                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0684n.06

                                     Nos. 08-6219 & 08-6220                              FILED
                                                                                     Nov 04, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )     ON APPEAL FROM THE UNITED
                                                      )     STATES DISTRICT COURT FOR
v.                                                    )     THE EASTERN DISTRICT OF
                                                      )     KENTUCKY
OCEANUS PERRY,                (08-6219)               )
MARTIN PEDRO,                 (08-6220)               )
                                                      )
      Defendants-Appellants.                          )
_____________________________________

                                            OPINION

BEFORE: GRIFFIN and WHITE, Circuit Judges; and MURPHY, District Judge.*

       MURPHY, District Judge.

       Defendants Oceanus Perry and Martin Pedro were convicted of forcibly assaulting a federal

corrections officer while in prison. Perry was also convicted of knowingly possessing a prohibited

object designed and intended to be used as a weapon. Both defendants appeal their judgments of

conviction, asserting various errors by the district court. Perry also appeals his sentence. For the

following reasons, the Court affirms the judgments of conviction and Perry’s sentence.

                                                 I.

       This criminal appeal arises out of a prison fight. On September 17, 2007, Perry and Pedro,

along with inmates William Burrell and Anthony Ward, were imprisoned at Big Sandy United States

       *
       The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


Penitentiary in Inez, Kentucky. Officers Ed King, Roger Jude, and John Bussey were prison guards

employed at Big Sandy. The following facts were established at trial, primarily though testimony

and a video recording of the incident captured from four different angles.

       The incident began on the second floor of the B-4 housing unit. Following protocol, Officer

Bussey asked Pedro to submit to a search of his person. Pedro refused. Bussey told Pedro he would

be escorted to the Lieutenant’s Office where he would be searched by supervisors. By this time

Officer King had arrived to assist Bussey. Inmates Ward and Burrell, who were in close proximity

to Pedro, interjected themselves between Pedro and the officers, and descended slowly down the

stairs, thereby distracting the officers. Pedro descended quickly down the stairs and trotted off

toward the back of the housing unit. On his way, Pedro handed an object to Perry, who was standing

in the common area of the housing unit. Officers King and Bussey retrieved Pedro and returned him

to the location of the other inmates.

       Officer Bussey and the three inmates eventually ended up in a downstairs corner of the

housing unit and Bussey began searching Pedro’s person. Bussey told Ward and Burrell to move

along, but they refused to leave Pedro’s side. Officer Bussey radioed for assistance. Officers Jude

and King arrived and the three officers told the inmates to place their hands on the wall. Officer Jude

began searching Burrell. During the search, Burrell removed his hands from the wall and told Jude

to keep his hands off of him.1 Jude ordered Burrell to place his hands back on the wall and Burrell

complied. Shortly thereafter, Burrell again removed his hands from the wall and turned to face



       1
        Burrell testified that Officer Jude had intentionally touched Burrell’s genitalia during the
sweep, and that was the reason Burrell removed his hands from the wall.
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United States v. Oceanus Perry and Martin Pedro


Officer Jude. At this point, Pedro removed his hands from the wall and started walking towards

Officer Jude. Jude attempted to tackle Burrell and bring him to the ground and Pedro took a swing

at Jude.

       Officers King and Bussey attempted to control Pedro and backed him into a wall. Perry ran

from the gallery toward the scuttle. He dropped two items on the ground near the stairway before

entering the fray. One of the items was his radio headset. The headphones became tangled in his

boot and he dragged the headphones and the attached radio into the fight. The other item remained

by the stairwell, untouched, for the duration of the fight. The video is clear in this regard. Perry ran

toward Pedro and Officers King and Bussey, grabbed Officer Bussey around the waist and pulled

him down, which left Officer King to battle Pedro by himself. Ward attempted to pull Officer King

to the ground, which allowed Pedro to partially release himself from King’s grasp. Pedro freed

himself with a punch to King’s head, knocking him to the floor. While on the floor, Pedro kicked

and punched Officer King in the head. Pedro allowed him up from the ground, and as Officer King

rose, Pedro, with a running start, drove his knee into King’s head, which spun King around. Pedro

began to punch King again in the torso.

