United States v. Flores ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 01-2090; 02-1009
ELECTRONIC CITATION: 2003 FED App. 0426P (6th Cir.) Delgado, et al.
File Name: 03a0426p.06
Michigan, for Appellee. ON BRIEF: Thomas J. Plachta,
PLACHTA LAW OFFICES, Mt. Pleasant, Michigan, Richard
UNITED STATES COURT OF APPEALS Ginsberg, Ann Arbor, Michigan, for Appellants. Janet L.
FOR THE SIXTH CIRCUIT Parker, ASSISTANT UNITED STATES ATTORNEY, Bay
_________________ City, Michigan, for Appellee. Rudy Delgado, Jr., Pekin,
Illinois, pro se.
UNITED STATES OF AMERICA , X _________________
Plaintiff-Appellee, -
- OPINION
- Nos. 01-2090; _________________
v. - 02-1009
> DAVID A. NELSON, Circuit Judge. The primary issue
,
RUDY DELGADO, JR. presented in these criminal appeals is whether the district
-
(01-2090) and EDUARDO court’s method of jury selection – a method in which the
-
parties were required to reduce a pool of 30 qualified jurors
FLORES (02-1009), -
to a panel of 14 by using all of their peremptory challenges,
Defendants-Appellants. - with the court then designating two alternates by random
-
draw immediately before the beginning of jury deliberations
N
– violated, to the defendants’ prejudice, Rule 24 of the
Appeal from the United States District Court Federal Rules of Criminal Procedure. We conclude that the
for the Eastern District of Michigan at Detroit. random designation of alternates at the end of the trial was
No. 00-81120—Victoria A. Roberts, District Judge. inconsistent with Rule 24(c), but that the violation did not
affect the defendants’ substantial rights. On that basis, and
Argued and Submitted: September 12, 2003 because we reject all remaining claims of prejudicial error
(with the exception of an ineffective assistance of counsel
Decided and Filed: December 5, 2003 claim that would more appropriately be raised in a collateral
proceeding), the challenged judgments will be affirmed.
Before: NELSON, GIBBONS, and SUTTON, Circuit
Judges. I
_________________ Rudy Delgado, Jr., and Eduardo Flores were indicted on
charges of conspiracy to possess and distribute more than 500
COUNSEL grams of cocaine, use of communications facilities to
facilitate the distribution of cocaine, and possession and
ARGUED: Thomas J. Plachta, PLACHTA LAW OFFICES, distribution of cocaine. They were jointly tried before a jury.
Mt. Pleasant, Michigan, for Appellant. Janet L. Parker,
ASSISTANT UNITED STATES ATTORNEY, Bay City,
1
Nos. 01-2090; 02-1009 United States v. 3 4 United States v. Nos. 01-2090; 02-1009
Delgado, et al. Delgado, et al.
The district court used a form of the “struck jury” method United States Constitution. The court denied the motion but
of jury selection.1 After screening for cause and thereby expressed a willingness to designate as alternates the “last
reducing the jury pool to 30 qualified members, the district two” jurors called. When Delgado’s lawyer’s definition of
court required the government and the defense to exercise all the “last two” jurors proved different from the government’s,
of the peremptory strikes allowed under Rule 24(b), Fed. R. however, the court adhered to its plan to select alternates
Crim. P., leaving 14 jurors.2 The attorneys for the defendants randomly. 3
initially misunderstood the court’s procedure, believing that
jury selection would be complete, even if some peremptory Mr. Delgado’s attorney gave an opening statement before
strikes remained unused, once the “first” 14 jurors were the government presented its case, but Mr. Flores’ attorney
acceptable to both the government and the defense. When the reserved his opening until the government rested. At that
defense attempted to “pass” a round of peremptory strikes, time, Flores’ lawyer gave a statement indicating that Flores
however, the court explained that “[n]o one of the 30 has any would testify and that his testimony would paint Delgado as
priority over anybody else” and that all of the parties’ a drug dealer. Mr. Delgado moved for a severance at this
peremptory strikes would therefore have to be used to select point, citing “inconsistent defenses.” The district court
a panel of 14 jurors. Mr. Delgado objected to the court’s denied the motion.
procedure, but the court overruled the objection.
