                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 11-2885
                                      ____________

                           UNITED STATES OF AMERICA

                                            v.

                                 LAWRENCE YOUNG,
                                      Appellant
                                    ___________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-09-cr-00152-001)
                       District Judge: Honorable J. Curtis Joyner
                                     ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   April 20, 2012

           Before: VANASKIE, BARRY AND CUDAHY, * Circuit Judges

                             (Opinion Filed: May 31, 2012)
                                     ___________

                               OPINION OF THE COURT
                                    ___________

VANASKIE, Circuit Judge.

       Lawrence Young, a pharmacist, was charged with one count of conspiracy to

unlawfully distribute controlled substances, in violation of 21 U.S.C. § 846, and three

       *
         Honorable Richard D. Cudahy, United States Court of Appeals for the Seventh
Circuit, sitting by designation.
counts of unlawful distribution of oxycodone, a Schedule II controlled substance, in

violation of 21 U.S.C. § 841(a)(1) . A jury found Young guilty on all charges. Young

appealed, asserting that there was insufficient evidence to prove his involvement in a

conspiracy, that the jury instructions on conspiracy were flawed, that jury selection was

unconstitutional because the trial judge left the bench when peremptory challenges were

being exercised, and that his trial counsel was ineffective. We reject on the merits his

first three arguments and find that his motion for a new trial based upon ineffective

assistance of counsel was filed too late in the District Court. Accordingly, we will affirm

the District Court’s judgment.

                                              I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       Young owned and operated Young’s Pharmacy in Philadelphia since 1963. The

government alleges that from at least 2001 until he sold the store in 2006, Young worked

with his employees and drug dealers to fill thousands of fraudulent prescriptions.

Specifically, the government contends that there were approximately ten regular

customers who would routinely make large purchases of controlled substances in cash,

filling multiple prescriptions in different names all drafted by the same “pill mill”

doctors. These customers would hand out cash tips and purchase lunch for pharmacy

employees, including Young. Because of this practice, Young’s Pharmacy greatly

outsold significantly larger national chain pharmacies in the local area in commonly

abused substances, such as oxycodone.

                                              2
       Young vigorously disputed the government’s version of events, blaming his

employees for all of the criminal activity that occurred at the pharmacy. A jury rejected

Young’s defense, finding him guilty on all charges. Following denial of an untimely

post-trial motion, Young was sentenced to a term of 120 months of imprisonment,

followed by three years of supervised release. Young now appeals.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate

jurisdiction under 28 U.S.C. § 1291.

                                             A.

       Young first argues that there was insufficient evidence to prove his involvement in

the alleged conspiracy, asserting that the government failed to prove that he knew he was

providing drugs for distribution beyond those individuals who had presented him with

prescriptions. Young notes that the mere sale of drugs “does not create a conspiracy

between a buyer and a seller unless the seller understood that the buyer intended to resell

the drugs to others.” (Appellant’s Br. at 24.) (citing United States v. Roe, 210 F.3d 741,

747 (7th Cir. 2000)).

       “To make out a conspiracy charge, the Government must show: (1) a unity of

purpose between the alleged conspirators; (2) an intent to achieve a common goal; and

(3) an agreement to work together toward that goal.” United States v. Pressler, 256 F.3d

144, 147 (3d Cir. 2001). “We apply a particularly deferential standard of review when

deciding whether a jury verdict rests on legally sufficient evidence,” because “‘[i]t is not

for us to weigh the evidence or to determine the credibility of the witnesses.’” United

                                              3
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (quoting United States v. Voigt, 89 F.3d

1050, 1080 (3d Cir. 1996)). We “will sustain the verdict if ‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Id.

(quoting Voigt, 89 F.3d at 1080). “Thus, ‘a claim of insufficiency of the evidence places

a very heavy burden on an appellant.’” Id. (quoting United States v. Gonzalez, 918 F.3d

1129, 1132 (3d Cir. 1990)).

