       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v.                 Nos. 01-2090; 02-1009
    ELECTRONIC CITATION: 2003 FED App. 0426P (6th Cir.)        Delgado, et al.
                File Name: 03a0426p.06
                                                          Michigan, for Appellee. ON BRIEF: Thomas J. Plachta,
                                                          PLACHTA LAW OFFICES, Mt. Pleasant, Michigan, Richard
UNITED STATES COURT OF APPEALS                            Ginsberg, Ann Arbor, Michigan, for Appellants. Janet L.
              FOR THE SIXTH CIRCUIT                       Parker, ASSISTANT UNITED STATES ATTORNEY, Bay
                _________________                         City, Michigan, for Appellee. Rudy Delgado, Jr., Pekin,
                                                          Illinois, pro se.
 UNITED STATES OF AMERICA , X                                                 _________________
             Plaintiff-Appellee, -
                                    -                                             OPINION
                                    -  Nos. 01-2090;                          _________________
            v.                      -  02-1009
                                     >                      DAVID A. NELSON, Circuit Judge. The primary issue
                                    ,
 RUDY DELGADO, JR.                                        presented in these criminal appeals is whether the district
                                    -
 (01-2090) and EDUARDO                                    court’s method of jury selection – a method in which the
                                    -
                                                          parties were required to reduce a pool of 30 qualified jurors
 FLORES (02-1009),                  -
                                                          to a panel of 14 by using all of their peremptory challenges,
        Defendants-Appellants. -                          with the court then designating two alternates by random
                                    -
                                                          draw immediately before the beginning of jury deliberations
                                   N
                                                          – violated, to the defendants’ prejudice, Rule 24 of the
       Appeal from the United States District Court       Federal Rules of Criminal Procedure. We conclude that the
      for the Eastern District of Michigan at Detroit.    random designation of alternates at the end of the trial was
    No. 00-81120—Victoria A. Roberts, District Judge.     inconsistent with Rule 24(c), but that the violation did not
                                                          affect the defendants’ substantial rights. On that basis, and
       Argued and Submitted: September 12, 2003           because we reject all remaining claims of prejudicial error
                                                          (with the exception of an ineffective assistance of counsel
         Decided and Filed: December 5, 2003              claim that would more appropriately be raised in a collateral
                                                          proceeding), the challenged judgments will be affirmed.
  Before: NELSON, GIBBONS, and SUTTON, Circuit
                     Judges.                                                             I
                  _________________                         Rudy Delgado, Jr., and Eduardo Flores were indicted on
                                                          charges of conspiracy to possess and distribute more than 500
                       COUNSEL                            grams of cocaine, use of communications facilities to
                                                          facilitate the distribution of cocaine, and possession and
ARGUED: Thomas J. Plachta, PLACHTA LAW OFFICES,           distribution of cocaine. They were jointly tried before a jury.
Mt. Pleasant, Michigan, for Appellant. Janet L. Parker,
ASSISTANT UNITED STATES ATTORNEY, Bay City,

                            1
Nos. 01-2090; 02-1009                          United States v.         3    4       United States v.                       Nos. 01-2090; 02-1009
                                               Delgado, et al.                       Delgado, et al.