The jury convicted the defendants of conspiracy and other
The district court had informed the parties that it would use offenses. Delgado was sentenced to 135 months of
a random draw to remove two alternates from the panel of 14 imprisonment, and Flores was sentenced to 27 months. Each
just before the jury was sent to deliberate. Mr. Delgado defendant filed a timely appeal.4
objected to this procedure also. Joined by Mr. Flores, he
moved for a mistrial on the grounds that the court’s method II
of selecting jurors and alternates violated Rule 24 and the
Jury selection procedures, including the manner in which
peremptory challenges are exercised, are traditionally left to
1
Most courts use a version of either the “struck jury” or the “jury
the discretion of the district courts. See, e.g., United States v.
box” method of jury selection. Under the struck jury method , “for-cause Mosely, 810 F.2d 93, 96-97 (6th Cir.), cert. denied, 484 U.S.
challenges are made first, until a sufficiently large panel of qualified 841 (1987); United States v. Morris, 623 F.2d 145, 151 (10th
jurors remains to fill the juror and alternate juror positions sho uld all
peremptory challenges be exercised against different jurors.” United
States v. Underwood, 122 F.3d 389, 393 n.4 (7th Cir. 1997 ), cert. denied, 3
524 U.S. 93 7 (1998). U nder the jury bo x method , “the parties exercise Mr. Delgado’s lawyer believed that the “last two” jurors were tho se
both their for-cause and peremptory challenges one juror at a time during sitting furthest from the first seat in the jury box when the peremptory
voir dire questioning.” Id. strike process began, while the governm ent attorney believed that the “last
two” were the final two jurors called from the venire to replace
2 prospective juro rs who were excused for cause.
Rule 24(b)(2) affords the government six peremptory challenges and
the defendant or defendants 10 peremptory challenges in felony cases. 4
See Fed. R. Crim. P. 24(b). District courts “may allow additional In addition to the jury selection issues, Flores’ appeal raised several
peremptory challenges to multiple defendants,” id., but the court did not issues relating to his sentence. Those issues are now moot, Flores having
do so in this case. been released fro m custody.
Nos. 01-2090; 02-1009 United States v. 5 6 United States v. Nos. 01-2090; 02-1009
Delgado, et al. Delgado, et al.
Cir.), cert. denied, 449 U.S. 1065 (1980). In criminal trials, We are not persuaded that any such diminution constituted
that discretion is circumscribed by Rule 24 of the Federal a meaningful impairment of the defendants’ right to
Rules of Criminal Procedure.5 We must therefore decide peremptory challenges. In United States v. Martinez-Salazar,
whether the defendants were “denied any right for which Rule a criminal defendant lost the strategic use of a peremptory
24 provides.” United States v. Martinez-Salazar, 528 U.S. challenge when he exercised the challenge against a juror who
304, 313 (2000). should have been excused for cause. See Martinez-Salazar,
528 U.S. at 308-09. The Supreme Court, observing that the
A defendant was accorded the full allotment of challenges
allowed by Rule 24(b), held that his right to peremptory
We turn first to the defendants’ argument that they were challenges was not impaired. See id. at 317. Under
improperly required to use all of their peremptory challenges. Martinez-Salazar, we believe, the inability of defendants “to
Rule 24(b) prescribes the number of peremptory challenges make maximum strategic use of their peremptory challenges”
that must be allowed in criminal trials but says nothing about does not invalidate a district court’s method of exercising
the method by which such challenges are to be exercised. See peremptories. United States v. Patterson, 215 F.3d 776, 779-
United States v. Underwood, 122 F.3d 389, 392 (7th Cir. 80 (7th Cir.), vacated in part on other grounds, 531 U.S.
