United States v. Raymond Brown

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3754

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UNITED STATES OF AMERICA

v.

RAYMOND BROWN,

Appellant

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On Appeal from the District Court of the

Virgin Islands

(D.C. No. 3-13-cr-00022-005)

District Judge: Hon. Curtis V. Gomez

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Submitted Under Third Circuit L.A.R. 34.1(a)

December 13, 2016

Before: CHAGARES, JORDAN and HARDIMAN,

Circuit Judges.

(Filed: February 22, 2017)

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Ryan T. Truskoski

P.O. Box 568005

Orlando, FL 32856

Counsel for Appellant

Kim L. Chisholm

Ronald Sharpe

Office of United States Attorney

5500 Veterans Bldg. – Ste. 260

United States Courthouse

St. Thomas, VI 00802

Counsel for Appellee

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Raymond Brown appeals from his conviction and

sentence in the District Court of the Virgin Islands. He

argues that the use of dual juries (one for him, and one for a

co-defendant) violated his Fifth and Sixth Amendment rights.

He also asks us to reconsider our rule placing the burden on

defendants to object at sentencing, and he says we should

instead require the sentencing court to solicit objections. For

the reasons that follow, we will affirm.

I. Background

Brown and seven others were charged in a 69-count

Third Superseding Indictment with crimes related to multiple

conspiracies to purchase, transport, and distribute cocaine.

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The central feature of the case was a cocaine enterprise

organized by Robert Tapia, a Virgin Islands law enforcement

officer.

Ultimately, only Brown and one other defendant,

Walter Hill, proceeded to trial. Although both Brown and

Hill were connected to the enterprise, there was no allegation

that the two conspired with one another. Brown

communicated with Tapia about potential cocaine purchases

and helped deliver the cocaine to Tapia, while Hill assisted in

the collection and subsequent transportation of the purchased

cocaine.

Before trial, the Court observed that, “[w]hile initially

there was an overarching conspiracy, there is none now. And

nothing that ties the two defendants together.” (Supp. App. at

1.) Therefore, “[o]ut of an abundance of caution, the Court

… select[ed] two juries to hear th[e] matter.” (Id.) It

explained the process of empaneling two separate juries and

had counsel agree on the record to that procedure. It then

designated Brown’s jury “Panel A” and Hill’s jury “Panel B.”

Panel A convicted Brown on Count Six, for using a

communication to facilitate a drug crime, in violation of 21

U.S.C. §§ 843(b) and (d)(1) and 18 U.S.C. § 2. He was

acquitted on nine other counts.1

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Panel B convicted Hill of conspiracy with intent to

distribute cocaine, possession with intent to distribute

cocaine, and use of a communication facility to commit a

drug crime.

3

At sentencing, the Court determined that Brown had an

offense level of 28 and a criminal history category of I. It

then calculated the guideline range of imprisonment as 78 to

97 months. Because the minimum term of imprisonment

under the guidelines exceeded the statutory maximum

sentence, the Court turned to § 5G1.1(a) of the United States

Sentencing Guidelines.2 Pursuant to that section, and after

consideration of the sentencing factors enumerated in 18

U.S.C. § 3553, the Court sentenced Brown to the statutory

maximum term of 48 months. Brown did not object to the

sentence.

II. Discussion3

A. Dual Juries

Brown challenges the District Court’s decision to

empanel dual juries as violative of his Fifth Amendment right

to due process and Sixth Amendment right to trial before an

impartial jury.4 Because there was no contemporaneous

2

Section 5G1.1(a) of the Sentencing Guidelines states

that “[w]here the statutorily authorized maximum sentence is

less than the minimum of the applicable guideline range, the

statutorily authorized maximum sentence shall be the

guideline sentence.”

3

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231 and 48 U.S.C. § 1612. We have jurisdiction

under 28 U.S.C. § 1291.

