United States v. Shane Floyd

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0226p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

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v. > Nos. 15-4098/4100/4124

│

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CARL L. ROBINSON (15-4098); CHRISTOPHER D. │

MARTIN (15-4100); SHANE K. FLOYD (15-4124), │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:14-cr-00126—Algenon L. Marbley, District Judge.

Argued: June 14, 2017

Decided and Filed: September 29, 2017

Before: GIBBONS, ROGERS, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Yekaterina Reyzis, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL

APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant in 15-4098.

Michaela Pickus, UNIVERSITY OF VIRGINIA LAW SCHOOL, Charlottesville, Virginia, for

Appellant in 15-4100. Sandra J. Finucane, Gahanna, Ohio, for Appellant in 15-4124. Kimberly

Robinson, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee. ON

BRIEF: Yekaterina Reyzis, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW

SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for

Appellant in 15-4098. Michaela Pickus, Stephen L. Braga, Alyson Sandler, UNIVERSITY OF

VIRGINIA LAW SCHOOL, Charlottesville, Virginia, for Appellant in 15-4100. Derek A.

Farmer, Gahanna, Ohio, for Appellant in 15-4124. Kimberly Robinson, UNITED STATES

ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 2

ROGERS, J., delivered the opinion of the court in which GIBBONS, J., joined, and

DONALD, J., joined in part. DONALD, J. (pp. 28–40), delivered a separate opinion concurring

in part and dissenting in part.

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OPINION

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ROGERS, Circuit Judge. Defendants appeal their criminal convictions arising out of a

kickback scheme at a now-defunct community school in Dayton, Ohio. Defendant Shane Floyd

was superintendent at the school and defendant Christopher Martin was the chair of the school’s

board of directors. Both used their positions to ensure that the school paid over $400,000 in

consulting fees to Global Educational Consultants (“Global”), a company owned by defendant

Carl Robinson. Robinson, in turn, funneled money from Global’s payments back to Floyd and

Martin, such that Global continued to receive payments regardless of whether it provided poor-

quality services or no services at all. All three defendants were tried by jury, convicted, and now

appeal on several grounds. In light of the Supreme Court’s recent decision in Pena-Rodriguez v.

Colorado, 137 S. Ct. 855 (2017), defendants challenge the district court’s failure to grant a new

trial, or conduct an evidentiary hearing, on the basis of the jury foreperson’s racially insensitive

remarks to two African-American jurors during jury deliberations. Although Pena-Rodriguez

permitted, in very limited circumstances, inquiry into a jury’s deliberations, this case does not fit

into these limited circumstances. The defendants’ other challenges are also without merit.

I.

Arise! Academy (“Arise”) was a community school—Ohio’s name for a charter school—

in Dayton, Ohio. Arise sought to provide a flexible, nontraditional curriculum to better serve

students who were deemed at risk of dropping out of school. By the summer of 2008, Arise

faced declining enrollment, financial troubles, and scandal after its treasurer was indicted for

embezzlement. Accordingly, the school’s sponsor under Ohio law sought a radical change in

administration. The sponsor elevated Arise’s former principal, defendant Dr. Shane Floyd, to the

role of superintendent, removed all existing board members, and appointed Floyd’s

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 3

recommended candidates to take over the new board. The hope was that Floyd and the new

board could turn the school around.

Instead, Floyd used his position at Arise to set up a kickback scheme. According to the

Government, soon after Floyd was appointed as superintendent, he approached two former

business partners, defendant Dr. Carl Robinson and Mike Ward, with a plan. Under this plan,

Robinson would incorporate and be the owner of a new company, Global Educational

Consultants, which would ostensibly provide management and education services to Arise.

Ward, a former police officer, would be the “silent partner” in Global, and his role in the

company would be concealed by Global’s ownership structure. Floyd would then use his

position as superintendent to ensure that Arise signed a contract with Global for educational and

management services. The three men would split the proceeds of this contract: Ward and

Robinson would each pay themselves up to $100,000 from the contract’s proceeds per year—the

amount Floyd was making in salary as superintendent of Arise—and all three men would split

the remaining proceeds evenly.

The three men then put this scheme into effect. Floyd and the new board took over in

July, 2008. According to documents filed with the Ohio Secretary of State, Robinson

incorporated a company called Global Educational Consultants on July 28, 2008, disclosing

himself as the owner but concealing Floyd’s and Ward’s involvement. By August 1, 2008, the

newly formed Global signed a contract with Arise for various management and educational

services. The contract was negotiated by Floyd and soon thereafter approved by the board. This

contract initially obliged Arise to pay Global $264,000 for one year of consulting and

management services, which came out to a payment of $22,000 each month.1

Each time Global was paid, Ward, Floyd, and Robinson would go to the bank together,

where Robinson would deposit the check into Global’s account and withdraw cash. The three

men would then divide up the cash according to their agreement, sometimes at Floyd’s house,

and at least once in Floyd’s car in the parking lot outside the bank. Floyd was instructed not to

1

This $22,000 included $11,000 for services to Arise and $11,000 for services to PETE Academy, a

separate community school located in the same building. PETE Academy merged with Arise in February 2009, but

Global continued to receive payments for services to both Arise and PETE.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 4

deposit the cash into a bank account “because it [could] be traced.” Floyd apparently

disregarded these instructions, allowing the government to eventually track this exchange of cash

between the three men. For example, according to subsequently obtained bank records, on May

11, Robinson deposited a $40,000 check from Arise into Global’s bank account. The next day,

May 12, Robinson withdrew $5,000 in cash from the Global bank account, all in $20 bills. That

same day, Floyd deposited $3,000 into his bank account, all in $20 bills. Similarly, a month

later, on June 11, Robinson again deposited a $65,000 check from Arise into Global’s bank

account. The next day, June 12, Robinson took out a $5,000 cashier’s check in Global’s name

and made the check out to Floyd. That same day, Floyd deposited the same cashier’s check into

his account. Another month later, on July 15, Robinson deposited a $66,000 check from Arise

into Global’s bank account. The next day, July 16, Robinson withdrew $6,000 in cash, all in

$100 bills. That same day, Floyd deposited $2,200 into his bank account, all in $100 bills.

Global soon found that it had to pay off Arise board members in order to ensure prompt

payments under the Global-Arise contract. Though selected by Floyd, Arise Board Chair Brian

Moore initially held up payments to Global, questioning why the consulting company was paid

so much under the contract. Robinson reportedly told Ward to pay Moore in exchange for his

approving payments to Global in a timely manner. Moore initially refused to accept the

payments, but changed his mind after Ward offered him an initial $1,000 in cash in a gas station

parking lot sometime in January or February of 2009. Global was then back-paid for several

months of missed payments and paid monthly from then on. Soon thereafter, Moore quit his

position as Board Chair after learning that Global was not providing the training it was supposed

to. He was replaced as chair by board member Kristal Screven. Screven reportedly also began

receiving the same $1,000-a-month payments that Moore had received. Finally, in July 2009,

defendant Christopher Martin replaced Screven as Board Chair. Ward then approached Martin

and offered him the same deal Moore and Screven had accepted. Martin accepted this offer and

was reportedly paid $1,000 every month until December 2009 or January 2010. As an added

bonus, Martin approached Ward in July 2009 and asked for him to finance a trip to Las Vegas

for a leadership conference hosted by the fraternity of which both men were members. Ward

agreed, accompanied Martin to the conference, and paid for Martin’s food, airfare, hotel, and a

prostitute at the conference.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 5

Meanwhile, payments to Global increased beyond the initial contractual obligations. The

board increased monthly payments from $22,000 to $29,000 without explanation. In June 2009,

Global stopped providing services to Arise, but continued to collect tens of thousands of dollars

each month from the school for another year. The board was told these payments were necessary

under a “buyout clause” in the initial contract, although in fact there was no such “buyout

clause.” All told, Global received $420,919 from Arise. While Global was receiving these

payments, Arise teachers saw their salaries cut by a fifth, and staff members were not

consistently paid. Arise eventually ran out of money and closed in 2010.

A few years after Arise closed, the $420,919 in payments to Global attracted the attention

of the FBI, which was investigating Ohio community schools on another matter. Eventually, the

Government signed a proffer agreement with Mike Ward, the “silent partner” at Global. On the

basis of Ward’s expected testimony, the Government indicted Arise superintendent Shane Floyd,

Arise board members Christopher Martin and Kristal Screven, and Global owner Carl Robinson.

Charges included federal programs bribery, conspiracy to commit federal programs bribery, and

making material false statements. See 18 U.S.C. § 666(a)(1)(B), (a)(2); 18 U.S.C. § 371;

18 U.S.C. § 1001(a)(2). Defendant Screven signed a plea agreement, leaving only Robinson,

Martin, and Floyd to stand trial.

The jury trial began on Monday, May 18, 2015. The prosecution’s case depended

heavily on the testimony of the unindicted-conspirator-turned-government-witness Ward, who

testified as to the nature of the agreement between himself, Floyd, and Robinson, as well as his

efforts to convince the board members Moore, Screven, and Martin to accept bribes in order to

make sure Arise was paid promptly. The Government’s case also relied heavily on the testimony

of FBI Special Agent Jeffrey Rees, who testified as a lay witness under Fed. R. Evid. 701 and

explained how he had come to investigate Arise; recounted the bank records he had found

showing that Floyd, Robinson, and Ward had apparently split the proceeds from the Arise

contract; and read to the jury portions of Martin’s rejected proffer agreement in which Martin

admitted to receiving payments from Ward in exchange for prompt payments to Global.

Jury deliberations began on Friday, May 29, and continued until Tuesday, June 2.

On Monday, June 1, the jury sent the court several questions, the gist of which was whether

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 6

Robinson and Floyd could be held accountable for the acts of other parties—notably the

unindicted co-conspirator Ward—and how the jury should proceed “if one or more juror

members feel like the jury is intentionally being hung?” In response, the court read to the jury

the Sixth Circuit pattern instructions for Pinkerton liability—i.e., that in a conspiracy, “the act of

one conspirator may be treated as the act of all”—as well as a Sixth-Circuit pattern Allen

charge—i.e., instructions to a potentially deadlocked jury to continue their deliberations and

reconsider each other’s views in good faith. The same day, the district court also received a note

from the jury asking for two demonstrative aids that had been visible to the jury during trial but

not admitted into evidence, namely written portions from Martin’s failed proffer agreement that

Agent Rees read to the jury, as well as a flow-chart showing money movement among the

defendants. Over the objections of defense counsel, the court provided these demonstrative aids

to the jury during deliberations, but also read an instruction that the aids “[were] not evidence

[themselves] and must not be considered as proof of any facts.”