       Meanwhile, Perry had secured Officer Bussey in a full-body hold as both were lying on the

ground. Bussey testified that while the men were engaged on the ground, Perry began to choke him

by placing the bend of his elbow on Bussey’s Adam’s Apple, a maneuver apparently known as a

triangular choke hold. Bussey testified that Perry told him to “hold still, that he’s going to snap my

neck.” R. 234, at 63. Officer Jude testified that he heard this comment. Id. at 233. Perry testified

that he never choked Bussey, but merely restrained him in order to try and contain the situation,
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


which he believed was escalating into an instance of officer brutality. He testified that he told

Bussey, “Calm down, relax, I’m not trying to do nothing to you,” and that Bussey said he was going

to snap Perry’s neck. R. 235, at 193.

       While Perry was restraining Officer Bussey on the ground, Pedro, who was beating Officer

King, took a break from King and kicked Bussey twice in the head. Officer King regained some

balance, staggered back toward Pedro, and received one last punch in the torso before Pedro was

shoved away by an oncoming officer. Pedro stumbled on his own shirt, which by that point was

laying on the ground, and fell to the floor. Two other officers eventually restrained Pedro.

       Officer King, meanwhile, assisted Officer Jude, who had been struggling with Burrell on the

ground since the fight began. Additional officers arrived and struggled to remove Officer Bussey

from Perry’s clutch. The entire scuffle lasted less than 45 seconds and was captured by four video

cameras placed at different angles in the housing unit. The jury watched the videos at trial.

       As additional officers began arriving at the scene, the other item Perry set down by the

stairway before entering the fight remained untouched. Lieutenant Gregory Nix eventually noticed

it, picked it up, and placed it in his pocket. Nix testified later that the object was a six-inch metal

weapon sharpened to a point, commonly known as a “shank.” R. 235, at 67. The scene was

photographed and the photographs were presented to the jury at trial. See appx. 65-77

       Officers Bussey, King, and Jude, along with their examining physicians, testified at trial

regarding the officers’ injuries. Specifically, due to the squeeze Perry placed on Officer Bussey’s

neck, his airflow was severely restricted and he believed at that moment that he was going to die.

He suffered redness around his neck, and pain throughout his neck and back. He had abrasions over
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


his right eye and right elbow. Officer King had pain in his nose, mouth, and the back of his head.

He had bruising under his left eye, a hematoma on the back of his head just above his neck, a bloody

nose, and a chipped tooth. In addition to physical injuries, Officer King suffered from depression

and anxiety as a result of the attack. Officer Jude experienced lingering pain in his left shoulder and

neck, and had decreased range of motion and muscle spasms.

       Burrell, Pedro, and Perry were charged in a second superseding indictment with forcibly

assaulting Officers Bussey, Jude, and/or King, inflicting bodily injury upon them, while the officers

were engaged in the performance of their official duties. 18 U.S.C. § 111(a)(1) and (b). The

government expressly included a theory of aiding and abetting in this charge. Perry was also charged

in a separate count with knowing possession of a prohibited object intended to be used as a weapon.

18 U.S.C. § 1791(a)(2), (b)(3).

       The jury found Pedro and Perry guilty on count one, and was deadlocked on count one with

respect to Burrell. It found Perry guilty on count two. Both Perry and Pedro moved for judgments

of acquittal and for new trials on various grounds. The district court denied all post-trial motions

and the defendants were subsequently sentenced.

       Both defendants appeal their judgments of conviction. Perry also appeals his sentence. The

appeals were consolidated.

                                                  II.

       Perry and Pedro collectively assign nine instances of error by the district court. All of these

arguments lack merit and the Court will affirm the judgments of conviction and Perry’s sentence.
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


Most of the arguments have such little merit that there is no need to address them in detail. Two

issues, however, deserve greater discussion – which is set forth below.

                                                  III.

       Defendants first argue that count one of the indictment was duplicitous. The Federal Rules

of Criminal Procedure permit an indictment charging a defendant “in separate counts” with two or

more offenses. Fed. R. Crim. P. 8(a). “An indictment is duplicitous if it sets forth separate and

distinct crimes in one count.” United States v. Davis, 306 F.3d 398, 415 (6th Cir. 2002). Whether

the indictment is duplicitous is a legal question that we review de novo. Id.

