United States v. Flores

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 5, 2003
• Docket: 02-1009
• Status: Published

Opinion

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. 931 vacated 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.