Petition for Writ of Certiorari — Wayne A. G. James, Petitioner v. United States

Supreme Court briefJun 15, 2020

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-1250

______________

UNITED STATES OF AMERICA

WAYNE A.G. JAMES,

Appellant

______________

Appeal from the District Court

for the Virgin Islands

(No. 3:15-cr-00042-001)

District Judge: Hon. Curtis V. Gomez

______________

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

December 12, 2019

______________

Before: SMITH, Chief Judge, McKEE, and SHWARTZ,

Circuit Judges.

(Filed: April 3, 2020)

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_________________

OPINION

_________________

Brian A. Benczkowski

Annalou Tirol

Amanda R. Vaughn

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W.

Washington, DC 20005

Gretchen C.F. Shappert

Delia L. Smith

Office of the United States Attorney

5500 Veterans Drive

United States Courthouse, Suite 260

St. Thomas, VI 00802

Counsel for Appellee

Gabriel J. Villegas

Federal Public Defender District Virgin Islands

Office of the Public Defender

1336 Beltjen Road

Suite 202, Tunick Building

St. Thomas, VI 00802

Michael A. Rogers

Office of Federal Public Defender

4094 Diamond Ruby

Suite 5

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Christiansted, VI 00820

Counsel for Appellant

SHWARTZ, Circuit Judge.

Defendant Wayne A. G. James appeals his conviction

for wire fraud and embezzlement. James challenges: (1) the

introduction of evidence outside the statute of limitations; (2)

the Government’s attempts to introduce evidence about

James’s eviction lawsuit; (3) the use of a demonstrative aid;

and (4) the substitution of an excused juror with an alternate

after the jury had been polled. Discerning no error, we will

affirm.

During the 2009 to 2010 term, James served as a senator

in the Virgin Islands Legislature. The Legislature maintained

a fund that James and other senators could use to pay for

Legislature-related expenses, such as the costs of running their

offices, supplies, or for legislative initiatives. Senators

sometimes received checks from the fund for such items.

James used a large portion of the checks issued to him for his

personal expenses.

James obtained these checks by presenting invoices

purportedly associated with work on a historical project.

Before becoming a senator, James took an interest in the 1878

Fireburn, a revolt on St. Croix. The Danish National Archives

(“the Archives”) possesses historical documents about the

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event. In February 2008, James inquired about retrieving

documents from the Archives and received a cost estimate. For

a fee, which had to be pre-paid by wire transfer, the Archives

would gather and provide copies of documents to individuals

outside of Denmark. James hoped to use the records to

eventually produce a movie.

Over a year later, after James’s election to the

Legislature, he requested funds for his Fireburn research

project from the Legislature. From April 2009 through midOctober 2010, James obtained several checks by submitting

false invoices for purported translation and research work for

the Fireburn project. Only a fraction of the funds James

received were used to pay for the Danish records and

translations. James used most of the funds for his personal

benefit, including for his re-election campaign.

Law enforcement investigated this conduct and, on

October 1, 2015, a grand jury returned an indictment charging

James with two counts of wire fraud in violation of 18 U.S.C.

§ 1343 and one count of federal program embezzlement in

violation of 18 U.S.C. § 666(a)(1)(A).

At trial, three evidentiary issues arose that are relevant

to this appeal. First, the District Court permitted the

Government to introduce evidence of acts outside the

limitations period, 18 U.S.C. § 3282(a).

Second, James moved to exclude evidence that he paid

a court-ordered $18,000 bond in an eviction dispute with his

landlord on the same day as he cashed one of the checks from

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the Legislature. The District Court did not rule on this motion

before trial, but it instructed the Government not to discuss the

eviction case in its opening. Thereafter, the Government called

two witnesses to testify about the eviction-related payment,

Gerald Groner and Indira Chumney. Groner was an attorney

who had participated in the eviction litigation. James objected

to Groner’s testimony before any questioning took place. The

objection was sustained and Groner was excused. Chumney

was the branch operations manager for First Bank and was

questioned about a bank statement and deposit slip reflecting

James’s deposit of $18,000. James objected before she

testified about any other topic. The objection was sustained

and the witness was excused. Although neither witness

testified about the eviction case, James argued that the

Government’s attempts to introduce evidence about it

constituted prosecutorial misconduct and moved for a mistrial.

The Court denied the motion.

Third, the District Court permitted the use of a chart as

a demonstrative aid to accompany the case agent’s testimony.

The chart captured information from admitted exhibits,

including dates of check requests, amounts requested and paid,

and dates checks were cashed. James objected to the

Government’s effort to offer the chart into evidence under

Federal Rule of Evidence 1006. The Court took the objection

under advisement.

The Court thereafter asked if James

objected to use of the chart as a demonstrative aid and James

replied “no objection.” App. 676. The Court thereafter

instructed the jury that it should consider the chart as a guide

for testimony, not as substantive evidence. The Government

used the chart during the case agent’s testimony to discuss the

transactions, but it was not admitted into evidence.

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When the jury determined they had completed their

deliberations, the foreperson announced a guilty verdict.

Before the District Court recorded the verdict, it polled the jury

and perceived a problem with Juror 8. After discussion with

counsel, the Court questioned Juror 8. The questioning

revealed Juror 8’s limited ability to speak and understand

English. The Court also noted concerns about Juror 8’s candor

and memory, and then it excused Juror 8. James consented to

the Court’s decision to excuse Juror 8, but he objected to

replacing the excused juror with an alternate. Despite James’s

objection, the Court replaced the excused juror with an

alternate. The Court then instructed the jury: (1) to “restart” its

deliberations “as though you are starting from scratch,” App.

913-14; (2) “there is no rush to reach a verdict;” App. 914; (3)

the verdict “must be considered and deliberate;” id.; and (4) the

new juror “should feel as though he is beginning anew, not . . .

interposing or becoming someone who is interrupting an

ongoing process,” id. The reconstituted jury retired to

deliberate anew and eventually announced a unanimous guilty

verdict.

