     07-0699-cr
     United States v. M atthew s


 1                                  UNITED STATES COURT OF APPEALS
 2
 3                                          FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                             August Term, 2008
 8
 9   (Argued: September 23, 2008                                             Decided: October 7, 2008)
10
11                                           Docket No. 07-0699-cr
12
13
14                                        UNITED STATES OF AMERICA ,
15
16                                                                                            Appellee,
17
18                                                    –v.–
19
20                                            MICHAEL MATTHEWS,
21
22                                                                                Defendant-Appellant.
23
24
25
26   Before:
27                                 WESLEY , HALL, and GIBSON ,1 Circuit Judges.
28
29           Appeal from an order of the United States District Court for the Northern District of New
30   York (Hurd, J.) convicting Michael Matthews on charges of conspiracy to commit bank robbery
31   and bank robbery, respectively, 18 U.S.C. §§ 371 and 2113(a), and sentencing Matthews to life
32   in prison pursuant to 18 U.S.C. § 3559(c)(1)(A)(i) because the conviction at issue and Matthews’
33   two prior robbery and bank robbery convictions were serious violent felonies that involved the
34   use or threatened use of a firearm. The district court rejected Matthews’ attempt to prove by
35   clear and convincing evidence under 18 U.S.C. § 3559(c)(3)(A) that two of his felony


               1
              The Honorable John R. Gibson, United States Court of Appeals for the Eighth Circuit,
     sitting by designation.

                                                        1
 1   convictions were not serious violent felonies because they did not involve the actual use of
 2   firearms but instead objects disguised as firearms. Matthews appealed the conviction. He argues
 3   that it is unconstitutional to shift the burden to the defendant to prove his current and prior
 4   convictions were not serious violent felonies, that even if the burden shifting was constitutional,
 5   requiring proof by clear and convincing evidence was not, and that § 3559(c)(3)(A) violated the
 6   Sixth Amendment under Apprendi. Matthews also raises another due process claim related to the
 7   fairness of his trial that he first raised in an untimely motion to set aside the verdict. We hold
 8   that shifting the burden to the defendant under § 3559(c)(3)(A) is constitutional, and because
 9   Matthews did not prove by a preponderance of the evidence that his felonies were not serious, we
10   refrain from addressing the constitutionality of the clear-and-convincing standard. Matthews’
11   Apprendi claim is foreclosed by our case law. We find no error in the district court’s rejection of
12   Matthews’ fair-trial due process claim as untimely. Accordingly, we affirm the conviction and
13   sentencing.
14
15          AFFIRMED .
16
17
18
19                  APPELLANT ’S COUNSEL, Julia Pamela Heit, New York, New York, for Defendant-
20                        Appellant.
21
22                  APPELLEE’S COUNSEL, Andrew T. Baxter, Acting United States Attorney for the
23                        Northern District of New York, Syracuse, New York (Edward R. Broton,
24                        Of Counsel, Assistant United States Attorney for the Northern District of
25                        New York, Syracuse, New York), for Appellees.
26
27
28
29   PER CURIUM :

30          Michael Matthews appeals both his conviction of charges of bank robbery and conspiracy

31   to commit bank robbery as well as his life sentence imposed under three-strikes sentencing law,

32   18 U.S.C. § 3559(c)(1)(A)(i), by the United States District Court for the Northern District of

33   New York (Hurd, J.). Matthews claims that the burden placed on defendants, under 18 U.S.C.

34   § 3559(c)(3)(A), to prove that prior convictions were not serious violent felonies within the

35   meaning of the statute for the purpose of avoiding a life sentence, is unconstitutional. He also


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 1   claims that even if this burden shifting is constitutional, § 3559(c)(3)(A)’s requirement that the

 2   defendant meet his burden of proof by clear and convincing evidence is too stringent and is

 3   therefore unconstitutional. Finally, he claims § 3559(c)(3)(A) is unconstitutional under

 4   Apprendi. We disagree with Matthews’ first claim, refrain from deciding the second, and find

 5   the third settled by our case law.

 6          Matthews also claims that his right to a fair trial was violated when he was seen by a juror

 7   while he was being escorted in handcuffs and prison clothes through the courthouse by marshals.

 8   Matthews raised this issue in an untimely motion to set aside his guilty verdict. We find that the

 9   single instance of arguably inappropriate exposure of the defendant to a single juror outside the

10   courtroom was harmless error, and thus we affirm the district court’s decision to deny as

11   untimely the defendant’s motion to set aside the verdict on that basis.

