UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 95-5197

LIONEL MEREDITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-94-417-A)

Argued: June 5, 1996

Decided: August 12, 1996

Before WILLIAMS and MOTZ, Circuit Judges, and CURRIE,
United States District Judge for the District of South Carolina,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Suzanne Little, Alexandria Virginia, for Appellant. Scott
Richard Lawson, Special Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Lionel Frederick Meredith appeals his conviction for one
count of assault with a dangerous weapon in violation of 18 U.S.C.
§ 113(c). He claims the trial judge erred in refusing to strike a juror
who was a former co-worker of the government's chief witness and
that there was insufficient evidence to sustain his conviction. Finding
no merit to his contentions, we affirm.

I. FACTS

Appellant is an inmate at the Lorton Reformatory in Lorton, Vir-
ginia, which is an institution within the special territorial jurisdiction
of the United States. On the afternoon of July 27, 1994, another Lor-
ton inmate, LaRue Cunningham, was assaulted with a homemade
knife while being chased by a fellow inmate. The facts of the dispute
are sharply conflicting and Appellant denied involvement in the
assault. Nevertheless, based on the reports of Corporal Rayford Gra-
ham, a Lorton correctional officer who observed the incident and took
the report of the victim, Appellant was charged with assaulting Cun-
ningham with a dangerous weapon.

The trial judge conducted a lengthy voir dire of the jury venire. The
names of all witnesses were published to the venire and the trial court
inquired whether any prospective juror knew any witness. The trial
judge also asked whether any prospective juror would credit the testi-
mony of a law enforcement officer merely because of that person's
role as a law enforcement officer. No affirmative responses were
received.

When the government called its first witness, Corporal Graham, a
juror informed the marshal that he was acquainted with Graham. The
court conducted a sidebar inquiry of the juror with both counsel pres-

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ent. The juror stated that he had not recognized Corporal Graham's
name when it was read out during jury selection, but that during the
lunch period he had seen him and recognized him from an earlier
association. Both had worked as service assistants at the Institution
for Defense Analyses for approximately one and a half to two years.
The juror indicated that he had occasionally worked with and helped
train witness Graham. However, the juror denied being social friends
with Graham, stated that he would not be inclined to credit Graham's
testimony over others' testimony, and indicated it would not hinder
him from rendering a fair and impartial verdict. The court explored
at length the juror's receptiveness to an argument that Graham's testi-
mony might not be truthful:

          THE COURT:Do you think you would be as open to assess-
          ing his testimony as you would the testimony
          of any other witness?

          THE JUROR:Yes, sir.

          THE COURT:Would you be open to an argument that he's
          not telling the truth?

          THE JUROR:Sure, I would be open to it. I haven't seen all
          the evidence.

Joint Appendix at 82.

Defense counsel moved to strike the juror for cause based on the
past association with Graham. The court denied the motion based on
the responses received during the colloquy with the juror:

          THE COURT:I think on the basis of the questions the Court
          asked that I'm satisfied, looking [the juror] in
          the eye as I did, that he's pretty sure and he's
          open to the possibility like a person -- any
          other person might not be telling the truth for
          any number of reasons. And so I'm going to
          overrule the objection and proceed.

Joint Appendix at 83.

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Testimony at trial was conflicting. Corporal Graham testified that
he observed Appellant chasing Cunningham up the aisles of the dor-
mitory area with a homemade shank in his hand and that he saw
Appellant catch up with Cunningham and make several forward
motions with his hand. After calling for assistance and bringing the
situation under control, Graham observed puncture wounds in Cun-
ningham's back and above his eye. Cunningham identified Appellant
as one of two inmates who assaulted him. He stated that Appellant
had used a "sharp object" to stab him in the back. The government's
last witness, Lieutenant Dalton, who responded to the call for assis-
tance, testified that on arriving at the scene he observed puncture
wounds in Cunningham's back and a wound over his eye. The
defense consisted of the testimony of three other inmates, all of whom
placed Appellant at different locations in the dormitory away from the
area in which the assault transpired. At the conclusion of the two-day
trial, the jury returned a verdict of guilty on the charge of assault with
a dangerous weapon.

II. ISSUES ON APPEAL

A. Denial of Right to Impartial Jury

Appellant contends the trial judge's failure to excuse for cause
from the petit jury a juror who had previously worked with and
trained Corporal Graham, the government's primary eyewitness at
trial, denied him his right to a fair and impartial jury, especially
where, as here, the refusal to strike the juror occurred at a time when
the defense could no longer exercise a peremptory challenge.