The next day, Tuesday, June 2, the jury again notified the court that it felt it would not be

able to come to an agreement on the conspiracy count. The court responded with a second

pattern Allen charge, as well as some additional remarks urging the jurors to reconsider each

other’s opinions. Several hours later, the jury rendered a verdict finding that all three defendants

were guilty on all counts. The jury was polled and all members declared that theirs was the

verdict that had been announced. The court then admonished the attorneys for both sides that “I

did not inquire of the jurors whether they wanted to speak with counsel, and so I will ask you not

to contact them since it was not preapproved.”

Three months later, on the morning of Floyd’s sentencing hearing, Floyd’s attorney filed

a motion for a new trial, which the other two defendants later joined. Robinson, Floyd, and

Martin are all African-American, and Floyd’s counsel alleged that the only two African-

American jurors looked uncomfortable during the verdict and polling. He therefore hired a

private investigator to interview these two African-American jurors, who are identified in the

record as A. R. and M. S. A. R. and M. S. reported that they were initially unconvinced by the

evidence of the defendants’ guilt. However, instead of discussing these doubts in good faith, the

jury foreperson—a white woman—reportedly told A. R. and M. S. that she believed they were

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 7

reluctant to convict because they felt they “owed something” to their “black brothers.” This

remark prompted a confrontation, requiring the marshal and the deputy clerk to intervene in an

attempt to calm things down. Floyd argued that this intervention by court personnel constituted

improper outside influence, necessitating a new trial.

However, the district court denied Floyd’s motion and Robinson’s and Martin’s

derivative motions, in part because the evidence that Floyd relied on was inadmissible under

Fed. R. Evid. 606(b), which codifies the longstanding “no-impeachment rule” against using juror

testimony to impeach a verdict. The district court therefore proceeded to sentencing. Over

objection by Floyd’s counsel, the district court found Floyd responsible for an actual loss of

$420,919—the entire value of Global’s contract with Arise—which enhanced his sentence and

increased the amount for which he was liable in restitution.

II.

Floyd, Robinson, and Martin now appeal, seeking reversal of their convictions on six

different grounds. First, all three defendants argue that the jury foreperson’s racist remarks show

that stereotyping or animus affected the jury’s verdicts, warranting reversal under the holding of

Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), a Supreme Court case decided while this

appeal was pending. The three defendants also repeat their argument that the marshal and deputy

clerk’s intervention in response to these remarks constituted improper outside influence on the

jury. Second, all three defendants argue that the court’s Allen charges coerced the dissenting

jurors into agreeing with the majority verdict. Third, Robinson argues that FBI Special Agent

Rees delivered inappropriate lay opinion testimony that invaded the province of the jury. Fourth,

Robinson also argues that providing the jury with Martin’s out-of-court confessions violated

Robinson’s Confrontation Clause rights under Bruton v. United States, 391 U.S. 123 (1968),

because Martin’s confession indirectly incriminated Robinson but Robinson was not able to

cross-examine his non-testifying co-defendant. Fifth, Martin argues that the district court

inappropriately allowed demonstrative aids that were not admitted into evidence to go back to

the jury during deliberations.2 Sixth, Floyd argues that the district court miscalculated the

2

Robinson incorporates this argument by reference.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 8

amount of loss to the government for sentencing purposes, using the total value of Global’s

contract with Arise rather than the value of the contract less the value of services actually

performed.3

A.

First, all three defendants argue that the jury foreperson’s remarks violated their Sixth-

Amendment right to an impartial jury. While the foreperson’s reported remarks were certainly

reprehensible, they do not, on the facts of this case, warrant a new trial or an evidentiary hearing.

As noted above, Floyd’s counsel hired a private investigator to interview the two African-

Americans on the jury, A. R. and M. S. A. R. and M. S. reportedly told the investigator that jury

deliberations had become openly hostile along racial lines. Specifically, the ten other jurors had

been ready to convict at the beginning of deliberations, but A. R. and M. S. had doubts about the

credibility of the unindicted-co-conspirator-turned-government-witness Mike Ward—whom the

defense had shown to be an ex-police officer who lost his job due to a drug conviction—and also

believed Floyd’s account of why he had deposited thousands of dollars in cash into his bank

account—i.e., that he was a minister of a church with a tradition of parishioners giving cash gifts,

and that these cash gifts had accumulated over time until he deposited them. A. R. and M. S.’s

doubts prevented the jury from reaching a consensus for the next three days of deliberations,

during which time the jury sent several notes to the court, prompting the Allen charges and

Pinkerton liability instructions.

This disagreement boiled over into confrontation on the last day of deliberations, June 2.

The jury foreperson—a white woman—reportedly told A. R. and M. S. that she “[found] it

strange that the colored women are the only two that can’t see” that the defendants were guilty,

and accused A. R. and M. S. of deliberately trying to hang the jury. M. S. reported being so

angered by this remark that her “eyes started watering” and she wanted to “smack the shit out of”

the foreperson. A verbal confrontation ensued, which required the marshal to enter the jury

room to broker peace. After things calmed down, the deputy clerk persuaded the foreperson to

apologize to A. R. and M. S. The foreperson did apologize for her remarks, but then said that

3

Martin and Robinson incorporate this argument by reference.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 9

she still felt A. R. and M. S. were protecting the defendants because they felt they “owed

something” to their “black brothers.” Again, the foreperson’s words prompted a confrontation,

and, again, the deputy clerk intervened, ultimately persuading A. R. and M. S. to return to

deliberations. A few hours later, the jury delivered its unanimous guilty verdict.

During their interviews with Floyd’s investigator, A. R. and M. S. expressed anger and

frustration with the foreperson’s behavior, but nevertheless stood by their ultimate decision to

vote to convict. When asked whether the foreperson intended to sway her decision, M. S.

reportedly replied, “I don’t think so. I just think [the foreperson] was ignorant, yeah. I mean,

because at any time despite with all of that they were saying, whatever, I was still going on how I

felt and the information that was presented to me and how I perceived it anyway, you know so.”

Similarly, A. R. said she was initially unsure of the conspiracy charge because she was not

confident that there was evidence of an agreement between Floyd, Robinson, and Martin.

Nevertheless, she said that she and M. S. examined the evidence together and noticed that Global

had been incorporated only three days before the contract was approved, and also that Robinson

was at the board meeting where Arise approved the Global contract—two facts that were enough

to assuage her doubts about the existence of a conspiracy.

Notwithstanding this evidence of juror impropriety, the district court denied Floyd’s

motion for a new trial, as well as Robinson’s and Martin’s derivative motions. The district court

gave several reasons for the denial. First, the district court concluded that Floyd’s motion was

untimely because it was filed several months after the 14-day deadline and was based on

evidence that could have been discovered immediately after the trial ended. See Fed. R. Crim. P.

33(b); see also United States v. Calderon, 127 F.3d 1314, 1351 (11th Cir. 1997). Second, the

district court noted that it was “equally disturbed by counsel’s knowing disregard for this Court’s

local rules and his direct violation of the Court’s trial order regarding contact with jurors.” The

court pointed to a local rule in the Southern District of Ohio that “[n]o attorney, party or anyone

acting as agent or in concert with them connected with the trial of an action shall personally, or

acting through an investigator or other person, contact, interview, examine, or question any juror

regarding the verdict or deliberations of the jury in the action except with leave of the Court.”

See Southern District of Ohio Local Civil Rule 47.1; see also Southern District of Ohio Local

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 10

Criminal Rule 1.2 (applying local civil rules in criminal context in most cases). The court also

noted that it had specifically admonished both parties that contact with jurors was not

preapproved—an admonishment that Floyd’s attorney had blatantly disregarded by contacting

A. R. and M. S. The court concluded that these violations alone were enough to exclude A. R.

and M. S.’s interviews and dismiss Floyd’s motion, and cited several cases where our sister

circuits have affirmed district court judgments on these grounds. See United States v. Ridings,

569 F. App’x 73, 75 (3d Cir. 2014); Cuevas v. United States, 317 F.3d 751, 753 (7th Cir. 2003);

United States v. Venske, 296 F.3d 1284, 1291 (11th Cir. 2002). Third, the district court held that

it could not consider the A. R. and M. S. interviews as evidence under the “no-impeachment

rule,” Fed. R. Evid. 606(b), which excludes juror testimony about any “statement made or

incident that occurred during the jury’s deliberations” from being used to impeach the validity of

a verdict.

Focusing on the marshal’s and deputy clerk’s intervention into jury deliberations to

defuse confrontation, Floyd initially moved for a new trial or at least a hearing on the basis of the

exception in Fed. R. Evid. 606(b)(2)(B) for when “outside influence was improperly brought to

bear on any juror.” However, while this appeal was pending, the Supreme Court held in Pena-

Rodriguez that the traditional “no-impeachment rule” codified in Fed. R. Evid. 606(b) may

violate the Sixth Amendment right to an impartial jury when “a juror makes a clear statement

that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.”

137 S. Ct. at 869. In such cases, a court may decline to apply the no-impeachment rule, consider

juror testimony, overturn a jury verdict, and hold a new trial. See id. Accordingly, the

defendants now argue that the foreperson’s remarks show that animus influenced both the

foreperson’s own vote and—through the foreperson’s inappropriate pressure—the votes of A. R.

and M. S. as well, triggering Pena-Rodriguez. Defendants further argue that the district court’s

reasoning would have been different had Pena-Rodriguez been decided at the time, because the

district court specifically relied on the no-impeachment rule that Pena-Rodriguez held could be

unconstitutional in circumstances such as these. Therefore, argue the defendants, their

convictions should be reversed and the case remanded.

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However, defendants’ argument is unpersuasive. First, unlike in Pena-Rodriguez, the

district court here denied the motion because it was based on evidence gathered in violation of

both a local court rule and a specific admonishment from the bench not to contact jurors. The

court noted that these violations were enough on their own to deny Floyd’s motion, citing several

cases from other circuits to that effect. See Ridings, 569 F. App’x at 75; Cuevas, 317 F.3d at

753; Venske, 296 F.3d at 1291. Pena-Rodriguez itself suggests that local rules and orders

limiting jury contact can be enforced:

The practical mechanics of acquiring and presenting such evidence [of juror

animus] will no doubt be shaped and guided by state rules of professional ethics

and local court rules, both of which often limit counsel’s post-trial contact with

jurors. These limits seek to provide jurors some protection when they return to

their daily affairs after the verdict has been entered.