       The government argues that Pedro and Perry have waived their duplicity challenge by not

raising it below. This is partly right. Our discussions of duplicity have distinguished between two

ways in which a defendant may challenge a duplicitous indictment. First, a defendant may challenge

the form of the indictment, in which case he must do so prior to trial. “In other words, the technical

error of the duplicity must be raised before trial.” United States v. Adesida, 129 F.3d 846, 849 (6th

Cir. 1997) (emphasis added). If the technical error is not raised early on, the trial proceeds, despite

the duplicity, under the presumption that a jury instruction can clear up any ambiguity created by the

duplicity. Id.

       Additionally, a defendant may challenge, at trial or on appeal, the alleged harm stemming

from the duplicitous indictment, even if he failed to challenge the form of the indictment before trial.

Id. at 849. We wrote in Adesida:

       For example, a defendant can raise the issue that due to the duplicity in the
       indictment, it is unclear whether the jury’s verdict in regard to either offense was
       unanimous. This type of error does not have to be objected to before trial, because
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


        it concerns not only a technicality (two offenses are charged in one count), but also
        raises issues involving substantive rights (right to a unanimous verdict). Because the
        defendant herein is not objecting to a mere technicality (that his conviction on Count
        One must be dismissed because Count One charges two offenses), but instead argues
        that his substantive rights were affected by the duplicitous indictment, defendant has
        not waived his right to raise such issues simply because he failed to object to the
        indictment before trial.

129 F.3d at 849 (internal citations omitted). “The rationale for this distinction is that, whereas Rule

12 applies only to defects in the institution of criminal proceedings, a verdict rendered by a less-than-

unanimous jury violates a defendant’s Sixth Amendment rights by a harm that arises from the trial

itself.” United States v. Kakos, 483 F.3d 441, 444 (6th Cir. 2007) (internal citation omitted).

        In this case, because Pedro and Perry failed to challenge the form of the indictment prior to

trial, they have waived only their ability to now challenge the form of the indictment under Fed. R.

Crim. P. 12(b)(3)(B).2 In this sense the government is correct that they have waived their ability to

raise duplicity on appeal. This failure, however, does not prevent Pedro and Perry from raising on

appeal the alleged harm stemming from a duplicitous indictment. They assert that because of the

duplicity in count one, it was impossible to know which of the multiple offenses charged the jury

convicted them of, and that they have likely been deprived of a unanimous verdict.3 They assert that




        2
         Pedro and Perry, however, did challenge the indictment on the grounds that it was
multiplicitous. The district court denied their challenges. As Pedro and Perry have not raised that
challenge on appeal, we do not address it.
        3
          Pedro and Perry also assert that the duplicitous nature of count one made it impossible for
them to understand in advance which particular conduct had been charged. The Court considers this
challenge as one relating to the form of the indictment, which they have waived by failing to raise
the issue before trial. If they were confused as to charges against them, they should have raised the
issue at the soonest possible time.
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


this duplicity was not cured by an instruction on unanimity as to each offense charged in count one.

        Count one of the second superseding indictment states:

        On or about September 17, 2007, in Martin County, in the Eastern District of
        Kentucky, William Lamar Burrell, Martin Pedro, and Oceanus Perry[,] aided and
        abetted by one another, did forcibly assault, resist, oppose, impede, intimidate, and
        interfere with United States Penitentiary, Big Sandy, correctional officers John
        Bussey, Roger Jude, and Ed King, federal law enforcement officers, inflicting bodily
        injury upon the officers, while the officers were engaged in the performance of their
        official duties, all in violation of 18 U.S.C. § 111(a)(l) and (b) and 18 U.S.C. § 2.

Second Superseding Indictment (R. 96).