       Young fails to meet this burden. Multiple employees and “street pharmacists”

testified against Young, noting that he did not question his regular customers despite the

fact they presented multiple prescriptions written by the same doctors for large quantities

of controlled narcotics several times a week. There also were taped conversations

between Young and one of his regular customers discussing the supply of controlled

narcotics, and how Young would work with this customer to fill his fraudulent

prescriptions. Viewing this evidence in the light most favorable to the government, we

conclude that it was more than sufficient to permit a reasonable jury to find that Young

was part of a conspiracy to unlawfully distribute controlled substances.

                                             B.

       Young next argues that the District Court never explained to the jury that in order

to find him guilty of conspiracy, the government had “to prove that Mr. Young had an

agreement with, and therefore knew about, an illegal distribution of the drugs beyond the

simple act of an individual purchasing drugs and that he intended to further that goal.”

(Appellant’s Br. at 30.)



                                             4
       Young failed to object to the jury instructions at trial. “[B]efore an appellate court

can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3)

that ‘affect[s] substantial rights.’” Johnson v. United States, 520 U.S. 461, 466-67 (1997)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error, but

only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’” Id. at 467 (quoting United States v. Young, 470 U.S. 1, 15

(1985)). The burden is on Young to establish that the jury instructions were plainly

erroneous.

       Young fails to meet this burden.             The District Court first explained in its

instructions to the jury that, “[t]he government must prove beyond a reasonable doubt

that two or more persons knowingly and intentionally arrived at a mutual understanding

or agreement, either spoken or unspoken, to work together to achieve the overall

objective of the conspiracy to commit the offense of unlawful distribution of controlled

substances.” (S.A. at 222.) The District Court then specifically clarified to the jury that:

               [U]nder the law a pharmacist may legally distribute a
               controlled substance if there is a valid prescription for the
               controlled substance. A valid prescription is one that is
               issued for a legitimate medical purpose. The law also places
               a duty on a pharmacist to be vigilant in filling prescriptions,
               and to avoid filling those that were written for a non-medical
               purpose.

               If you find that the defendant knew that the prescriptions he
               filled or helped fill were not written for a legitimate medical
               purpose or [were] fraudulent, then he has illegally distributed
               a controlled substance.


                                                5
(S.A. at 224.)

       These instructions, considered in their entirety, adequately communicated to the

jurors that in order to convict Young of conspiracy, they had to find that Young

possessed both knowledge and intent to illegally distribute controlled substances. The

District Court’s instruction distinguishing between valid and invalid prescriptions made it

clear that a conviction here required more than the sale of a controlled substance.

       Even if the District Court had delivered the jury instructions less than perfectly,

plain error challenges to jury instructions are found “‘sparingly and only where the error

was sure to have had unfair prejudicial impact on the jury’s deliberations.’” United

States v. Thayer, 201 F.3d 214, 222 (3d Cir. 1999) (quoting United States v. Zehrbach, 47

F.3d 1252, 1263 n.9 (3d Cir. 1995)). The record before us does not warrant such a

conclusion. “It is the rare case in which an improper instruction will justify reversal of a

criminal conviction when no objection has been made in the trial court.” Henderson v.

Kibbe, 431 U.S. 145, 154 (1977). Such a case is not before us.

                                              C.

       Young also contends that he was deprived of his constitutional right to have an

Article III judge preside during jury empaneling, because the District Judge returned to

chambers after receiving consent to do so from both sets of counsel at the conclusion of

the voir dire. Young further argues that even if this practice were constitutional, he

personally did not consent to the judge’s absence, and thus “did not knowingly and

intelligently waive his right to the presence of an Article III judge at jury selection.”

(Appellant’s Br. at 39.)

                                              6
       The fact that Young himself personally did not waive his right to the judge’s

presence is of no consequence, because his counsel’s consent was sufficient. In Gonzalez

v. United States, 553 U.S. 242 (2008), the Supreme Court noted that “some basic trial

choices are so important that an attorney must seek the client’s consent in order to waive

the right.” Id. at 250 (citing Florida v. Nixon, 543 U.S. 175, 187 (2004)). These

decisions include “whether to plead guilty, waive a jury, testify in his or her own behalf,

or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751 (1983) (citations omitted).