12          Accordingly, we affirm the conviction and sentence.

13                                              Background

14          Michael Matthews was convicted of conspiring to rob and robbing three banks in 2003.

15   See 18 U.S.C. §§ 371, 2113(a). In two of the three robberies Matthews threatened bank

16   employees and patrons with a hand drill disguised to look like a gun. Matthews had previously

17   been convicted of at least two felonies. In 1983, Matthews was convicted of first degree robbery

18   under New York Penal Law § 160.15, after he, armed with a handgun, robbed patrons of a bar.

19   See People v. Matthews, 68 N.Y.2d 118, 123 (1986) (affirming Matthews’ first adult conviction).

20   In 1993, Matthews was convicted in federal court of conspiracy to commit bank robbery and

21   bank robbery for robbing a bank with a water pistol disguised as a handgun. 18 U.S.C. §§ 371,


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 1   2113; See United States v. Matthews, 20 F.3d 538, 553-54 (2d Cir. 1994) (affirming Matthews’

 2   second conviction). At Matthews’ sentencing hearing for his most recent conviction, the district

 3   court (Hurd, J.) found that Matthews’ two prior convictions and current conviction were “serious

 4   violent felonies” within the definition of 18 U.S.C. § 3559(c)(2)(F)(i)2 and as such qualified

 5   Matthews for a mandatory life sentence under 18 U.S.C. § 3559(c)(1)(A)(i).3 Matthews

 6   contended that the 1993 and 2003 bank robberies were not serious violent felonies because no

 7   firearms were used and therefore there could have been “no threat of use of a firearm.” 18

 8   U.S.C. § 3559(c)(3)(A);4 The court rejected Matthews’ argument, believing that Congress

 9   intended the statute to include felons who use devices resembling firearms “to create the

10   impression that the object being used by the defendant . . . in th[e] robbery was a weapon.” Supp.

11   A. for Gov’t at 85. Matthews’ 1993 and 2003 bank robberies qualified as serious violent felonies


            2
             18 U.S.C. § 3559(c)(2)(F) the term “serious violent felony” means—
            (i) a Federal or State offense, by whatever designation and wherever committed,
            consisting of . . . robbery (as described in section 2111, 2113, or 2118); . . . or attempt,
            conspiracy, or solicitation to commit any of the above offenses.
            3
             18 U.S.C. § 3559(c)(1) Notwithstanding any other provision of law, a person who is
     convicted in a court of the United States of a serious violent felony shall be sentenced to life
     imprisonment if–
            (A) the person has been convicted (and those convictions have become final) on separate
            prior occasions in a court of the United States or of a State of–
                    (i) 2 or more serious violent felonies.
            4
             18 U.S.C. § 3559(c)(3)(A) Robbery, an attempt, conspiracy, or solicitation to commit
     robbery; or an offense described in paragraph (2)(F)(ii) shall not serve as a basis for sentencing
     under this subsection if the defendant establishes by clear and convincing evidence that—
            (i) no firearm or other dangerous weapon was used in the offense and no threat of use of a
            firearm or other dangerous weapon was involved in the offense; and
            (ii) the offense did not result in death or serious bodily injury (as defined in section 1365)
            to any person.

                                                       4
 1   for § 3559(c)(1)(A)(i) because Matthews had disguised a water pistol as a firearm in the 1993

 2   bank robbery and a hand drill in the 2003 bank robberies. The district court accordingly

 3   sentenced Matthews to life.

 4           In a motion to set aside the verdict filed two months after conviction, Matthews claimed

 5   his due process right to a fair trial had been violated because a juror had seen him being escorted

 6   by marshals while he was handcuffed and in prison clothes. The court dismissed the claim as

 7   untimely.

 8           Matthews appeals to this Court, arguing that: (1) the requirement of § 3559(c)(3)(A)

 9   violates his due process rights in that it shifts the burden of proof to him to establish that his prior

10   convictions (which collectively mandate a life sentence) were not serious violent felonies as

11   defined by the statute; (2) even if the burden-of-proof shift is constitutional, the clear-and-

12   convincing standard violates due process and equal protection; and (3) § 3559(c)(3)(A) violates

13   Apprendi v. New Jersey, 530 U.S. 466 (2000). Matthews also asserts a due process violation

14   with regard to the juror-prison-garb incident.

15           We join eight other circuits in upholding the constitutionality of the statute’s allocation of

16   the burden to a defendant to prove that his convictions do not qualify as serious violent felonies

17   in order to avoid a life sentence under the three-strikes statute. We need not address whether the

18   clear-and-convincing standard is constitutional because even under a lesser standard of proof

19   Matthews cannot prove that his convictions were not serious violent felonies. We find

20   Matthews’ Apprendi claim foreclosed by our case law. Finally, we agree with the district court

21   that Matthews’ fair-trial due process claim was untimely, and analyzing the underpinnings of that


                                                        5
 1   claim for harmful error and finding none, we need not disturb that ruling.