        As stated above, duplicity may be cured with a jury instruction. But Pedro and Perry never

objected to the court’s jury instructions on this issue. Nor did they ever request specific instructions

that would have alleviated their concerns. They claim on appeal that the jury may not have been

unanimous as to count one, yet they failed to request a special unanimity instruction at the charge

conference. The district court specifically invited defense counsel to object to the proposed general

unanimity instruction. Though counsel for Burrell requested that the jury be instructed initially that

deadlock was an option, and the district court refused to do so, there was no objection from counsel

for Pedro and Perry with respect to the unanimity instruction. Accordingly, our review is limited to

plain error. See Kakos, 483 F.3d at 445 (“Because the harm from a duplicitous indictment is

inextricably intertwined with the jury instructions actually given, when a defendant raises a challenge

to a duplicitous indictment for the first time on appeal the issue of whether our review is limited to

plain error depends upon whether the defendant objected to the jury instructions which failed to cure

the faulty indictment. Where the defendant does not object to the district court's instructions to the

jury, review is limited to plain error.”).
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


       To demonstrate plain error, a defendant must show (1) error, (2) that was plain, and (3)

affected his substantial rights by causing him prejudice. See United States v. Cotton, 535 U.S. 625,

631-32 (2002). If all three conditions are satisfied, we may exercise our discretion to notice a

forfeited error only if the error “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Davis, 306 F.3d at 417.

       Perry and Pedro first assert that the indictment charged both assault as well as aiding and

abetting assault in a single count, and the jury instructions did not obviate the dual charge. We

disagree. The aiding and abetting language in count one did not charge a separate offense, but rather

provided an alternative theory for finding assault. Aiding and abetting is a theory of liability

embodied in every federal indictment, whether or not specifically charged; it is not a distinct

substantive crime. See United States v. McGee, 529 F.3d 691, 695 (6th Cir. 2008). So, the addition

of the aiding and abetting language in count one of the indictment did not convert the count of a

single assault into a count of assault and aiding and abetting assault. Furthermore, the fact that the

judge instructed the jury that the criminal liability of one who encourages another to commit a crime

is identical to that of one who directly commits the crime himself did not present any risk that the

jury would not be unanimous in returning a guilty verdict on the first count. If some jurors

concluded that Perry aided Pedro in assaulting Officers King and Bussey,4 and some found that Perry

directly assaulted Bussey, it was permissible for the jury to convict him on count one. Since the

criminal liability for principals and aiders and abettors is identical, see 18 U.S.C. § 2, there is no


       4
          There is no doubt that the jury, having watched the video, found Pedro responsible for
directly assaulting at least two officers, and not merely aiding and abetting a co-defendant in the
assault.
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


requirement that a jury unanimously find each was either a principal or an aider and abettor. See,

e.g., United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005) (rejecting unanimity challenge,

stating, “[i]t does not matter whether some jurors found that he performed these acts himself, and

others that he intended to help someone else who did, because either way, Garcia's liability is the

same: as a principal, for committing the acts charged.”); United States v. Hotron, 921 F.2d 540, 545

(4th Cir. 1990) (“Whether some jurors found Horton guilty as a principal, believing that he delivered

the fatal blow to the heart, while other jurors found him guilty as an aider and abettor, doubting

exactly who delivered the fatal blow, is not controlling.”); id. at 546 (“The fact that the jurors may

have taken different routes to this conclusion provides no grounds to reverse . . . . By rendering

aiders and abettors guilty as principals, 18 U.S.C. § 2 intended to make unnecessary a showing of

the defendant's act at the level of particularity that Horton urges.”); United States v. Eagle Elk, 820

F.2d 959, 961 (8th Cir. 1987) (“Even if the jury was divided on whether Eagle Elk committed the

principal crime or aided and abetted in its commission, there can be no question that the illegal act

was murder . . . . Thus the jurors were in substantial agreement as to the nature of Eagle Elk's guilty

act, as required by the sixth amendment.”); see also Schad v. Arizona, 501 U.S. 624, 632 (1991)

(“‘Plainly there is no general requirement that the jury reach agreement on the preliminary factual

issues which underlie the verdict.’” (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990)

(Blackmun, J., concurring)). Unable to demonstrate error in instruction of the jury, Pedro and Perry

cannot show plain error.

