United States v. Marco Cherry, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCO ANTRIONE CHERRY, JR., a/k/a Marco Antrione Cherry,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:11-cr-00071-RGD-FBS-1)
Argued: May 17, 2013 Decided: June 13, 2013
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Wynn joined.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Sherrie Scott
Capotosto, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia; Richard J.
Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.
DUNCAN, Circuit Judge:
Marco Cherry appeals his conviction of various firearm and
drug crimes, arguing that the Speedy Trial Act required that his
indictment be dismissed as untimely and that the district judge
plainly erred in revealing details of his criminal history
before the jury was polled. We determine that the Speedy Trial
Act precludes dismissal of an untimely indictment when a
defendant fails to move for dismissal prior to trial. Next, we
find that although the district judge’s comments to the jury
were erroneous, they did not rise to the level of plain error.
Accordingly, we affirm Cherry’s convictions.
I.
1.
On March 9, 2010, Norfolk Police Officers Alex Keeling and
Frank Been saw a black Hummer fail to stop at a stop sign. They
attempted to initiate a traffic stop, activating their lights
and siren and using their loudspeaker to instruct the driver of
the vehicle to pull over. The driver failed to stop, and the
officers gave chase. While in pursuit, Officer Keeling saw a
cigar-shaped object, which he later determined was a marijuana
cigar, being tossed out of the window.
After driving for several blocks, the driver pulled the
vehicle over. The police identified the driver as Lamont
2
Jordan; Cherry was the passenger. The officers approached the
vehicle and smelled marijuana through its open windows. Officer
Been took Jordan several feet away from the vehicle to speak
with him. The officers decided to search the vehicle, and
Officer Keeling ordered Cherry to step out of the car. Cherry
became “very aggressive” and attempted to push Officer Keeling.
J.A. 215. A struggle ensued, during which a metal object, which
Officer Keeling thought to be a firearm, hit the ground. Cherry
then attempted to flee. Officer Keeling tackled Cherry to the
ground, and Officer Been, responding to Officer Keeling’s call
for backup, threatened to use a Taser on Cherry. When Officer
Been activated the Taser, it automatically recorded a video of
the encounter. Cherry stopped struggling and the officers took
him into custody.
Once they had handcuffed Cherry and allowed him to stand
up, the officers recovered from the ground two small bags
containing pills, twenty of which turned out to be 3,4-
Methylenedioxymethamphetamine hydrochloride (commonly known as
ecstacy), and nine of which turned out to be a different
controlled substance, a stimulant called N-Benzylpiperazine.
The Taser video shows the bags of pills lying on the ground as
Cherry stood up, and recorded Officer Been exclaiming that there
was “E [ecstasy] all over the place.” J.A. 270. Other police
officers arrived at the scene, one of whom, Officer Eric Ortiz,
3
recovered a Glock nine-millimeter pistol from the ground in
front of the Hummer on the passenger side, where Officer Keeling
had first struggled with Cherry.
2.
On July 12, 2010, Cherry was charged in a federal criminal
complaint with possession with intent to distribute ecstasy in
violation of 21 U.S.C. § 841(a)(1), possession of a firearm in
furtherance of drug trafficking in violation of 18 U.S.C. §
924(c), and possession of a firearm after a felony conviction in
violation of 18 U.S.C. § 922(g). An arrest warrant was issued
along with the complaint, and the warrant was filed as a
detainer at the Chesapeake city jail, where Cherry was serving a
Virginia state sentence.
On Friday, April 1, 2011, the Chesapeake jail authorities
notified Cherry that he was being “released” to a federal
detainer, and notified the U.S. Marshals Service that he had
completed his state sentence. On Monday, April 4, 2011, an
agent with the Bureau of Alcohol, Tobacco, Firearms and
Explosives transported Cherry from the Chesapeake jail to the
U.S. District Court in Norfolk. That day, the court held
Cherry’s initial appearance and issued an order of temporary
detention. On Wednesday, April 6, 2011, the court held a
detention hearing and ordered that Cherry be detained pending
further proceedings. On May 4, 2011, a grand jury issued an
4
indictment charging Cherry with the crimes set forth in the
complaint. 1 The district court set the case for trial on June
30, 2011.
Prior to trial, Cherry’s court-appointed attorney filed a
motion to withdraw. The court granted the motion and appointed
another attorney. Cherry subsequently filed a motion to
suppress, which the court denied. He also filed a motion to
continue his trial, which the court granted. Cherry filed no
motions related to the timeliness of his indictment under the
Speedy Trial Act. The court ultimately held the trial on
September 20-21, 2011.
