          Case: 12-10672   Date Filed: 08/14/2013   Page: 1 of 8


                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-10407
                     ________________________

              D.C. Docket No. 1:09-cr-00320-TCB-GGB-2



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

GEORGE WASHINGTON DUNN,

                                                        Defendant-Appellant.

                     ________________________

                           No. 12-10672
                     ________________________

              D.C. Docket No. 1:09-cr-00320-TCB-GGB-5



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus
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GRANT DECATUR ALLEN, JR.,

                                                                      Defendant-Appellant.
                              ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                     (August 14, 2013)

Before PRYOR and ANDERSON, Circuit Judges, and WALTER, * District Judge.

PER CURIAM:

       We have carefully considered the briefs and arguments of each Appellant,

and we have had the benefit of oral argument. We cannot conclude that the district

court committed reversible error. We address in turn the several issues raised, first

the issues raised by Appellant George Washington Dunn, and then the issues raised

by Appellant Grant Decatur Allen, Jr.

   A. Dunn’s challenge to the district court’s exclusion of Agent Kahn as a

                                      defense witness

       Dunn acknowledges his obligation under 28 C.F.R. § 16.21 et. seq. (the

“Touhy Regulations”) to give notice to the Department of Justice of his intent to

call the government agent, Douglas Kahn, to testify, and his obligation to provide a

summary of the testimony sought. Dunn did provide the required notice of his


       *
        Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.


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intent to call Agent Kahn as a defense witness to impeach the testimony of Grady

Douglas. However, Dunn concedes that he did not give the required notice of his

intent to call Agent Kahn as a witness to impeach the testimony of Alfredo Beeks.

We conclude that Dunn’s indication of an intent to use Agent Kahn to impeach the

testimony of Douglas does not operate to satisfy the requirement of providing a

summary of the testimony sought per the Touhy Regulations, when the testimony

is sought to impeach Beeks rather than Douglas. This Circuit has upheld the

validity of the Touhy Regulations. See United States v. Bizzard, 674 F.2d 1382,

1387 (11th Cir. 1982).

      We reject Dunn’s argument that the government’s delay in producing Agent

Kahn’s report of his debriefing of Beeks should excuse Dunn from providing the

required notice. Although Dunn argues that he only received Agent Kahn’s report

of debriefing Beeks “on the eve of trial,” he had the report six or seven days before

he attempted to call Agent Kahn to testify—ample time to supplement his notice

regarding Agent Kahn’s testimony. Moreover, we conclude that the testimony that

Dunn now asserts he would have elicited from Agent Kahn is so insignificant that,

even if there were error, it would be harmless.

B. Dunn’s challenge to the district court’s exclusion of his character evidence

      During the testimony of Polly Biasucci, Dunn’s attorney asked if the witness

was familiar with Dunn’s reputation in the community. The government objected,



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and the district court granted the government’s objection on the basis “previously

discussed.” The court later clarified that it had sustained the government’s motion

in limine to exclude impermissible character evidence—namely, specific instances

of Dunn’s good conduct in the community. Defense counsel failed to clarify the

basis of the district court’s ruling at the time the objection was sustained, and failed

to argue that, although specific instances of good conduct were inadmissible,

Dunn’s reputation in the community as a law abiding citizen would have been

admissible. No objection was made by defense counsel until later, after the jury

had begun deliberations. We cannot conclude that Dunn has demonstrated plain

error.

C. Dunn’s challenge to the district court’s admission of Rule 404(b) evidence

         For several reasons we reject Dunn’s argument that certain Rule 404(b)

evidence should have been excluded because Dunn had no notice of the

government’s intent to introduce the prior bad acts. Dunn concedes that he failed

to object contemporaneously. Furthermore, we doubt there was error because the

evidence of his prior marijuana transactions was intrinsic to the conspiracy, but

even assuming error, there was no plain error.

                     D. Dunn’s remaining arguments on appeal

         We reject summarily Dunn’s challenge to the manner in which the district

court handled voir dire. The points raised by Dunn’s counsel were substantially



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covered, and the district court gave the attorneys the opportunity for follow-up

questions and counsel for Dunn asked no follow-up questions. We also summarily

reject Dunn’s severance argument and his argument that the district court erred in

failing to give a multiple conspiracy instruction. Both arguments are frivolous.