   The district court used a form of the “struck jury” method                United States Constitution. The court denied the motion but
of jury selection.1 After screening for cause and thereby                    expressed a willingness to designate as alternates the “last
reducing the jury pool to 30 qualified members, the district                 two” jurors called. When Delgado’s lawyer’s definition of
court required the government and the defense to exercise all                the “last two” jurors proved different from the government’s,
of the peremptory strikes allowed under Rule 24(b), Fed. R.                  however, the court adhered to its plan to select alternates
Crim. P., leaving 14 jurors.2 The attorneys for the defendants               randomly. 3
initially misunderstood the court’s procedure, believing that
jury selection would be complete, even if some peremptory                      Mr. Delgado’s attorney gave an opening statement before
strikes remained unused, once the “first” 14 jurors were                     the government presented its case, but Mr. Flores’ attorney
acceptable to both the government and the defense. When the                  reserved his opening until the government rested. At that
defense attempted to “pass” a round of peremptory strikes,                   time, Flores’ lawyer gave a statement indicating that Flores
however, the court explained that “[n]o one of the 30 has any                would testify and that his testimony would paint Delgado as
priority over anybody else” and that all of the parties’                     a drug dealer. Mr. Delgado moved for a severance at this
peremptory strikes would therefore have to be used to select                 point, citing “inconsistent defenses.” The district court
a panel of 14 jurors. Mr. Delgado objected to the court’s                    denied the motion.
procedure, but the court overruled the objection.
                                                                               The jury convicted the defendants of conspiracy and other
   The district court had informed the parties that it would use             offenses. Delgado was sentenced to 135 months of
a random draw to remove two alternates from the panel of 14                  imprisonment, and Flores was sentenced to 27 months. Each
just before the jury was sent to deliberate. Mr. Delgado                     defendant filed a timely appeal.4
objected to this procedure also. Joined by Mr. Flores, he
moved for a mistrial on the grounds that the court’s method                                                       II
of selecting jurors and alternates violated Rule 24 and the
                                                                               Jury selection procedures, including the manner in which
                                                                             peremptory challenges are exercised, are traditionally left to
    1
      Most courts use a version of either the “struck jury” or the “jury
                                                                             the discretion of the district courts. See, e.g., United States v.
box” method of jury selection. Under the struck jury method , “for-cause     Mosely, 810 F.2d 93, 96-97 (6th Cir.), cert. denied, 484 U.S.
challenges are made first, until a sufficiently large panel of qualified     841 (1987); United States v. Morris, 623 F.2d 145, 151 (10th
jurors remains to fill the juror and alternate juror positions sho uld all
peremptory challenges be exercised against different jurors.” United
States v. Underwood, 122 F.3d 389, 393 n.4 (7th Cir. 1997 ), cert. denied,       3
524 U.S. 93 7 (1998). U nder the jury bo x method , “the parties exercise           Mr. Delgado’s lawyer believed that the “last two” jurors were tho se
both their for-cause and peremptory challenges one juror at a time during    sitting furthest from the first seat in the jury box when the peremptory
voir dire questioning.” Id.                                                  strike process began, while the governm ent attorney believed that the “last
                                                                             two” were the final two jurors called from the venire to replace
    2                                                                        prospective juro rs who were excused for cause.
      Rule 24(b)(2) affords the government six peremptory challenges and
the defendant or defendants 10 peremptory challenges in felony cases.            4
See Fed. R. Crim. P. 24(b). District courts “may allow additional                  In addition to the jury selection issues, Flores’ appeal raised several
peremptory challenges to multiple defendants,” id., but the court did not    issues relating to his sentence. Those issues are now moot, Flores having
do so in this case.                                                          been released fro m custody.
Nos. 01-2090; 02-1009                          United States v.         5    6    United States v.                  Nos. 01-2090; 02-1009
                                               Delgado, et al.                    Delgado, et al.

Cir.), cert. denied, 449 U.S. 1065 (1980). In criminal trials,                  We are not persuaded that any such diminution constituted
that discretion is circumscribed by Rule 24 of the Federal                   a meaningful impairment of the defendants’ right to
Rules of Criminal Procedure.5 We must therefore decide                       peremptory challenges. In United States v. Martinez-Salazar,
whether the defendants were “denied any right for which Rule                 a criminal defendant lost the strategic use of a peremptory
24 provides.” United States v. Martinez-Salazar, 528 U.S.                    challenge when he exercised the challenge against a juror who
304, 313 (2000).                                                             should have been excused for cause. See Martinez-Salazar,
                                                                             528 U.S. at 308-09. The Supreme Court, observing that the
                                   A                                         defendant was accorded the full allotment of challenges
                                                                             allowed by Rule 24(b), held that his right to peremptory
  We turn first to the defendants’ argument that they were                   challenges was not impaired. See id. at 317. Under
improperly required to use all of their peremptory challenges.               Martinez-Salazar, we believe, the inability of defendants “to
Rule 24(b) prescribes the number of peremptory challenges                    make maximum strategic use of their peremptory challenges”
that must be allowed in criminal trials but says nothing about               does not invalidate a district court’s method of exercising
the method by which such challenges are to be exercised. See                 peremptories. United States v. Patterson, 215 F.3d 776, 779-
United States v. Underwood, 122 F.3d 389, 392 (7th Cir.                      80 (7th Cir.), vacated in part on other grounds, 531 U.S.
1997), cert. denied, 524 U.S. 937 (1998); Morris, 623 F.2d at                1033 (2000). The defendants must identify some other defect
151. District courts are thus free to use any method that does               in the district court’s procedure if they are to show that Rule
not prevent defendants from intelligently exercising the                     24(b) was violated.
challenges to which they are entitled. See Underwood, 122
F.3d at 392.                                                                   The defendants’ only other argument is that the required
                                                                             use of all peremptory challenges conflicts with the “historic
   Here the defendants argue that the district court’s chosen                purpose” of peremptories by forcing parties to strike jurors
method – a “struck jury” system, to repeat, in which jurors                  that they find acceptable. But the defendants were not forced
were not seated in a sequence – impaired the ability of                      to strike jurors that they preferred over the remaining jurors;
defense counsel to exercise professional judgment when using                 they were only required to strike the jurors they perceived as
peremptory challenges. The defendants presumably wished                      least favorable. We do not think the district court’s procedure
to maximize the strategic value of their peremptory strikes by               was inconsistent with the “true nature of the peremptory
focusing on the jurors who were most likely to sit. With none                challenge right,” which is to allow the rejection (not the
of the 30 qualified jurors more likely to sit than any other, the            selection) of prospective jurors. Mosely, 810 F.2d at 97
value of any individual strike was arguably diminished.                      (citing Pointer v. United States, 151 U.S. 396 (1894)). There
                                                                             was no impermissible impairment of the defendants’ right to
                                                                             exercise peremptory challenges under Rule 24(b).