James appeals.

II 1

James challenges: (1) the introduction of evidence

outside the statute of limitations; (2) the Government’s

attempts to introduce evidence of the payment in the eviction

The District Court had jurisdiction under 48 U.S.C. § 1612.

We have jurisdiction under 28 U.S.C. § 1291.

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lawsuit; (3) the use of the chart during the case agent’s

testimony; and (4) the substitution of an excused juror with an

alternate after jury polling. We address each claim in turn.

James argues that the District Court erred in permitting

the Government to introduce evidence of acts falling outside

the statute of limitations. 18 U.S.C. § 3282(a). “The general

statute of limitations is five years after the offense is

committed.” United States v. Schneider, 801 F.3d 186, 195 (3d

Cir. 2015) (citing 18 U.S.C. § 3282(a)). Because the

Indictment was filed in October 2015, James argues that

evidence of conduct that occurred before October 2010 is

inadmissible.

To prove wire fraud, the Government must show that

the defendant “willful[ly] participat[ed] in a scheme or artifice

to defraud,” with intent to defraud, and used a wire to further

that scheme. United States v. Andrews, 681 F.3d 509, 518 (3d

Cir. 2012). Wire fraud is not a continuing offense, United

States v. Siddons, 660 F.3d 699, 705 (3d Cir. 2011), but each

wire may further a single, ongoing scheme to defraud, see

Andrews, 681 F.3d at 518. Thus, “mailings [and wirings] that

fall outside the statute of limitations can be considered as

evidence to prove [a] fraud that [occurred] within the statute of

We review the District Court’s decision to allow or exclude

evidence for abuse of discretion. United States v. Starnes, 583

F.3d 196, 213-14 (3d Cir. 2009). “We will not disturb a trial

court’s exercise of discretion unless no reasonable person

would adopt the district court’s view.” Id. at 214 (alterations

and internal quotation marks omitted).

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limitations.” United States v. Pharis, 298 F.3d 228, 234 n.3 (3d

Cir. 2002) (en banc), as amended (Sept. 30, 2002); see United

States v. Morelli, 169 F.3d 798, 806 n.9 (3d Cir. 1999) (“[T]he

wire fraud and mail fraud statutes differ only in form, not in

substance[.]”).

Because the jury may consider evidence outside the

limitations period that proves the existence of an artifice to

defraud, Pharis, 298 F.3d at 234, the District Court properly

permitted evidence predating October 2010. Such evidence,

including James’s submission of false invoices to the

Legislature to obtain funds for his own use, proved “the

existence of [his] overarching scheme to defraud, [which] is an

essential element of the wire fraud offenses.” App. 101-02.

More specifically, the Government introduced evidence of

fake invoices and check requests from 2009 and early 2010,

together with the fraudulent, non-time-barred October 2010

invoices, to show that James had an ongoing scheme to use the

Fireburn research as cover to obtain Virgin Island funds for his

personal use. The fact that James’s scheme began before

October 2010 does not make evidence about his scheme from

that period inadmissible, as it is relevant to prove an element

of a non-time-barred crime: the existence of a scheme to

defraud. Pharis, 298 F.3d at 234; see also Fitzgerald v.

Henderson, 251 F.3d 345, 365 (2d Cir. 2001) (“A statute of

limitations does not operate to bar the introduction of evidence

that predates the commencement of the limitations period but

that is relevant to events during the period.”). Thus, the Court

did not abuse its discretion in admitting evidence of activities

that occurred outside the statute of limitations. 3

Because evidence of James’s activity that occurred outside

the statute of limitations was offered to prove the charged

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James also argues that the District Court erred in

refusing to grant a mistrial motion based on alleged

prosecutorial misconduct.

According to James, the

Government attempted to introduce evidence of an eviction

matter that the Court had precluded.

A prosecutor’s comments constitute reversible error

only if they result in the denial of due process. See United

States v. Repak, 852 F.3d 230, 259 (3d Cir. 2017); United

States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010). “The

Government may run afoul of the defendant’s due process right

to a fair trial by systematically injecting inadmissible . . .

evidence at trial, thereby permeat[ing] the proceedings with

prejudice.” United States v. Welshans, 892 F.3d 566, 574 (3d

Cir. 2018) (internal citations and quotation marks omitted).

We do not “lightly overturn[]” a conviction based on

prosecutorial misconduct. United States v. Young, 470 U.S. 1,

11 (1985). The “conduct must be viewed in context,” and

scheme to defraud, it was not Federal Rule of Evidence 404(b)

“other acts” evidence, so any objection on that basis is inapt.

United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010) (“This

gives effect to Rule 404(b)’s applicability only to evidence of

other crimes, wrongs, or acts. If uncharged misconduct

directly proves the charged offense, it is not evidence of some

‘other’ crime.” (internal quotation marks and citation

omitted)).

We review the District Court’s ruling on a mistrial motion for

abuse of discretion. See United States v. Brennan, 326 F.3d

176, 182 (3d Cir. 2003).

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“only by doing so can it be determined whether the

prosecutor’s conduct affected the fairness of the trial.” Id.

The Government’s efforts to introduce evidence from

an eviction lawsuit against James did not deprive him of due

process. The District Court repeatedly expressed to the

Government not to introduce evidence about the eviction case. 5

The Government nevertheless called two witnesses to testify to

facts related to that case to show James’s “motive to steal

taxpayer money.” App. 66, 115. James, however, suffered no

prejudice because the Court prevented the witnesses from

giving any testimony about the eviction case. The first witness

the Government called to testify about this subject, Gerald

Groner, was not permitted to testify about any subject. He took

the stand and, following a discussion between the Court and

counsel, was excused. When the second witness, Indira

Chumney, was summoned to discuss the eviction-related

payment, the Court repeated: “We are not going there.” App

611. Ms. Chumney testified about a bank statement reflecting

James’s $18,000 deposit, but was excused before the

documentation was admitted and before presenting any other

testimony, including testimony about what happened to the

The District Court made no pre-trial ruling, but it asked the

Government not to address the eviction lawsuit in its opening.