1997), cert. denied, 524 U.S. 937 (1998); Morris, 623 F.2d at 1033 (2000). The defendants must identify some other defect
151. District courts are thus free to use any method that does in the district court’s procedure if they are to show that Rule
not prevent defendants from intelligently exercising the 24(b) was violated.
challenges to which they are entitled. See Underwood, 122
F.3d at 392. The defendants’ only other argument is that the required
use of all peremptory challenges conflicts with the “historic
Here the defendants argue that the district court’s chosen purpose” of peremptories by forcing parties to strike jurors
method – a “struck jury” system, to repeat, in which jurors that they find acceptable. But the defendants were not forced
were not seated in a sequence – impaired the ability of to strike jurors that they preferred over the remaining jurors;
defense counsel to exercise professional judgment when using they were only required to strike the jurors they perceived as
peremptory challenges. The defendants presumably wished least favorable. We do not think the district court’s procedure
to maximize the strategic value of their peremptory strikes by was inconsistent with the “true nature of the peremptory
focusing on the jurors who were most likely to sit. With none challenge right,” which is to allow the rejection (not the
of the 30 qualified jurors more likely to sit than any other, the selection) of prospective jurors. Mosely, 810 F.2d at 97
value of any individual strike was arguably diminished. (citing Pointer v. United States, 151 U.S. 396 (1894)). There
was no impermissible impairment of the defendants’ right to
exercise peremptory challenges under Rule 24(b).
5
B
Peremptory challenges are “auxiliary” to the Sixth Amendm ent right
to an impartial jury; they are not themselves constitutionally guaranteed. Now we turn to the district court’s designation of alternates.
See, e.g., United States v. Martinez-Salazar, 528 U.S. 304 , 311 (2000 ). At the time of the defendants’ trial, Rule 24(c) provided that
The right to peremptory challenges in federal criminal trials is secured –
and governed – by Rule 24. See id.Nos. 01-2090; 02-1009 United States v. 7 8 United States v. Nos. 01-2090; 02-1009
Delgado, et al. Delgado, et al.
“The court may empanel no more than 6 jurors, in Federal rules of procedure should not, of course, be
addition to the regular jury, to sit as alternate jurors. An disregarded by courts any more than by litigants. We
alternate juror, in the order called, shall replace a juror “encourag[e] strict adherence” to Rule 24(c). Sivils, 960 F.2d
who becomes or is found to be unable or disqualified to at 594. “Not every violation of Rule 24,” however, “calls for
perform juror duties.”6 reversal.” Love, 134 F.3d at 601 (internal quotation marks
omitted). A violation of the rule constitutes reversible error
This provision, as we read it, assumes that alternate jurors only if it affected the defendant’s substantial rights – i.e., if it
will be designated separately – and sequentially – before the caused actual prejudice to the defendant. Fed. R. Crim. P.
trial begins.7 The district court’s selection of alternates by 52(a); see, e.g., Brewer, 199 F.3d at 1286-87; Love, 134 F.3d
random draw just prior to jury deliberations was inconsistent at 601; Sivils, 960 F.2d at 593.
with the rule. See, e.g., United States v. Brewer, 199 F.3d
1283, 1286-87 (11th Cir. 2000); United States v. Love, 134 In the case at bar, we are not persuaded that the district
F.3d 595, 601 (4th Cir. ), cert. denied, 524 U.S. 932 (1998); court’s method of selecting alternates actually prejudiced the
and United States v. Sivils, 960 F.2d 587, 593-94 (6th Cir.), defendants. All of the prospective jurors had been passed for
cert. denied, 506 U.S. 843 (1992), in which we characterized cause and presumably were impartial. Further, the drawing
a random draw of alternates just before the jury retired to of alternates by lot was a neutral procedure that in no way
deliberate as a “departure from Rule 24(c).”8 advantaged the government.9 Cf. Love, 134 F.3d at 602
(violation of Rule 24(c) that accorded the government no
advantage was not prejudicial). Mr. Delgado has asserted that
the jurors drawn as alternates “were the best defense jurors,”
6 but that is nothing more than speculation – and speculation
Rule 24 was amended in 2002, but the changes to subsection (c) cannot support a finding of actual prejudice. See id. at 602-
were “intended to be stylistic only.” Fed. R. Crim. P. 24, advisory
comm ittee notes. 03; Sivils, 960 F.2d at 594. Finally, the consensus among this
and other courts of appeals is that similar violations of Rule
7
According to one court of appeals, Rule 24(c) “assumes that jurors 24(c) are harmless. See, e.g., United States v. Sogomonian,
will be selected either by the jury-box system or by a struck-jury method 247 F.3d 348, 353 (2d Cir. 2001); Brewer, 199 F.3d at 1287;
in which defend ants know the seq uence in which m embe rs of the pool Love, 134 F.3d at 601-03; United States v. Olano, 62 F.3d
will be seated.” United States v. Patterson, 215 F.3d 77 6, 780 (7th Cir.), 1180, 1190 n.3 (9th Cir. 1995), cert. denied, 519 U.S. 931vacated in part on other grounds, 531 U.S. 1033 (2000). We agree (1996); Sivils, 960 F.2d at 594.