We review a district court's refusal to excuse a juror for cause for
manifest abuse of discretion. Poynter v. Ratcliff, 874 F.2d 219, 222
(4th Cir. 1989) (finding no error in refusing to strike for cause a juror
who was the defendant's patient and a juror who was a defendant in
a similar suit). A juror is presumed impartial, and the existence of a
preconception is insufficient to rebut the presumption if the juror can
"lay aside his impression or opinion and render a verdict based on the
evidence presented in court." Id. at 221. Here, the trial judge thor-
oughly interrogated the juror as to any preconceptions he might have
regarding Corporal Graham's credibility. When the juror gave
unequivocal responses indicating that he would be open to arguments

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about Graham's credibility and that he would need to consider all the
evidence in the case, the trial judge, "looking the juror in the eye,"
concluded that no cause existed to excuse the juror. It is within the
district court's sound discretion to assess the credibility of the juror's
statements as to his fairness. Id. at 222. The district court credited the
juror's statements, and Appellant offers this court no basis to reject
that finding.

As to Appellant's argument that the timing of the incident pre-
cluded him from exercising a peremptory strike against the juror, sev-
eral cases have considered the effect of a nondisclosure by a juror
until some point following voir dire, e.g., in the course of trial or post-
trial. A party seeking a new trial because of nondisclosure of informa-
tion by a juror during voir dire must prove actual bias or prejudice by
a preponderance of the evidence. See Smith v. Phillips, 455 U.S. 209,
215 (1982); United States v. Maseratti, 1 F.3d 330, 337 (5th Cir.
1993); United States v. Billups, 692 F.2d 320, 324 (4th Cir. 1982),
cert. denied, 464 U.S. 820 (1983). The remedy for allegations of juror
partiality arising after voir dire is a hearing in which the defendant has
the opportunity to prove actual bias. Smith, 455 U.S. at 215 (1982)
(federal habeas action in which Court affirmed state conviction even
though after trial it was disclosed that during the course of trial a juror
had applied for a job within the prosecutor's office).

Here the trial judge's exhaustive examination of the juror satisfied
Appellant's right to a fair and impartial jury. Based on his examina-
tion and his ability to "look the juror in the eye," the trial judge found
that the juror was impartial. Appellant has not shown that the juror
deliberately failed to acknowledge his familiarity with Corporal Gra-
ham during voir dire. Moreover, the trial judge found the juror's
explanation highly credible in light of the fact that several years had
elapsed since the two men had worked together and that there had
never been a close social relationship. "Where an attack is made upon
the integrity of the trial by reason of alleged misconduct on the part
of a juror in failing to disclose information pertinent to the issue of
prejudice, the defendant's burden of proof must be sustained not as
a matter of speculation, but as a demonstrable reality." United States
v. Whiting, 538 F.2d 220, 223 (8th Cir. 1976). Appellant offers noth-
ing more than speculation that the juror was prejudiced. Accordingly,

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Appellant has failed to demonstrate actual bias and there was no
abuse of discretion in failing to excuse the juror.

B. Sufficiency of the Evidence

Appellant contends that the evidence was insufficient as a matter
of law to sustain his conviction for assault with a dangerous weapon.
Evidence is sufficient to support a conviction so long as, "viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319
(1979), rehearing denied, 444 U.S. 890 (1979); United States v.
Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). An appellate court does
not review the jury's decision on the credibility of witnesses. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

The evidence at trial amply supported the jury's finding of guilt.
The testimony of the government's witnesses was enough to establish
Appellant's guilt if the jury found them credible, which it did. The
jury's verdict indicated that it credited the testimony of Corporal Gra-
ham and the victim Cunningham over the testimony of fellow
inmates/defense witnesses Dunn, Carter, and Speed. The trial tran-
script reveals that the defense witnesses versions of the incident were
often incoherent and in conflict with their earlier statements or the
testimony of other defense witnesses. For example, inmate Dunn
admitted that his trial testimony contradicted his earlier statement to
the F.B.I. Each of the three defense witnesses placed Appellant at a
different location at the time of the incident. Clearly the jury had
opportunity to judge the demeanor and credibility of the defense wit-
nesses and elected not to credit their testimony. We will not disturb
that judgment. Accordingly, we find that a rational jury could have
concluded that Appellant assaulted Cunningham with a dangerous
weapon.

III. CONCLUSION

For these reasons, we affirm the judgment of the district court.

AFFIRMED

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