137 S. Ct. at 869 (citations omitted). This reasoning strikes a balance by curtailing the no-

impeachment rule when it violates the Sixth Amendment, but also reaffirming the rules

governing post-verdict juror contact. In other words, even though defense counsel should, in

some circumstances, be able to interview jurors in order to impeach verdicts based on

stereotyping and animus, jurors are still entitled to “protection when they return to their daily

affairs after the verdict has been entered,” id., and the district court must be able to oversee post-

verdict juror contact.

In direct contrast to the instant case, the defense counsel in Pena-Rodriguez did follow all

the rules. It was the jurors in Pena-Rodriguez who approached defense counsel after the verdict

and reported that another juror had made remarks during deliberations suggesting animus; the

defense counsel then “reported this to the court and, with the court’s supervision, obtained sworn

affidavits from the two jurors.” Id. at 861. Therefore, given Pena-Rodriguez’s reaffirmation of

the validity of such local rules, it was not an abuse of discretion for the district court to deny

Floyd’s motion on the basis of his counsel’s violation of these rules. Furthermore, given the

district court’s suggestion that these violations were enough on their own to deny Floyd’s

motion, there is no reason to believe there would have been a different result had the court

anticipated Pena-Rodriguez.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 12

Second, the stated holding of Pena-Rodriguez would not apply even if the defendants had

not violated a local court rule and their evidence was properly before the district court. Pena-

Rodriguez makes clear that it does not apply to a mere “offhand comment indicating racial bias

or hostility,” but only to a “clear statement” that “tend[s] to show that racial animus was a

significant motivating factor in the juror’s vote to convict.” Id. at 869 (emphasis added). Here,

the foreperson’s reported comments clearly “indicat[ed] racial bias or hostility.” Id. She told A.

R. and M. S. that she “[found] it strange that the colored women are the only two that can’t see”

and that she thought they were protecting the defendants because they felt they “owed

something” to their “black brothers.” However, the foreperson did not make comments—much

less a “clear statement”—showing that animus was a “significant motivating factor” in her own

vote to convict. She never suggested that she voted to convict Robinson, Martin, and Floyd

because they were African-American. While she did impugn A. R. and M. S.’s integrity based

on their shared race with the defendants, she never said anything stereotyping the defendants

based on their race.

The juror’s racist remarks in Pena-Rodriguez were very different. In that case, a

Mexican-American was charged with sexually assaulting two teenage sisters in the bathroom of

a Colorado horse-racing facility. Id. at 861. During jury deliberations, one juror reportedly told

the others that “I think [the defendant] did it because he’s Mexican and Mexican men take

whatever they want,” that “Mexican men had a bravado that caused them to believe they could

do whatever they wanted with women,” and that “nine times out of ten Mexican men were guilty

of being aggressive toward women and young girls.” Id. at 862. These remarks clearly

demonstrated the juror’s animus against Mexicans and, crucially, the juror’s reliance on this bias

in voting to convict. In contrast, none of the foreperson’s remarks here come close to the Pena-

Rodriguez juror’s level of stereotyping or animus, and the foreperson’s remarks were not

directed against Robinson, Martin, or Floyd in the same way that the Pena-Rodriguez juror’s

remarks were directed against the defendant in that case.

Defendants counter that even if the foreperson’s remarks did not show that the

foreperson’s animus affected the foreperson’s vote, the remarks might still show that the

foreperson’s animus indirectly influenced A. R.’s and M. S.’s votes, such that there would still

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 13

be a violation of Pena-Rodriguez and the Sixth Amendment. However, the facts of this case

belie this theory. M. S. later reported that, despite the foreperson’s remarks, she stood by her

vote to convict, because “I was still going on how I felt and the information that was presented to

me and how I perceived it anyway.” Similarly, A. R. reported that she decided to convict after

she and M. S. examined documents showing that Global had been incorporated only three days

before the contract with Arise was approved, and also that Robinson had been present at the

meeting where that approval took place. Therefore, based on the information available, the

foreperson’s animus appeared not to have influenced A. R.’s or M. S.’s vote. Pena-Rodriguez

does not overcome the no-impeachment rule here.

Finally, repeating their initial argument before the district court, defendants contend that

the marshal and deputy clerk’s interventions constituted unauthorized contacts with the jury,

necessitating a hearing under Remmer v. United States, 347 U.S. 227 (1954). The defendants

contend that these contacts—whatever their intention—had the effect of forcing A. R. and M. S.

back into the jury room, “add[ing] pressure on the jurors to change their minds and reach a guilty

verdict.” This, the defendants argue, is enough to trigger a Remmer hearing, where the district

court must investigate whether private contact had a prejudicial effect on the verdict. See

Remmer, 347 U.S. at 229–30 (1954); see also United States v. Pennell, 737 F.2d 521, 533 (6th

Cir. 1984); United States v. Rigsby, 45 F.3d 120, 124-25 (6th Cir. 1995). Even without Pena-

Rodriguez, Fed. R. Evid. 606(b) permits juror testimony when “outside influence was improperly

brought to bear on any juror.”

This argument is also unpersuasive. First, like the evidence of juror misconduct, the

evidence of alleged improper influence on the jurors was gathered in violation of a local rule and

the court’s specific instructions that contacts were not preapproved. Therefore, the district court

was within its discretion to exclude such evidence and deny the defendants’ motion on these

grounds as well. See, e.g., Venske, 296 F.3d at 1291. Second, as the district court correctly

noted, Remmer is only half the story. It is the law that a district court should generally respond

to evidence of external tampering with a Remmer hearing. See Remmer, 347 U.S. at 229–30.

However, it is also the law that “not all communications with jurors warrant a hearing for a

determination of potential bias” and “an allegation of an unauthorized communication with a

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 14

juror requires a Remmer hearing only when the alleged contact presents a likelihood of affecting

the verdict.” United States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997). Here, the evidence was

weak that the unauthorized contact affected the verdict—all the marshal and deputy clerk did

was prevent a fight among the jurors, coax the foreperson into apologizing to A. R. and M. S.,

and then convince A. R. and M. S. to return to deliberations. It was therefore not an abuse of

discretion to deny Floyd’s motion for a new trial on these grounds, and this court can overturn

an evidentiary ruling only when there has been an abuse of discretion, United States v. Herndon,

156 F.3d 629, 634 (6th Cir. 1998).

B.

Second, all three defendants take issue with the district court’s use of Allen charges—

instructions to a potentially deadlocked jury to continue their deliberations and reconsider each

other’s views in good faith. The defendants argue that the court’s use of Allen charges in this

case coerced the jury into rendering a guilty verdict, in violation of the Sixth-Amendment “right

of a defendant to rely on the possibility of disagreement by the jury.” United States v. Harris,

391 F.2d 348, 355 (6th Cir. 1968). However, the district court’s actions are not enough for

reversal here, either.

As noted above, over the course of its three days of deliberations, the jury sent the court

several notes suggesting that it was having trouble reaching a consensus. At 11:30 a.m. on

Monday, June 1, the second day of deliberations, the jury sent the court a note asking: “if we

cannot agree on Count One of conspiracy, can we rule on the other counts?” In response, the

court instructed the jury:

Yes, you may. It is easier in some respects, because there is a certain logic in

taking up the issues in the order in which I read them to you in my instructions,

but I will not tell you the order in which you have to take up consideration of

these issues. I would encourage you to resolve the conspiracy issue because

ultimately all of these issues have to be resolved.

Defense counsel did not object. At about 2:00 p.m. the same day, the jury sent the court another

note, asking: “How are we to proceed if one or more juror members feel like the jury is

intentionally being hung?” In response, the court read the jury a full Allen charge from the Sixth

Circuit Pattern Jury Instruction. Counsel objected to this first Allen charge. Immediately after

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 15

the Allen charge was read, the jury asked to be released at 5:00 p.m. The judge granted the jury’s

request, but added: “I want to be clear that I expect you to continue your deliberations toward a

unanimous verdict.” Counsel did not object to this statement. Finally, at about 10:00 a.m. on

Tuesday, June 2, the final day of deliberations, the jury sent the court another note stating: “We,

the jury, feel that we will not be able to come to agreement on Verdict Form 1 and 2 on Count

One [i.e., the conspiracy count].” The court responded with a second full Allen charge following

the Sixth Circuit pattern instruction. After this second Allen charge, the district court added:

As important as it is for you to reach unanimous agreement, it is just as important

that you do so honestly and in good conscience. What I have just said to you is

not meant to rush or to pressure you into agreeing on a verdict. Take as much

time as you need to discuss things. There is no hurry. But I can’t emphasize

enough, ladies and gentlemen, how important it is for you to listen to one another

both respectfully and carefully and to weigh the evidence and hear what your

fellow jurors have to say. . . . Read the instructions, consider all of the instructions

in context, and listen to each other as you deliberate, because everyone is trying to

do justice here and people have legitimate disagreements. But as mature adults,

every one of you has had a disagreement with someone and has been able to work

through it at some point in your lives.

Counsel did not object to either the second Allen charge or the court’s additional comments. The

jury then returned to deliberations, and, at about 2:45 p.m., returned a verdict finding all three

defendants guilty on all counts.

Neither the court’s multiple Allen charges nor any of the specific language in the Allen

charges warrants reversal. First, the two full Allen charges and other Allen-charge-like

statements do not warrant reversal. Multiple Allen charges are not per se coercive. See United

States v. Barone, 114 F.3d 1284, 1305 (1st Cir. 1997); United States v. Reed, 686 F.2d 651, 653

(8th Cir. 1982); United States v. Fossler, 597 F.2d 478, 483-85 (5th Cir. 1979); United States v.

Robinson, 560 F.2d 507, 517–18 (2d Cir. 1977) (en banc). But see United States v. Seawell,

550 F.2d 1159, 1163 (9th Cir. 1977). Instead, each case must be evaluated under the totality of

the circumstances. United States v. Reed, 167 F.3d 984, 990 (6th Cir. 1999). Here, several

factors mitigated any coercion from the multiple charges. The trial was lengthy and complex,

such that additional jury instruction may have been necessary. The first Allen charge was in

response to the jury’s question about how to proceed in the face of disagreement; only the second

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 16

was in response to the jury’s report that it was deadlocked. The two full Allen charges followed

the Sixth Circuit pattern jury instructions, see Sixth Circuit Pattern Criminal Jury Instruction

9.04, which have been held to be non-coercive, see Clinton, 338 F.3d at 489–90. Even outside of

the pattern language, the court emphasized dissenting jurors’ freedom to disagree, explaining

after the second charge, for example, that: “What I have just said to you is not meant to rush or

to pressure you into agreeing on a verdict.” Although defense counsel objected to the first Allen

charge, there were no objections to any of the other remarks defendants now take issue with,

such that the multiplicity of the charges must be reviewed for plain error, see Clinton, 338 F.3d

at 487. Given the mitigating factors in this case, there was no plain error.

