Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2004

USA v. Wray
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1587




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"USA v. Wray" (2004). 2004 Decisions. Paper 1018.
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                                                   NOT PRECEDENTIAL

          THE UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT

                          ___________

                          No. 03-1587
                          ___________


                UNITED STATES OF AMERICA

                               vs.

                  BERNARD CHRISTIE WRAY

                                Appellant.

                          ___________


ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS

                   (D.C. Criminal No. 02-cr-00053)
          District Judge: The Honorable Thomas K. Moore

                          ___________

            Submitted Under Third Circuit LAR 34.1(a)
                       December 10, 2003


  BEFORE: NYGAARD, BECKER, and STAPLETON, Circuit Judges.




                     (Filed February 6, 2004)

                          ___________
                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

              Appellant Bernard Christie Wray challenges his conviction for filing a false

statement, alleging that the District Court failed to properly explore potential bias on the

part of a juror and improperly admitted the opinion testimony of a lay witness. For the

reasons that follow, we will affirm the conviction.

                                             I.

              Wray was accused of attempting to smuggle more than $120,000 in United

States’ currency through the Cyril E. King airport in St. Thomas, U.S. Virgin Islands.

Customs officials discovered most of the cash wrapped in duct tape and hidden in the

lining of Wray’s suitcase, and he then informed them that additional cash was stowed in

his shaving kit. Wray did not declare possession of this money, answering “no” to the

question on the Customs Declaration that asked if he was carrying more than $10,000 in

currency. A customs official testified at Wray’s trial that she specifically asked Wray if he

was carrying more than $10,000, and that W ray replied he was not.

              After a jury trial, Wray was convicted on one count of making a false

statement on a customs form, under 18 U.S.C. § 1001(a). He was acquitted on charges of

bulk cash smuggling. Wray was sentenced to one year of probation and now appeals his

conviction.



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                                             II.

              Wray contends that the District Court abused its discretion by not

questioning a juror at greater length after the juror approached the Court with concerns

about potential bias. We disagree.

              Following the government’s rebuttal testimony, a juror asked to speak to the

Court about being excused from service. At a sidebar with the attorneys present, the juror

told the Court that she might be prejudiced because she had seen a spectator in the

courtroom whom she knew was in trouble with the federal government. 1 In response, the

Court told the juror that the spectator’s presence had nothing to do with Wray’s case, but

that the observer was in the courthouse because he was required to report to authorities

periodically, and had apparently just stopped in to watch the trial.

              The juror indicated that this information satisfied her concerns, and the

discussion ended. In response to a request from defense counsel, the Court issued a

special instruction to the jurors shortly afterward, telling them that they should not pay

any attention to people who might come into the courtroom to observe the trial. Defense

counsel did not make any objection to how the Court handled the situation.

              Because there was no contemporaneous objection, we evaluate the

appropriateness of the District Court’s colloquy with the juror under a plain error




1       Wray asserts that this person had been charged with illegally selling prescription
drugs and a massive money laundering conspiracy.

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standard. See F ED. R. C RIM . P. 52(b). A defendant may only obtain reversal of a criminal

conviction under this standard if 1) an error was committed; 2) the error was “clear and

obvious;” 3) the error “affected the defendant’s substantial rights;” and 4) the error

“seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Dixon, 

, 234 (3d Cir. 2002) (internal citation and quotations

omitted).

              Wray’s claim does not even meet the first condition of this test, because

there was no error. The District Court properly ascertained the basis of the juror’s

concern, and properly reassured her. The juror indicated that she was no longer

concerned. In response to defense counsel’s request, the Court delivered a carefully

worded cautionary instruction to the jury.

              The situation did not require the Court to do more. Since the presence of the

observer did not have anything to do with the case, the juror had not been exposed to

“prejudicial extra-record information,” and a more thorough examination of her

knowledge was not required. See Government of the V.I. v. Dowling, 

, 137

(3d Cir. 1987) (expressing preference for a thorough, in camera examination of a juror

who has been exposed to prejudicial extra-record information about a case). In fact, the

juror here had not been exposed to any extra-record information about the case,

prejudicial or otherwise. In such a situation, considerable deference must be given to the




                                              4
trial judge to determine if there is a danger of prejudice. 

deference in mind,

we do not see any error in how the District Court handled the juror’s concerns.

              Wray also contends that the Court erroneously allowed a prosecution

witness to testify to information that was not based on his first-hand knowledge. This

claim is meritless. Senior Immigration Inspector Frank Teran testified that the customs

procedures at the airport were the same on March 22, 2002, the date in question, as they

were when Wray was admitted through the airport six weeks earlier. As a senior inspector

who had been working in the St. Thomas airport for more than three years, Teran was

able to testify to this information from direct personal knowledge, and such testimony was

not speculation or an improper expression of his opinion. See F ED. R. E VID . 701. Wray’s

attorney did not object to the testimony at trial, and Wray does not now demonstrate that

its admission was plain error. See F ED. R. E VID . 103(a)(1).

                                              III.

              For the above reasons, we will affirm Wray’s conviction.




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