United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2006 Decided January 12, 2007
No. 05-3146
UNITED STATES OF AMERICA,
APPELLEE
v.
GARREN J. ROY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00171-02)
Kenneth D. Auerbach, appointed by the court, argued the
cause for the appellant.
Jamila Z. Hoard, Assistant United States Attorney, argued
the cause for the appellee. Kenneth L. Wainstein, United States
Attorney at the time the brief was filed, and Roy W. McLeese III
and Elizabeth Trosman, Assistant United States Attorneys, were
on brief.
Before: GINSBURG, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Garren J. Roy
was convicted by a jury of four criminal counts, including one
count of possession of a firearm by a felon in violation of 18
U.S.C. § 922(g)(1). Roy appeals the district court’s denial of his
motion for a mistrial based on the court’s inadvertent
submission to the jury of an indictment which identified two
specific predicate crimes to support the felon-in-possession
count. Roy had previously stipulated his felon status. See
United States v. Jones, 67 F.3d 320, 325 n.10 (D.C. Cir. 1995).
Reviewing for plain error, we affirm the district court on the
ground that the indictment’s submission did not prejudice Roy
given the extensive curative measures the district court
undertook and the strength of the case against Roy.
I.
On August 19, 2004, a second superseding indictment issued
charging Roy with five counts of unlawful conduct: (1)
possessing with intent to distribute 100 grams or more of
phencyclidine (PCP) in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iv); (2) possessing with intent to distribute cannabis in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); (3) using,
carrying or possessing a firearm during and in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1); (4)
felon-in-possession of a firearm in violation of 18 U.S.C. §
922(g)(1); and (5) felon-in-possession of ammunition in
violation of 18 U.S.C. § 922(g)(1). Before trial Roy moved to
exclude evidence of his felon status, which the district court
granted on July 9, 2004, directing that “the government prove
the prior conviction for purposes of the essential element of th[e]
922(g) charge with a stipulation that does not identify the nature
of the underlying crime” and that “the government not refer to
the prior conviction, except as necessary, to explain [the] felony
possession count to the jury.” 7/9/04 Tr. 112.
Roy’s trial began February 16, 2005 and concluded February
23, 2005. Viewed in the light most favorable to the government,
3
see United States v. Garner, 396 F.3d 438, 439 (D.C. Cir. 2005)
(citing United States v. Whitmore, 359 F.3d 609, 613 (D.C. Cir.
2004)), the evidence established the following facts.
On the evening of March 12, 2004, a group of Metropolitan
Police Department officers met near an apartment building at
1941 Naylor Road, S.E. in Washington, D.C. to execute a search
warrant for apartment No. 1 based on suspected drug activity in
the apartment. As the officers approached the building, they
“could smell a strong smell . . . of PCP and marijuana.” 2/17/05
Tr. 36. Several of the officers entered the building, knocked on
the door to apartment No. 1 and announced their presence.
When there was no response, they entered the apartment
forcibly. Once inside, the officers again detected “the strong
smell of PCP, the chemical odor associated with PCP, and the
strong smell associated with that of marijuana,” id. 49, and
heard the sound of an interior door closing. The officers headed
down the hallway toward a closed bedroom door and en route
noticed a silver and black handgun lying on the kitchen counter.
The officers kicked the bedroom door open and saw an older
man, Edward Williams, sitting on the bed and Roy lying on the
floor near the window. Meanwhile, officers posted outside the
building and watching through the bedroom window had seen
Roy run into the bedroom and attempt to exit through the
window; when he discovered it was secured with bars, the
officers saw him lie down on the floor between the bed and the
window as if to hide. When the officers inside the bedroom
questioned Williams about the gun on the kitchen counter, Roy
told them the gun was his. While one of the officers detained
Roy and Williams there, the other officers began to search the
rest of the apartment.
In the kitchen, the officers found the aforementioned gun—a
loaded “Keltec semi-automatic hand gun”—lying “within
inches” of five glass vials of a clear liquid substance,” id. 202,
which was later identified as PCP; a “clear ziplock containing
4
numerous empty zips” lying “[w]ithin a foot” of the gun, id.