Deciding whether to consent to the trial judge leaving the bench after voir dire

questioning does not qualify as one of these important choices. Notably, the Supreme

Court held in Gonzalez that “express consent by counsel suffices to permit a magistrate

judge to preside over jury selection in a felony trial,” reasoning that “[a]lthough a

criminal defendant may demand that an Article III judge preside over the selection of a

jury, the choice to do so reflects considerations more significant to the realm of the

attorney than the accused.” 553 U.S. at 250, 253. This analysis is equally applicable to

the facts before us.

       Young, having failed to raise this constitutional issue at trial, must establish that

the judge’s absence when peremptory strikes of jurors were being made was plain error

that “‘affected [his] substantial rights,’” and that “‘the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.’” United States v. Marcus,

130 S. Ct. 2159, 2164 (2010) (quoting Puckett v. United States, 556 U.S. 129, 135

(2009)).



                                               7
       Notably, no issues were raised concerning the exercise of peremptory strikes of

jurors, and both lawyers answered in the affirmative when the District Judge returned to

the courtroom and asked if they approved of the empaneled jury. Young makes no

showing that there is “a reasonable probability” that the District Judge’s brief absence

“affected the outcome of the trial.” Marcus, 130 S. Ct. at 2164 (citing Olano, 507 U.S. at

734-35). Accordingly, Young’s claim that jury selection was fatally flawed because he

was deprived of his constitutional right to the presence of an Article III judge fails. 1

                                              D.

       Young last argues that his trial counsel was ineffective. We reject this claim

without reaching the merits because Young’s motion for a new trial based on ineffective

assistance of counsel was untimely.

       Federal Rule of Criminal Procedure 33(b)(2) states that “[a]ny motion for a new

trial grounded on any reason other than newly discovered evidence must be filed within

14 days after the verdict or finding of guilty.” The verdict was entered on December 4,

2009, but Young’s motion was not filed until October 20, 2010. Young does not point to

any newly discovered evidence that would have justified the untimely filing of his

       1
          We do not endorse the practice of district judges leaving the bench during the
peremptory strike phase of jury selection. On the contrary, as we stated over 45 years
ago in a case with remarkably similar facts, we believe the better practice is for the
district judge to remain on the bench throughout the entire jury selection process, even if
the parties consent to the absence. Stirone v. United States, 341 F.2d 253, 256 (3d Cir.
1965) (“In fairness to the trial judges of this circuit, hereafter in criminal cases,
irrespective of suggestion of waiver by the parties, trial judges will not leave the bench
during any part of the voir dire or other jury selection process without recessing the
court.”). We reaffirm that admonition today. Nevertheless, under the circumstances of
this case, the District Judge’s decision to leave the bench with the consent of counsel did
not create such a structural defect in the proceedings as to warrant a new trial.
                                               8
motion. Young merely asserts that because the District Court addressed the merits of his

ineffective assistance claims, so should we. The District Court, however, explicitly stated

that Young’s new trial motion “must be denied initially for failure to file the motion

within fourteen (14) days after verdict.” (A. 3 n.1.) Although the time limit in FED. R.

CRIM. P. 33(b)(2) is not jurisdictional, see Eberhart v. United States, 546 U.S. 12, 19

(2005), it is a claims processing rule entitled to enforcement when properly raised by the

government. See United States v. Singletary, 471 F.3d 193, 194 (D.C. Cir. 2006).

Indeed, in Eberthart, the Court declared that “when the Government objected to a filing

untimely under [a claims processing rule], the court’s duty to dismiss . . . was

mandatory.” 546 U.S. at 18. In this case, the government did object in the District Court

to the timeliness of Young’s motion for a new trial. Accordingly, denial of the motion as

untimely was warranted, and there is no reason to address the substance of Young’s

ineffective assistance claims.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                             9