At trial, the Norfolk police officers testified as to the
circumstances surrounding Cherry’s arrest, the events preceding
and succeeding it, and the evidence they had recovered from the
scene. Cherry also testified: he stated that the object that
fell from him during the struggle was a chain necklace, not a
gun, and that the gun and tablets the police had recovered were
not his. He also testified that he was not aware that smoking
marijuana was illegal--testimony which was subsequently
impeached when the government elicited testimony from him that
1
A grand jury later returned a superseding indictment that
differed from the original indictment only in that it changed
the chemical description of ecstasy--replacing the term
“methylenedioxyamphetamine” with
“methylenedioxymethamphetamine.”
5
he had a recent previous arrest for marijuana possession. As to
other aspects of Cherry’s criminal history, the parties
stipulated that he had been convicted of a felony.
The trial lasted for two days. The jury deliberated during
the afternoon of the second day and returned a verdict before
the end of the day. During deliberations, the jury sent two
notes to the court. First, they asked to see the video recorded
by the Taser again, which they reviewed twice. Second, they
asked the court, “Was there anybody else that was standing by
the vehicle or on site before Officer Ortiz arrived?” J.A. 511.
The court told the jury to consider the evidence that had been
presented to them, and allowed them to have Officer Ortiz’s
testimony read back to them.
When the jury had finished deliberating, the jury
foreperson handed the verdict form, which she had signed, to the
clerk, who passed it to the district judge. The judge returned
the guilty verdict to the clerk, who proceeded to read it aloud.
The clerk then asked, “Members of the jury, is this your
verdict, so say you all?” J.A. 514. All the members of the
jury indicated an affirmative response. At this point, the
judge thanked the jury and added the following remarks:
Sometimes all of the information is not given to you.
This defendant had previously been convicted of
distributing a controlled substance, had previously
been convicted of resisting arrest, and had previously
6
been convicted of carrying a firearm in furtherance of
a drug trafficking crime.
I only tell you that to tell you that these things are
not admissible because of the way the rules are
written, that a person has to be judged on this
particular crime, but I just thought I would tell you
about that because it tells you a little bit about Mr.
Cherry’s background and it will give you some idea of
that.
I thank you for your paying close attention, just so
you would know what, unfortunately, I know because I
can see all of this information, and you haven’t seen
it and it would not be admissible. But the rules of
evidence under these circumstances didn’t permit it.
J.A. 514-15. Immediately following these comments, it became
clear that the defense counsel wished to poll the jury. The
clerk asked each juror, in succession, “Is this your verdict?”
Id. at 515-16. And each juror replied that it was. Id.II.
Cherry argues that we should reverse the verdict for two
reasons. First, he contends that the district court should have
dismissed the indictment as untimely under the Speedy Trial Act,
notwithstanding his failure to move for its dismissal prior to
trial. Second, he argues that the district judge’s comments to
the jury revealing his criminal history before the jury could be
polled constituted plain error. We address each of these
arguments in turn.
7
A.
The Speedy Trial Act requires that a defendant be indicted
within thirty days of arrest and tried within seventy days from
the later of the filing of the information or indictment or the
defendant’s initial appearance before a judicial officer. 18
U.S.C. § 3161(b), (c)(1); United States v. Leftenant, 341 F.3d
338, 343 (4th Cir. 2003). The district court’s interpretation
of the Speedy Trial Act is a question of law, which we review de
novo. Leftenant, 341 F.3d at 342.
The “Sanctions” section of the Speedy Trial Act, 18 U.S.C.
§ 3162, lays out in subsection (a) the consequences for failing
to timely indict or bring to trial a defendant:
(1) If, in the case of any individual against whom a
complaint is filed charging such individual with an
offense, no indictment or information is filed within
the time limit required by section 3161(b) as extended
by section 3161(h) of this chapter, such charge
against that individual contained in such complaint
shall be dismissed or otherwise dropped. . . .
(2) If a defendant is not brought to trial within the
time limit required by section 3161(c) as extended by
section 3161(h), the information or indictment shall
be dismissed on motion of the defendant. The defendant
shall have the burden of proof of supporting such
motion but the Government shall have the burden of
going forward with the evidence in connection with any
exclusion of time under subparagraph 3161(h) (3). . .