    5
                                                                                                            B
      Peremptory challenges are “auxiliary” to the Sixth Amendm ent right
to an impartial jury; they are not themselves constitutionally guaranteed.     Now we turn to the district court’s designation of alternates.
See, e.g., United States v. Martinez-Salazar, 528 U.S. 304 , 311 (2000 ).    At the time of the defendants’ trial, Rule 24(c) provided that
The right to peremptory challenges in federal criminal trials is secured –
and governed – by Rule 24. See id.
Nos. 01-2090; 02-1009                           United States v.          7    8       United States v.                     Nos. 01-2090; 02-1009
                                                Delgado, et al.                        Delgado, et al.

  “The court may empanel no more than 6 jurors, in                                Federal rules of procedure should not, of course, be
  addition to the regular jury, to sit as alternate jurors. An                 disregarded by courts any more than by litigants. We
  alternate juror, in the order called, shall replace a juror                  “encourag[e] strict adherence” to Rule 24(c). Sivils, 960 F.2d
  who becomes or is found to be unable or disqualified to                      at 594. “Not every violation of Rule 24,” however, “calls for
  perform juror duties.”6                                                      reversal.” Love, 134 F.3d at 601 (internal quotation marks
                                                                               omitted). A violation of the rule constitutes reversible error
This provision, as we read it, assumes that alternate jurors                   only if it affected the defendant’s substantial rights – i.e., if it
will be designated separately – and sequentially – before the                  caused actual prejudice to the defendant. Fed. R. Crim. P.
trial begins.7 The district court’s selection of alternates by                 52(a); see, e.g., Brewer, 199 F.3d at 1286-87; Love, 134 F.3d
random draw just prior to jury deliberations was inconsistent                  at 601; Sivils, 960 F.2d at 593.
with the rule. See, e.g., United States v. Brewer, 199 F.3d
1283, 1286-87 (11th Cir. 2000); United States v. Love, 134                       In the case at bar, we are not persuaded that the district
F.3d 595, 601 (4th Cir. ), cert. denied, 524 U.S. 932 (1998);                  court’s method of selecting alternates actually prejudiced the
and United States v. Sivils, 960 F.2d 587, 593-94 (6th Cir.),                  defendants. All of the prospective jurors had been passed for
cert. denied, 506 U.S. 843 (1992), in which we characterized                   cause and presumably were impartial. Further, the drawing
a random draw of alternates just before the jury retired to                    of alternates by lot was a neutral procedure that in no way
deliberate as a “departure from Rule 24(c).”8                                  advantaged the government.9 Cf. Love, 134 F.3d at 602
                                                                               (violation of Rule 24(c) that accorded the government no
                                                                               advantage was not prejudicial). Mr. Delgado has asserted that
                                                                               the jurors drawn as alternates “were the best defense jurors,”
    6                                                                          but that is nothing more than speculation – and speculation
     Rule 24 was amended in 2002, but the changes to subsection (c)            cannot support a finding of actual prejudice. See id. at 602-
were “intended to be stylistic only.” Fed. R. Crim. P. 24, advisory
comm ittee notes.                                                              03; Sivils, 960 F.2d at 594. Finally, the consensus among this
                                                                               and other courts of appeals is that similar violations of Rule
    7
      According to one court of appeals, Rule 24(c) “assumes that jurors       24(c) are harmless. See, e.g., United States v. Sogomonian,
will be selected either by the jury-box system or by a struck-jury method      247 F.3d 348, 353 (2d Cir. 2001); Brewer, 199 F.3d at 1287;
in which defend ants know the seq uence in which m embe rs of the pool         Love, 134 F.3d at 601-03; United States v. Olano, 62 F.3d
will be seated.” United States v. Patterson, 215 F.3d 77 6, 780 (7th Cir.),    1180, 1190 n.3 (9th Cir. 1995), cert. denied, 519 U.S. 931
vacated in part on other grounds, 531 U.S. 1033 (2000). We agree               (1996); Sivils, 960 F.2d at 594.
insofar as the selection of alternates is concerned . The rule do es not, we
believe, prohibit a district court from selecting 12 regular jurors through
a struck jury method in which the jurors are not put in a sequence, so long
as the alternates are separately selected in a distinct order.

