                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2009

USA v. Tyrone Roane
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3986




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 08-3986
                                    ____________

                          UNITED STATES OF AMERICA,
                                     v.

                                  TYRONE ROANE,
                                               Appellant
                                    ____________

                    On Appeal from the United States District Court
                              for the District of Delaware
                              (D.C. No. 07-cr-00048-001)
                     District Judge: Honorable Gregory M. Sleet
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 2, 2009

  Before: FISHER and CHAGARES, Circuit Judges, and DIAMOND,* District Judge.

                                 (Filed: June 18, 2009)
                                     ____________

                              OPINION OF THE COURT
                                   ____________




      *
       Honorable Paul S. Diamond, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
DIAMOND, District Judge.

       Tyrone Roane appeals from his conviction for possession with intent to distribute

more than five grams of cocaine base; possession of a firearm in furtherance of a drug

trafficking crime; and felon in possession of a firearm. 21 U.S.C. § 841(a)(1), (b)(1)(B);

18 U.S.C. §§ 924(c)(1)(A), 922(g)(1). Roane argues that the District Court:

1) improperly denied his motion to suppress evidence; and 2) should have declared a

mistrial after at least one member of the jury briefly saw Roane in handcuffs at the start of

his trial. For the reasons that follow, we will affirm.

                                              I.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

                                              II.

       We review the denial of a suppression motion for clear error as to the factual

findings, and exercise plenary review of the District Court’s application of law to those

facts. United States v. Veal, 453 F.3d 164, 166 n.2 (3d Cir. 2006); United States v. Coles,

437 F.3d 361, 365 (3d Cir. 2006).

       We review the denial of a motion for mistrial for abuse of discretion. United

States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007).




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                                            III.

       Because we write primarily for the Parties, we will summarize only those facts

pertinent to our analysis.

       On March 27, 2007, a “reliable source” described to Wilmington Police a man who

was selling drugs at 2201 North Pine Street. (App. I at 21.) A short time later, Officers

Kurt Bryson and Shawn Gordon drove by the North Pine Street address in a marked

vehicle and saw Roane (who matched the informant’s description), sitting outside the

residence, which police later learned was owned by Victoria Jones. (Id. at 21-22.)

       When the officers again drove past the house, Bryson called to Roane: “Hey, come

here.” (Id. at 22.) Roane immediately jumped up and ran onto the porch, disregarding

Bryson’s repeated direction that he stop. (Id.) As the police pursued Roane through the

Jones house, a third officer, Brian Witte, waited behind the residence. (Id. at 23.) Roane

left the house through the back door, saw Witte, and threw two white objects and a black

object – which Witte believed was a handgun – into a neighboring yard. (Id.) Roane then

ran back to the rear door of the house, where he encountered police, who arrested him.

(Id. at 24.)

       Roane moved to suppress, inter alia, the evidence police recovered from the

neighboring property: a black handgun and two bags of cocaine base. (App. II at 34.)

After conducting an evidentiary hearing, the Court denied Roane’s Motion. (App. I at

20-32.)



                                             3
       Shortly after Roane’s trial began on March 12, 2008, security personnel informed

Counsel that jurors may have accidentally glimpsed Roane in handcuffs as he left the

courtroom. (App. II at 248-49.) The defense immediately moved for a mistrial. (Id. at

249.) The trial judge denied the Motion without prejudice to renew after the jurors were

individually questioned. (Id.) The judge and the Parties agreed that to avoid creating

prejudice, the voir dire would not include any explicit reference to Roane being

handcuffed. (Id. at 254-63.) The trial judge thus asked each juror whether he or she:

1) had seen Roane after the jurors were dismissed for lunch; and 2) heard anyone else

mention seeing Roane after the jurors were dismissed. If a juror answered yes to either

question, the judge asked whether: 1) that information affected the juror’s ability to judge

Roane fairly and impartially; and 2) the juror understood that Roane was presumed

innocent and that the Government bears the burden of proving him guilty beyond a

reasonable doubt. (Id. at 265-80.)