4

The Fifth Amendment protects a defendant from

deprivation of “life, liberty, or property, without due process

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objection, we review the Court’s decision for plain error

under Federal Rule of Criminal Procedure 52(b), unless the

issue was waived.5 Puckett v. United States, 556 U.S. 129,

135 (2009). We thus begin by asking whether there was

waiver, because “[t]he threshold question in deciding whether

there is appellate authority to grant relief under Rule 52(b), is

… whether the appellant who failed to object in the trial court

to an error that violated his rights was aware of the

relinquished or abandoned right.” Gov’t of Virgin Islands v.

Rosa, 399 F.3d 283, 291 (3d Cir. 2005). Since waiver is a

threshold question under Rule 52(b), id., we will address it

even though the government did not argue the point in its

Answering Brief.

On the procedural facts here, one could contend that

Brown did waive his right to complain about the empanelling

of dual juries. Not only did his counsel fail to object to

of law[.]” U.S. Const. amend. V. The Sixth Amendment

entitles a defendant to “a speedy and public trial, by an

impartial jury[.]” U.S. Const. amend. VI.

5

Brown argues that he should escape plain error

review because his trial counsel rendered ineffective

assistance by not objecting to the use of dual juries. But,

except in extraordinary circumstances, “claims of ineffective

assistance of counsel … are not cognizable on direct appeal.”

United States v. Givan, 320 F.3d 452, 464 (3d Cir. 2003). To

spare Brown “from having res judicata attach to the

ineffective assistance claim,” we decline to address it here.

Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 164 (3d

Cir. 2014).

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proceeding in a single trial before two juries, but, after the

District Court solicited objections, counsel explicitly agreed

to it.6 And yet, “an explicit agreement or stipulation

constitutes a waiver of rights [only] if the defendant was

aware of the right.” Id. As with the waiver of rights, so too

with the arguments associated with those rights – because the

government did not demonstrate, nor does the record show,

that Brown himself was aware of the rights implicated by the

joinder of his and Hill’s cases and the use of dual juries, we

cannot say that Brown knowingly and intelligently waived

any arguments bearing on those rights.7 See Brewer v.

Williams, 430 U.S. 387, 404 (1977) (“[T]he proper standard

to be applied in determining the question of waiver as a

matter of federal constitutional law” requires the government

“to prove ‘an intentional relinquishment or abandonment of a

6

After explaining the dual jury process, the District

Court specifically stated that it did not “believe it ha[d] any

objection from counsel with the [dual jury] procedure as …

just outlined.” (Supp. App. 2.) Brown’s counsel was asked

to confirm that was the case, and he said, “Yes, Your Honor.”

(Id.)

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We do not hold that a defendant must be personally

aware of and knowingly waive every issue that may arise in a

case, only those issues involving fundamental constitutional

rights. See McMahon v. Fulcomer, 821 F.2d 934, 944 (3d

Cir. 1987) (“[T]he Supreme Court has cautioned ‘that courts

indulge in every reasonable presumption against waiver of

fundamental constitutional rights and that we do not presume

acquiescence in the loss of fundamental rights.’” (quoting

Johnson v. Zerbst, 304 U.S. 458, 464 (1938))).

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known right or privilege.’” (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938))).

When addressing a waiver of the right to a jury trial in

the context of a guilty plea, we have required that the

defendant be individually informed of and understand that

right before he can knowingly waive it. Taylor v. Horn, 504

F.3d 416, 440 (3d Cir. 2007). To that end, the trial court

engages in a colloquy to ensure “the defendant fully

understands the nature of the right and how it would likely

apply in general in the circumstances[.]” Id. (quoting Iowa v.

Tovar, 541 U.S. 77, 92 (2004)). That practice is also used to

ensure that a criminal defendant’s waiver of other key

constitutional protections is knowing and intelligent. See

United States v. Stewart, 977 F.2d 81, 84 (3d Cir. 1992)

(recognizing that a colloquy is required before waiving “the

privilege against compulsory self-incrimination, the right to a

trial by jury, and the right to confront one’s accusers” after

the Supreme Court decision in Boykin v. Alabama, 395 U.S.

238 (1969)); see also United States v. Peppers, 302 F.3d 120,

135-36 (3d Cir. 2002) (requiring a colloquy when waiving

right to counsel by proceeding pro se).