203-04; “a clear glass vial with residue inside of it,” id. 204; a
shoebox with a bag inside “containing 100 grams of a green
weed substance, and $35,” id. 204; another box containing “90
grams of a loose weed substance, and two clear zips containing
green weed substance, and 14 zips with residue,” id. 206; a
green “cardboard box containing fourteen grams of a green
weed substance, and a box of ammunition with 38 rounds of 38
special ammunition,” id. 207; three more ziplocks containing
“numerous” clear, black and red ziplocks, id. 207, 208; a “black
ammunition pouch with one speed loader,” id. 207; three more
glass vials “with residue,” id. 208, 209; and in the freezer a glass
vial “with a clear liquid substance,” a tin containing “68 silver
foil wraps” and a glass containing a “brown weed substance,” id.
209. The officers also recovered from various locations in the
apartment, including a second bedroom, a plastic grocery bag
containing “glass vials with residue,” id. 210; a box containing
50 rounds of “ten millimeter ammunition,” id. 210; a pair of
“camouflage coveralls” with $595 in the left front pocket and
$1,945 in the right front pocket, id., 210-11; a “night vision
scope” marked as property of the Prince George’s County,
Maryland government, id. 211; a “green holster,” id. 212; a box
containing 32 rounds of 380 caliber ammunition, id. 212; a blue
backpack containing “392 rounds of assorted ammunition, and
three magazines,” id. 212-13; and a camouflage rifle case, id.
213.
Williams, who testified on behalf of the government
pursuant to a plea agreement,1 stated that Roy and his friends
had frequented the apartment and kept clothes in the apartment’s
second bedroom for almost one year, ever since Williams’s
1
Williams, originally a co-defendant in this case, pleaded guilty on
February 15, 2005 to “maintaining a premises for purposes of drug
distribution” in violation of 21 U.S.C. § 856. 2/17/05 Tr. 140-41.
5
girlfriend, who was friendly with them, had moved out. A day
or two before the search, Williams said, he was awakened
around midnight by “a strong smell” of what he believed to be
marijuana mixed with PCP. Id. 129-30. Williams went to the
kitchen where he observed Roy at the kitchen counter with
another man. Roy was dipping a small spoon into a jar of
“[m]arijuana and PCP mixed” and packaging the “wet”
marijuana into pieces of tinfoil, which he then folded and placed
in “a little round can.” Id. 131-32. Williams told Roy to get his
drugs out of the apartment but Roy replied Williams should
mind his own business and go back to his bedroom. Id. 133.
According to Williams, he had changed the locks on the
apartment but that did not keep Roy and his friends out and he
was afraid to go to the police. Williams also testified that when
he left for work at 4:00 a.m. the morning of March 12, 2004, he
did not see the gun or drugs on the kitchen counter but when he
returned that evening he saw the gun there and asked Roy why
he had not removed it and the drugs from the apartment. In
addition, Williams corroborated the officers’ testimony that Roy
had admitted owning the gun and that he had tried
unsuccessfully to escape through the barred window.
For his part, Roy offered the testimony of his girlfriend and
her mother to show that he in fact resided in the mother’s house
located next door to the Naylor Road apartment building and the
testimony of a retired police officer to challenge the procedures
used in handling and securing the seized evidence.
On the morning of February 23, 2005 the trial judge
instructed the jurors and sent them to begin deliberating. After
the jurors had left the courtroom, the judge suggested to counsel
that the second superseding indictment be redacted before
submitting it to the jury to delete a “notice of enhancement”
clause that described alterations made to the gun. Both sides
agreed and, after the clause was deleted, the judge asked his
courtroom deputy to show the redacted indictment to counsel.