Second, the district court’s specific language does not warrant reversal, either.

Defendants take issue with the court’s remark that “I would encourage you to resolve the

conspiracy issue because ultimately all of these issues have to be resolved.” This language does

bear a resemblance to instructions this court has deemed “coercive” in the past, notably:

[T]his lawsuit must be decided—it must be decided at some time by some jury,

which just means that if you are unable to decide this lawsuit that we’re going to

have to declare a mistrial in this case and we will have to then call in twelve more

jurors and try this case over again.

Harris, 391 F.2d at 351, 354. However, context distinguishes the remarks in Harris from the

remarks at issue in this case. To begin with, the court’s remarks in Harris were in response to

the jury foreperson’s statement that “we feel at this time that we are deadlocked.” In contrast,

here the court’s remarks were in response to the jury’s question “if we cannot agree on Count

One of conspiracy, can we rule on the other counts?” The district court appears to have

reasonably interpreted this as a question about the order in which the issues should be resolved

and explained to the jurors: “It is easier in some respects, because there is a certain logic in

taking up the issues in the order in which I read them to you in my instructions, but I will not tell

you the order in which you have to take up consideration of these issues.” The difference in the

questions that prompted the Allen-charge-like remark distinguishes this case from Harris.

Furthermore, the court in this case said nothing analogous to the Harris district court’s clearly

coercive statement that “if you are unable to decide this lawsuit [then] we’re going to have to

declare a mistrial in this case and we will have to then call in twelve more jurors and try this case

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 17

over again”—a remark that the Harris court deemed not only “coercive” but “misleading in fact”

because it “preclude[d] the right of a defendant to rely on the possibility of disagreement by the

jury.” Id. at 355. Here, in contrast, the district court’s remark was followed by two pattern Allen

charges emphasizing dissenting jurors’ freedom to continue to dissent, curing any coercive

effect. Finally, there were no objections to the remark by the district court that “ultimately all of

these issues have to be resolved,” such that this remark must be reviewed for plain error, see

Clinton, 338 F.3d at 487. Given the differences in context between the remarks in Harris and the

remarks here, there was no plain error.

Defendants also take issue with the court’s remark to the jurors that “as mature adults,

every one of you has had a disagreement with someone and has been able to work through it at

some point in your lives.” This remark was not coercive either. In context, it can reasonably be

interpreted as a plea for civility and respect, and not as pressure on dissenting jurors to agree

with the majority. There was no plain error here.

C.

Third, Robinson argues that FBI Special Agent Jeffrey Rees gave lay opinion testimony

that inappropriately invaded the province of the jury. Robinson contends that Agent Rees’s use

of the words “significant,” “notable,” and “suspicious,” to describe certain bank transactions

crossed the line from Rees’s permissibly presenting conclusions to the jury based on his own

personal knowledge or observation, see United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir.

2015), into Rees’s impermissibly drawing conclusions that the jury was competent to draw on its

own, see United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013). Robinson also takes issue

with Rees’s characterization of some payments from Robinson to Floyd as “kickbacks,” which

Robinson contends is the same as the “egregious spoon-feeding of the government’s theory of

the case to the jury” that this court has criticized in the past. See United States v. Williamson,

656 F. App’x 175, 187–88 (6th Cir. 2016).

As noted above, Agent Rees testified as a lay witness under Fed. R. Evid. 701 and

explained to the jury how he had come to investigate Arise based on bank records he had

uncovered. During the course of this testimony, Rees used the words “significant,” “notable,”

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 18

and “suspicious” to describe certain transactions. For example, when eliciting why Rees decided

to investigate Global, the prosecutor asked: “You said you noticed some suspicious transactions

or things that were suspicious. What do you mean by that?” Rees responded:

Well, the first thing that caught my attention was the amount of money that

Global was paid. They were paid a significant amount of money. It turned out to

be over $400,000. Looking at individual’s bank records, I saw suspicious

transactions in there as well, things involving cash, large cash withdrawals, some

suspicious cash deposits.

Defense counsel did not object at the time. Later, the prosecutor asked: “And did you notice any

notable transactions in Shane Floyd’s bank account?” Rees answered: “[I] [p]articularly noticed

there were some significant cash deposits by Shane Floyd.” Defense counsel objected to the

word “significant”—an objection that the court sustained, asking the prosecutor to clarify what

was meant by the word. The prosecutor rephrased the question: “Were there any transactions

that you noticed in Shane Floyd’s bank document records that were notable for the purposes of

your investigation?” Rees and the prosecutor both used the term “significant” several more

times during Rees’s testimony, although defense counsel did not object. For example, in one

exchange, the prosecutor asked Rees: “Can you describe to the jury what this e-mail is and why

it was significant?” Rees answered that it was an e-mail between Arise’s treasurer and Floyd and

that “[i]t was significant because it was forwarding a request for payment, a very significant

payment of $66,000 in July.” Defense counsel again did not object.

Rees also described some of the payments between Robinson, Floyd, and Martin as

“kickbacks.” During questioning about cash withdrawals from Global’s account, the prosecutor

asked: “You indicated these cash withdrawals were significant to your investigation. Why is

that?” Rees responded: “It’s significant because if you’re going to withdraw cash from the

payments, it’s hard to trace where that cash is going. So it would be certainly easier to pay a

kickback payment in cash than it would be in check.” Defense counsel did not object. Similarly,

during cross-examination, defense counsel sought to show that Arise’s buy-out of Global’s

contract was legitimate and asked: “Nothing criminal about it [i.e., the buyout]?” Rees

responded: “That’s not true. . . . They were not entitled to that money. And they got kickbacks

to give them that money.”

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 19

None of these remarks warrant reversal. First, a close reading of Rees’s testimony shows

that his purpose for using the terms “significant,” “notable,” and “suspicious” was to explain to

the jury why he launched the investigation into Global in the first place, not to tell the jury what

conclusions to draw from this investigation. For example, the one time that defense counsel

objected to the use of these words, the prosecution rephrased the question as “[w]ere there any

transactions . . . that were notable for the purposes of your investigation?” Similarly, the

prosecution later asked, “You indicated these cash withdrawals were significant to your

investigation. Why is that?” In this context, Rees can be understood as explaining to the jury

why he took the actions he did in investigating Global, rather than as drawing for the jury the

conclusion that these transactions were significant or notable for the Government’s case-in-chief.

Thus, Rees’s testimony falls within the category of personal-experience testimony that Fed. R.

Evid. 701 permits, rather than impermissible spoon-feeding of the Government’s theory of the

case. This conclusion is further cemented by the standard of review. Defense counsel objected

to one use of the terms “notable” and “significant,” which triggers abuse-of-discretion review for

that one statement, Kilpatrick, 798 F.3d at 378. All other statements were not objected to,

triggering only plain-error review. See id. Under a reasonable reading of Rees’s testimony in

context, Robinson can overcome neither of these deferential standards.

Second, Rees’s use of the word “kickback” was not “egregious spoon-feeding of the

government’s theory of the case to the jury.” Rees’s first use of the word “kickback” was in

response to the prosecution’s question: “[y]ou indicated these cash withdrawals were significant

to your investigation. Why is that?” Therefore, again, context shows that Rees was explaining

why he was investigating—because the transactions he saw were consistent with a kickback

scheme—rather than telling the jury what to conclude. This is not enough for a retrial, especially

since defense counsel did not object to this remark, triggering plain-error review. See id.

Furthermore, Rees’s second use of the word “kickback” was in response to the defense’s

question on cross-examination: “Nothing criminal about it [i.e., the buyout]?” to which Rees

responded, “[t]hat’s not true. . . . They were not entitled to that money. And they got kickbacks

to give them that money.” In this context, Rees’s use of the word “kickbacks” was merely an

isolated answer to a leading question by defense counsel on cross-examination. Given that there

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 20

was no objection to this remark either, this remark is reviewed for plain error, and there was no

plain error here.

Finally, Robinson also complains that the district court failed to demarcate Rees’s factual

testimony from his opinion testimony. Such a failure can constitute error in some cases. See

United States v. Rios, 830 F.3d 403, 416 (6th Cir. 2016); United States v. Lopez-Medina,

461 F.3d 724, 744 (6th Cir. 2006). However, this last argument also fails. Following Sixth

Circuit pattern jury instructions, the district court made clear to the jury that “[y]ou’ve heard the

testimony of Jeffrey Rees . . . who testified to both facts and opinions. Each of these types of

testimony should be given the proper weight.” With regard to testimony on facts, the district

court instructed the jury to “consider the factors discussed in these instructions for weighing the

credibility of witnesses.” With regard to testimony on opinions, the district court instructed the

jury that “you do not have to accept the opinions of Jeffrey Rees” and that “[i]n deciding how

much weight to give [Rees’s opinions], you should consider the witness’s qualifications and how

he reached his conclusions, along with other factors discussed in these instructions for weighing

the credibility of witnesses.” Defense counsel did not object to these instructions at the time, and

so this court again must review for plain error. Kilpatrick, 798 F.3d at 378. It cannot have been

plainly erroneous for the district court to provide the Sixth Circuit pattern jury instructions to

cure any confusion about whether Rees was testifying as to facts or opinions.

D.

Fourth, Robinson also argues that presenting the jury with out-of-court statements from

his non-testifying co-defendant Christopher Martin’s failed proffer agreement violated the

Confrontation Clause and Bruton v. United States, 391 U.S. 123 (1968). Even though the district

court redacted Robinson’s name from these out-of-court statements and provided the Sixth

Circuit pattern Bruton jury instructions, Robinson argues that the conspiracy charge against

Robinson connected him with unindicted co-conspirator Mike Ward, whose name was not

redacted from Martin’s out-of-court statements. Therefore, contends Robinson, Martin’s out-of-

court confessions inculpated Robinson indirectly through his connection to Ward, and, because

he could not cross-examine Martin, their admission violated Bruton and the Confrontation

Clause.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 21

It is true that Martin’s out-of-court confessions did clearly incriminate Ward. For

example, in one such statement read to the jury, Martin confessed that:

Mike Ward continued to press me about how much it would take to become a

full-time board chair. . . . I eventually suggested to Mike Ward that I thought

about $1,000 per month would help me tremendously in becoming a full-time

board chair.