. Failure of the defendant to move for dismissal prior
to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to
dismissal under this section.
18 U.S.C. § 3162(a) (emphasis added).
8
Cherry argues that because the waiver clause is included
only in § 3162(a)(2)--the speedy trial provision of the
“Sanctions” section--and not § 3162(a)(1)--the speedy indictment
provision--there is no requirement that a motion under the
speedy indictment provision of the Act be filed before trial.
Indeed, he contends that the speedy indictment provision does
not even require the defendant to file a motion at all. Cherry
cites the principle that “where Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion,” Russello v. United States, 464 U.S. 16, 23 (1983)
(alterations and citation omitted), arguing that had Congress
intended the speedy indictment right to be waived upon failure
to move for dismissal before trial, it would have included the
waiver language not only in § 3162(a)(2), but also in §
3162(a)(1).
This argument rests on, as the government puts it, a
contention “that ‘section’ does not mean section.’” Appellee’s
Br. at 15. Although creative, this argument cannot change the
plain language of the statute. 2 The waiver clause applies to
2
The implausibility of Appellant’s interpretation was
further illustrated at oral argument; even Cherry’s appellate
counsel referred to 18 U.S.C. § 3162(a)(1) and (2) as
(Continued)
9
“this section”--i.e., Section 3162, which governs both the
speedy trial right and the speedy indictment right. Despite
Cherry’s attempt to argue otherwise, § 3162(a)(2) is only a
paragraph of a subsection of the Speedy Trial Act, and not its
own “section.” Its waiver provision--that “[f]ailure of the
defendant to move for dismissal prior to trial or entry of a
plea of guilty or nolo contendere shall constitute a waiver of
the right to dismissal under this section”--thus refers not only
to that paragraph, but to all of § 3162.
The terminology used throughout the U.S. Code bears out
this intuitive reading. The terms “section,” “subsection,” and
“paragraph” are used consistently, and “section” always refers
to the subdivision smaller than a chapter and larger than a
subsection. See U.S. Senate, The United States Code,
http://www.senate.gov/pagelayout/legislative/one_item_and_teaser
s/usCode_page.htm (last visited May 30, 2013) (“The U.S. Code is
organized by subject area into 50 titles. Titles are further
broken down by chapter and section. Citations to the U.S. Code
look like this: 42 U.S.C. 1382 or 42 § 1382. This means the law
appears in title 42, section 1382 of the Code.”).
“subsections.” Oral Argument at 3:45, available at
http://www.ca4.uscourts.gov/OAaudiotop.htm.
10
Moreover, all other circuits to have addressed this
question have determined that a defendant who does not file a
speedy indictment motion before trial waives his right to raise
that issue. See United States v. Spagnuolo, 469 F.3d 39, 41
(1st Cir. 2006); United States v. Gamboa, 439 F.3d 796, 804 (8th
Cir. 2006); United States v. Lewis, 980 F.2d 555, 560 (9th Cir.
1992), abrogated on other grounds by Bloate v. United States,
559 U.S. 196 (2010).
We join our sister circuits in interpreting the plain
language of § 3162(a)(2) to mean that a defendant who fails to
move for dismissal prior to trial on the basis of an untimely
indictment waives his right to move for dismissal under the
speedy indictment provision of the Speedy Trial Act. 3
B.
Next, Cherry argues that the district court erred by
revealing his criminal history before the jury could be polled.
Federal Rule of Criminal Procedure 31(d) provides that “[a]fter
a verdict is returned but before the jury is discharged, the
court must on a party’s request, or may on its own, poll the
jurors individually.” If the poll reveals that the verdict was
3
Cherry and the government also disagree about whether
Cherry was indicted within thirty days of his arrest, as
calculated under the Speedy Trial Act. Because we hold that he
waived any right to move for dismissal by failing to raise the
issue before trial, we do not reach this question.
11
not unanimous, the court may direct the jury to deliberate
further or declare a mistrial. Rule 31(d) “establishes an
absolute right to have the jury polled.” United States v.
Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972).
Because Cherry did not object after the court revealed his
criminal history, we review the court’s action for plain error.
Under the plain error standard, a defendant must demonstrate
“(1) that an error occurred, (2) that the error was plain, and
(3) that it affected his substantial rights.” United States v.
Penniegraft, 641 F.3d 566, 575 (4th Cir. 2011). If the
defendant establishes those threshold requirements, we may
exercise our discretion to correct the error “when failure to do
so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting United States v. Olano, 507 U.S.