6
The prosecutor replied “Thank you,” 2/23/05 am Tr. 17; defense
counsel was silent. The judge then announced, “All right, that
can go back.” Id. That afternoon, the jury sent the judge a note
that it had reached a verdict. Before the judge recalled the jury,
defense counsel informed the court that the version of the
indictment that went to the jury identified two predicate felony
convictions for the felon-in-possession counts, namely, “Assault
With Intent to Kill” and “Use of a Handgun in the Commission
of a Crime of Violence.” Second Superseding Indictment filed
8/19/2004 at 2-3. Defense counsel explained that she “did not
notice when it went back originally” and therefore was “asking
for a redacted indictment to go back.” 2/23/2005 pm Tr. 3. She
then clarified that she wanted a version without the two prior
felonies to “go back to the jurors with a note stating that . . . the
wrong person’s indictment went back originally.” Id. While the
judge and counsel were still conferring, Roy informed his
counsel that he wanted a mistrial and his counsel so informed
the court. Without ruling on the mistrial request, the judge
proposed to recall the jurors, tell them that the indictment they
had been given “incorrectly named . . . a prior conviction”—in
fact it erroneously identified one of the two prior convictions as
assault with intent to kill rather than the actual predicate, assault
with intent to disable—and send them back to “revisit their
deliberations” with a different copy of the indictment that
omitted the specific crimes of which Roy had been convicted.
Id. 7-8.
Accordingly, the judge then recalled the jury and instructed
it that the indictment he had given it “was not the charged
document that should have been sent back to you,” that it was
“in error, particularly with respect to count four and five” and
“the prior conviction identified in counts four and five of the
indictment that you got was not what the defendant had been
previously convicted of.” 2/23/05 pm Tr. 11. He advised the
jurors he would provide the correct indictment and told them:
7
I want to ask you to resume your deliberations, because
we want to make sure that whatever role the indictment
may or may not have played in your deliberations was
not affected by the incorrect copy of the indictment, and
incorrect language that’s in the copy that you got that
erroneously lists incorrectly and identifies incorrectly a
prior conviction in counts four and five. This is not what
the defendant was previously convicted of. . . . I want
to direct you to completely disregard and put out of your
mind any consideration whatsoever of the identified
prior conviction that you may have read in the copy of
the indictment that was sent back to you in error . . . . It
must not and may not play any role whatsoever in your
consideration of what your verdicts should be.
Id. 11-12. He then repeated his instruction that the jurors must
“disregard” the first indictment and that it “must play no role
whatsoever” in their deliberations.” Id. 12-13. The jury then
returned to the jury room to resume deliberation.
Some thirty-five minutes later the judge informed counsel he
had received two notes from the jury. The first note stated: “We
the jury have reached a verdict on all counts.” 2/23/05 Tr. 14.
After reading it to counsel, the judge proposed to respond with
a note requesting that the jurors indicate if any one of them was
“incapable” of or “uncomfortable” with following his last
instruction directing them to disregard the first indictment’s
reference to the prior convictions. Id. 15. When asked their
thoughts on the procedure, counsel for each side replied “no
objection.” Id. The second note stated: “The jury is concerned
with their safety. What is the procedure for leaving the building
safely?” Id. The judge suggested to counsel that the jurors’
concern might stem from “hav[ing] encountered in the
courtroom or outside of the courtroom people that they may
view as being the defendant’s family.” Id. Then, with the
agreement of counsel, he sent the jurors a note that he was
8
“making special arrangements for [their] departure from the
building.” Id. 19. He also sent the jury the following note in
accordance with his previous discussion with counsel:
Dear Jurors
It is imperative that ALL jurors follow the last
instruction that I gave you in open court a while ago. If
for ANY reason, ANY juror feels unable to faithfully
follow my instruction, or feels uncertain about his/her
ability to follow my instruction, I must ask you to say so
now.
Does ANY juror feel unable to follow, or feel
uncomfortable or uncertain about following, my
instruction? Please check one:
_____ Yes _____ No
If YES, please identify your juror seat number(s): _____
I await your response which I ask the foreperson to
sign below.
Thank you
Appellant’s App. 22. The note was signed by the judge and
contained a space for the jury foreperson to fill in the date and
time and to sign it. The jury returned the note with a checkmark
in the space next to “No.” Id. The judge then recalled the jury
which returned a unanimous verdict of guilty on counts one
through four and not guilty on count five. Id. 65. Following the
verdict, the court deferred ruling on Roy’s renewed mistrial
motion to allow him to file a written motion.