Neither Robinson’s nor Floyd’s attorney objected to this statement. In another statement read to

the jury, Martin confessed that:

Mike Ward had told me it would be okay, that Brian Moore and Kristal Allen [née

Screven] had done it too, and that it was okay for me to do it too. . . . Mike Ward

was like others had done it, so you can do it too, Chris.

Again, neither Robinson’s nor Floyd’s attorney objected to this statement at the time. In a final

statement read to the jury, Martin confessed that:

It was around October to November of 2009 that I accepted another cash payment

from Mike Ward. . . . I knew I should not have accepted it, but I was thinking if I

have to put up with this bullshit at the school, then I will take some compensation

for it. It was wrong and I know now that I should not have done it.

There were no objections. These statements were not admitted into evidence, but they were

displayed to the jury as Rees was reading them aloud.

Furthermore, Agent Rees also recounted additional out-of-court statements by Martin that

suggested a connection between Ward and Robinson. For example, in one line of questioning,

the prosecutor elicited testimony from Rees on inconsistencies between his first and second

interviews with Martin. According to Rees, during his first interview with Martin, Martin had

said that he “did not receive any cash or anything of value from either Carl Robinson or Mike

Ward.” However, Rees then said that “statements in [Martin’s second] interview conflict[ed]

with statements in the first,” because Martin said during his second interview that “Mr. Ward had

given him things of value including cash and a trip to Las Vegas that had expenses paid in it.”

Rees further explained, “[a]nd that conflicted with his statement previous [sic] when he said he

had received no cash or things of value from Mr. Ward or Mr. Robinson.” Defense counsel did

not object to these statements at the time. Last of all, in closing arguments, the prosecution

emphasized that “Carl Robinson, through his silent partner and minion, Mike Ward, . . . provided

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 22

cash, benefits and kickbacks to the shot callers Floyd and Martin.” Robinson now argues this

connected him with Ward, whose name was not redacted from Martin’s out-of-court confession.

It is possible that the conspiracy charge may have linked Robinson with his unindicted

co-conspirator Ward in the mind of the jurors. As Robinson points out, the jury asked several

questions connecting Robinson to Ward on the basis of the conspiracy theory, which may have

allowed them to connect Robinson to Martin’s statements incriminating Ward. Notably, during

deliberations the jury asked the court, “[a]re we supposed to assume that Robinson, Ward and

Global are the same people when it comes to money being given?” and “[d]o we hold Robinson

accountable for Ward when it comes to money transactions?” In response, the court read to the

jury the Sixth Circuit pattern instruction on Pinkerton liability, which provides that “under

certain circumstances, the act of one conspirator may be treated as the act of all.”

Nevertheless, there was no Bruton violation here. By eliminating any mention of

Robinson’s name from the Martin out-of-court statements—and providing the Sixth Circuit

pattern jury instructions—the district court complied with Richardson v. Marsh, a post-Bruton

Supreme Court case that permits a co-defendant’s confession to be used at a joint trial so long as

the confession is “redacted to eliminate not only the defendant’s name, but any reference to his

or her existence.” 481 U.S. 200, 211 (1987). These proper redactions can cure even

“confessions incriminating by connection,” i.e., statements that do not incriminate a co-

defendant on their own, but become incriminating “when linked with evidence introduced later at

trial.” Id. at 208-09. Here, even if the conspiracy charge connected Robinson to Ward, Martin’s

out-of-court confessions contained no mention of Robinson’s name or even existence, such that

they could only be “incriminating by connection . . . when linked with evidence introduced later

at trial” and thus not a Bruton violation. The Court in Richardson justified this rule as a

“reasonable practical accommodation between the interests of the state and the defendant in the

criminal justice process,” id. at 211, because to hold otherwise “would impair both the efficiency

and the fairness of the criminal justice system to require, in all these cases of joint crimes where

incriminating statements exist, that prosecutors bring separate proceedings,” id. at 210. This

same reasoning applies to this case, because to hold that Martin and Robinson must be tried

separately merely because Martin’s out-of-court confessions mentioned an unindicted co-

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 23

conspirator of Robinson’s would necessitate separate trials in many conspiracy cases. This

reasoning from Richardson confirms that there was not a Bruton violation.4

The Eleventh Circuit’s holding in United States v. Schwartz, 541 F.3d 1331 (11th Cir.

2008), is distinguishable. In that case, the co-defendant’s testimony did not directly state that the

defendant had committed bad acts, but did state that a company controlled by the defendant had

committed bad acts. Id. at 1344–46. The Eleventh Circuit held that the use of the company

name was “not incriminating on its face” but nevertheless became incriminating when linked

with other evidence at trial, namely evidence that the defendant owned and controlled the

company. Id. at 1351–52. The Eleventh Circuit’s reasoning in that case relied on another post-

Bruton case, Gray v. Maryland, which held that a redacted out-of-court statement must truly

eliminate any reference to a defendant’s existence; for example, the defendant’s name may not

be “obvious[ly] delet[ed],” i.e., replaced with an ellipses or a symbol from which the jury may

still easily infer the defendant’s participation. 523 U.S. 185, 192–95 (1998). The Eleventh

Circuit likened the use of the name of a company owned by the defendant to such a blank space

or obvious deletion. Schwartz, 541 F.3d at 1352. Robinson’s case is distinguishable from Gray,

and therefore Schwartz, because Martin’s out-of-court confessions contained no such indirect

reference to Robinson’s existence, which makes this case more like the redaction of any

reference to the defendant’s existence in Richardson. See Richardson, 481 U.S. at 208.

Finally, Robinson argues that Martin’s out-of-court confession violated Bruton in still

another way, by mentioning Robinson obliquely in passing. Rees testified that Martin had said

during his first interview that he “did not receive any cash or anything of value from either Carl

Robinson or Mike Ward.” Rees then testified that “statements in [Martin’s second] interview

conflict[ed] with statements in the first” because Martin said during his second interview that

“Mr. Ward had given him things of value including cash and a trip to Las Vegas that had

4

There is disagreement as to the proper standard of review here. Robinson joined Floyd’s motion to sever

his trial from Martin’s, but did not object to any of the statements that he now argues implicate the Confrontation

Clause. This circuit has not decided whether a motion to sever counts as an objection that preserves a Confrontation

Clause issue, see United States v. Ford, 761 F.3d 641, 654 (6th Cir. 2014), and the other circuits are split on the

issue, compare United States v. Nash, 482 F.3d 1209, 1218 n.7 (10th Cir. 2007), with United States v. Jobe,

101 F.3d 1046, 1068 (5th Cir. 1996). Therefore, it is unclear whether Robinson’s Confrontation Clause argument is

reviewed de novo or for plain error. However, we need not decide the issue in this case, because there was no error

at all.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 24

expenses paid in it.” Rees then clarified: “[a]nd that conflicted with his statement previous [sic]

when he said he had received no cash or things of value from Mr. Ward or Mr. Robinson.”

However, these statements also do not violate the Confrontation Clause because they do not

incriminate Robinson at all. Context shows that Ward first told Rees that he did not receive

anything of value from either Robinson or Ward, but then changed his story and said he received

something of value from only Ward. Although Martin’s reference to Robinson in his original

statement is somewhat confusing, Rees’s account of Martin’s answer clears up any confusion

and incriminates only Ward. Therefore, the district court did not err in permitting Rees to

recount this testimony by Martin.

E.

Fifth, Martin argues that the district court abused its discretion when it sent demonstrative

aids to the jury during deliberations. Robinson incorporates Martin’s argument by reference

under Fed. R. App. P. 28(I).

As noted above, on the second day of deliberations, the jury sent the district court a note

asking for two demonstrative aids: “Chris Martin’s bullet points from the FBI” and “the red,

slash, gray flow chart that shows money movement.” These aids had been displayed to the jury

during Rees’s testimony but had not been admitted into evidence. Over defense counsel’s

objection, the district court sent these aids to the jury, but also read a pattern jury instruction

stating that “[the demonstrative aids] were offered to assist in the presentation and understanding

of the evidence” and “[were] not evidence [themselves] and must not be considered as proof of

any facts.”

This argument is not enough for a new trial. The law is unclear as to whether it is within

a district court’s discretion to provide a deliberating jury with demonstrative aids that have not

been admitted into evidence. Compare United States v. Fults, 639 F. App’x 366, 370 (6th Cir.

2016) and United States v. Munar, 419 F. App’x 600, 608 (6th Cir. 2011) with Trebmal Constr.,

Inc. v. Dover Elevator Co., No. 89-4126, 1991 WL 165659, at *2 (6th Cir. Aug. 29, 1991).5

5

The Government cites several cases for the proposition that demonstrative aids can go to the jury during

deliberation. However, most of the Government’s cases are inapposite. Three of the Government’s cases consider

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 25

However, we need not resolve this legal issue for this case, because any error from providing the

jury with the demonstrative aids was harmless. The Government proved its case against Martin

in numerous other ways, including Rees’s testimony about his interviews with Martin and Rees’s

reading of Martin’s pre-proffer confessions in open court. Furthermore, the aids were not

particularly objectionable in themselves. The bullet points were the written form of verbal

evidence read in open court. The flow chart was a simple visual representation of the

prosecution’s main argument that Global paid Floyd and Martin at Arise to retain business. In

other words, both demonstrative aids were based on evidence that the jury was otherwise

allowed to see or hear. Finally, the demonstrative aids were provided to the jury during

deliberations with a limiting instruction that they “were not admitted into evidence,” were “not

evidence itself,” and “must not be considered as proof of any facts.” For all these reasons, any

error did not affect Martin’s or Robinson’s substantial rights, and was therefore harmless under

Fed. R. Crim. P. 52(a).

F.

Last of all, Floyd argues that the district court incorrectly calculated the loss to the

government. Robinson and Martin again incorporate Floyd’s argument by reference under Fed.

R. App. P. 28(I). The district court adopted the presentence report’s finding of $420,919 in

actual loss, which represented the entire amount paid by Arise to Global over the contract’s life.