insofar as the selection of alternates is concerned . The rule do es not, we
believe, prohibit a district court from selecting 12 regular jurors through
a struck jury method in which the jurors are not put in a sequence, so long
as the alternates are separately selected in a distinct order.
8
In United States v. Broadus, 7 F.3d 460, 463 n.1 (6th Cir. 1993), we 9
criticized a procedure in which alternates were selected random ly because Indeed, Flores’ attorney agreed at trial that “it would be better to
the district court did not allow ad ditional perem ptory challenges as choose the two alternates by lot at the end,” given the district court’s
required by Rule 24(c). That criticism does not apply in the case at bar, method of impaneling the jury. Because Flores objected to the district
because both defendants waived the right to additional peremptory court’s method, we do not interpret this statement as a waiver of the
challenges. alternates issue.
Nos. 01-2090; 02-1009 United States v. 9 10 United States v. Nos. 01-2090; 02-1009
Delgado, et al. Delgado, et al.
To repeat, we do not condone departures from the literal IV
requirements of Rule 24(c). The rule “represents a national
consensus of bench and bar and ought not to be disturbed.” Mr. Delgado is represented on appeal by his trial attorney,
Love, 134 F.3d at 601 (internal quotation marks omitted). In Thomas Plachta. We accepted a pro se brief from Mr.
the absence of actual prejudice to the defendants, however, Delgado, however, in which he raised several issues that were
there is no basis for reversal. not raised in the brief filed by his lawyer. One of those issues
is a claim that Mr. Plachta provided constitutionally
III ineffective assistance at trial insofar as he failed to request
certain jury instructions.
Mr. Delgado argues that the district court abused its
discretion by denying his motion for severance. Because Ordinarily, a claim of ineffective assistance of counsel
“[f]ederal courts strongly favor joint trials,” the district should be raised in a collateral proceeding so that a record can
court’s ruling is “entitled to great deference.” United States be developed on the merits of the claim. See, e.g., United
v. Breinig, 70 F.3d 850, 852-53 (6th Cir. 1995). We are not States v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996). The
persuaded that the district court erred. parties suggest that the record is sufficient in this case for
disposition of Delgado’s claim on direct appeal. Be that as it
A motion for severance should be granted if there is “‘a may, an appeal in which Mr. Plachta continues to represent
serious risk that a joint trial would compromise a specific trial Mr. Delgado is not a proceeding in which we would feel
right of one of the defendants, or prevent the jury from comfortable deciding the claim that Mr. Plachta was
making a reliable judgment about guilt or innocence.’” Id. at ineffective. We prefer to remit the ineffective assistance
853 (quoting Zafiro v. United States, 506 U.S. 534, 539 claim to a proceeding under 28 U.S.C. § 2255, should Mr.
(1993)). There was no such “serious risk” in this case. Delgado choose to pursue that means of relief.
Delgado has not contended that the joint trial compromised
any of his specific trial rights. Nor has he demonstrated that V
the joint trial undermined the reliability of the jury’s verdict.
None of the remaining claims raised in Mr. Delgado’s pro
Delgado maintains that Mr. Flores’ testimony unfairly se brief requires reversal.
prejudiced him. It is hard to see how, given that Flores’
testimony (so far as it related to Delgado) was largely A
cumulative of an informant’s testimony that Delgado had sold
the informant cocaine. In any event, Flores’ testimony would Mr. Delgado argues that the government violated the rule
have been admissible against Delgado regardless of whether of Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn
the defendants were tried separately. Under the over materials that could have been used to impeach Ronald
circumstances, it does not seem to us that the denial of the Carboni, an informant who testified for the government.
motion for severance could have caused the “compelling and Specifically, Delgado says that transcripts of Mr. Carboni’s
unfair” prejudice necessary to call the reliability of the jury’s testimony in previous trials, transcripts of Carboni’s own plea
verdict into doubt. Breinig, 70 F.3d at 853. and sentencing hearings, an investigative report on Carboni’s
drug activities, and records of government payments to
Nos. 01-2090; 02-1009 United States v. 11 12 United States v. Nos. 01-2090; 02-1009
Delgado, et al. Delgado, et al.