At a hearing held August 3, 2005 the court denied Roy’s
motion for mistrial or, alternatively, a new trial. At the same
hearing, the court sentenced Roy to concurrent prison terms of
78 months on the PCP count, 60 months on the cannabis count
and 78 months on the felon-in-possession count, to be followed
9
by a term of 60 months on the section 924(c)(1) count and
subsequently by concurrent supervised release terms of 4, 2, 3,
and 2 years on counts 1 through 4, respectively.
Roy filed a notice of appeal on August 5, 2005.
II.
Roy appeals the district court’s denial of his mistrial motion
on the ground that submission of the unredacted indictment to
the jury improperly permitted it to consider as evidence of his
guilt the prior convictions enumerated therein.2 We review the
denial of a mistrial for abuse of discretion. United States v.
Gartmon, 146 F.3d 1015, 1027 (D.C. Cir. 1998) (citing United
States v. Williams, 822 F.2d 1174, 1188 (D.C. Cir. 1987)).
Further, because Roy did not object to the indictment before it
was submitted to the jury—notwithstanding the court’s
invitation to counsel to inspect it—we review the denial for
plain error. See United States v. Thompson, 27 F.3d 671, 673
(D.C. Cir. 1994) (“For purposes of determining our standard of
2
Giving the jury a copy of the indictment appears to be common
practice. See Ralph A. Jacobs, White Collar Pretrial Motions, 16
Litig., Jan. 1990, at 17, 20 (“In most courts, the indictment goes to the
jury room, where it may become a road map for deliberations.”).
“[W]hether to permit the jury to have the indictment during
deliberations is [a] decision committed to the [trial] court's discretion.”
Dallago v. United States, 427 F.2d 546, 553 (D.C. Cir. 1969). We
assume that it would have been within the district court’s discretion to
submit a properly redacted indictment to the jury in this case. We
note, however, that this practice often carries significant risks and has
few corresponding benefits. But cf. United States v. Chan Chun-Yin,
958 F.2d 440, 444 (D.C. Cir. 1992) (court “mitigated” effect of
overbroad knowledge instruction “by reading the indictment to the
jury which contained the proper actual knowledge requirement and by
allowing them to take a copy of it to the jury room to use during
deliberations”).
10
review of an alleged error in admission of evidence, however, a
post-verdict motion for a new trial is not the same as a timely
objection: the delay eliminates any chance that the judge could
correct the error without a duplicative trial, and according
review as if a timely objection had been raised virtually invites
strategic behavior by defense counsel. Thus we review only for
plain error.”) (citations omitted); United States v. Fennell, 53
F.3d 1296, 1301 (D.C. Cir. 1995) (plain error review of judge’s
and prosecutor’s references to unobjected-to previous felony
indictment); United States v. Myles, 96 F.3d 491, 495 (D.C. Cir.
1996) (same for judge’s reading of indictment count disclosing
prior felony conviction); cf. United States v. Dale, 991 F.2d 819,
850-51 (D.C. Cir. 1993) (plain error review of jury instruction
if objection not made “before the jury retires”). Under the plain
error standard, “ ‘there must be (1) error, (2) that “affect[s]
substantial rights”—i.e., that is prejudicial . . . and the error must
also be “plain.” ’ ” United States v. Alexander, 331 F.3d 116,
125 n.12 (D.C. Cir. 2003) (quoting United States v. Perkins, 161
F.3d 66, 72 (D.C. Cir. 1998) (quoting Fed. R. Crim. P. 52(a))).
“If these three conditions are met, ‘an appellate court may then
exercise its discretion to notice a forfeited error, but only if []
the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’ ” Id. (quoting Johnson v.
United States, 520 U.S. 461, 467 (1997)) (alteration in original).
“On plain error review, the defendant bears the burden of
persuasion with respect to prejudice.” Id. (citing Perkins, 161
F.3d at 72 n.6). Roy has not met his burden here.
In determining the extent to which a defendant has been
unfairly prejudiced, “we consider a number of factors, including
the force of the unfairly prejudicial evidence, whether that force
was mitigated by curative instructions, and the weight of the
admissible evidence that supports the verdict.” United States v.
McLendon, 378 F.3d 1109, 1112 (D.C. Cir. 2004) (citing United
States v. Eccleston, 961 F.2d 955, 959-60 (D.C. Cir. 1992)).
These factors do not weigh in favor of mistrial here.