In accordance with the instructions at § 2C1.1 of the 2014 Sentencing Guidelines under which

Floyd was sentenced, this amount of actual loss produced an additional 14 points for his sentence

under the table at § 2B1.1(b). Furthermore, this amount served as the amount for which Floyd is

jointly and severally liable in restitution. Floyd now argues that this amount should be offset, in

accordance with Application Note 3 to § 2C1.1, by the value of the legitimate services that

the separate issue of whether demonstrative aids may be admitted into evidence, which is not the same issue as

whether non-admitted demonstrative exhibits may be provided to the jury during deliberations. See United States v.

Bray, 139 F.3d 1104, 1111–12 (6th Cir. 1998); Gomez v. Great Lakes Steel Div., Nat’l Steel Corp, 803 F.2d 250,

257–58 (6th Cir. 1986); United States v. Pinto, 850 F.2d 927, 935–36 (2d Cir. 1988). Four more of the

Government’s cases consider whether demonstrative aids that have been admitted under Fed. R. Evid. 1006 can be

provided to the jury during deliberations, which is also not the same issue as whether non-admitted demonstrative

exhibits may be provided to the jury during deliberations. See United States v. Natale, 719 F.3d 719, 744 (7th Cir.

2013); United States v. Paulino, 935 F.2d 739, 753 (6th Cir. 1991); United States v. Scales, 594 F.2d 558, 561 (6th

Cir. 1979); United States v. Gazie, No. 83-1851, 1986 WL 16498, *7-8 (6th Cir. Feb. 26, 1986). Therefore, none of

these cases present the issue before us.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 26

Global provided to Arise, and asks for a remand to the district court to carry out this calculation.

See United States v. Lianidis, 599 F.3d 273, 279 (3d Cir. 2010); United States v. Quinn, 359 F.3d

666, 679–80 (4th Cir. 2004); United States v. Sapoznik, 161 F.3d 1117, 1119 (7th Cir. 1998).

There was some evidence at trial that Global provided legitimate services to Arise.

A former principal of Arise testified that Robinson provided two professional development

training seminars during the 2009-2010 school year. An Arise teacher corroborated this account,

testifying that she recalled one professional development training course seminar by Robinson,

as well as one town hall meeting during which Robinson made a PowerPoint presentation. Ward

also testified that his official responsibilities included recruitment and that he recruited between

seventy and one hundred students for the 2008-2009 school year, unlocking additional federal

funding for Arise. Finally, Arise employed two administrators, who testified that they helped

proctor tests, keep track of attendance, assess students for a virtual learning program, and put

together training manuals and research materials. Each was paid $4,000 a month.

Nevertheless, Floyd’s argument fails for two interrelated reasons. First, Floyd’s is not the

only interpretation supported by the facts of the case. There may be evidence that Global

provided some valuable services, but there is also evidence that the entire Global contract was a

sham: Floyd, Robinson, and Ward devised their scheme even before the Global-Arise contract

was signed, and Robinson incorporated Global specifically in order to perpetuate the scheme.

The entire value paid to a contractor is an appropriate amount for calculating loss when the entire

contract was a sham. See United States v. Washington, 715 F.3d 975, 985 (6th Cir. 2013);

United States v. Rowland, 826 F.3d 100, 116 (2d Cir. 2016). Second, Floyd did not raise this

argument below. None of Floyd’s objections before the district court suggested that actual loss

should be reduced by services rendered. In fact, before the district court, Floyd’s counsel

objected to the $420,919 in actual loss on the grounds that “[t]his man cannot be held liable for

the acts of someone else,” and suggested a loss amount closer to $169,000. This is an argument

for reduction based on apportionment among the co-conspirators, which is different from the

legitimate-value-of-services argument Floyd makes now. This court reviews arguments that are

raised for the first time on appeal for plain error. United States v. Mayberry, 540 F.3d 506, 512

(6th Cir. 2008). Given the evidence that the entire Global contract may have been a sham, it was

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 27

not plain error for the district court to use the entire value of the Global contract as the actual

loss.

III.

For the reasons set forth above, the judgments of the district court are affirmed with

respect to all three defendants.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 28

_______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_______________________________________________________

BERNICE B. DONALD, Circuit Judge, concurring in part, dissenting in part. The Sixth

Amendment guarantees provide an indispensable constitutional safeguard not only of the rights

of the accused, but of society’s interest in a just outcome of judicial proceedings. “One

touchstone of a fair trial is an impartial trier of fact—‘a jury capable and willing to decide the

case solely on the evidence before it.’” McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548, 554 (1984) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). In its unique

role as a group of private citizens called upon to determine guilt or innocence in a criminal trial,

“[t]he jury exercises the power of the court and of the government that confers the court’s

jurisdiction.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624 (1991); see also Shelley v.

Kraemer, 334 U.S. 1, 18 (1948) (state courts and judicial officials reached by Fourteenth

Amendment).

Among the most crucial requirements for fairness in judicial proceedings is that racial

bias not infect a jury’s deliberations and decisions. This ideal has been historically difficult to

attain; as one of our most compelling literary depictions of the criminal justice system put it,

“[t]he one place where a man ought to get a square deal is in a courtroom, be he any color of the

rainbow, but people have a way of carrying their resentments right into a jury box.”1 The

Supreme Court has held that racial discrimination, “odious in all aspects, is especially pernicious

in the administration of justice,” Rose v. Mitchell, 443 U.S. 545, 555 (1979), and that to allow it

in the jury system harms “both the fact and the perception” of the jury’s role as “a vital check

against the wrongful exercise of power by the State,” Powers v. Ohio, 499 U.S. 400, 411

(1991); see also Aldridge v. United States, 283 U.S. 308, 315 (1931) (public suspicion of bias

among jurors harmful to the legitimacy of the courts).

Even a slight suspicion that racial bias corrupted the outcome of a trial may be sufficient

to undermine many decades of arduous, patient labor to eliminate the shameful prevalence of

1

Harper Lee, To Kill a Mockingbird 224 (1988). The words are spoken by the character of the attorney,

Atticus Finch.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 29

such bias in the courts, detracting from “a course of decisions of long standing directed against

racial discrimination in the administration of justice.” Cassell v. Texas, 339 U.S. 282, 290

(1950) (Frankfurter, J., concurring).2 Unfortunately, the majority scants the serious

constitutional implications of the problems affecting the jury deliberations in the present case,

instead privileging an overly rigid adherence to local rules. I must therefore respectfully dissent

from Parts II.A and II.B of the majority opinion.

I.

The significance of this case cannot be considered in isolation; it must be viewed in the

full, historical sweep of events. Among the Civil War Amendments, “giv[ing] new force and

direction” to the “imperative to purge racial prejudice from the administration of justice,” Pena-

Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017), the Fourteenth Amendment had the “central

purpose . . . to eliminate racial discrimination emanating from official sources in the States,” id.

(quoting McLaughlin v. Florida, 379 U.S. 184, 192 (1964)). Its aim was to “secur[e] to a race

recently emancipated, a race that through many generations had been held in slavery, all the civil

rights” enjoyed by the theretofore dominant race. Strauder v. West Virginia, 100 U.S. 303, 306

(1880). In 1979, Justice Blackmun wrote:

114 years after the close of the War Between the States and nearly 100 years after

Strauder, racial and other forms of discrimination still remain a fact of life, in the

administration of justice as in our society as a whole. Perhaps today that

discrimination takes a form more subtle than before. But it is not less real or

pernicious.

Rose, 443 U.S. at 558-59. Another four decades later, that statement still remains, to a troubling

degree, true.

2

The words “bias” and “discrimination,” while clearly distinguishable as referring to beliefs and practices,

respectively, are also closely intertwined. One group of scholars has referred to the two terms as being linked in a

“rhetorical relationship . . . [that] is bidirectional. Identifying a discriminatory behavior inclines one to view its

psychological correlate as a form of bias, and conversely, identifying a psychological state as biased bolsters the

condemnation of a discriminatory behavior.” R. Richard Banks, Jennifer L. Eberhardt & Lee Ross, Discrimination

and Implicit Bias in a Racially Unequal Society, 94 Calif. L. Rev. 1169, 1188 n.104 (2006). In assessing the

conceptual relationship, the authors caution against mechanistic assumptions of a causal link between biased belief

and discriminatory behavior. Id. at 1187 n.97.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 30

A.

The beginnings of the fight to eliminate racial bias in our American justice system can be

traced back to the enactment of the Civil Rights Act of 1875, which prohibited the exclusion of

persons from jury service based on race. See 18 U.S.C. § 243. The Supreme Court shortly

thereafter reiterated the importance of this prohibition. See Strauder, 100 U.S. at 310; Virginia v.

Rives, 100 U.S. 313, 322-23 (1880); Ex parte Virginia, 100 U.S. 339, 344 (1880). From these

cases emerges a clear theme: “The Equal Protection Clause guarantees the defendant that the

State will not exclude members of his race from the jury venire on account of race, or on the

false assumption that members of his race as a group are not qualified to serve as jurors.”

Powers, 499 U.S. at 404 (quoting Batson v. Kentucky, 476 U.S. 79, 86 (1986)) (citations

omitted).

The Supreme Court’s seminal decision in Batson was emblematic of the Court’s

“unceasing efforts to eradicate racial discrimination in the procedures used to select the venire

from which individual jurors are drawn.” Batson, 476 U.S. at 85 (citation omitted). Before

Batson, Supreme Court precedent had made it clear that discrimination based on race was

unacceptable in jury composition considerations. The Court had explicitly stated that “[f]or

racial discrimination to result in the exclusion from jury service of otherwise qualified groups not

only violates our Constitution and the laws enacted under it but is at war with our basic concepts

of a democratic society and a representative government.” Smith v. Texas, 311 U.S. 128, 130

(1940). The Court reinforced this principle in Swain v. Alabama, 380 U.S. 202 (1965), overruled

by Batson, 476 U.S. 79. Although ultimately rejecting the defendant’s claim for lack of proof,

the Swain Court reaffirmed the rule that “a State’s purposeful or deliberate denial to Negroes on

account of race of participation as jurors in the administration of justice violates the Equal

Protection Clause.” Id. at 203-04 (citations omitted).

Batson further revitalized and solidified this rule. There, the Court held that a defendant

may raise an equal protection challenge to the use of peremptory challenges at his own trial by

showing that the state used them for the purpose of excluding members of the defendant’s

race. Batson, 476 U.S. at 96. Batson’s thrust is threefold: First, it protects “the right of the

defendant ‘to be tried by a jury whose members are selected pursuant to nondiscriminatory

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 31

criteria.’” Holland v. Illinois, 493 U.S. 474, 491-92 (1990) (Marshall, J., dissenting)

(quoting Batson, 476 U.S. at 85-86). Second, it protects “the right of a member of the

community not to be assumed incompetent for and be excluded from jury service on account of

his race.” Id. at 492 (citing Batson, 476 U.S. at 87). Third, it protects “the need to preserve

‘public confidence in the fairness of our system of justice.’” Id. (quoting Batson, 476 U.S. at

87).