At the same time, the Court reserved whether the Government

could mention the evidence later in the trial. At the end of the

first day of trial, the District Court expressed Rule 403

concerns regarding the eviction lawsuit, but once again, it

made no ruling on the record. The Court re-expressed those

concerns the next morning. Although the Court did not provide

explicit ruling, its desire that the Government avoid

mentioning the eviction lawsuit was clear.

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funds. As a result, the Government’s efforts regarding the

eviction lawsuit did not result in the introduction of

inadmissible evidence. James suffered no prejudice and thus

there was no misconduct that requires us to disturb the verdict.

Accordingly, the Court did not abuse its discretion in refusing

to grant a mistrial.

We next address James’s argument that the District

Court erred in permitting the use of a chart summarizing the

evidence of his funding requests. James asserts that the chart

was inadmissible under Federal Rule of Evidence 1006. The

problem with James’s argument is two-fold. First, the chart

was not admitted into evidence under Rule 1006. Rather, it

was used as a demonstrative aid. 6 This is hardly a subtle

Under Federal Rule of Evidence 611, a district court has the

discretion to determine the manner and method of testimony

during trial. “[T]he use of demonstrative evidence,” such as

charts, with proper limiting instructions, is one means to

control testimony, United States v. Velasquez, 304 F.3d 237,

240 (3d Cir. 2002), and allows the court to “avoid [the]

needless consumption of time,” Fed. R. Evid. 611(a) &

advisory committee’s note; see also Abrams v. Lightolier Inc.,

50 F.3d 1204, 1217 (3d Cir. 1995); United States v. Possick,

849 F.2d 332, 339 (8th Cir. 1988) (use of demonstrative charts

“to aid the jury’s comprehension is well within the court’s

discretion”); United States v. Gardner, 611 F.2d 770, 776 (9th

Cir. 1980) (permitting use of chart summarizing assets,

liabilities and expenditures in a tax case under Rule 611(a)

because it contributed to clarity of presentation to jury and was

reasonable method of presenting evidence).

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evidentiary distinction. Second, when James was asked if he

objected to the use of the chart as a demonstrative aid, he

replied “no objection.” App. 676. The record shows that

James’s no-objection response was an “intentional

relinquishment or abandonment of a known right,” in this case,

to lodge an objection to a piece of evidence, and thus

constitutes a waiver. United States v. Olano, 507 U.S. 725, 733

(1993). For example, James was not blindsided because the

Government allowed him to review the chart in advance. In

addition, when the Government asked to display the chart in “a

large format” throughout trial, James again said that he was

fine with this request. App. 676-77. Moreover, when the

Government tried to use another chart as a demonstrative aide,

James objected. The District Court then barred the use of the

second chart. These and other portions of the record show that

James’s no-objection statement was knowing and intentional.

See Virgin Islands v. Rosa, 399 F.3d 283, 291-93 (3d Cir.

2005) (considering the record to determine whether a failure to

object is a knowing waiver).

When a right or rule is waived, “an appeal based on a

non-adherence to the legal principle is precluded.” Virgin

Islands v. Rosa, 399 F.3d 283, 290 (3d Cir. 2005). 7 The rule

A right may also be forfeited. A forfeiture occurs when a

party fails to make a timely assertion of the right. Olano, 503

U.S. at 733. If the right was forfeited, Federal Rule of Criminal

Procedure 52(b) provides a basis for review. Rosa, 399 F.3d

at 290. Thus, if the defendant did not waive, the alleged error

may be reviewed for “plain error,” despite the absence of a

timely objection. Olano, 503 U.S. at 733-34. In short, “where

there was forfeiture, we apply plain error analysis; where there

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that federal courts do not consider waived arguments is

premised on the adversarial nature of our system of justice: that

litigants, not the courts, choose the facts and arguments to

present. Greenlaw v. United States, 554 U.S. 237, 244 (2008);

Arizona v. California, 530 U.S. 392, 413 (2000) (observing

that the principle of party presentation [is] basic to our system

of justice). Thus, when a party clearly chooses a particular

path, it will be respected and generally not further reviewed.

Not only does this approach respect the adversarial system, in

which the parties choose their arguments, but it also promotes

finality. It encourages parties to present all relevant arguments

to the trial court and binds them to their strategic choices. See

Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist.,

877 F.3d 136, 146 (3d Cir. 2017) (citing Fleishman v. Cont’l

Cas. Co., 695 F.3d 598, 608 (7th Cir. 2012)). In addition, such

preservation rules protect litigants from unfair surprise. Id.

(citing Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d

Cir. 2009)); Holly Hill Farm Corp. v. United States, 447 F.3d

258, 267 (4th Cir. 2006). Finally, the rules promote judicial

efficiency and prevent disturbing rulings based on grounds

never argued to the district court. Caisson Corp. v. IngersollRand Co., 622 F.2d 672, 680 (3d Cir. 1980); see also Wood v.

Milyard, 566 U.S. 463, 473 (2012) (reminding appellate courts

“not to overlook” the “process and time investment” of the trial

courts.).

To advance these goals, when a party has intentionally

relinquished a right, he or she may not seek review of any

alleged error flowing from such a waiver “absent exceptional

circumstances.” United States v. Rose, 538 F.3d 175, 179 (3d

was waiver, we do not.” Rosa, 399 F.3d at 290-91 (quoting

United States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996)).