       During individual voir dire: 1) a juror said he saw Roane in handcuffs, but did not

discuss it with anyone; 2) a juror stated that she heard that “some” jurors had seen Roane

in handcuffs and that this was discussed by at least three jurors; and 3) a juror stated that

he heard “a few jokes made” among the jurors that Roane could not flee because he was

in handcuffs. (Id.) These jurors also stated that nothing they had seen or heard would

affect their ability to decide the case fairly and impartially, that they understood that

Roane is presumed innocent and that the Government bears the burden of proving guilt



                                               4
beyond a reasonable doubt. (Id.) Crediting the jurors’ testimony, the judge again denied

Roane’s renewed motion for a mistrial, and cautioned the entire jury as follows:

         You must make your decision, as you know, in this case based only on the
         evidence that you see and hear in this courtroom. Do not let rumors,
         suspicions, or anything else that you may see or hear outside of this
         courtroom influence your decision in any way.

(Id. at 292.)

         In its final instructions, the District Court again cautioned the jury respecting the

Government’s burden of proof and the presumption of innocence. In addition, the Court

again reminded the jury of its obligation to be fair and to decide the case solely on the

evidence presented in Court. (App. III at 574-88.)

                                               IV.

         Although Roane contends that the police officers lacked reasonable suspicion to

conduct an investigative stop, he does not argue that their seizure of the gun and drugs

was the result of that stop. Presumably this is because the police never conducted an

investigative stop of Roane, who fled as soon as the police called to him. Thus, the

District Court correctly concluded that Defendant was not “seized” until after he

discarded his gun and drugs. See United States v. Crandall, 554 F.3d 79, 84 (3d Cir.

2009).

         As the Supreme Court explained, mere police pursuit of a fleeing individual does

not constitute a stop or a seizure. Rather, a Fourth Amendment stop or seizure occurs

only once the individual submits to the authority of law enforcement or is subject to the

                                                5
application of physical force. California v. Hodari D., 499 U.S. 621, 626 (1991) (“An

arrest requires either physical force . . . or, where that is absent, submission to the

assertion of authority.”). Accordingly, the Hodari D. Court held that because the fleeing

defendant had discarded contraband before he was seized by police, the contraband was

not the fruit of that seizure and not subject to suppression. Id. at 626. We have held

similarly. See United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006).

       Because the police did not physically seize Roane and Roane did not otherwise

submit to the officers’ authority before discarding the gun and drugs, there was no

investigative stop – or any other Fourth Amendment seizure – that preceded or compelled

Roane’s abandonment of the gun and drugs. See United States v. Valentine, 232 F.3d

350, 358 (3d Cir. 2000) (“[I]f the police make a show of authority and the suspect does

not submit, there is no seizure.”). Accordingly, because the recovery of the contraband

was not the fruit of any Fourth Amendment violation, the District Court properly denied

Roane’s motion to suppress.

       Roane also argues that the trial judge should have declared a mistrial after a juror

briefly saw Roane in handcuffs. With other courts of appeals, we have long held that a

brief, unintended glimpse of a defendant in handcuffs is not inherently prejudicial and

does not require a mistrial without an affirmative showing of actual prejudice. See

United States v. Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974) (“The fact that jurors

may briefly see a defendant in handcuffs is not so inherently prejudicial as to require a



                                               6
mistrial.”); United States v. Simpson, 950 F.2d 1519, 1522 (10th Cir. 1991) (collecting

cases).

          Roane believes he made out actual prejudice through the inconsistent answers two

jurors gave on voir dire: 1) one juror testified that she heard at least three jurors discuss

that Roane was in handcuffs, yet only one other juror admitted hearing it discussed; and

2) the only juror to acknowledge seeing Roane in handcuffs stated that he did not discuss

it with anyone.

          These inconsistencies are not significant. The trial judge asked jurors only general

questions regarding what, if anything, they might have seen or heard after being

dismissed for lunch. That a juror may not have thought to mention seeing Roane in

handcuffs – or hearing another juror discuss it – hardly indicates that the juror was lying.

On the contrary, the District Court – which was certainly in the best position to determine

credibility – found that the jurors were truthful. Moreover, all the challenged jurors

confirmed under oath both their ability to be fair and impartial to Roane and their

understanding that the Government had the burden of proving Roane guilty beyond a

reasonable doubt. Moreover, as we have described, the judge also gave the entire jury

further instructions reiterating their obligation to be fair and follow the law.

          In these circumstances, we believe that Roane has not shown actual prejudice and

the District Court did not abuse its discretion in denying his motion for a mistrial. See

United States v. Waldon, 206 F.3d 597, 608 (6th Cir. 2000).



                                                7
                                     V.

For the reasons stated, we will affirm the judgment of the District Court.




                                      8