Carboni were withheld in violation of Brady. We are not he not made a deal. Delgado has not explained how the
persuaded.10 materials that he argues should have been disclosed would
have improved his attorney’s ability to impeach Carboni and
First, because they are records of public court proceedings, ultimately to secure an acquittal. Thus, we cannot conclude
transcripts of Mr. Carboni’s trial testimony, plea hearing, and that the materials “undermine[] confidence in the outcome of
sentencing hearing were available to Mr. Delgado from the defendant’s trial,” as is required for a Brady violation.
sources other than the prosecution. Brady does not apply to Corrado, 227 F.3d at 538.
materials that are not “wholly within the control of the
prosecution.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998), B
cert. denied, 528 U.S. 842 (1999).
Mr. Delgado also argues that the government violated the
Second, the investigative report does not seem to have been rule in Giglio v. United States, 405 U.S. 150 (1972), by
materially inconsistent with Mr. Carboni’s trial testimony. In failing to correct false testimony offered by Mr. Carboni.
any event, Mr. Delgado’s attorney had the report during trial Delgado has not shown, however, that any of the testimony in
and could have recalled Carboni to question him about it. It question – all of which dealt with Carboni’s conduct, not
follows from this that the report is not Brady material. See, Delgado’s – was materially false. Carboni might have
e.g., United States v. Corrado, 227 F.3d 528, 538 (6th Cir. downplayed his own culpable behavior, but, as noted above,
2000) (noting that Brady applies to suppressed exculpatory the facts of Carboni’s plea agreement, conviction, and
evidence that “was not discovered by the defendant until after sentence were made known to the jury. We do not see how
trial”). any self-serving shading of testimony by Carboni could have
significantly prejudiced Delgado.
Third, Mr. Delgado has not shown that the government
failed to disclose any records of payments to Mr. Carboni. C
See Coe, 161 F.3d at 344 (holding that the defendant bears
the burden of proving that materials were not disclosed to Finally, Mr. Delgado argues that there was insufficient
him). evidence of his having conspired with anyone to possess and
distribute cocaine. He contends that the evidence showed
Finally, the jury was made aware that Mr. Carboni had been only that he had dealings with Mr. Carboni, who, as a
convicted on drug charges and was testifying pursuant to a government informant, cannot be a conspirator. See United
plea agreement with the government. Mr. Delgado’s lawyer States v. Williams, 274 F.3d 1079, 1084 (6th Cir. 2001).
cross-examined Carboni about his plea agreement, the
judgment in his criminal case, and the sentence he faced had Contrary to Mr. Delgado’s contention, the jury heard
evidence that he conspired with persons other than Mr.
Carboni. Carboni testified, for example, that his first
10 purchase of cocaine from Delgado was facilitated by Mr.
It appears that Delgado raised a Brady claim in the district court
only as to the investigative report. The district court’s rejection of that Flores. Carboni also described three-way telephone calls with
claim is reviewed de novo , see, e.g., United States v. Corrado, 227 F.3d
528, 538 (6th C ir. 200 0), while the other aspects of his Brady challenge
are reviewed under a “plain error” standard, see Fed. R. Crim. P. 52(b).
Nos. 01-2090; 02-1009 United States v. 13
Delgado, et al.
Delgado and a person named “Dee,”11 during which Delgado
instructed Dee to provide Carboni with cocaine. Delgado has
not shown that the evidence, taken in the light most favorable
to the government, would not permit a reasonable jury to find
him guilty of conspiracy. See Jackson v. Virginia, 443 U.S.
307, 319 (1979).
VI
The judgments entered against Mr. Delgado and Mr. Flores
are AFFIRMED. Mr. Delgado remains free to raise his
claim of ineffective assistance of trial counsel by way of a
motion under 28 U.S.C. § 2255 to vacate his sentence.
11
There was testimony that D ee’s full name is Daniel Cabasas.