Since Batson, the Supreme Court has persisted in its quest to minimize the role that race

plays in the jury system. In Powers, the Court extended Batson to allow white criminal

defendants to raise a Batson challenge to the exclusion of black jurors. Powers, 499 U.S. at 404.

The Court reached this decision by focusing on the right of potential jurors to avoid exclusion on

the basis of race. Id. at 406. In that same year, the Supreme Court further expanded Batson to

apply to civil cases, stating that “[r]acial discrimination has no place in the courtroom, whether

the proceeding is civil or criminal.” Edmonson, 500 U.S. at 630 (citing Thiel v. S. Pac. Co.,

328 U.S. 217, 220 (1946)). Shortly thereafter, the Court decided Georgia v. McCollum, 505 U.S.

42 (1992), where it extended Batson to allow prosecutors to challenge a criminal defendant’s use

of peremptory challenges. Id. at 54-55.3

Ultimately, “[t]he Batson framework is designed to produce actual answers to suspicions

and inferences that discrimination may have infected the jury selection process.” Johnson v.

California, 545 U.S. 162, 172 (2005) (citing Batson, 476 U.S. at 97-98). Pre-Batson

jurisprudence highlights a focus on the right that a criminal defendant—and a litigant in

general—has to be tried by a jury that has been selected absent from discriminatory criteria.

Batson reinforced this goal and introduced two other overarching goals. The cases that have

followed underscore the need to guarantee equal treatment for potential jurors. These goals—

protection of litigants, of potential jurors, and of public confidence—are threatened by the

majority’s decision today. As the Powers Court so eloquently reminded us, the jury’s crucial

role in our society is nothing less than to “act[]as a vital check against the wrongful exercise of

power by the State and its prosecutors.” Powers, 499 U.S. at 411 (citing Batson, 476 U.S. at 86).

3

The Court also extended Batson to the use of peremptory challenges based upon gender. J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 32

“The intrusion of racial discrimination into the jury selection process,” the Court went on,

“damages both the fact and perception of this guarantee.” Id.

B.

As Justice Blackmun noted, discrimination has survived into our times, and is “not less

real or pernicious” for “[p]erhaps . . . tak[ing] a form more subtle than before.” Mitchell,

443 U.S. at 558-59. The sense of a shift away from the more explicit prejudice underlying the

traditional definition of discrimination has spurred the recent explosion of studies into implicit

bias—that phenomenon involving the brain’s use of mental associations so deeply ingrained as

to operate without awareness, intention, or control. In their natural operation, implicit biases

allow individuals to efficiently categorize their experiences, and these categories allow people to

easily understand and interact with their world. Implicit biases can be positive or negative; it is

the negative biases, however, that give rise to problems that we struggle to combat in the law

and, more broadly, in our society.

Research has revealed the profusion of implicit attitudes that people hold towards a wide

range of characteristics, chief among them the more salient and immutable traits like race and

gender. People have a strong tendency to develop implicit associations between particular social

groups and certain qualities or characteristics. Researchers “have found that the majority of

tested Americans harbor negative implicit attitudes and stereotypes toward blacks, dark-skinned

people, [and] other[] [groups].”4 For instance, there is a “consistent[] implicit[] associat[ion] of

“black with negative [qualities] such as bad and unpleasant, [or] with negative stereotypes like

aggressive and lazy.”5 As relates to the typical American juror, these biases can operate to

distort a person’s interpretation of the evidence in a case, or the perception of a defendant’s guilt

or innocence. For instance, a study found an “apparent[ly] generalizab[le] tendency to interpret

actions by a black person as more violent or threatening than the same actions performed by a

4

Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial

Discretion, 35 Seattle U.L. Rev. 795, 802 (2012).

5

Id.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 33

white person.”6 Perhaps the most disturbing aspect of implicit bias is that it operates outside of a

person’s conscious intent. Such biases often conflict with one’s consciously-held, egalitarian

values, and indeed are more predictive of our conduct than are those explicitly-held values. This

subconscious, involuntary quality of implicit bias makes its potential impact all the more difficult

to identify, combat, and rectify.

Implicit biases threaten the very foundation of our criminal justice system. Our system is

one that is built on fairness. The right to a fair trial. The right to a trial by jury of one’s peers.

The right to be assumed innocent until proven guilty. The prevalence of these biases that are so

pervasive and involuntary erodes the rights that our Constitution aims to protect, and undermines

the advances that our society has made towards eliminating the role that race plays in our

criminal justice system. The majority’s decision overlooks the far-reaching impact of these

biases and, more importantly, the devastating impact that they very likely played in Defendants’

trial.

II.

With this highly charged history and these important principles firmly in mind, I turn to

the issues presented in the case at hand. Defendants raised the violation of their right to a fair

and impartial jury by way of appealing the district court’s refusal to grant their motion for a new

trial or, in the alternative, an evidentiary hearing.7 I agree that our review of a district court’s

denial of a motion for a new trial is for abuse of discretion. United States v. O’Dell, 805 F.2d

6

H. Andrew Sagar & Janet W. Schofield, Racial and Behavioral Cues in Black and White Children’s

Perceptions of Ambiguously Aggressive Acts, 39 J. Personality & Soc. Psychol. 590, 597 (1980). The authors

cautioned that the correlation had been noted, to that point, “only in the case of males observing interactions

between males” and welcomed further study on different gender combinations of observers and actors. Id. The

authors found that black subjects also showed a tendency to interpret black behaviors as aggressive, though the

tendency was not as pronounced as among white subjects. The study, which tested black and white 6th-grade

students, was an attempt to determine the validity of earlier research showing that the act of shoving another person

during a dispute was interpreted as violent by 73% of subjects when the person doing the shoving was black, and by

13% of subjects when the person doing the shoving was white. Id. at 590 (citing B.L. Duncan, Differential Social

Perception and Attribution of Intergroup Violence: Testing the Lower Limits of Stereotyping of Blacks, 34 J. of

Personality & Soc. Psychol. 590 (1976)).

7

Technically, Defendant Floyd filed the motion for a new trial and the other two Defendants moved to join

in the motion. The district court denied the motion for a new trial and denied the motions as moot. Because the

district court based both denials on the same reasons, it is clearer to treat all three as a denial of a motion for a new

trial.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 34

637, 640 (6th Cir. 1986); see also United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir.

1985) (relating to a district court’s denial of an evidentiary hearing for claims of jury

misconduct). The highly deferential nature of this standard, however, does not discharge our

responsibility to rectify constitutional errors.

A.

I begin with the district court’s chief reason for denying Defendants’ motion for a new

trial: that the juror statements were improperly obtained and “amount[ed] to no more than

“weakly authenticated juror statements containing vague allegations of ‘harassment’ and ‘verbal

abuse.’” United States v. Floyd, No. 2:14-CR-126, 2015 U.S. Dist. LEXIS 129263 at *12 (S.D.

Ohio Sep. 25, 2015) (citation omitted). As relates to the evidence having been improperly

obtained, the district court relied on Southern District of Ohio Local Civil Rule 47.1, made

applicable to criminal cases by Local Criminal Rule 1.2, and which provides that “[n]o attorney,

party or anyone acting as agent or in concert with them connected with the trial of an action

shall . . . contact, interview, examine, or question any juror regarding the verdict or deliberation

of the jury in the action except with leave of the Court.” Also pertinent here is Rule 606(b) of

the Federal Rules of Evidence, which provides that:

During an inquiry into the validity of a verdict or indictment, a juror may not

testify about any statement made or incident that occurred during the jury’s

deliberations; the effect of anything on that juror’s or another juror’s vote; or any

juror’s mental processes concerning the verdict or indictment. The court may not

receive a juror’s affidavit or evidence of a juror’s statement on these matters.

Fed. R. Evid. 606(b)(1).

The undeniable importance of this evidentiary rule does not mean that it is paramount

where basic constitutional rights are at issue. This year, the Supreme Court decided Pena-

Rodriguez, 137 S. Ct. 855, a case where a juror’s statement indicated that racial animus was a

significant factor in the juror’s decision regarding guilt or innocence. The Court held:

[W]here a juror makes a clear statement that indicates he or she relied on racial

stereotypes or animus to convict a criminal defendant, the Sixth Amendment

requires that the [Rule 606(b)] no-impeachment rule give way in order to permit

the trial court to consider the evidence of the juror’s statement and any resulting

denial of the jury trial guarantee.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 35

Id.at 869. The Court clarified that “[n]ot every offhand comment indicating racial bias or

hostility” will suffice; rather, “there must be a showing that one or more jurors made statements

exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s

deliberations and resulting verdict.” Id. With regard to racial bias in the jury deliberations here,

the majority finds it dispositive that, unlike the situation in Pena-Rodriguez, the foreperson “did

not make comments showing that animus was [a] ‘significant motivating factor’ in her own vote

to convict.” It is true that the Pena-Rodriguez Court set, as a requirement for a statement

indicating jury bias to trigger judicial inquiry, that “the statement . . . tend to show that racial

animus was a significant motivating factor in the juror’s vote to convict.” Id. at 859. But this

does not gainsay that the Pena-Rodriguez Court also casts a wider constitutional net, pointing to

the appropriateness of a broader inquiry, not into “every offhand comment indicating racial bias

or hostility,” certainly, but as to whether a statement “cast serious doubt on the fairness and

impartiality” of the jury’s decision. Id.at 869.

That the facts in Pena-Rodriguez do not mirror precisely the facts in the present case is

readily noted. In Pena-Rodriguez, following a three-day trial, the court gave counsel permission

to speak with the jurors. Two jurors voluntarily spoke to counsel and stated that during

deliberations another juror had expressed anti-Hispanic bias towards the defendant and

defendant’s alibi witness. According to the jurors, the biased juror had made such comments as

he “believed the defendant was guilty because in [the juror’s] experience as an ex-law

enforcement officer, Mexican men had a bravado that caused them to believe they could do

whatever they wanted with women.” Id. at 862. The juror also stated, “I think he did it because

he’s Mexican and Mexican men take whatever they want.” Id. The Supreme Court concluded

that “[w]hen jurors disclose an instance of racial bias as serious as the one involved in this case,

the law must not wholly disregard its occurrence.” Id. at 870.