725, 736 (1993)) (alteration omitted).
1.
It is fundamental that “[n]otwithstanding the broad
discretion accorded trial judges,” a judge “must maintain such a
demeanor that ‘every one shall recognize that what is said from
the bench is the cool and well-balanced utterance of an
impartial judge, and has in it naught of the heat and
partisanship of the advocate.’” United States v. Godwin, 272
12
F.3d 659, 676-77 (4th Cir. 2001) (quoting Wallace v. United
States, 281 F.2d 656, 665 (4th Cir. 1960)). For this reason,
the “privilege of the judge to comment on the facts has its
inherent limitations.” Quercia v. United States, 289 U.S. 466,
470 (1933). These limitations apply even after a jury has
returned a verdict, for a verdict is not final until it has been
recorded, after the parties have had adequate time to request a
poll. See Government of the Virgin Islands v. Hercules, 875
F.2d 414, 419 (3d Cir. 1989) (“‘[A] verdict is not final when
announced.’ Rather, ‘the test for validity of the verdict is
whether it ‘was certain, unqualified and unambiguous considering
the circumstances of the receipt of the verdict and poll of the
jurors relative to their verdict.’”) (alteration and citations
omitted).
The purpose of a jury poll “is to give each juror an
opportunity, before the verdict is recorded, to declare in open
court his assent to the verdict which the foreman has returned,”
to ensure 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.” United States v. Carter,
772 F.2d 66, 68 (4th Cir. 1985) (quoting Miranda v. United
States, 255 F.2d 9, 17 (1st Cir. 1958)). To inject remarks that
might influence jurors’ decisions before they may be polled
individually is thus improper. It is error for a judge to
13
remark on the culpability of the defendant, the merits of the
case, or the correctness of the verdict before a party has the
opportunity to request a poll. See United States v. Harlow, 444
F.3d 1255, 1267 (10th Cir. 2006) (recognizing that “intervening
comments by a judge can undermine the defendant’s right to poll
the jury”); United States v. Randle, 966 F.2d 1209, 1213 (7th
Cir. 1992) (finding reversible error where, after receiving the
verdict from the jury, the judge proceeded to read the probation
officer’s memorandum, which detailed the defendant’s criminal
history).
By commenting on inadmissible aspects of the defendant’s
criminal history before allowing defense counsel a reasonable
amount of time in which to request a poll of the jury, the court
erred. And because all district judges are no doubt aware of
their duty to “take special care to maintain an appearance of
impartiality,” Anderson v. Warden, Md. Penitentiary, 696 F.2d
296, 299 (4th Cir. 1982), the court’s error was plain.
2.
Even where a district court plainly errs, we will not
overturn a verdict unless that error affected the defendant’s
substantial rights, which generally means that the “error must
have been prejudicial.” Olano, 507 U.S. at 734. The defendant
has the burden of showing that the error “‘affected the outcome
of the trial,’ or ‘probably influenced the verdicts’ against
14
him.” United States v. Rolle, 204 F.3d 133, 139 (4th Cir. 2000)
(quoting Olano, 507 U.S. at 734-35) (alterations omitted).
“Where the evidence is overwhelming and a perfect trial would
reach the same result, a substantial right is not affected.”
Godwin, 272 F.3d at 680 (citation omitted). Cherry is unable to
shoulder this burden: the evidence against him was overwhelming
and the circumstances surrounding the erroneous remarks are
strong indicia that the jury had reached a unanimous guilty
verdict.
Both Officer Keeling and Officer Been gave detailed
testimony concerning Cherry’s activities at the time of his
arrest and the items recovered afterward. In particular,
Officer Keeling testified as to his struggle with Cherry next to
the Hummer, and stated that he heard the sound of a metal object
falling to the ground, which, based on his experience as a
police officer, he thought was a gun. He also testified that,
after he tackled Cherry to the ground, placed him in handcuffs,
and stood him up, he and his partner “were able to recover two
bags of suspected narcotics” from that site. J.A. 223. As
Officer Keeling put it, “as soon as we picked him up we saw [the
bags] sitting right there,” “[l]iterally, within three feet” of
where he had tackled Cherry to the ground. Id. at 244. This
testimony was corroborated by Officer Been’s testimony, as well
as by the recording made by Officer Been’s Taser. Of particular
15
significance, in the video, after the altercation between Cherry
and Officer Keeling, Officer Been can be heard saying, “Damn, E
all over the place”--in other words, that “[t]here’s ecstasy on
the ground and it’s a large quantity of it.” Id. at 270.