 2                                                Discussion

 3          Because Matthews did not raise his due process objection below, this Court reviews his

 4   appeal for plain error. See United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003); Fed. R.

 5   Crim. P. 52(b). Cf. United States v. Johnson, 181 F.3d 83 (2d Cir. 1999) (Summary Order)

 6   (finding a district court did not commit plain error by its failure, sua sponte, to find

 7   unconstitutional the three-strikes burden-of-proof scheme because “[t]here have been no

 8   decisions in this circuit on this issue, and other circuits have only begun to consider it”).

 9          Matthews claims first that § 3559(c)(3)(A) violates due process by shifting the burden

10   onto the defendant to prove that he did not commit a serious violent felony, and second, that even

11   if the burden-of-proof shift is constitutional, making a defendant prove by clear and convincing

12   evidence that one of the § 3559(c)(1)(A)(i) qualifying crimes was not a “serious violent felony”

13   violates due process.

14          Where no fundamental right is at issue, there is no doubt that the legislature may assign to

15   defendants burdens of proof with regard to affirmative defenses. See Patterson v. New York, 432

16   U.S. 197, 207-08 (1977). Cf. Cooper v. Oklahoma, 517 U.S. 348, 367 (1996). If the government

17   has proven all elements of the crime beyond a reasonable doubt, reallocating the burden of proof

18   in an affirmative defense does not violate due process. Patterson, 432 U.S. at 205-06. Likewise,

19   statutes placing the burden on the defendant to prove invalidity of prior convictions in order to

20   avoid sentence enhancement based on recidivism are also constitutional. Parke v. Raley, 506

21   U.S. 20, 26-27 (1992). In Parke the Court noted that “even when a collateral attack on a final


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 1   conviction rests on constitutional grounds, the presumption of regularity that attaches to final

 2   judgments makes it appropriate to assign a proof burden to the defendant.” Id. at 31. However,

 3   where a fundamental right is involved, a statute may not require that the defendant shoulder a

 4   burden of proof higher than a preponderance of the evidence. Cooper, 517 U.S. at 362.

 5          This Court has never considered whether the clear-and-convincing burden of proof placed

 6   on defendants under § 3559(c)(3)(A) involves a fundamental right. On one occasion we

 7   expressly reserved the issue to a future panel. In United States v. Snype, the district court

 8   convicted Snype of conspiracy to commit bank robbery and sentenced him to life imprisonment

 9   pursuant to 18 U.S.C. § 3559(c)(1)(A)(i). 441 F.3d 119, 125 (2d Cir. 2006). The sentence was

10   based on his then-current conviction of a serious violent felony and three other serious violent

11   felonies. Id. at 144. Snype argued that requiring him to prove by clear and convincing evidence

12   that his convictions, current or prior, were nonqualifying under §3559(c)(3) to avoid a life

13   sentence under § 3559(c)(1)(A)(i) violated his due process rights. Id. at 145. The Court held that

14   the evidence of the use of firearms was so compelling that, regardless of the burden of proof and

15   upon whom it was placed, it was inconceivable that any court could find that the conviction did

16   not qualify as a serious violent felony. Id. at 146. Therefore the Court explicitly reserved on the

17   due process claim. Id. at 146 n.21. It did note, however, that Cooper did not support Snype’s

18   due process argument. “As Cooper recognized, there is a significant distinction between the

19   burden of proof that may fairly be assigned to a defendant with respect to a fundamental right . . .

20   and the burden that may be assigned with respect to a statutory privilege that Congress is under

21   no obligation to afford, such as a privilege to avoid an enhanced sentence on a showing of


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 1   specified mitigating circumstances.” Id. (internal citation omitted).

 2          Other circuits have addressed the constitutionality of § 3559(c)(3)(A)’s burden shifting

 3   and the clear-and-convincing standard. All eight circuits that have addressed the first issue have

 4   found that § 3559(c)(3)(A) may shift the burden of proof to the defendant. Each based their

 5   holdings on the principles originating from Patterson and Parke that Congress may place the

 6   burden of proof on defendants when creating statutory rights. See United States v. Contreras,

 7   536 F.3d 1167, 1173-74 (10th Cir. 2008); United States v. Bradshaw, 281 F.3d 278, 296-97 (1st

 8   Cir. 2002); United States v. Davis, 260 F.3d 965, 970 (8th Cir. 2001); United States v. Gray, 260

 9   F.3d 1267, 1279 (11th Cir. 2001); United States v. Ferguson, 211 F.3d 878, 886-87 (5th Cir.

10   2000); United States v. Gatewood, 230 F.3d 186, 190 (6th Cir. 2000); United States v. Kaluna,

11   192 F.3d 1188, 1196 (9th Cir. 1999); United States v. Wicks, 132 F.3d 383, 388-89 (7th Cir.