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Cir. 2008). Put differently, the claimed error “is not

susceptible to review.” Id.; see also Olano, 507 U.S. at 733

(“mere forfeiture, as opposed of waiver, does not extinguish an

‘error’ under Rule 52(b)”). In short, when there is a waiver,

we conduct no further analysis of the claimed error. Rosa, 399

F.3d at 290-91. Based on this record, James’s affirmative noobjection statement to the chart’s demonstrative use and his

failure to dispute waiver on appeal, we conclude that he has

waived any basis to seek review of that ruling. 8

Because the District Court allowed the chart only as a

demonstrative aid and did not admit it into evidence under

Federal Rule of Evidence 1006, we need not address James’s

argument that the chart was an improper summary under Rule

1006.

James also argued that the case agent who testified

using the demonstrative aid offered inadmissible opinion

testimony. James identifies no examples of this allegedly

impermissible testimony. As a result, he has waived this issue

on appeal. See, e.g., Fed. R. App. P. 28(a)(8) (to be preserved,

the arguments must be supported specifically by “the reasons

for them, with citations to the authorities and parts of the record

on which the appellant relies”); Vente v. Gonzales, 415 F.3d

296, 299 n.3 (3d Cir. 2005); John Wyeth & Bro. Ltd. v. CIGNA

Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (holding

that an argument is waived when raised only “in passing (such

as, in a footnote)” without “squarely argu[ing]” it); see also In

re Application of Adan, 437 F.3d 381, 390 n.4 (3d Cir. 2006)

(concluding that to preserve an issue, the party must “present

substantive argument in support of [the] claim,” (internal

quotation marks omitted)). In any event, the absence of any

examples is not surprising given that the witness provided no

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opinions, but rather testified about only what he saw in the

documents he reviewed.

James’s opening brief also mentions another chart,

identified as Exhibit 30. Exhibit 30 was not admitted into

evidence or used as a demonstrative aid. The opening brief

also makes reference to impermissible use of a summary chart

by a forensic accountant, but James makes only passing

reference to it and does not develop this argument. Such a

passing reference does not preserve the issue for appeal.

CIGNA Int’l, 119 F.3d at 1076 n.6.

James failed to preserve another argument. James’s

reply brief mentions for the first time that the forensic

accountant relied on information outside the statute of

limitations. “[W]here an issue is raised for the first time in a

reply brief, we deem it insufficiently preserved for review

before this [C]ourt.” Garza v. Citigroup Inc., 881 F.3d 277,

284-85 (3d Cir. 2018) (citation omitted); In re Surrick, 338

F.3d 224, 237 (3d Cir. 2003); Lunderstadt v. Colafella, 885

F.2d 66, 78 (3d Cir. 1989)). Therefore, James failed to

preserve any argument about time-barred material underlying

the forensic accountant’s testimony. Even if preserved,

evidence of activity that predates the statute of limitations is

relevant to proving the existence of the scheme to defraud,

Pharis, 298 F.3d at 234, and, therefore, the accountant’s

testimony was proper.

“[A] trial judge is in the best position to weigh the

circumstances peculiar to each trial.” United States v. Fiorilla,

850 F.2d 172, 176 (3d Cir. 1988). As a result, “we review the

district court’s order denying a mistrial,” id. at 174, and its

decisions regarding jury polling and dismissing a juror for

cause for abuse of discretion. See e.g., United States v. Fattah,

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James argues that the District Court abused its

discretion when it declined to declare a mistrial after the jury

poll revealed that a juror lacked the capacity to deliberate and

when it substituted a juror with an alternate.

“[D]ecisions related to juror substitution are within the

discretion of the trial court.” United States v. Penn, 870 F.3d

164, 171 (3d Cir. 2017), cert. denied, 138 S. Ct. 700 (2018).

District courts have “wide latitude in making the kind of

credibility determinations underlying the removal of a juror,”

United States v. Thornton, 1 F.3d 149, 154 (3d Cir. 1993),

because their “unique perspective at the scene . . . [places them]

in a far superior position” to determine the proper course of

action when issues of juror disqualification arise, United States

v. Boone, 458 F.3d 321, 329 (3d Cir. 2006).

The Federal Rules of Criminal Procedure “currently . . .

provide courts three options after excusing a juror for good

cause during deliberations: (1) declare a mistrial; (2) proceed

with [eleven] jurors; or (3) seat an alternate.” United States v.

Brown, 784 F.3d 1301, 1304 (9th Cir. 2015). These three

914 F.3d 112, 149-151 (3d Cir. 2019) (“We review the

dismissal of a juror for cause for abuse of discretion . . . .We

will reverse only if the decision to dismiss a juror was without

factual support, or for a legally irrelevant reason.” (internal

citations and quotation marks omitted)); United States v.

Wrensford, 866 F.3d 76, 89 (3d Cir. 2017) (“We review a

district court’s actions concerning jury polling for abuse of

discretion” (citing Virgin Islands v. Hercules, 875 F.2d 414,

417 (3d Cir. 1989)).

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options come from three rules: Rule 31, Rule 23, and Rule 24.10

Rule 31(d) gives the defendant the right (and the district court

the option) to poll the jury after it returns a verdict. Fed. R.

Crim. P. 31(d). The purpose of jury polling is to provide “each

juror an opportunity, before the verdict is recorded, to declare

in open court his assent to the verdict which the foreman has

returned and thus to enable the court and the parties to ascertain

with certainty that a unanimous verdict has in fact been reached

and that no juror has been coerced or induced to agree to a

verdict to which he has not fully assented.” Hercules, 875 F.2d

at 418 (citations and emphasis omitted). Where the poll

demonstrates a lack of unanimity, Rule 31(d) leaves to the

district court’s discretion whether the jury should be directed

to redeliberate or whether a mistrial is warranted. Fed. R.

