feel you can?" Juror Adams replied,
"Yes." When the court inquired whether the jurors' feelings about drugs would
interfere with their ability to render a fair and impartial verdict, Juror Neal
informed the court that his work at a hospital with drug abuse patients might
have some bearing on his feelings. However, when asked, "Do you think that
might affect your ability to be fair here," Juror Neal said, "Well, I don't think it
would affect that." Any risk of prejudice reflected in jurors Adams and Neal's
initial answers was negated by the district court's subsequent examination--both
jurors told the judge they could make a fair and impartial decision based on the
facts in the case. The district court did not err in not dismissing sua sponte
jurors Adams and Neal for cause.
B. Sufficiency of the Evidence
7
In reviewing a claim of insufficient evidence, we must examine the entire
record to determine whether the evidence--both direct and circumstantial,
together with the reasonable inferences to be drawn therefrom--when taken in
the light most favorable to the government, would enable a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt. United States v.
Leopard, 936 F.2d 1138, 1140 (10th Cir.1991). "[C]redibility determinations
are properly within the jury's province." United States v. Self, 2 F.3d 1071,
1085 (10th Cir.1993).
After carefully reviewing the record, we find sufficient evidence to support the
After carefully reviewing the record, we find sufficient evidence to support the
jury's verdict. Mr. Thatcher testified at trial that, although he was present at the
scene of the drug transaction, he was there only to collect $300 for having sold
his car to Ms. Greenhalgh. However, three codefendants, Ms. Greenhalgh, Ms.
Saltsman and Mr. Smith, each testified about various meetings that occurred on
the day in question and about Mr. Thatcher's activities and his role in the drug
transaction. Police officers had observed the meetings and the drug transaction
and Officer Dennis Harris's account of what transpired at the scene of the
transaction corroborated the codefendants' testimony.
C. Ineffective Assistance of Counsel
9
Mr. Thatcher argues that his trial counsel was ineffective because: (1) he failed
to challenge for cause jurors Neal and Adams; (2) he failed to effectively crossexamine Ms. Greenhalgh and Officer Harris; and (3) he failed to investigate and
call one potential witness. We decline to address these claims in this direct
appeal. "The preferred avenue for challenging the effectiveness of defense
counsel in a federal criminal trial is by collateral attack under 28 U.S.C. 2255."
Beaulieu v. United States, 930 F.2d 805, 806 (10th Cir.1991). We therefore
dismiss Mr. Thatcher's ineffective assistance of counsel claims without
prejudice to their examination on collateral proceedings under 28 U.S.C. 2255.
See United States v. Wynne, 993 F.2d 760, 766 (10th Cir.1993).
III. Conclusion
10
We AFFIRM Mr. Thatcher's conviction. We DISMISS without prejudice Mr.
Thatcher's claims of ineffective assistance of counsel.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470
The Honorable Milton I. Shadur, Senior District Judge, United States District
Court for the Northern District of Illinois, sitting by designation
Neither juror Adams nor juror Neal actually sat on the jury. The record shows
that Juror Adams was an excess panel member and that the government struck
Juror Neal with its second peremptory challenge