    8
       In United States v. Broadus, 7 F.3d 460, 463 n.1 (6th Cir. 1993), we        9
criticized a procedure in which alternates were selected random ly because           Indeed, Flores’ attorney agreed at trial that “it would be better to
the district court did not allow ad ditional perem ptory challenges as         choose the two alternates by lot at the end,” given the district court’s
required by Rule 24(c). That criticism does not apply in the case at bar,      method of impaneling the jury. Because Flores objected to the district
because both defendants waived the right to additional peremptory              court’s method, we do not interpret this statement as a waiver of the
challenges.                                                                    alternates issue.
Nos. 01-2090; 02-1009                    United States v.      9    10   United States v.                  Nos. 01-2090; 02-1009
                                         Delgado, et al.                 Delgado, et al.

  To repeat, we do not condone departures from the literal                                        IV
requirements of Rule 24(c). The rule “represents a national
consensus of bench and bar and ought not to be disturbed.”            Mr. Delgado is represented on appeal by his trial attorney,
Love, 134 F.3d at 601 (internal quotation marks omitted). In        Thomas Plachta. We accepted a pro se brief from Mr.
the absence of actual prejudice to the defendants, however,         Delgado, however, in which he raised several issues that were
there is no basis for reversal.                                     not raised in the brief filed by his lawyer. One of those issues
                                                                    is a claim that Mr. Plachta provided constitutionally
                               III                                  ineffective assistance at trial insofar as he failed to request
                                                                    certain jury instructions.
   Mr. Delgado argues that the district court abused its
discretion by denying his motion for severance. Because               Ordinarily, a claim of ineffective assistance of counsel
“[f]ederal courts strongly favor joint trials,” the district        should be raised in a collateral proceeding so that a record can
court’s ruling is “entitled to great deference.” United States      be developed on the merits of the claim. See, e.g., United
v. Breinig, 70 F.3d 850, 852-53 (6th Cir. 1995). We are not         States v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996). The
persuaded that the district court erred.                            parties suggest that the record is sufficient in this case for
                                                                    disposition of Delgado’s claim on direct appeal. Be that as it
   A motion for severance should be granted if there is “‘a         may, an appeal in which Mr. Plachta continues to represent
serious risk that a joint trial would compromise a specific trial   Mr. Delgado is not a proceeding in which we would feel
right of one of the defendants, or prevent the jury from            comfortable deciding the claim that Mr. Plachta was
making a reliable judgment about guilt or innocence.’” Id. at       ineffective. We prefer to remit the ineffective assistance
853 (quoting Zafiro v. United States, 506 U.S. 534, 539             claim to a proceeding under 28 U.S.C. § 2255, should Mr.
(1993)). There was no such “serious risk” in this case.             Delgado choose to pursue that means of relief.
Delgado has not contended that the joint trial compromised
any of his specific trial rights. Nor has he demonstrated that                                     V
the joint trial undermined the reliability of the jury’s verdict.
                                                                      None of the remaining claims raised in Mr. Delgado’s pro
  Delgado maintains that Mr. Flores’ testimony unfairly             se brief requires reversal.
prejudiced him. It is hard to see how, given that Flores’
testimony (so far as it related to Delgado) was largely                                            A
cumulative of an informant’s testimony that Delgado had sold
the informant cocaine. In any event, Flores’ testimony would          Mr. Delgado argues that the government violated the rule
have been admissible against Delgado regardless of whether          of Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn
the defendants were tried separately.               Under the       over materials that could have been used to impeach Ronald
circumstances, it does not seem to us that the denial of the        Carboni, an informant who testified for the government.
motion for severance could have caused the “compelling and          Specifically, Delgado says that transcripts of Mr. Carboni’s
unfair” prejudice necessary to call the reliability of the jury’s   testimony in previous trials, transcripts of Carboni’s own plea
verdict into doubt. Breinig, 70 F.3d at 853.                        and sentencing hearings, an investigative report on Carboni’s
                                                                    drug activities, and records of government payments to
Nos. 01-2090; 02-1009                           United States v.       11     12   United States v.                Nos. 01-2090; 02-1009
                                                Delgado, et al.                    Delgado, et al.