12   1997). For the reasons expressed by these circuits, we join them.

13          Likewise, all four circuits that have examined the shifting of the burden of proof to the

14   defendant to establish an affirmative defense to a sentencing enhancement by clear and

15   convincing evidence have found it to be constitutional. See United States v. Gurule, 461 F.3d

16   1238, 1249 (10th Cir. 2006); Bradshaw, 281 F.3d at 294-95; Gatewood, 230 F.3d at 191;

17   Ferguson, 211 F.3d at 886-87. We need not reach this issue, however, because Matthews cannot

18   show even by a preponderance of the evidence that the robberies at issue, or Matthews’ past

19   felonies, did not involve the “threat of use of a firearm or other dangerous weapon . . . .” 18

20   U.S.C. § 3559(c)(3)(A)(i).

21          Matthews did not rebut the testimony from witnesses at the second of the robberies at


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 1   issue that they saw him with “a gun in hand,” and heard him say that “nobody [would] get hurt”

 2   if they obeyed his commands, or the testimony of his accomplice that a hand drill, disguised with

 3   black tape, was used during the robbery. At sentencing, Matthews’ counsel conceded Matthews

 4   had used a hand drill disguised as a gun to intimidate victims during the robbery. Regarding the

 5   two prior convictions, defense counsel conceded that Matthews used a handgun in his 1983

 6   robbery and used a water pistol that looked like a weapon to intimidate his victims in his 1993

 7   bank robbery. We agree with the district court that it is irrelevant for purposes of analysis under

 8   § 3559(c)(3)(A)(i) whether or not the object Matthews brandished was actually a handgun where

 9   Matthews used the object to create the impression that he was committing the robbery with a

10   weapon. See Matthews, 20 F.3d at 553-54 (holding that the district court properly treated

11   defendant brandishing a toy gun as having carried a “dangerous weapon” for purposes of

12   sentencing enhancement) (involving Matthews’ 1993 robbery conviction, one of the

13   § 3559(c)(1)(A)(i) prior convictions at issue).

14          As to Matthews’ Apprendi claim, we find it foreclosed by our case law. See Snype, 441

15   F.3d at 147-49. We also reject Matthews’ due process argument, raised for the first time in a

16   motion filed after the jury’s verdict, based on a juror seeing Matthews being escorted through the

17   courthouse by marshals in handcuffs and prison clothes.5


            5
              Matthews filed his motion to set aside the verdict on this ground two months after his
     conviction, well after the seven-day time limit for such a motion. See Fed. R. Crim. P. 29(c)(1).
     Therefore, the district court had the discretion to deny his motion for untimeliness, see United
     States v. Idowu, 74 F.3d 387, 391 n.3 (2d Cir. 1996), and unless the court committed plain error,
     we will not disturb the denial. See United States v. Gore, 154 F.3d 34, 42 (2d Cir. 1998); Fed. R.
     Crim. P. 52(b).
             A defendant’s due process right to a fair trial is violated if the defendant is made “to stand

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1

2                                                Conclusion

3          The district court’s order convicting and sentencing Matthews is hereby AFFIRMED .




    trial before a jury while dressed in identifiable prison clothes . . . .” Estelle v. Williams, 425 U.S.
    501, 512 (1976); see also United States v. Hurtado, 47 F.3d 577, 581 (2d Cir. 1995) (applying
    Estelle to federal court). While the right to a fair trial may be a substantial right, for plain error
    analysis this Court determines whether the alleged error of the district court, namely denying
    Matthews’ motion to set aside the verdict, prejudicially affected that substantial right. See
    United States v. Fell, 531 F.3d 197, 209 (2d Cir. 2008); see also Gore, 154 F.3d at 43 (noting an
    error is plain if it is “so egregious and obvious as to make the trial judge and prosecutor derelict
    in permitting it”).
             This inquiry goes to the substance of the alleged violation: whether the error of allowing a
    juror to see Matthews being escorted by marshals through the courthouse in handcuffs and prison
    clothes once prior to conviction violated the right to a fair trial or whether such error was
    harmless beyond a reasonable doubt. See Hurtado, 47 F.3d at 581. In Hurtado, this Court
    determined that allowing the jury to see a defendant in prison clothes during the first day of trial
    was harmless error considering the length of time the defendant spent in prison clothes in view of
    the jury and the weight of the evidence against him. Id. at 582. Matthews’ alleged violation is
    even less egregious than the violation in Hurtado. Matthews did not appear in prison clothes or
    handcuffs at trial, he was only seen by one juror, and the juror only saw him for a short time as he
    was escorted through the building. This does not rise to the level of an egregious violation of the
    rights articulated in Estelle, any error in allowing the juror to see Matthews was harmless, and
    therefore the district court did not err in denying Matthews’ motion to set aside the verdict.

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