      We also reject Dunn’s challenge to the sufficiency of the evidence on the

gun charge. There was ample evidence to support the charge, including the fact

that a gun was on the dryer next to the enclosed garage in which the jury could

have found that Dunn either witnessed or participated in loading the cocaine and

the cash into the secret compartment of the vehicle that Dunn drove out of the

garage.

    E. Allen’s argument that the jury was tainted by extrinsic information

      After jury deliberations began, Juror McCorvey consulted his cousin, an

attorney, with respect to the definition of conspiracy and conveyed that

information to the jury. The district court questioned McCorvey, who admitted

having talked with his attorney cousin but stated that what he was told did not

differ from what the judge had instructed. After the district court’s inquiry of

McCorvey, Allen’s counsel said only that he did not know what was heard, did not

know what McCorvey was told or what he told the jury, and he took the position

that the jury was contaminated. The district court then brought in the other eleven

jurors, and ascertained that what they were told was not inconsistent with what the



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court had charged the jury in the written charge (which was in the jury room during

deliberations). The district court also ascertained that the jury was not affected by

what McCorvey had said and that they would reach a verdict based solely on the

evidence and the charge given by the district court. After the district court’s

colloquy with the other eleven jurors, Allen’s counsel made no further objections.

In particular, until this appeal, Allen’s counsel never suggested that the jurors

should have been interviewed individually, and never requested any additional

question be asked of McCorvey or the other eleven jurors. Considering the totality

of the circumstances, we cannot conclude that the district court abused its

discretion in concluding that any presumption of prejudice had been rebutted.

      We consider the totality of the circumstances surrounding the
      introduction of the extrinsic evidence to the jury. These include: (1)
      the nature of the extrinsic evidence; (2) the manner in which the
      information reached the jury; (3) the factual findings in the trial court
      and the manner of the court’s inquiry into the juror issues; and (4) the
      strength of the government’s case.

Boyd v. Allen, 592 F.3d 1274, 1305 (11th Cir. 2010). With respect to the first

factor—the nature of the extrinsic evidence—we agree with the district court that

its nature tends toward the innocuous because what McCorvey learned from his

attorney cousin and passed on to the jury was not different from what the district

court charged in the jury instructions. With respect to the second factor, we do not

believe (and Allen does not argue) that the manner in which the information

reached the jury adds any force at all to Allen’s challenge. Rather, Allen’s

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challenge focuses on the third factor—the manner of the district court’s inquiry.

Although we would not proffer as a model the manner of the district court’s

inquiry here, we are satisfied that it fairly elicited the substance of what the

attorney cousin told McCorvey and the substance of what was conveyed to the

other eleven jurors; moreover, Allen’s counsel failed to request a more thorough

inquiry. Finally, we believe that the strength of the government’s case was close to

overwhelming. We are satisfied that, with the exclusion of Juror McCorvey and

the district court’s instructions, the extrinsic evidence did not affect the jury’s

deliberations.

  F. Allen’s challenge to the district court’s exclusion of character evidence

      We cannot conclude that the district court abused its discretion in this

regard. The district court properly excluded specific instances of prior good

conduct. The district court allowed testimony by the witnesses who were in

recovery from addiction in the facility nearby the Game Room. Only the fact of

Allen’s addiction and his participation in Narcotics Anonymous were excluded. In

light of the fact that neither fact is inconsistent with Allen’s activities in selling

narcotics, and in light of the fact that Allen was actually convicted in 2007 of drug

distribution (after his Narcotics Anonymous experiences in 1995), we cannot

conclude that the district court committed reversible error.

                     G. Allen’s remaining arguments on appeal



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       We summarily reject Allen’s challenge to the district court’s failure to give a

multiple conspiracy instruction. Allen’s prior drug convictions in 1990, 1994, and

2007 were properly admitted under Rule 404(b) as relevant to intent. The evidence

with respect to the shooting at the Game Room was properly admitted as intrinsic

evidence. Allen’s failure to file income tax returns was properly admitted under

Rule 404(b) as evidence that the Game Room was not a legitimate business.

Allen’s hearsay challenge to the statement by Man is without merit; it was a non-

hearsay statement by a co-conspirator in furtherance of the conspiracy. 1 Allen’s

challenge to the sufficiency of the evidence is without merit; the evidence against

Allen was close to overwhelming. Finally, Allen’s challenge to his sentence is

frivolous.

       For the foregoing reasons, the judgment of the district court is affirmed.

       AFFIRMED.




       1
                Finding no error on the part of the district court to introduce this evidence, we
reject Allen’s claim of cumulative error.


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