Crim. P. 31(d). Rule 23(b)(3) permits the court, at its

discretion, to excuse a juror for good cause and allow a jury of

eleven to return a verdict. Fed. R. Crim. P. 23(b)(3). Finally,

under Rule 24(c), the court may replace a juror with an

alternate where juror misconduct or incapacity arises, in which

case the court must instruct the jury to begin anew with the

alternate’s addition. Fed. R. Crim. P. 24(c). Here, the Court

polled the jury, identified good cause to excuse a juror, and

excused the juror under Rule 23. The Court then replaced the

juror with an alternate and gave instructions for the jury to

begin deliberation anew consistent with Rule 24.

The District Court did not abuse its discretion in

choosing to seat an alternate and in denying James’s request

We address the rules in the sequence in which the events

each rule addresses arose before the District Court.

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for a mistrial. Before the Court accepted the verdict, 11 it polled

the jury and perceived a problem with Juror 8. The parties

consented to further questioning of the juror after some debate.

As a result of its observations and inquiry, the Court had

concerns about the juror’s candor, memory, and English

language proficiency, which reflected that it questioned

whether Juror 8 understood the verdict as read by the

foreperson. Faced with these concerns about the juror, the

Court acted within its discretion to excuse Juror 8. 12

A verdict is not final until is accepted by the Court. See, e.g.,

Hercules, 875 F.2d at 417 (“[A] jury cannot be said to have

reached a valid verdict until the result is announced in open

court and no dissent is registered by any juror.”); see also

Harrison v. Gillespie, 640 F.3d 888, 899 (9th Cir. 2011)

(“Because of the significance of the entire deliberative process,

the jurors’ preliminary votes in the jury room do not constitute

a final verdict, even if they are unanimous . . . . Instead,

the verdict must be rendered by the jury in open court

and accepted by the court in order to become final. The court

may also reject the jury’s verdict if it is inconsistent or

ambiguous.”); United States v. Chinchic, 655 F.2d 547, 550

(4th Cir. 1981) (“[A]ny member of [the jury] is entitled to

change his or her mind up until the time of the trial court’s

acceptance of the verdict.”); United States v. Love, 597 F.2d

81, 84 (6th Cir. 1979) (“[T]he very existence of Rule

31(d) which provides for polling a jury after its verdict has

been returned but before it is recorded compels the conclusion

that a verdict is not final when announced.”).

During jury selection, the District Court instructed the venire

that prospective jurors who answer “yes” to any voir dire

question should raise their juror cards. Those jurors who raised

their cards were questioned further. Because it seems that

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James consented to the Court’s decision to excuse Juror

8, but he objected to replacing the excused juror with an

alternate. The Court replaced the excused juror with an

alternate, over James’s objection. The Court told the jury to

“restart” its deliberations, reminded the jury that “there is no

rush to reach a verdict,” and that the verdict “must be

considered and deliberate.” App. 913-14. The Court also

instructed that the new juror “should feel as though he is

beginning anew, not . . . interposing or becoming someone who

is interrupting an ongoing process.” App. 914. The Court’s

decisions to excuse Juror 8, replace her with an alternate, and

give instructions to the newly constituted jury all complied

with Rules 23, 24, and 31 and were within its broad discretion.

United States v. Wrensford, 866 F.3d 76, 89 (3d Cir. 2017)

(“Our Court has adopted a rule vesting discretion in the trial

court because a trial judge is in the best position to weigh the

circumstances peculiar to each trial.” (quoting United States v.

Fiorilla, 850 F.2d 172, 176 (3d Cir. 1988) (internal quotation

marks omitted))).

Taking Rules 23, 24, and 31 together, the District Court

has the discretion to select among three options under the

Federal Rules of Criminal Procedure, including seating an

alternate and directing the jury to begin deliberations anew

when it had good reason to think that a juror lacked the capacity

to deliberate. Moreover, there is nothing in the record to

suggest the decision to seat an alternate prejudiced James in

Juror 8 did not raise her card and was not subject to any

individual questioning, there was no occasion during jury

selection for the Court or the parties to learn of Juror 8’s

language difficulties.

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any way. Thus, the District Court did not abuse its discretion

in replacing Juror 8 with an alternate and instructing the jury

to begin again. 13

James also asserts that the juror substitution violated his

Fifth Amendment right to due process and his Sixth

Amendment right to an impartial jury trial. “[F]ederal courts

have generally ruled that the substitution of a juror after

deliberations have begun does not violate the United States

Constitution, provided that defendants suffered no prejudice as

a result.” Claudio v. Snyder, 68 F.3d 1573, 1576 (3d Cir.

1995), amended (Dec. 1, 1995). Because all deliberating

jurors heard all of the evidence and were properly instructed, 14

and there is nothing in the record suggesting that the

deliberating jurors lacked impartiality or the competence to

understand the evidence and the instructions, or that the

excused juror tainted or otherwise impaired the reconstituted

jury that delivered the verdict, the Court’s substitution of Juror

8 with an alternate neither prejudiced James nor violated his

Fifth Amendment due process right or Sixth Amendment right

to an impartial jury.

III

For the foregoing reasons, we will affirm.

James also argues that the District Court should have

interrogated two jurors whom Juror 8 identified as being

Spanish-speakers like her. The Court acted within its

discretion to deny this request as there was no evidence to

suggest these jurors had any language difficulties.

We presume that the jury follows their instructions.

Richardson v. Marsh, 481 U.S. 200, 211 (1987).

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 19-1250

________________

UNITED STATES,

WAYNE JAMES

Appellant,

________________

(Crim No. 3-15-cr-00042-001)

________________

SUR PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

Present: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN,

HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS,

PORTER, MATEY and PHIPPS, Circuit Judges

The petition for rehearing filed by Appellant in the above-entitled case having

been submitted to the judges who participated in the decision of this Court and a majority

of the judges who participated in the decision of the Court having voted for rehearing, it

is hereby ORDERED that the petition for panel rehearing is GRANTED. The opinion

and judgment filed January 23, 2020 are hereby VACATED. An amended opinion1 and

judgment will be filed contemporaneously with this order.

