Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00 CR 83--Rudolph T. Randa, Chief Judge.
Before Easterbrook, Rovner, and Williams, Circuit
The opinion of the court was delivered by: Rovner, Circuit Judge
A grand jury indicted Plaze Anderson and four other individuals with conspiracy to distribute in excess of 50 grams of cocaine base, in viola- tion of 21 U.S.C. § 846. Plaze Anderson was the only one who did not plead guilty, choosing instead to go to trial on the charge. The jury convicted him, and he was sen- tenced to life imprisonment, a $1,000 fine, restitution of $1,420, five years of supervised release, and a $100 special assessment. Anderson now appeals that conviction.
The evidence against Anderson at trial consisted mainly of the testimony of eight other individuals who had pled guilty and could potentially receive sentence reductions as a result of their testimony. That testimony established that Anderson was their supplier of crack cocaine and that he would front the crack to them and they would pay him after it was sold. The testimony also indicated that Ander- son took precautions to ensure that neither he nor the individuals working for him were caught, including mov- ing the drugs among a number of locations, using rental cars to transport the drugs in order to avoid detection, and ensuring that drug transactions did not take place at residences at which Anderson lived. Anderson's defense strategy was to highlight the lack of physical evidence ty- ing Anderson to the crime. In particular, Anderson em- phasized the absence of any audio or video linking him to drugs and the lack of fingerprints connecting him to the crime. In response to the parade of witnesses testifying that he was in fact their supplier, Anderson argued that they were testifying to reduce their own sentences and therefore were incredible, and that they had agreed among themselves to frame him in order to obtain that reduction.
To counter that, the government introduced evidence that at least some of the defendants implicated Ander- son when first arrested, before they had an opportunity to consult with the other conspirators. Government wit- nesses testified that the individuals were interrogated separately precisely so that they would not have the opportunity to agree on a cover story. Moreover, the gov- ernment attacked Anderson's credibility when Anderson testified in his own defense. Anderson testified that he did not know or did not really have a relationship with a number of government witnesses including Franklin Jones, Armando Barrios, and Antonio Grant, as well as with his purported supplier "D.D." Yet the government introduced phone records indicating that hundreds of phone calls were placed from Anderson's cell phone to those individuals over a period of months (including 206 calls to Jones in a three-month period and 200 calls to Barrios in a one-month period) thus undermining Anderson's credibil- ity.
On appeal, Anderson raises three challenges to his conviction. First, he asserts that the trial court denied him a fair trial by improperly disqualifying a juror on the final day of trial with no alternate available, thus resulting in an eleven-member jury. He further argues that the prosecutor made a number of improper remarks in clos- ing argument, which denied him a fair trial. Finally, he maintains that the government improperly relied on prior statements by witnesses to bolster that witness testimony, thus denying him a fair trial. We consider these argu- ments in turn, beginning with the challenge to the jury.
On the final day of the trial, the prosecutor informed the trial court that one of the jurors may have been contacted by parties associated in the case. The prosecutor then recounted a series of events that led to his concern. First, on the preceding day, his office received a call from the District Attorney's office in Racine indicating that there may be a Shelly or a Sandra on one of the current fed- eral juries who knew some of the parties involved in the case. The judges in two ongoing cases inquired of their juries, but found no connection. That night, the prosecutor was contacted by the Racine Police Department, which had received a call from Christopher Mayfield, one of the government witnesses in the trial. Mayfield indicated that he had a conversation with a woman named Holly Christiansen, an intimate friend of his, who in the course of the discussion bet him $100 that Anderson would be found not guilty. Herriot interviewed Christiansen who initially denied knowing anyone on the jury. In a subse- quent interview, Herriot learned that she worked for a woman, Alesia Kinlow-Glosson, who was one of the jurors on Anderson's jury. Christiansen was reluctant to talk, fearing that she and her friend would find themselves in trouble. She wanted immunity for herself or Kinlow- Glosson before she would provide details. She indicated that she was to have been on a jury the week prior in federal court, that Kinlow-Glosson discussed with her some of the intricacies of jury duty, and that Kinlow- Glosson currently was a juror in federal court on a Racine case. Christiansen also stated that she had received a call from Anderson's brother telling her that she should not become involved in the case. Finally, the prosecutor stated that Christiansen also received a call from the Racine County Jail from Willie Buckley, the father of Anderson's girlfriend, who said she was supposed to have been on the jury, and that he thought she was going to "work with them." She later had the discussion with Mayfield which was reported to the police. Christiansen's sister informed the prosecutor that Christiansen was good friends with Anderson's mother, "hung out" with Anderson as well, and thought that Anderson was "too cool" and would be ac- quitted because he gets his underlings to do the work for him. Christiansen's family also indicated that Chris- tiansen was getting daily updates from Kinlow-Glosson. The prosecutor noted that Kinlow-Glosson was frequently on her cell phone during breaks.