We need not decide whether a colloquy with the

defendant is essential, even if it is advisable, when a court

proposes to proceed before dual juries rather than following

the standard practice of trying a case before a single jury. It

is enough to say that there must be some indication on the

record that the defendant was actually aware of his due

process and jury rights and that he himself – not just his

counsel – knowingly sanctioned a procedure that arguably

impinges on those rights. The government here did not assert

waiver, and thus did not sustain its burden necessary for

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waiver. Brewer, 430 U.S. at 404. There simply is nothing to

suggest that Brown was personally aware of his right to an

impartial jury and then, “with an understanding of the

ramifications and consequences[,]” Peppers, 302 F.3d at 129,

went ahead and waived any objection to being tried together

with Hill before dual juries. Therefore, the statement of

Brown’s counsel agreeing that there was no objection to the

joint trial before dual juries does not constitute a waiver of

Brown’s ability to raise arguments now concerning joinder

and the right to an impartial jury. We thus review for plain

error.

On plain error review, we can only correct an error not

raised at trial where the appellant demonstrates that (1) there

is a legal error; (2) the legal error is clear or obvious; (3) the

error affected the appellant’s substantial rights such that it

affected the outcome of district court proceedings; and (4) the

error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Puckett, 556 U.S. at 135

(alteration in original) (quoting United States v. Olano, 507

U.S. 725, 736 (1993)).

The use of dual juries seems to have very little

precedent in this Circuit – we have found only one example

of it, which was not challenged on appeal. See United States

v. Cruz, No. 98-5170, 1998 WL 34096109 (stating in

Appellant’s Opening Brief, at *3-4, that the District Court had

decided “to resolve the issue regarding the admissibility of

the statements made by codefendants … by empaneling [sic]

two juries; one for [Appellant] and one for the three

remaining defendants”). The practice has, however, occurred

and been constitutionally challenged in several other courts of

appeals. Each circuit court that has addressed the use of dual

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juries has upheld the practice unless a defendant can “show

some specific, undue prejudice.” Mack v. Peters, 80 F.3d

230, 235 (7th Cir. 1996); see also Lambright v. Stewart, 191

F.3d 1181, 1186 (9th Cir. 1999) (upholding use where there

was no due process violation and neither defendant

“convincingly pointed to some other specific trial right which

was compromised”); United States v. Lebron-Gonzalez, 816

F.2d 823, 831 (1st Cir. 1987) (requiring defendant to carry

“heavy burden of making a strong showing of prejudice”);

United States v. Lewis, 716 F.2d 16, 20 (D.C. Cir. 1983)

(analyzing whether there was any specific prejudice resulting

from dual juries); United States v. Hayes, 676 F.2d 1359,

1366 (11th Cir. 1982) (same); United States v. Rowan, 518

F.2d 685, 690 (6th Cir. 1975) (same). A review of Federal

Rule of Criminal Procedure 14 and our precedent governing

the use of joint trials supports the uniform holdings of our

sister circuits, and we agree that the use of dual juries is not

per se unconstitutional.

Rule 14 provides relief to defendants from “prejudicial

joinder.” Under that rule, “[i]f the joinder of offenses or

defendants in an indictment, an information, or a

consolidation for trial appears to prejudice a defendant or the

government, the court may order separate trials of counts,

sever the defendants’ trials, or provide any other relief that

justice requires.” Fed. R. Crim. P. 14. Permitting courts to

“provide any other relief that justice requires” affords great

latitude to trial courts to craft remedies that fit the

circumstances of each case. Id. “Moreover, Rule 14 does not

require severance even if prejudice is shown; rather, it leaves

the tailoring of the relief to be granted, if any, to the district

court’s sound discretion.” Zafiro v. United States, 506 U.S.

534, 538-39 (1993) (citation omitted). As a result, we require

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“[d]efendants seeking a severance [to] bear a heavy burden

and … demonstrate not only that the court would abuse its

discretion if it denied severance, but also that the denial of

severance would lead to clear and substantial prejudice

resulting in a manifestly unfair trial.” United States v. Lore,

430 F.3d 190, 205 (3d Cir. 2005) (internal quotation marks

omitted).

