                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 10-3895
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                   FRANK MURPHY,

                                           Appellant
                                     _____________

                    On Appeal from the United States District Court
                       For the Western District of Pennsylvania
                             (D.C. No. 2:09-cr-0082-003)
                       District Judge: Hon. Gustave Diamond
                                   _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                  January 9, 2012

           BEFORE: FUENTES, JORDAN, and NYGAARD, Circuit Judges

                           (Opinion Filed: February 15, 2012)
                                    _____________

                               OPINION OF THE COURT
                                    _____________


FUENTES, Circuit Judge.

       Appellant Frank Murphy was convicted by a jury of conspiracy to distribute and

possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §

846. The District Court sentenced Murphy to 72 months’ imprisonment. Murphy
appeals his conviction and sentence, contending that the District Court erred when it

overruled his objection to the composition of the jury venire and when it denied his

motion for a mistrial. For the reasons set forth below, we will affirm the judgment of the

District Court. 1

                                             I.

       Because we write only for the parties, we recount only those facts necessary to our

decision.

       Based on information received from an informant, the Pennsylvania State Police

pulled over a car they believed was being used to transport cocaine to a drug sale. Frank

Murphy was a passenger in the car. The police obtained a search warrant for the car and

found a piece of luggage with a kilogram of cocaine in it. Murphy was arrested.

       During jury selection, Murphy’s counsel objected to the composition of the jury

venire. 2 Though the record is unclear at exactly what point he objected, it is clear he

objected well after jury selection was underway. While at a side-bar discussing

challenges for cause to certain jurors, Murphy’s counsel stated:

       While we’re – while we’re at side bar, I didn’t want to interrupt the
       proceedings here on behalf of my client, Frank Murphy, who happens to be
       an African American male and Mr. Pete is also an African American male,
       we have no African Americans on this jury panel, and I would object to the
       selection, using this panel at this time.



1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
2
 The jury venire was created pursuant to a plan approved by then-Chief Judge Scirica in
April 2009. S. App. 3.
                                              2
S. App. 23. 3 After being informed that the panel was selected at random by a computer,

the District Court overruled the objection. Counsel did not seek a stay of the proceedings

at that time.

       During the trial, the Government called Sergeant Shawn Spence of the Henderson

North Carolina Police Department to testify about stopping a car in which Murphy was a

passenger roughly six weeks prior to his arrest. During cross-examination, he testified, in

pertinent part, as follows:

       Q. Okay. You thought they [referring to Murphy and the other passengers]
       were selling narcotics, right?

       A: Selling narcotics, yes, sir.

       Q: Didn’t you write in your report you thought they were involved in
       robberies?

       A: Yes.

       Q: So what was it?

       A: I wasn’t certain what they were doing. I contacted ATF, I contacted
       DEA, I contacted the Violent Crimes Unit in New York, gave them all the
       information. We put out BOLOs along the east coast, because there’s three
       handguns, three suspects, they had three sets of gloves found in the car that
       they purchased in New York. Based on my training and experience, coming
       from Arizona or coming from New York and then going back to Arizona,
       which were both source areas for narcotics—narcotics come across the
       border—the southwest border is where most of the narcotics come across. I
       also learned that Mr. Murphy through the SPI on the side of the road had
       been convicted of drug charges, so I believed they were transporting
       narcotics.




3
  Murphy did not include copies of any of the trial transcripts in his appendix. We rely
on the Supplemental Appendix filed by the Government, which included copies.
                                             3
S. APP. 65-66. Murphy’s counsel objected to the officer’s reference to Murphy’s prior

drug conviction. At a side-bar, the District Court ruled that it would not grant a mistrial

based on the testimony. Murphy’s counsel declined the District Court’s repeated offers

to provide the jury with a limiting instruction. After the jury found Murphy guilty, he

moved for a new trial, which the District Court denied.

                                             II.

        Whether a defendant has been denied his right to a jury selected from a fair cross

section of the community is a mixed question of law and fact, and is reviewed de novo.

United States v. Weaver, 267 F.3d 231, 235 (3d Cir. 2001).

        A criminal defendant has the right to be tried by an impartial jury “drawn from

sources reflecting a fair cross section of the community.” Berghuis v. Smith, --- U.S. ---,

130 S.Ct. 1382, 1387 (2010). The appropriate time for objecting to the composition of

the jury venire is “before the voir dire examination begins, or within seven days after the

defendant discovered or could have discovered, by the exercise of diligence, the grounds

therefore, whichever is earlier.” 28 U.S.C. § 1867(a), (e). Because Murphy’s counsel

would have seen the composition of the venire as it assembled in the courtroom but did

not object until after jury selection was well under way, he has waived any such objection

to the venire’s composition. Id.; United States v. Green, 742 F.2d 609, 612 (7th Cir.

1984) (“In the absence of strict compliance [with 28 U.S.C. § 1867], [defendant’s]

attempt to challenge the jury venire on constitutional grounds is without legal effect and

is futile.”).



                                             4
       Even if the objection was not waived, Murphy has not presented any evidence that

the selection process used to create the jury pool was deficient. To establish a violation

of the fair cross-section requirement, a defendant must show:

       (1) that the group alleged to be excluded is a “distinctive” group in the
       community;

       (2) that the representation of this group in venires from which juries are
       selected is not fair and reasonable in relation to the number of such persons
       in the community; and

       (3) that this underrepresentation is due to systematic exclusion of the group
       in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). African-Americas are a “distinctive”

group and thus the first prong is satisfied. Weaver, 267 F.3d at 240. Satisfying the

second prong requires the introduction of statistical data and Murphy “must demonstrate

the percentage of the community made up of the group alleged to be underrepresented.”

Id. at 240. Murphy has not even attempted to satisfy the second prong. There is no

evidence in this record that Murphy’s counsel sought discovery or a hearing before the

District Court regarding the Western District of Pennsylvania’s jury selection plan.

Before this Court, Murphy only presents the census data from the various counties within

the district. This is plainly insufficient to satisfy the Duren test. Thus, the District Court

properly overruled Murphy’s objection.

                                              B.

       As to the argument that Murphy’s motion for a mistrial should have been granted

because of the reference a government witness made to Murphy’s prior conviction, the

complained-of comment came in response to the open-ended question posed by defense

                                              5
counsel on cross-examination and so was no basis for a mistrial under these

circumstances. See, e.g., United States v. Neal, 78 F.3d 901, 904 (4th Cir. 1996) (where

challenged comments by witness “were elicited by [defendant’s] own attorney from a

government witness during cross-examination[,]” the defendant “invited the error and

therefore it provides no basis for reversal”); Weinar v. Rollform Inc., 744 F.2d 797, 805

(Fed. Cir. 1984) (under “invited error” rule, counsel “cannot now be heard to complain

that the witness answered his questions”); McBride v. United States, 409 F.2d 1046, 1048

(10th Cir. 1969) (rejecting defendant’s argument that he was unfairly prejudiced by

testimony of government witness and noting that “the objectionable answer was given in

response to a question asked by defense counsel on cross-examination”)."

                                            III.

        The judgment and sentence of the District Court will be affirmed.




                                             6