The majority has made changes to the language that appeared at pages 11-12 and 14 of

the original opinion.

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In light of the action taken by the panel, the En Banc Court has determined that no

further action is required on the petition currently before it.

BY THE COURT,

s/Patty Shwartz

Circuit Judge

Dated: April 3, 2020

JK/cc: All Counsel of Record

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-1250

______________

UNITED STATES OF AMERICA

WAYNE A.G. JAMES,

Appellant

______________

Appeal from the District Court

for the Virgin Islands

(No. 3:15-cr-00042-001)

District Judge: Hon. Curtis V. Gomez

______________

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

December 12, 2019

______________

Before: SMITH, Chief Judge, McKEE, and SHWARTZ,

Circuit Judges.

(Opinion Filed: January 23, 2020)

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_________________

OPINION

_________________

Brian A. Benczkowski

Annalou Tirol

Amanda R. Vaughn

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W.

Washington, DC 20005

Gretchen C.F. Shappert

Delia L. Smith

Office of the United States Attorney

5500 Veterans Drive

United States Courthouse, Suite 260

St. Thomas, VI 00802

Counsel for Appellee

Gabriel J. Villegas

Federal Public Defender District Virgin Islands

Office of the Public Defender

1336 Beltjen Road

Suite 202, Tunick Building

St. Thomas, VI 00802

Michael A. Rogers

Office of Federal Public Defender

4094 Diamond Ruby

Suite 5

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Christiansted, VI 00820

Counsel for Appellant

SHWARTZ, Circuit Judge.

Defendant Wayne A. G. James appeals his conviction

for wire fraud and embezzlement. James challenges: (1) the

introduction of evidence outside the statute of limitations; (2)

the Government’s attempts to introduce evidence about

James’s eviction lawsuit; (3) the use of a demonstrative aid;

and (4) the substitution of an excused juror with an alternate

after the jury had been polled. Discerning no error, we will

affirm.

During the 2009 to 2010 term, James served as a senator

in the Virgin Islands Legislature. The Legislature maintained

a fund that James and other senators could use to pay for

Legislature-related expenses, such as the costs of running their

offices, supplies, or for legislative initiatives. Senators

sometimes received checks from the fund for such items.

James used a large portion of the checks issued to him for his

personal expenses.

James obtained these checks by presenting invoices

purportedly associated with work on a historical project.

Before becoming a senator, James took an interest in the 1878

Fireburn, a revolt on St. Croix. The Danish National Archives

(“the Archives”) possesses historical documents about the

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event. In February 2008, James inquired about retrieving

documents from the Archives and received a cost estimate. For

a fee, which had to be pre-paid by wire transfer, the Archives

would gather and provide copies of documents to individuals

outside of Denmark. James hoped to use the records to

eventually produce a movie.

Over a year later, after James’s election to the

Legislature, he requested funds for his Fireburn research

project from the Legislature. From April 2009 through midOctober 2010, James obtained several checks by submitting

false invoices for purported translation and research work for

the Fireburn project. Only a fraction of the funds James

received were used to pay for the Danish records and

translations. James used most of the funds for his personal

benefit, including for his re-election campaign.

Law enforcement investigated this conduct and, on

October 1, 2015, a grand jury returned an indictment charging

James with two counts of wire fraud in violation of 18 U.S.C.

§ 1343 and one count of federal program embezzlement in

violation of 18 U.S.C. § 666(a)(1)(A).

At trial, three evidentiary issues arose that are relevant

to this appeal. First, the District Court permitted the

Government to introduce evidence of acts outside the

limitations period, 18 U.S.C. § 3282(a).

Second, James moved to exclude evidence that he paid

a court-ordered $18,000 bond in an eviction dispute with his

landlord on the same day as he cashed one of the checks from

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the Legislature. The District Court did not rule on this motion

before trial, but it instructed the Government not to discuss the

eviction case in its opening. Thereafter, the Government called

two witnesses to testify about the eviction-related payment,

Gerald Groner and Indira Chumney. Groner was an attorney

who had participated in the eviction litigation. James objected

to Groner’s testimony before any questioning took place. The

objection was sustained and Groner was excused. Chumney

was the branch operations manager for First Bank and was

questioned about a bank statement and deposit slip reflecting

James’s deposit of $18,000. James objected before she

testified about any other topic. The objection was sustained

and the witness was excused. Although neither witness

testified about the eviction case, James argued that the

Government’s attempts to introduce evidence about it

constituted prosecutorial misconduct and moved for a mistrial.

The Court denied the motion.

Third, the District Court permitted the use of a chart as

a demonstrative aid to accompany the case agent’s testimony.

The chart captured information from admitted exhibits,

including dates of check requests, amounts requested and paid,

and dates checks were cashed. James objected to the

Government’s effort to offer the chart into evidence under

Federal Rule of Evidence 1006. The Court took the objection

under advisement.

The Court thereafter asked if James

objected to use of the chart as a demonstrative aid and James

replied “no objection.” App. 676. The Court thereafter

instructed the jury that it should consider the chart as a guide

for testimony, not as substantive evidence. The Government

used the chart during the case agent’s testimony to discuss the

transactions, but it was not admitted into evidence.

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When the jury determined they had completed their

deliberations, the foreperson announced a guilty verdict.

Before the District Court recorded the verdict, it polled the jury

and perceived a problem with Juror 8. After discussion with

counsel, the Court questioned Juror 8. The questioning

revealed Juror 8’s limited ability to speak and understand

English. The Court also noted concerns about Juror 8’s candor

and memory, and then it excused Juror 8. James consented to

the Court’s decision to excuse Juror 8, but he objected to

replacing the excused juror with an alternate. Despite James’s

objection, the Court replaced the excused juror with an

alternate. The Court then instructed the jury: (1) to “restart” its

deliberations “as though you are starting from scratch,” App.