       Putting aside this initial challenge, Perry asserts that there were multiple assaults charged in

count one, making it impossible to determine for which the jury unanimously convicted and the court
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


later sentenced. He asserts that some of the jurors could have made their decisions based on one of

the multiple assaults, while others could have made their decision to convict based on another of the

assaults, potentially resulting in a non-unanimous verdict. Because Perry failed to object to the

district court’s jury instructions, we review the issue for plain error. See Kakos, 483 F.3d at 445.

       Assuming the indictment was duplicitous in charging multiple assault offenses in count one,5

Perry cannot demonstrate any prejudice from the improper joinder, or any risk that the jury was not

unanimous in finding that he assaulted an officer, sufficient to satisfy plain error review. See id. at

446 (“Because defendant cannot demonstrate prejudice, he cannot show plain error, and we need not

consider whether the indictment was duplicitous.” (footnote omitted)). Considering the evidence

presented at trial, particularly the video recording of the entire incident, the evidence amply supports

a unanimous conviction on at least one act of assault (either as a principal or as an aider and abettor)

by Perry, which is all he was charged with. Had the government charged each assault in a separate

count, the evidence would have supported a unanimous guilty verdict on at least one (if not all) of

the potential counts. Specifically, considering the evidence at trial, the jury undoubtedly determined,

at the very least, that Perry aided Pedro in Pedro’s assault on Officer King by restraining Officer


        5
          When asked at oral argument why the government would charge the defendants with
multiple assaults in a single count, counsel for the government stated that had it charged each
incident of contact by each defendant in a separate count, it would likely have faced a multiplicity
challenge rather than a duplicity challenge, which it apparently believed would have been stronger
than the duplicity challenge here. We doubt, however, whether a multiplicity challenge by the
defendants would have been successful, and the government likely would have been on more solid
ground had it decided to charge each assault separately. See, e.g., Ladner v. United States, 358 U.S.
169, 176 (1958); United States v. Shumpert Hood, 210 F.3d 660, 663 (6th Cir. 2000); United States
v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997), overruled in part on other grounds, Jones v. United
States, 516 U.S. 227 (1999); United States v. Kazenbach, 824 F.2d 649, 652 (8th Cir. 1987); United
States v. Farries, 459 F.2d 1057, 1064 (3d Cir. 1972).
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


Bussey and preventing him from helping Officer King restrain Pedro. This is sufficient to convict

on one count of assault. The evidence also supports a unanimous conclusion by the jury that Perry

directly assaulted Officer Bussey by applying pressure to his throat, cutting off his air supply, and

threatening to break his neck. Thus, there is no risk that the jury was not unanimous in its belief that

Perry committed one instance of assault. The government’s election to charge only one instance of

assault was more favorable to Perry than charging him with multiple counts of assault and putting

him in jeopardy of multiple convictions for assault. It is puzzling why Perry would request that the

government charge him with multiple counts of assault in light of the evidence presented at trial.

Therefore, even if the indictment was duplicitous in charging Perry with more than one assault in

count one, and the infirmity was not remedied by a jury instruction, Perry has failed to demonstrate

any prejudice from the errors. For this reason, he has not established plain error.

                                                  IV.

       Perry claims that the district court erred when it permitted the U.S. Marshals to keep his legs

restrained during trial and denied his motion for a new trial based on the restraint.

       The use of physical restraints during trial implicates a defendant’s right to due process. Deck

v. Missouri, 544 U.S. 622, 629 (2005). Visible physical restraints at trial “compromise the physical

semblance of innocence; they may undermine the defendant’s ability to participate in his own

defense, and they impair the ‘dignity and decorum of the judicial process’ itself.” United States v.

Waagner, 104 F. App'x 521, 526 (6th Cir. 2004) (quoting Kennedy v. Cardwell, 487 F.2d 101, 106

(6th Cir. 1973)). Accordingly, they should be used as rarely as possible.
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


         “[B]efore ordering the use of [restraints], the trial court must make a ‘determination, in the

exercise of its discretion, that [restraints] are justified by a state interest specific to a particular trial.’”