Based on the prosecutor's statements, the court decided to conduct an on-the-record in camera hearing, at which the court and the attorneys for each side could question Ms. Kinlow-Glosson individually. At that hearing, Kinlow- Glosson acknowledged that she worked with Holly Chris- tiansen, but stated that she was unaware that Christiansen was a friend of Mayfield. She indicated that Christiansen had been hired by her brother as the receptionist in their family-run business a couple of weeks prior, and that she spoke with Christiansen every day during the trial in order to get her messages. She denied having discussed the case with Christiansen but acknowledged telling Chris- tiansen that she was in federal court on a trial from Racine County. Kinlow-Glosson then indicated that Christiansen had called her the day before, which she found surprising because she never gave Christiansen her number. Kinlow- Glosson recounted the conversation as follows:
But she called me, gave me the message, and then she also said to me how is the case going? And she started asking me well, how long are you guys gonna be there, that type of questioning. And then she said--what else did she say to me? She did say--she's like I want you to do me a favor. And then I told her that I couldn't talk to her anymore, because I started getting kind of paranoid, because I didn't even know how she got the number to call me down here. . . . Tr. at 584.
Kinlow-Glosson further asserted that she did not know that Christiansen had any relationship to any of the parties but that she knew Christiansen was from Racine. Finally, Kinlow-Glosson acknowledged that her brother had discussed Christiansen with her the day be- fore. He called to ask Kinlow-Glosson what was going on, and reported that Christiansen told him some federal people had called her at work, and she told him she was going to ask Kinlow-Glosson to deny knowing her. Kinlow- Glosson's brother then encouraged Kinlow-Glosson not to lie and to acknowledge that she knew Christiansen. Kinlow-Glosson maintained that she could be an impar- tial juror despite those conversations.
After hearing Kinlow-Glosson's version of events, the court determined that she had to be removed from the jury for just cause. The court noted that she was in daily contact during the trial with a woman who knew the par- ties involved in the case and who was hired only a couple of weeks before the start of the trial. Furthermore, Chris- tiansen had told Kinlow-Glosson's brother that she wanted Kinlow-Glosson to deny knowing Christiansen. The court determined that some form of contact had clearly been made during the trial between a juror and someone con- nected to the parties, and that the court could not take the chance that the contact was proper as opposed to im- proper. The court noted that the situation was even more troubling if it credited the information provided by the prosecutor but stated that it did not have to do so for its decision. The court then stated that it was going to de- clare a mistrial unless the defendant preferred to agree to an eleven-person jury and exclude Kinlow-Glosson (no alternates were empaneled), an option that the court doubted the defendant would take. After consultation with his attorney, and against that attorney's advice, Anderson agreed to proceed with the eleven-person jury rather than receive a mistrial.
Anderson now contends that the district court abused its discretion in determining that there was "just cause" to dismiss Kinlow-Glosson. Federal Rule of Criminal Pro- cedure 23(b) provides that:
Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it nec- essary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.
Anderson claims that the court could not properly have found just cause for removing Kinlow-Glosson, and that it improperly relied on hearsay from the prosecutor in making its decision. The latter claim is belied by the rec- ord, in which the court makes clear that its determina- tion of just cause is not dependent on crediting the pros- ecutor's statements. Therefore, the only issue ...