913-14; (2) “there is no rush to reach a verdict;” App. 914; (3)

the verdict “must be considered and deliberate;” id.; and (4) the

new juror “should feel as though he is beginning anew, not . . .

interposing or becoming someone who is interrupting an

ongoing process,” id. The reconstituted jury retired to

deliberate anew and eventually announced a unanimous guilty

verdict.

James appeals.

II1

James challenges: (1) the introduction of evidence

outside the statute of limitations; (2) the Government’s

attempts to introduce evidence of the payment in the eviction

The District Court had jurisdiction under 48 U.S.C. § 1612.

We have jurisdiction under 28 U.S.C. § 1291.

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lawsuit; (3) the use of the chart during the case agent’s

testimony; and (4) the substitution of an excused juror with an

alternate after jury polling. We address each claim in turn.

James argues that the District Court erred in permitting

the Government to introduce evidence of acts falling outside

the statute of limitations. 18 U.S.C. § 3282(a). “The general

statute of limitations is five years after the offense is

committed.” United States v. Schneider, 801 F.3d 186, 195 (3d

Cir. 2015) (citing 18 U.S.C. § 3282(a)). Because the

Indictment was filed in October 2015, James argues that

evidence of conduct that occurred before October 2010 is

inadmissible.

To prove wire fraud, the Government must show that

the defendant “willful[ly] participat[ed] in a scheme or artifice

to defraud,” with intent to defraud, and used a wire to further

that scheme. United States v. Andrews, 681 F.3d 509, 518 (3d

Cir. 2012). Wire fraud is not a continuing offense, United

States v. Siddons, 660 F.3d 699, 705 (3d Cir. 2011), but each

wire may further a single, ongoing scheme to defraud, see

Andrews, 681 F.3d at 518. Thus, “mailings [and wirings] that

fall outside the statute of limitations can be considered as

evidence to prove [a] fraud that [occurred] within the statute of

We review the District Court’s decision to allow or exclude

evidence for abuse of discretion. United States v. Starnes, 583

F.3d 196, 213-14 (3d Cir. 2009). “We will not disturb a trial

court’s exercise of discretion unless no reasonable person

would adopt the district court’s view.” Id. at 214 (alterations

and internal quotation marks omitted).

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limitations.” United States v. Pharis, 298 F.3d 228, 234 n.3 (3d

Cir. 2002) (en banc), as amended (Sept. 30, 2002); see United

States v. Morelli, 169 F.3d 798, 806 n.9 (3d Cir. 1999) (“[T]he

wire fraud and mail fraud statutes differ only in form, not in

substance[.]”).

Because the jury may consider evidence outside the

limitations period that proves the existence of an artifice to

defraud, Pharis, 298 F.3d at 234, the District Court properly

permitted evidence predating October 2010. Such evidence,

including James’s submission of false invoices to the

Legislature to obtain funds for his own use, proved “the

existence of [his] overarching scheme to defraud, [which] is an

essential element of the wire fraud offenses.” App. 101-02.

More specifically, the Government introduced evidence of

fake invoices and check requests from 2009 and early 2010,

together with the fraudulent, non-time-barred October 2010

invoices, to show that James had an ongoing scheme to use the

Fireburn research as cover to obtain Virgin Island funds for his

personal use. The fact that James’s scheme began before

October 2010 does not make evidence about his scheme from

that period inadmissible, as it is relevant to prove an element

of a non-time-barred crime: the existence of a scheme to

defraud. Pharis, 298 F.3d at 234; see also Fitzgerald v.

Henderson, 251 F.3d 345, 365 (2d Cir. 2001) (“A statute of

limitations does not operate to bar the introduction of evidence

that predates the commencement of the limitations period but

that is relevant to events during the period.”). Thus, the Court

did not abuse its discretion in admitting evidence of activities

that occurred outside the statute of limitations.3

Because evidence of James’s activity that occurred outside

the statute of limitations was offered to prove the charged

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James also argues that the District Court erred in

refusing to grant a mistrial motion based on alleged

prosecutorial misconduct.

According to James, the

Government attempted to introduce evidence of an eviction

matter that the Court had precluded.

A prosecutor’s comments constitute reversible error

only if they result in the denial of due process. See United

States v. Repak, 852 F.3d 230, 259 (3d Cir. 2017); United

States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010). “The

Government may run afoul of the defendant’s due process right

to a fair trial by systematically injecting inadmissible . . .

evidence at trial, thereby permeat[ing] the proceedings with

prejudice.” United States v. Welshans, 892 F.3d 566, 574 (3d

Cir. 2018) (internal citations and quotation marks omitted).

We do not “lightly overturn[]” a conviction based on

prosecutorial misconduct. United States v. Young, 470 U.S. 1,

11 (1985). The “conduct must be viewed in context,” and

scheme to defraud, it was not Federal Rule of Evidence 404(b)

“other acts” evidence, so any objection on that basis is inapt.

United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010) (“This

gives effect to Rule 404(b)’s applicability only to evidence of

other crimes, wrongs, or acts. If uncharged misconduct

directly proves the charged offense, it is not evidence of some

‘other’ crime.” (internal quotation marks and citation

omitted)).

We review the District Court’s ruling on a mistrial motion for

abuse of discretion. See United States v. Brennan, 326 F.3d

176, 182 (3d Cir. 2003).

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“only by doing so can it be determined whether the

prosecutor’s conduct affected the fairness of the trial.” Id.

The Government’s efforts to introduce evidence from

an eviction lawsuit against James did not deprive him of due

process. The District Court repeatedly expressed to the

Government not to introduce evidence about the eviction case.5

The Government nevertheless called two witnesses to testify to

facts related to that case to show James’s “motive to steal

taxpayer money.” App. 66, 115. James, however, suffered no

prejudice because the Court prevented the witnesses from

giving any testimony about the eviction case. The first witness

the Government called to testify about this subject, Gerald

Groner, was not permitted to testify about any subject. He took

the stand and, following a discussion between the Court and

counsel, was excused. When the second witness, Indira

Chumney, was summoned to discuss the eviction-related

payment, the Court repeated: “We are not going there.” App

611. Ms. Chumney testified about a bank statement reflecting

James’s $18,000 deposit, but was excused before the

documentation was admitted and before presenting any other

testimony, including testimony about what happened to the

The District Court made no pre-trial ruling, but it asked the

Government not to address the eviction lawsuit in its opening.