The jury foreperson’s racial animus in the present case, in contrast, was not aimed

directly at the Defendants but, rather, was directed at the two black jurors. I do not believe,

however, that this difference is sufficient to overcome the taint of racial prejudice on the

proceedings. In Pena-Rodriguez, the Supreme Court rested its decision on the idea that “[t]he

jury is to be ‘a criminal defendant’s fundamental protection of life and liberty against race or

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 36

color prejudice.’” Id. at 868 (quoting McCleskey v. Kemp, 481 U.S. 279, 310 (1987)). As such,

“[a] constitutional rule that racial bias in the justice system must be addressed—including, in

some instances, after the verdict has been entered—is necessary to prevent a systemic loss of

confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial

right.” Id. at 869. This commitment to eliminating racial bias in the jury deliberation process,

expressed so forcefully by the Pena-Rodriguez Court, applies equally to the present case, where

the jury foreperson injected her racial biases explicitly into the deliberative process. It is hardly

a strained inference that, where a juror displays racial bias towards another juror of the same race

as the defendant, that juror is incapable of impartially judging the guilt of the defendant. This

inference is a natural, and even necessary, extension of the Supreme Court’s reasoning in Pena-

Rodriguez.

The present case differs from Pena-Rodriguez, too, in that counsel here acted in violation

both of the district court’s express order not to contact jurors and of the district court’s local

rules. This conduct played a major role in the district court’s denial of Defendants’ motion for a

new trial or evidentiary hearing. In Pena-Rodriguez, the Supreme Court concluded that the rules

of professional ethics and local court rules will guide the practical mechanics of acquiring and

preserving evidence, id., and especially noted that defendant’s counsel did not seek out the two

jurors’ allegations of racial bias, id. at 870. Certainly, I cannot condone counsel’s violation of

the district court’s local rules, much less the disobedience of express orders of the court. Such

rules and orders are vital safeguards put in place to protect the privacy of jurors. Nevertheless,

as important as they are, such considerations must bend in the face of possible constitutional

violations. The Supreme Court has cautioned, with regard to evidentiary rules, against

“appl[ying] [rules] mechanistically to defeat the ends of justice,” instead urging pursuit of “the

fundamental standards of due process.” Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting

Chambers v. Mississippi, 410 U.S. 284, 302 (1973)); see also Crane v. Kentucky, 476 U.S. 683,

690 (1986) (important public policy underlying evidentiary rules does not trump the mandates of

the Constitution). Moreover, other avenues—such as sanctions against counsel—are available to

punish such blatant disregard for court rules. The answer, however, cannot be to disregard

Defendants’ fundamental constitutional right. Again, the real possibility that such improper bias

infected the jury’s verdict is sufficient to prevail over counsel’s improper conduct.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 37

The district court also based its denial of the motion for a new trial on the fact that after

the three days of deliberation, each juror was polled individually and responded that the verdict

was unanimous, uncoerced, and a fair reflection of his or her vote. Floyd, 2015 U.S. Dist.

LEXIS 129263 at *9. The court then dismissed Defendants’ challenges as post-conviction

recantations. Id. at *10. Given the Supreme Court’s very clear admonition that racial bias, when

left unaddressed, poses a risk of systemic injury to the administration of justice, see Pena-

Rodriguez, 137 S. Ct. at 868, I believe that the district court’s willingness to dismiss evidence of

the racial hostility permeating the jury deliberation process in this case led the court into error.

And the facts bear witness to this.

The white jury foreperson accused the two black members of the jury of deliberately

trying to hang the jury because of their shared race with the Defendants, raising the suggestion

that the two jurors were protecting Defendants because “maybe [they] felt [they] owed

something to [their] black brothers.” The foreperson also stated, “I find it strange that the

colored women are the only two that can’t see” the defendants’ guilt. These comments escalated

the tension in the jury room to the point that the marshal’s intervention was required. The

severity of this situation diminishes the weight properly given to the two black jurors’

confirmation that their votes were uncoerced. In essence, the white jury foreperson’s comments

embody the decades-old concern given voice by Justice Marshall in Batson: “Exclusion of

blacks from a jury, solely because of race, can no more be justified by a belief that blacks are

less likely than whites to consider fairly or sympathetically the State’s case against a black

defendant than it can be justified by the notion that blacks lack the ‘intelligence, experience, or

moral integrity’ to be entrusted with that role.” Batson, 476 U.S. at 104-05 (1986) (Marshall, J.,

concurring) (quoting Neal v. Delaware, 103 U.S. 370, 397 (1881)) (citation omitted). Such an

implication is prejudicial to the defendant, demoralizing to the juror, and completely antithetical

to the truth: “A person’s race simply ‘is unrelated to his fitness as a juror.’” Id. at 87

(quoting Thiel, 328 U.S. at 227 (1946) (Frankfurter, J., dissenting)).

The jury foreperson’s remarks are characterized by the majority as “racially insensitive.”

However, what is at issue is not the interpersonal quality of sensitivity (or its absence), but rather

the constitutional implications associated with the injection of racial animus and racial

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 38

considerations into jury deliberations. Aside from the racial prejudice that the jury foreperson’s

comments suggest she harbored, also troubling is the possibility that the black jurors may

plausibly have felt pressure to swing around to the majority’s view and vote to convict in order

to demonstrate that they were not approaching their obligations as jurors out of racial

considerations.

In other words, the foreperson’s comments arguably exerted pressure on the two

unpersuaded jurors to change their minds, and votes, in order to disprove the “belief” alluded to

by Justice Marshall in Batson, “that blacks are less likely than whites to consider fairly . . . the

State’s case against a black defendant. . . .” Id. at 104. “A juror who allows racial . . . bias to

influence assessment of the case breaches the compact [underlying the jury system] and

renounces his or her oath.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 153 (1994) (Kennedy,

J., concurring). This caution arguably applies as much to a juror who makes racial

considerations an argument in deliberations with fellow jurors, as it does to a juror who votes to

convict out of racial animus.

Ultimately, I believe that the evidence of racial animus and harassment presented by

Defendants, notwithstanding the undeniable formal improprieties connected with its production,

created reasonable grounds to doubt the validity of the jury verdict. I would remand this case to

the district court for, at a minimum, an evidentiary hearing on Defendants’ claims.

B.

I differ with the majority as well with respect to the Allen charges. The majority

concludes that the charges were not improper. The Allen charge is one that delicately balances

the obligation of each juror both to consider carefully the arguments of the other jurors about the

proper verdict, and to vote his or her conscience rather than simply acquiesce to the opinions of

others. United States v. Scott, 547 F.2d 334, 336 (6th Cir. 1977) (citing Allen v. United

States, 164 U.S. 492, 501 (1896)). Our Court has allowed the use of such charges, but cautions

that “[a]ny variation upon the precise language approved in Allen imperils the validity of the

trial.” Id. at 337. Because “a defendant has a right to rely on the fact that an ultimate jury

disagreement is a permissible result of a trial[, t]he reminder that no juror should merely

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 39

acquiesce in the majority opinion is therefore one of the most important parts of the [Allen]

charge.” Id.

Defendants’ argument is that the district court’s first instruction8 was, in essence, a

modified Allen charge, which was then exacerbated by the two subsequent Allen charges. This

argument is persuasive. In its first instruction to the jury, the district court ended by saying:

“I would encourage you to resolve the conspiracy issue because ultimately all these issues have

to be resolved.” This language, similar to language that this Court has rejected in the

past, see United States v. Harris, 391 F.2d 348, 355 (6th Cir. 1968) (criticizing the district

court’s statement that “this lawsuit must be decided—it must be decided at some time by some

jury”), tends to mislead a jury by failing to inform the jury of its right not to reach a unanimous

verdict. “For the judge to tell a jury that a case must be decided is . . . not only coercive in nature

but is misleading in fact. It precludes the right of a defendant to rely on the possibility of

disagreement by the jury.” Id.

Contrary to the Government’s argument, this coercive instruction in the present case was

not “cured” by the subsequent Allen charges. Rather, the instruction, followed by two Allen

charges given in such close proximity to each other, and accompanied by the district court’s

additions of “listen to one another both carefully and respectfully” and “as mature adults, every

one of you has had a disagreement with someone and has been able to work through it at some

point in your lives,” very likely compounded the coercion. The latter instruction, particularly, by

asserting a likeness between a juror’s solemn responsibilities and the ordinary process of

resolving discord and reaching agreement in everyday life, arguably mischaracterized the legal

and constitutional import of a jury’s deliberations. The district court’s repeated pressing of the

jury to continue deliberations exceeded “the limit[] beyond which a trial court should not venture

in urging a jury to reach a verdict.” Scott, 547 F.2d at 336-37.

8

The jury’s first note to the district court asked, “If we cannot agree on Count One of conspiracy, can we

rule on other counts?” In response, the district court instructed the jury as follows:

Yes, you may. It is easier in some respects, because there is a certain logic in taking up the issues

in the order in which I read them to you in my instructions, but I will not tell you the order in

which you have to take up consideration of the issues. I would encourage you to resolve the

conspiracy issue because ultimately all the issues have to be resolved.

Nos. 15-4098/4100/4124 United States v. Robinson, et al. Page 40

It is doubtless a task of some difficulty for a court, on appellate review, to weigh the

prejudicial impact of a variation of the approved Allen charge. See id. at 337 (citing United

States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971)). Nonetheless, the evidence in this case

makes it clear that the cumulative effect of the district court’s instructions and Allen charges was

coercive and likely forced the jury to believe that it was obligated to return a unanimous verdict.

In my view, the district court’s error is plain, and I would reverse and remand on this issue.

III.

The history of racial bias in the courtroom is not only a stain on our shared past; its

corrosive effects persist to this day. The enduring shadow of bias also dims public confidence in

the fairness of the courts. The majority’s decision represents a step backwards from the strides

we have made towards eradicating this disgraceful legacy from our criminal justice system. For

the reasons set forth above, I differ with the majority with regard to the issues of racial animus

within the jury and to the Allen charges, which, operating in a mutually reinforcing manner,

exerted pressure on the two black jurors who were not prepared to vote for a guilty verdict. In

combination with the racial animus contained in the jury foreperson’s remarks, these

circumstances raise serious doubts about the fairness and impartiality of the jury’s decision.

With regard to the remaining issues in this case, I concur with the majority.