                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3259
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Abe B. Evans,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 18, 2006
                                Filed: August 1, 2006
                                 ___________

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Abe B. Evans appeals his conviction on eight counts of uttering forged
securities in violation of 18 U.S.C. § 513(a). On appeal, he asserts that the district
court1 deprived him of his right to an impartial jury by dismissing a juror for cause
who expressed reservations about the credibility of witnesses who had made plea
deals with the government.2 We affirm.

      1
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
      2
      Following the submission of the briefing, Evans tendered a pro se
supplemental brief challenging the sentence imposed by the district court based on
      Plastene Supply Company (Plastene) hired Evans as a maintenance worker in
1997 and terminated his employment in June 1998. During that period, Evans became
romantically involved with Andrea Buchanan, Plastene’s payroll clerk. In early 1998,
Buchanan and Evans devised a scheme to cash false payroll checks and keep the
proceeds. This scheme continued until February 2002, when Plastene discovered that
Evans and Buchanan had embezzled approximately $1.8 million.

        After Plastene discovered the scheme, Buchanan pleaded guilty to one count of
income tax fraud and one count of uttering a forged instrument, and she agreed to
testify against Evans. During jury selection, the district court asked the prospective
jurors whether they would have trouble believing witnesses who were cooperating
with the government in exchange for leniency. Voir Dire Tr. at 48. One potential
juror, Mr. Stevenson, informed the court that “this deal of making deals is something
that has always bothered me.” Id. at 61. He referenced his experience in a community
where he felt some criminals were receiving unfair plea agreements, and he twice
stated that he would need “some kind of convincing” of the propriety of such deals.
Id. at 61-62. Following a recess, the court further questioned Stevenson about what
it would take for him to believe a witness who was cooperating with the government.
Stevenson replied “That’s one thing I’m trying to figure out myself,” again
mentioning his perception of unfair plea deals in his community. Id. at 63-64.

       Under questioning by the prosecutor, Stevenson said that if he were a juror in
a case “with no deals made,” he would be “level headed enough to make that without
a problem, but this other thing, the deal . . . I’m hard-headed.” Id. at 73. He explained


facts that were not proven to a jury beyond a reasonable doubt. We denied Evans’
motion to file the supplemental brief. Evans has since discharged his retained counsel
and is proceeding pro se. Having now considered his argument, we conclude that it
is without merit in light of our holding that Booker allows for judicial fact-finding
using a preponderance of the evidence standard as long as the guidelines are applied
in an advisory manner. United States v. Thorpe, 447 F.3d 565, 569 (8th Cir. 2006).

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that in such a situation he “could probably be convinced, but it would take some
convincing to me that there wasn’t something.” Id. At the conclusion of voir dire, the
government challenged several prospective jurors for cause, including Stevenson. The
district court granted the government’s challenge of Stevenson, concluding that “the
bottom line is he really was going to have trouble being fair in this case.” Id. at 99-
100.

       The decision to excuse a juror for cause is vested in the district court’s
discretion, a decision that we will uphold on review if the record reflects a legitimate
basis for it. United States v. Gianokos, 415 F.3d 912, 922 (8th Cir. 2005). In United
States v. Mills, we upheld the district court’s decision to strike two jurors for cause
because they had “demonstrated a predisposition towards disbelieving government
witnesses who testify under a grant of immunity.” 987 F.2d 1311, 1314 (8th Cir.
1993). Similarly, based on juror Stevenson’s comments quoted above, the record
shows a legitimate basis for the district court’s decision that Stevenson showed a
predisposition towards disbelieving government witnesses who were cooperating with
the government as part of a plea agreement.

      The judgment is affirmed.
                      ______________________________




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