United States v. Larry D. Milner

Larry Milner appeals his jury conviction for conspiracy and possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1988). He argues that his conviction was invalid because: 1) the district judge made prejudicial comments during the voir dire; 2) evidence of past drug use was improperly admitted; 3) the prosecutor improperly “vouched” for the credibility of a government witness; and 4) the police lacked probable cause. We affirm.

In May, 1988, Larry Milner asked Diana Watson to act as a courier for a drug transaction. She declined. On June 2, 1988, Milner went to Watson and asked her to “take [a] package” to Detroit. Milner promised Watson $1500, and Watson accepted.

After missing an early flight, the two checked in at a nearby airport hotel. Mil-ner gave Watson some money to purchase a jacket and pantyhose. After her return, Milner gave her a package wrapped in brown paper and instructed her on the proper method of drug concealment. Mil-ner attached bundles of cocaine and marijuana to the brown package and Watson placed the entire bundle under her pantyhose.

Around midnight, the two departed for the Los Angeles airport. After arriving at…

Dissenting:

While Milner was on bail awaiting trial, he violated the conditions of his release relating to the use of drugs. As a result, he was returned to custody. At trial, he was dressed in civilian clothing, but was in the custody of several deputy United States Marshals dressed in matching blue blazers who sat directly behind him. As one of the marshals left the courtroom during jury selection, the following ensued:

(Emphasis added.)

A motion for a mistrial based on this exchange was later promptly made by Mil-ner’s counsel and denied. Members of the jury venire were not questioned regarding their ability to be impartial despite (1) Mil-ner’s custody status and (2) the security precautions requiring that Milner be “watched.” Apparently the deputy marshals remained with Milner throughout the trial. At the close of evidence, the jury was instructed that Milner’s custody should not influence their decision as to guilt or innocence. The instruction did not address the presence of a security force.

A

Milner argues the judge’s statements were improper and deprived him of a fair trial. Because Milner has not shown actual prejudice, we must determine whether the facts were “…

962 F.2d 908 UNITED STATES of America, Plaintiff-Appellee, v. Larry D. MILNER, Defendant-Appellant. No. 90-50187. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 9, 1992. Decided April 23, 1992. Terry Amdur, Pasadena, Cal., for defendant-appellant. Gregory W. Alarcon, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: FARRIS, NOONAN and TROTT, Circuit Judges. FARRIS, Circuit Judge: 1 Larry Milner appeals his jury conviction for conspiracy and possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1988). He argues that his conviction was invalid because: 1) the district judge made prejudicial comments during the voir dire; 2) evidence of past drug use was improperly admitted; 3) the prosecutor improperly "vouched" for the credibility of a government witness; and 4) the police lacked probable cause. We affirm. 2 In May, 1988, Larry Milner asked Diana Watson to act as a courier for a drug transaction. She declined. On June 2, 1988, Milner went to Watson and asked her to "take [a] package" to Detroit. Milner…