We see no reason why the rule should be any different

when the joint trial is before two juries rather than one. In

fact, depending on the circumstances, a joint trial before

separate juries could be more protective of defendants’ rights

than the use of a single jury. See Lebron-Gonzalez, 816 F.2d

at 831 (concluding that the use of dual juries was “a way of

minimizing any prejudice from jointly trying the

defendants”). Therefore, as required for severance generally,

in order to successfully challenge the use of dual juries, a

defendant “must demonstrate clear and substantial prejudice

resulting in a manifestly unfair trial.” United States v. Balter,

91 F.3d 427, 433 (3d Cir. 1996), as amended (Aug. 16, 1996)

(quoting United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir.

1996)).

Brown argues that empaneling two juries violated due

process and his right to an impartial jury because the jury was

“exposed to irrelevant evidence that by its very nature did not

apply to him.” (Opening Br. at 13.) He provides one

example of confusion, where, on cross-examination, a witness

mixed-up the two defendants and the government had to

correct the error on redirect. But there is no dispute that the

error was corrected. And we have often declined to find

prejudice “‘in a joint trial just because all evidence adduced is

not germane to all counts against each defendant’ or some

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evidence adduced is ‘more damaging to one defendant than

others.’” Balter, 91 F.3d at 433 (quoting United States v.

Console, 13 F.3d 641, 655 (3d Cir. 1993)). Without any

indication that there was “clear and substantial prejudice

resulting in a manifestly unfair trial[,]” Brown cannot show

that the use of dual juries constituted error, let alone plain

error. Lore, 430 F.3d at 205 (quoting United States v. Urban,

404 F.3d 754, 775 (3d Cir. 2005)).

It is a “fundamental principle that the federal system

prefers ‘joint trials of defendants who are indicted together []’

because joint trials ‘promote efficiency and serve the interests

of justice by avoiding the scandal and inequity of inconsistent

verdicts.’”8 Urban, 404 F.3d at 775 (alteration in original)

(quoting Zafiro, 506 U.S. at 537). If dual juries can be

empanelled without “a serious risk that [such] a joint trial

would compromise a specific trial right of one of the

defendants, or prevent the jury from making a reliable

judgment about guilt or innocence,” the practice is not in

itself unconstitutional. Id. That said, we do not mean by this

ruling to encourage the practice. The potential complications

are not insignificant. Nevertheless, Brown has not shown any

obvious error affecting substantial rights or the fairness of the

proceedings. We will therefore affirm his conviction.

8

Given the District Court’s comment that “nothing []

ties the two defendants together” (Supp. App. at 1), we are

conscious of the concern that joinder here may have lacked

the robust justification it ordinarily has. But the record

indicates that there actually was overlap in the factual

background of Brown’s and Hill’s cases, and we cannot say

that joinder was plainly erroneous.

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B. Failure to Object at Sentencing

Brown also challenges the Court’s failure to solicit

objections before imposing sentence, arguing that we should

overturn our recent en banc decision in United States v.

Flores-Mejia, 759 F.3d 253 (3d Cir. 2014). In Flores-Mejia,

“we h[e]ld that, in a criminal prosecution, unless a relevant

objection has been made earlier, a party must object to a

procedural error after the sentence is pronounced in order to

preserve the error and avoid plain error review.” 759 F.3d at

258. Under Flores-Mejia, because Brown did not object to

his sentence, an appeal of that sentence would be subject to

plain error review. Brown does not, however, appeal any

aspect of his sentence. Reconsidering Flores-Mejia would

thus have no affect on his appeal – there is simply no alleged

error to which we could apply a more generous standard of

review. We have, then, no occasion to reconsider our well-

reasoned decision in Flores-Mejia at this time, even if we

were inclined or empowered to do so.

III. Conclusion

For the foregoing reasons, we will affirm Brown’s

conviction and sentence.

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