11
First, we do not see what more the district judge could have
done to “cure” the submission of the unredacted indictment.
After removing the indictment from the jury’s possession, he
repeatedly and emphatically directed that it “disregard” the
references to the “incorrect” prior conviction. He took the extra
precaution of sending a note to the jurors before they returned
their verdict stressing the importance of complying with his last
instruction and asking if any one of them felt “unable to follow”
the instruction or “uncomfortable or uncertain about following”
it. The jurors expressly responded in the negative. These
precautions were calculated to ensure that the jury did not
consider the incorrect indictment in reaching its verdict and the
jury’s response confirmed that in fact it did not. “ ‘We normally
presume that a jury will follow an instruction to disregard
inadmissible evidence inadvertently presented to it . . . .’ ”
McLendon, 378 F.3d at 1114 n.6 (quoting Greer v. Miller, 483
U.S. 756, 767 n.8 (1987)). We have no reason to doubt that the
jurors followed the court’s instruction here and disregarded the
predicate crimes listed in the first copy of the indictment.
Significantly, the judge did not simply direct the jurors to
disregard the language in the incorrect indictment—a curative
instruction a juror might, perhaps, have chosen to ignore; instead
he repeatedly and emphatically explained to them that the first
indictment they received was simply wrong in that the crimes it
identified were not the crimes of which Roy was convicted. The
jurors were therefore especially likely to follow his instruction
to disregard the unredacted indictment rather than rely on
information they knew to be incorrect.
Second, the case against Roy was strong. According to the
testimony of two witnesses, Roy himself admitted that the gun
belonged to him and Williams’s testimony was that Roy and his
friends used the apartment to prepare and store drugs. Further,
the contraband seized from the apartment when the officers
searched it—including the gun, PCP and marijuana and mixtures
of the two and the copious preparation and packing
12
materials—left no doubt of the kind of drug activities occurring
in the apartment, which Roy frequented and where he was
arrested after his unsuccessful attempt to escape through the
window. The only arguably exculpatory evidence was the
testimony of Roy’s girlfriend and her mother that he had lived
with them in a house next door to the Naylor Road apartment
building, a fact not inconsistent with Roy’s use of the apartment
to prepare and store illegal narcotics.3
Third, while one of the prior convictions identified in the
incorrect indictment—“Use of a Handgun in the Commission of
a Crime of Violence”—is, as the district court noted, “similar”
to counts 3 and 4 of the indictment here—use of a gun during
drug trafficking and felon-in-possession of a handgun—and
therefore more likely to cause unfair prejudice, this similarity is
outweighed by the other two factors, namely, the extensive
curative measures and the weight of the evidence of guilt,
including Roy’s own admission that the gun belonged to him.
Indeed, in United States v. Myles, supra, the trial judge, as part
of his instruction on the felon-in-possession count, read aloud to
the jury the portion of the indictment setting out the predicate
felony which in that case was the identical crime of which the
jury forthwith convicted him—possessing cocaine with intent to
distribute. Yet we found no plain error based solely on “the
strong evidence presented by the Government on the distribution
count” which established that “the court's misstep did not affect
the outcome of the trial.” Myles, 96 F.3d at 497. Here, where
3
We would ordinarily be hesitant to hold that curative instructions
given after the jury has notified the court that it had reached a verdict
are adequate. In this case, however, we find that despite the timing of
the instructions Roy has failed to meet his burden of showing
prejudice because the government’s case against him was strong and,
more important, because the error in the indictment allowed the trial
judge to instruct the jury that the original indictment was incorrect
instead of merely instructing it to disregard accurate information.
13
the judge took great pains to cure any effect of the jury’s
inadvertent exposure to the incorrect indictment and the
prosecution’s case was strong, we find that Roy has not satisfied
his burden of proving that the submission of that indictment to
the jury affected Roy’s substantial rights so as to constitute plain
error. Additionally, in these circumstances we cannot say that
the error in this case “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings” under the fourth prong
of the plain error inquiry. United States v. Olano, 507 U.S. 725,
732 (1993) (citation and internal quotation omitted).
For the foregoing reasons, the judgment of the district court
is affirmed.
So ordered.