Officer Ortiz also testified. He stated that he arrived at the
scene while Officer Keeling was with Cherry on the ground, and
that he recovered a small semiautomatic handgun from the ground,
five to ten feet from the Hummer. He further stated that he did
not see any jewelry or anything else in the vicinity. The only
opposing evidence was Cherry’s own testimony, which was
impeached and uncorroborated.
Mitigating any potential damage done by the court’s ill-
advised comments was the fact that the jury was already aware
that Cherry was a convicted felon. Although the jurors had not
been told what crimes Cherry had been convicted of, the parties
stipulated that he had been “convicted in a court in Virginia of
a qualifying felony crime punishable by imprisonment for a term
exceeding one year prior to the occurrence of the acts charged
as violations in the indictment.” Id. at 360. Furthermore,
during the trial, the members of the jury also became aware that
Cherry had previously been arrested for possession of marijuana,
as the government elicited testimony from Cherry as to that fact
in order to impeach his statement that he was not aware that
smoking marijuana was illegal. Id. at 401.
16
Cherry makes much of the fact that the jury twice
interrupted their deliberations to ask questions of the court.
The jury requested to see the Taser video recording again, and
asked whether there was anybody else standing by the vehicle
before Officer Ortiz, who recovered the gun, arrived at the
scene. Such requests are not uncommon, and we do not find them
to be evidence of a lack of unanimity among the jurors as to
their ultimate findings. Moreover, despite Cherry’s attempts to
cast the deliberations as long--and by implication, contentious-
-the jury returned its verdict on the same afternoon it retired.
The fact that the jury foreperson presented the court with
a signed verdict form before the judge’s erroneous recitation of
Cherry’s criminal history further indicates the unlikelihood
that his statements affected the trial’s outcome. The clerk
read the verdict aloud and asked, “Members of the jury, is this
your verdict, so say you all?” J.A. 514. In response to this
question, the jurors all indicated an affirmative response.
While a collective affirmation is not a substitute for a poll,
we find in this instance that it constitutes further evidence of
the unanimity of the jury and indicates the irrelevance of the
judge’s comments to the outcome of the trial. See United States
v. Miller, 59 F.3d 417, 421 (3d Cir. 1995) (“When [a collective
poll] is considered against the backdrop of a relatively simple
case, a short period of deliberation by the jury, and no
17
indication in the record that any of the jurors displayed
reluctance or disagreement with the verdict, we cannot say that
the district court abused its discretion.”); Carter, 772 F.2d at
67-68.
We further note that the judge’s comments in this case are
distinguishable from those in the two cases from our sister
circuits that Cherry relies on, Harlow, 444 F.3d 1255, and
Randle, 966 F.2d 1209. The judicial comments to the jury in
both of those cases were considerably more egregious than those
at issue here. In Harlow, the judge relayed a personal
conversation he had with a government witness which revealed
that 168 children had been implicated in the use of
methamphetamine provided by the conspiracy involving the
defendant and the terrible impact of methamphetamine on
communities. 444 F.3d at 1260. He went on to commend the
jurors on rendering a public service on par with several highly
publicized cases. Id. In Randle, the judge read out the
probation report, which stated in part, “there is no combination
or conditions that can assure that this defendant will not
continue to get into trouble with the law. His track record
speaks for itself.” 966 F.2d at 1213. The judge’s comments
here were less inflammatory, although we acknowledge that they
could have been understood as implying the accuracy of the
jury’s verdict. See Harlow, 444 F.3d at 1268 (quoting Quercia,
18
289 U.S. at 470 (“The influence of the trial judge on the jury
is necessarily and properly of great weight and his lightest
word or intimation is received with deference, and may prove
controlling.”)). Moreover, in Randle, the only case of these
two to result in a reversal, the judge denied defense counsel’s
request to conduct an individual poll outright. 966 F.2d at
1213. Here, in contrast, the court allowed for a poll as soon
as it became clear that defense counsel desired that one be
conducted.
Given these circumstances, it is difficult to imagine that
a different outcome might have resulted had the court not erred.
Accordingly, we find that the error did not affect Cherry’s
substantial rights and does not warrant reversal.
III.
For the foregoing reasons, each of Cherry’s convictions is
AFFIRMED.
19