                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               JUN 15 2001
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 00-3263
 DARRICK D. REED,                                  (D.C. No. 99-CR-10142-JTM)
                                                             (D. Kan.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT*


Before HENRY, BALDOCK, and BRISCOE, Circuit Judges.


      Defendant Darrick D. Reed appeals his jury conviction of one count of

distributing cocaine and two counts of distributing cocaine base, in violation of 21

U.S.C. § 841(a)(1). He contends the district court erred in denying his motion for

judgment of acquittal based on insufficiency of the evidence and in denying his motion

for new trial based on juror bias. We affirm.

                                  Sufficiency of evidence

      We review de novo both the sufficiency of the evidence and the denial of the

      *
          This order and judgment is not binding precedent, except under the doctrines of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 10th Cir. R. 36.3.
motion for judgment of acquittal. United States v. Magleby, 241 F.3d 1306, 1311

(10th Cir. 2001). In reviewing the sufficiency of the evidence claim, we “ask only

whether taking the evidence – both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom – in the light most favorable to the

government, a reasonable jury could find [the defendant] guilty beyond a reasonable

doubt.” Id. at 1311-12 (internal quotation omitted). “When reviewing the denial of a

motion for judgment of acquittal made at the close of the government's case-in-chief,

we look only to evidence entered into the record at the time of the motion, that is, when

the government rested.” United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000).

“We must not weigh conflicting evidence or consider the credibility of the witnesses,

but simply determine whether the evidence, if believed, would establish each element

of the crime.” United States v. Vallo, 238 F.3d 1242, 1247 (10th Cir. 2001) (internal

quotation omitted). Pursuant to the plain language of 21 U.S.C. § 841(a)(1), the

essential elements of a prima facie case of distribution of a controlled substance are (1)

knowing or intentional; (2) distribution; (3) of a controlled substance. See United

States v. Johnson, 130 F.3d 1420, 1429 (10th Cir. 1997).

      Viewing the record in its entirety, together with the reasonable inferences drawn

therefrom in the light most favorable to the government, the evidence was sufficient to

support the jury's verdict as to each element of all three counts. The confidential

informant testified that he called Reed prior to each transaction, arranged a location to

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meet to purchase the drugs, and then bought drugs from Reed. Immediately after each

transaction, the informant gave the drugs he purchased to detectives. The parties

stipulated that the baggie from the April 16 drug buy contained cocaine powder, and

the baggies from the April 21 and April 30 drug buys contained cocaine base.

Although defense counsel attempted to raise doubts about the identity of the person

who sold the drugs to the informant, the jury had an evidentiary basis for concluding

Reed was that person. Specifically, the informant identified Reed as the seller at the

three drug buys, and at least one detective identified Reed as the driver of the 1992

aqua green Pontiac Grand Prix driven to the location of each of the drug buys. Further,

after Reed was arrested on April 30, the detectives found a wad of money in his pocket

in the exact amount and with the same serial numbers as the money given to the

informant immediately prior to that day's drug buy. While Reed contends the

informant is a convicted felon who should not be believed, and that the detectives'

testimony was inconsistent and therefore unreliable, we cannot consider the credibility

of witnesses or weigh conflicting evidence in reviewing the sufficiency of evidence.

Vallo, 238 F.3d at 1247.

                                       Juror bias

      We review the denial of a motion for new trial based on allegations of juror bias

for an abuse of discretion. United States v. Cerrato-Reyes, 176 F.3d 1253, 1258 (10th

Cir. 1999). However, “[w]hether a juror was impliedly biased is a legal question we

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review de novo.” Gonzales v. Thomas, 99 F.3d 978, 986 (10th Cir. 1996). Where a

defendant seeks a new trial based on juror bias but does not allege that the juror

intentionally gave a false answer during voir dire, the defendant bears the burden of

demonstrating actual bias or, in exceptional circumstances, that the facts are such that

bias may be inferred. Id. at 985-86.

       In its order denying Reed's motion for new trial, the district court found there

was no evidence to support Reed's contention that juror Barbara Lorance was actually

or impliedly biased against him as a result of an alleged dispute over a parking space

between the juror and Reed's aunt, Marsha Bryant. Based on each woman's testimony,

the court was not persuaded that the incident occurred or that it could suggest bias on

the part of Lorance. Further, although the women knew each other and saw each other

during the trial, the court found that Lorance did not know Reed before the trial and

did not learn Reed was related to Bryant until after the trial.

       Reed admits he can point to no evidence to challenge the district court's finding

that Lorance harbored no actual bias against him, but he argues that we should imply

bias and grant him a new trial because we cannot “read Ms. Lorance's mind” to

determine whether she was secretly predisposed against him. Aplt. Br. at 17. The

implied bias doctrine “arises from situations in which the circumstances point so

sharply to bias in a particular juror that even his own denials must be discounted.”

Gonzales, 99 F.3d at 987 (internal quotation omitted). “Thus, implied bias may be

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found even though a juror denies any partiality.” Id. Nonetheless, the implied bias

doctrine is “reserved for those 'extreme' and 'exceptional' circumstances that leave

serious question whether the trial court . . . subjected the defendant to manifestly unjust

procedures resulting in a miscarriage of justice.” Id. (internal quotation omitted).

“Something more than an unverified conjecture is necessary to justify the grant of a

new trial where only potentially suspicious circumstances are shown.” United States v.

Bradshaw, 787 F.2d 1385, 1390 (10th Cir. 1986); see also United States v. Easter, 981

F.2d 1549, 1553 (10th Cir. 1992) (“Absent evidence to the contrary, we presume that

jurors remain true to their oath and conscientiously observe the instructions and

admonitions of the court.”). Reed offers nothing more than mere conjecture that

Lorance might be biased against him. Our review of the transcript from the evidentiary

hearing does not expose any “serious questions” as to whether such bias exists.

       AFFIRMED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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