Carboni were withheld in violation of Brady. We are not                       he not made a deal. Delgado has not explained how the
persuaded.10                                                                  materials that he argues should have been disclosed would
                                                                              have improved his attorney’s ability to impeach Carboni and
   First, because they are records of public court proceedings,               ultimately to secure an acquittal. Thus, we cannot conclude
transcripts of Mr. Carboni’s trial testimony, plea hearing, and               that the materials “undermine[] confidence in the outcome of
sentencing hearing were available to Mr. Delgado from                         the defendant’s trial,” as is required for a Brady violation.
sources other than the prosecution. Brady does not apply to                   Corrado, 227 F.3d at 538.
materials that are not “wholly within the control of the
prosecution.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998),                                              B
cert. denied, 528 U.S. 842 (1999).
                                                                                Mr. Delgado also argues that the government violated the
   Second, the investigative report does not seem to have been                rule in Giglio v. United States, 405 U.S. 150 (1972), by
materially inconsistent with Mr. Carboni’s trial testimony. In                failing to correct false testimony offered by Mr. Carboni.
any event, Mr. Delgado’s attorney had the report during trial                 Delgado has not shown, however, that any of the testimony in
and could have recalled Carboni to question him about it. It                  question – all of which dealt with Carboni’s conduct, not
follows from this that the report is not Brady material. See,                 Delgado’s – was materially false. Carboni might have
e.g., United States v. Corrado, 227 F.3d 528, 538 (6th Cir.                   downplayed his own culpable behavior, but, as noted above,
2000) (noting that Brady applies to suppressed exculpatory                    the facts of Carboni’s plea agreement, conviction, and
evidence that “was not discovered by the defendant until after                sentence were made known to the jury. We do not see how
trial”).                                                                      any self-serving shading of testimony by Carboni could have
                                                                              significantly prejudiced Delgado.
  Third, Mr. Delgado has not shown that the government
failed to disclose any records of payments to Mr. Carboni.                                                 C
See Coe, 161 F.3d at 344 (holding that the defendant bears
the burden of proving that materials were not disclosed to                      Finally, Mr. Delgado argues that there was insufficient
him).                                                                         evidence of his having conspired with anyone to possess and
                                                                              distribute cocaine. He contends that the evidence showed
  Finally, the jury was made aware that Mr. Carboni had been                  only that he had dealings with Mr. Carboni, who, as a
convicted on drug charges and was testifying pursuant to a                    government informant, cannot be a conspirator. See United
plea agreement with the government. Mr. Delgado’s lawyer                      States v. Williams, 274 F.3d 1079, 1084 (6th Cir. 2001).
cross-examined Carboni about his plea agreement, the
judgment in his criminal case, and the sentence he faced had                    Contrary to Mr. Delgado’s contention, the jury heard
                                                                              evidence that he conspired with persons other than Mr.
                                                                              Carboni. Carboni testified, for example, that his first
    10                                                                        purchase of cocaine from Delgado was facilitated by Mr.
       It appears that Delgado raised a Brady claim in the district court
only as to the investigative report. The district court’s rejection of that   Flores. Carboni also described three-way telephone calls with
claim is reviewed de novo , see, e.g., United States v. Corrado, 227 F.3d
528, 538 (6th C ir. 200 0), while the other aspects of his Brady challenge
are reviewed under a “plain error” standard, see Fed. R. Crim. P. 52(b).
Nos. 01-2090; 02-1009                          United States v.        13
                                               Delgado, et al.

Delgado and a person named “Dee,”11 during which Delgado
instructed Dee to provide Carboni with cocaine. Delgado has
not shown that the evidence, taken in the light most favorable
to the government, would not permit a reasonable jury to find
him guilty of conspiracy. See Jackson v. Virginia, 443 U.S.
307, 319 (1979).
                                   VI
  The judgments entered against Mr. Delgado and Mr. Flores
are AFFIRMED. Mr. Delgado remains free to raise his
claim of ineffective assistance of trial counsel by way of a
motion under 28 U.S.C. § 2255 to vacate his sentence.




   11
        There was testimony that D ee’s full name is Daniel Cabasas.