United States v. Miller, 531 F.3d 340, 345 (6th Cir. 2008) (quoting Deck, 544 U.S. at 629). We have

stated that when considering whether to physically restrain a defendant during trial the district court

should conduct a formal hearing with sworn testimony so it can resolve factual disputes and a

meaningful record is preserved for appeal and any potential collateral relief. Kennedy, 487 F.2d at

110.

        Perry did not raise his challenge to the restraints until he spoke at sentencing.6 Accordingly,

his claim is reviewed for plain error. See Miller, 531 F.3d at 346. Under plain error review, the

defendant must show “(1) error (2) that was obvious or clear (3) that affected defendant's substantial

rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”

Id. The defendant has the burden of proving he was prejudiced by the error at trial. Id.

        Our decision in Miller involved a nearly identical situation. We found there that the district

court abused its discretion when it deferred blindly to the U.S. Marshal’s judgment that the defendant

should be restrained with a stun-belt during trial. 531 F.3d at 346. We were further troubled by the

government’s argument on appeal that the use of a stun belt was warranted because the defendant


        6
          Perry’s statements at his sentencing relate to the fact that he was physically uncomfortable
while restrained at trial, rather than to the prejudice he incurred because the jury could see the
restraints. See R. 276, at 121 (“I have [sic] no hearing to determine the grounds [for requiring
restraints,] including a flight risk, security, et cetera, which constitutes a violation of the
individual.”). The purpose of requiring the judge to make specific findings regarding the necessity
of restraints during trial is so that the defendant can receive a trial free of undue prejudice, and
preserve the dignity and decorum of the courtroom, not so that the defendant is provided due process
before being deprived of his right to be physically free at trial. The inquiry’s focus on whether the
restraints are visible to the jury demonstrates the interests served by the requirement.
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


faced significant prison time and was evasive and untruthful in a prior hearing before the district

court. We found neither reason justified physical restraint absent a finding that the defendant posed

a threat to courtroom safety. Id. If the potential of a significant prison sentence were enough, we

stated, the use of physical restraints at trial would become routine in federal drug and gun cases. We

repeat ourselves in stating that this goes beyond what the Constitution permits. Id. Nonetheless, we

found that, applying plain error review, the defendant had not met his burden of showing that he was

prejudiced by the use of the device because he could not demonstrate the belt was visible to the jury.

Id. at 346-48. The record was silent on whether the belt became visible to the jury, and we did not

assume without evidence that it did. Id. at 347.

        Here, the district court did not conduct a hearing to determine whether physical restraint

during trial was required for purposes of courtroom safety. As in Miller, the court deferred to the

recommendation of the U.S. Marshals that Perry be restrained at trial. This was error, and we repeat

here that a district court is to conduct a hearing and create a record of its findings as to why physical

restraints during trial are necessary. This is especially so when the restraints are not placed

underneath a defendant’s clothing, and may become visible to the jury more easily. If there is no

objection by the defense, the government, although under no obligation to do so, should remind the

judge to conduct a hearing on the reasons for restraining the defendants.

        Even though we determine that the district court erred in not conducting a hearing and

making specific findings, as in Miller, Perry has not demonstrated prejudice from the use of the

restraints at trial. Although the record is silent with respect to whether the jury saw the physical

restraints, we will not assume, without evidence, that the restraints were ever visible at trial. See id.
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


at 347. To the contrary, it appears from our review of the record that the district court strived to

prevent the jury from seeing the restraints. For example, when discussing how Perry and Burrell

would testify, the court made sure they would be seated in the witness stand before the jury entered

the courtroom. It also decided that Perry and Burrell were not to step outside of the witness stand,

but would be permitted to stand to demonstrate a particular posture if necessary. Given the district

court’s concerns, it is very likely that had the restraints become visible to the jury, the court would

have made a record of that fact and taken appropriate steps to cure any harm.

       Perry has not demonstrated any prejudice from the district court’s failure to make a record

of its finding that physical restraints were necessary. For this reason, we conclude that Perry has not

established plain error.

                                                  V.