At the same time, the Court reserved whether the Government

could mention the evidence later in the trial. At the end of the

first day of trial, the District Court expressed Rule 403

concerns regarding the eviction lawsuit, but once again, it

made no ruling on the record. The Court re-expressed those

concerns the next morning. Although the Court did not provide

explicit ruling, its desire that the Government avoid

mentioning the eviction lawsuit was clear.

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funds. As a result, the Government’s efforts regarding the

eviction lawsuit did not result in the introduction of

inadmissible evidence. James suffered no prejudice and thus

there was no misconduct that requires us to disturb the verdict.

Accordingly, the Court did not abuse its discretion in refusing

to grant a mistrial.

We next address James’s argument that the District

Court erred in permitting the use of a chart summarizing the

evidence of his funding requests. James asserts that the chart

was inadmissible under Federal Rule of Evidence 1006. The

problem with James’s argument is two-fold. First, the chart

was not admitted into evidence under Rule 1006. Rather, it

was used as a demonstrative aid.6 Second, when James was

Under Federal Rule of Evidence 611, a district court has the

discretion to determine the manner and method of testimony

during trial. “[T]he use of demonstrative evidence,” such as

charts, with proper limiting instructions, is one means to

control testimony, United States v. Velasquez, 304 F.3d 237,

240 (3d Cir. 2002), and allows the court to “avoid [the]

needless consumption of time,” Fed. R. Evid. 611(a) &

advisory committee’s note; see also Abrams v. Lightolier Inc.,

50 F.3d 1204, 1217 (3d Cir. 1995); United States v. Possick,

849 F.2d 332, 339 (8th Cir. 1988) (use of demonstrative charts

“to aid the jury’s comprehension is well within the court’s

discretion”); United States v. Gardner, 611 F.2d 770, 776 (9th

Cir. 1980) (permitting use of chart summarizing assets,

liabilities and expenditures in a tax case under Rule 611(a)

because it contributed to clarity of presentation to jury and was

reasonable method of presenting evidence).

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asked if he objected to the use of the chart as a demonstrative

aid, he replied “no objection.” App. 676. His response reflects

“the intentional relinquishment or abandonment of a known

right,” in this case, to lodge an objection to a piece of evidence,

and thus constitutes a waiver. United States v. Olano, 507 U.S.

725, 733 (1993).

When a right or rule is waived, “an appeal based on a

non-adherence to the legal principle is precluded.” Virgin

Islands v. Rosa, 399 F.3d 283, 290 (3d Cir. 2005).7 The rule

that federal courts do not consider waived arguments is

premised on the adversarial nature of our system of justice: that

litigants, not the courts, choose the facts and arguments to

present. Greenlaw v. United States, 554 U.S. 237, 244 (2008);

Arizona v. California, 530 U.S. 392, 413 (2000) (observing

that the principle of party presentation [is] basic to our system

of justice). Thus, when a party clearly chooses a particular

path, it will be respected and generally not further reviewed.

Not only does this approach respect the adversarial system, in

which the parties choose their arguments, but it also promotes

finality. It encourages parties to present all relevant arguments

to the trial court and binds them to their strategic choices. See

A right may also be forfeited. A forfeiture occurs when a

party fails to make a timely assertion of the right. Olano, 503

U.S. at 733. If the right was forfeited, Federal Rule of Criminal

Procedure 52(b) provides a basis for review. Rosa, 399 F.3d

at 290. Thus, if the defendant did not waive, the alleged error

may be reviewed for “plain error,” despite the absence of a

timely objection. Olano, 503 U.S. at 733-34. In short, “where

there was forfeiture, we apply plain error analysis; where there

was waiver, we do not.” Rosa, 399 F.3d at 290-91 (quoting

United States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996)).

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Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist.,

877 F.3d 136, 146 (3d Cir. 2017) (citing Fleishman v. Cont’l

Cas. Co., 695 F.3d 598, 608 (7th Cir. 2012)). In addition, such

preservation rules protect litigants from unfair surprise. Id.

(citing Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d

Cir. 2009)); Holly Hill Farm Corp. v. United States, 447 F.3d

258, 267 (4th Cir. 2006). Finally, the rules promote judicial

efficiency and prevent disturbing rulings based on grounds

never argued to the district court. Caisson Corp. v. IngersollRand Co., 622 F.2d 672, 680 (3d Cir. 1980); see also Wood v.

Milyard, 566 U.S. 463, 473 (2012) (reminding appellate courts

“not to overlook” the “process and time investment” of the trial

courts.).

To advance these goals, when a party has intentionally

relinquished a right, he or she may not seek review of any

alleged error flowing from such a waiver “absent exceptional

circumstances.” United States v. Rose, 538 F.3d 175, 179 (3d

Cir. 2008). Put differently, the claimed error “is not

susceptible to review.” Id.; see also Olano, 507 U.S. at 733

(“mere forfeiture, as opposed of waiver, does not extinguish an

‘error’ under Rule 52(b)”). In short, when there is a waiver,

we conduct no further analysis of the claimed error. Rosa, 399

F.3d at 290-91. Because James affirmatively stated that he had

no objection to the chart’s use in this fashion, he has waived

any basis to seek review of that ruling.8

Because the District Court allowed the chart only as a

demonstrative aid and did not admit it into evidence under

Federal Rule of Evidence 1006, we need not address James’s

argument that the chart was an improper summary under Rule

1006.

035