       We briefly address the remaining claims of error. Pedro asserts there was insufficient

evidence to support his conviction of the assault count. To establish a violation of 18 U.S.C. §

111(a)(1) and (b), the prosecution must prove that: 1) the defendant forcibly assaulted, resisted,

opposed, impeded, intimidated, or interfered with one or more of the listed victims; 2) the victim was

a federal law enforcement officer who was then engaged in the performance of his official duty; 3)

the defendant acted knowingly and intentionally; and 4) in doing such acts, the defendant caused the

victim to suffer bodily injury. See 18 U.S.C. § 111(a) & (b); see also Pattern Crim. Jury Instr. 11th

Cir. 1.2 (2003). The term bodily injury means: 1) a cut, abrasion, bruise, burn, or disfigurement;

2) physical pain; 3) illness; 4) the impairment of the function of a bodily member, organ, or mental

faculty; or 4) any other injury to the body, no matter how temporary. See 18 U.S.C. § 1365(h)(4);
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


see also Pattern Crim. Jury Instr. 11th Cir. 1.2; United States v. Myers, 972 F.2d 1566, 1572 (11th

Cir. 1992) (interpreting the term “bodily injury” used in 18 U.S.C. § 242). Viewing the evidence in

the light most favorable to the prosecution, there was ample evidence of guilt. The evidence

included a video taken from multiple angles clearly showing Pedro punching and kicking the

officers. Further, the officers’ injuries were sufficient to sustain the conviction.

        Pedro and Perry claim the district court erred when it denied their motions for a new trial and

for acquittal based on the alleged perjury of Officer Jude before the grand jury. Perry also argues

he was entitled to acquittal or a new trial because the government withheld material evidence. We

find no error in the district court’s denial of these motions. Similarly, we find no merit in Pedro’s

argument that the court erred in declining to give his requested instructions on self-defense and the

defense of others in response to excessive force.

        We also reject Perry’s argument that he was entitled to a separate trial. Notwithstanding his

arguments to the contrary, the record establishes that his defense was not prejudiced by the joint trial.

        Nor have the defendants supported their claim that the jury was not selected from a venire

representing a fair cross-section of the community. The Sixth Amendment requires that the venire

from which a jury is selected represent a “fair cross-section” of the community in which the court

sits. Taylor v. Louisiana, 419 U.S. 522, 528-29 (1975); United States v. Allen, 160 F.3d 1096, 1103

(6th Cir. 1998). It does not, however, entitle the defendant to a jury of any particular composition.

Taylor, 419 U.S. at 538. In Duren v. Missouri, 439 U.S. 357 (1979), the Supreme Court established

the framework for analyzing fair cross-section claims. To establish a prima facie violation, the

defendant must show that: 1) the group alleged to be excluded is a distinctive group in the
Nos. 08-6219 & 08-6220
United States v. Oceanus Perry and Martin Pedro


community; 2) the representation of this group in venires from which juries are selected is not fair

and reasonable in relation to the number of such persons in the community; and 3) this under-

representation is due to systematic exclusion of the group in the jury-selection process. Id. at 364.

We review fair cross-section challenges de novo. Allen, 160 F.3d at 1101.

       Here, although the panel of potential jurors was composed entirely of white persons, with the

exception of one Hispanic, there was no showing that the representation of African Americans in

venires from which juries are selected is not fair and reasonable in relation to their percentage in the

community population. Perry and Pedro rely on statistics for the entire Eastern District of Kentucky.

28 U.S.C. § 1861, however, provides that litigants have the right to trial by a jury selected at random

from a “fair cross section of the community in the district or division wherein the court convenes.”

28 U.S.C. § 1861 (emphasis added). In statutory divisions containing more than one place of holding

court (such as the Southern Division of the Eastern District of Kentucky), “division” means “such

counties . . . surrounding the places where court is held as the district court plan shall determine.”

28 U.S.C. § 1869(e). The Eastern District has designated London as a place of holding court;

therefore, the counties surrounding London as stated in E.D. Ky. L. Cr. R. 18.1(a)(3)(A) constitute

the relevant community.

       Lastly, the district court did not err in calculating Perry’s sentencing guidelines. We have

considered the other assignments of error and determine that none have merit. We affirm Pedro and

Perry's judgments of conviction and Perry's sentence.

       AFFIRMED.
