                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2001

United States v. Richards
Precedential or Non-Precedential:

Docket 99-3966




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Filed February 26, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3966

UNITED STATES OF AMERICA,

v.

DON RICHARDS,
       Appellant

Appeal from the District Court of the V irgin Islands
(Divisions of St. Thomas and St. John)
(D.C. Crim. No. 98-cr-00227-1)
District Judge: Honorable Thomas K. Moore

Argued
December 5, 2000

Before: MANSMANN and ALITO, Circuit Judges,
and ACKERMAN, District Judge.*

(Filed: February 26, 2001)

       James A. Hurd, Jr.
        United States Attorney
       Carl F. Morey (Argued)
        Assistant U.S. Attorney
       Office of the United States Attorney
       1108 King Street, Suite 201
       Christiansted, St. Croix
       USVI, 00820

        Counsel for Appellee
_________________________________________________________________

* Honorable Harold A. Ackerman, United States District Judge for the
District of New Jersey, sitting by designation.
       Richard Della Fera, Esquire (Argued)
       Alvin E. Entin, Esquire
       Entin, Margules & Della Fera, P.A.
       200 East Broward Boulevard
       Suite 1210
       Fort Lauderdale, FL 33301

        Counsel for Appellant

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Don Richards appeals his conviction for crimes involving
the robbery1 of a Brink's ar mored van in St. Thomas, the
Virgin Islands. He contends that he is entitled to a new trial
for three separate reasons: (1) violation of his Sixth
Amendment right arising from the admission of an out-of-
court statement given by a non-testifying co-defendant; (2)
violation of the Jencks Act based on the gover nment's
failure to produce an FBI agent's written report concerning
the co-defendant's oral statements; and, (3) jur or
misconduct.

We conclude that the admission of the co-defendant's
statement violated Richards' Sixth Amendment right to
confront witnesses under Bruton v. United States, 391 U.S.
123 (1968). Richards' failure to object to this admission
during trial, however, allows him relief only if the plain
error tenets of Fed. R. Crim. P. 52(b) apply. Under this
doctrine, we find that the error was not r eversible.
Overwhelming evidence of Richards' guilt exists
independent of the statement; therefore, no manifest
injustice occurred at trial.

The Jencks Act argument fails for the identical reason.
We hold that the government's failur e to produce the FBI
_________________________________________________________________

1. Richards was found guilty of conspiracy in violation of 18 U.S.C.
S 371, interference with commer ce and aiding and abetting in violation
of 18 U.S.C. SS 1951 and 2; possession offirearm during crime of
violence in violation of 18 U.S.C. S 924(c)(1); and, first degree robbery
and aiding and abetting in violation of 14 V .I.C. SS 1862(2) and (11).

                                2
agent's written report of the co-defendant's oral statement
violated the Act, but Richards' concomitant failure to object
necessitates plain error review. As with the Sixth
Amendment issue, because the fairness of the trial was not
seriously affected, a new trial is not justified.

Finally, we hold that the District Court did not abuse its
discretion in denying two motions for mistrial based on
juror misconduct. Deciding the first motion alleging intra-
jury influence would require the court delving into the
juror's deliberative process -- an inquiry prohibited by Fed.
R. Evid. 606(b). The second motion alleging jur or bias was
unfounded. The juror acknowledged during voir dire that he
knew one of the government witnesses but r emained
capable of impartially evaluating the evidence. Ther e is no
evidence to demonstrate that the juror disr egarded his
obligation to remain unbiased.

We will, therefore, affir m.

I.

Don Richards and Theodore Greenaway were tried jointly
on the offenses arising from the r obbery of the Brink's
armored van. According to the trial testimony, Richards
and Greenaway ambushed the Brink's messenger , Mark
Kuffy, and Richards put a gun to Kuf fy's head, demanding
money. Richards hit Kuffy in the head with the gun and
knocked him to the floor of the van. He then collected the
bags of money from the van and tossed them to Greenaway.

Two days after the robbery, the driver of the van, Ignatius
Stevens, confessed to being the inside man in the r obbery.
He identified Richards as the person who assaulted Kuffy
and Greenaway as his accomplice.

Greenaway was arrested and interviewed by law
enforcement officers. In his interview Gr eenaway revealed
that "Don and the other guy who works for Brink's planned
the robbery." Greenaway then signed a written confession
conceding participation in the robbery, but withholding the
name of the individual collaborating in the crime. FBI
Special Agent Steven Harker documented the interview,
including Greenaway's oral statement, in an FBI FD302

                                3
report. When Richards was arrested later that day he made
no statement.

Richards and Greenaway were tried jointly. In pretrial
discovery, Richards' counsel received a r eport authored by
Special Agent Harker, which informed that Greenaway
confessed that he and his "friend" had committed the
robbery. The report noted that Greenaway declined to give
a name to his "friend."

At trial, Stevens, the Brink's driver, testified that he and
Richards planned the robbery for two weeks. On the day of
the crime, he observed Richards walk by the van, turn
around and walk back. Although Richards was sporting
Rastafarian dreadlocks and sunglasses, Stevens recognized
Richards by his distinctive walk (a pronounced limp).

Stevens then testified   that on the following mor ning he
met with Richards, who   told him that he hid Stevens' share
of the money, $25,000,   in a particular location. At that
designated spot, Smith   retrieved the money.

Special Agent Harker testified next and read Greenaway's
written statement into the record. The portion relevant to
this appeal follows:

       The first time I heard about the idea of r obbing the
       Brink's armored van was when a friend, whom I do not
       wish to name, spoke to me about it. He and I talked
       and my friend told me it would be easy to rob the
       armored car since there was an inside man. . . . The
       next time I met with my friend was on the day of the
       robbery.

The statement continued with the description of the
different roles Greenaway and his "friend" played in the
robbery.

On cross-examination, Richards' attor ney asked Special
Agent Harker whether Greenaway had mentioned Richards
by name. The exchange was as follows:

       Q: Mr. Harker, the statement Mr . Greenaway made,
       he made this statement after you had Mr. Richards
       in custody, correct?

       A: Yes, that's correct.

                                 4
       Q: And you questioned Mr. Greenaway, right?

       A: Yes, I did.

       Q: About who is his friend, correct?

       R: That's correct.

       Q: And he never told you his friend was Don
       Richards, correct? That the friend that he refers to
       in here is Don Richards.

       A: (Pause)

       Q: You don't remember?

       A: I do remember.

       Q: Tell me who he said his friend was since you
       know.

       A: He told me that he had a friend named Don, yes.

       Q: Excuse me?

       A: He told me he had a friend named Don.

       Q: But Don is not the friend that he is r eferring to as
       committing the robbery with him?

       A: That is not correct.

       Q: That's not correct?

       A: That is not correct.

       Q: You're saying the friend he r eferred to in here is
       Don Richards? That's what you are saying?

       A: What I'm saying is that when we interviewed Mr .
       Greenaway, in the beginning of the interview--

At this point, the attorney for the gover nment requested
a side bar conference:

       MR. ADAMS: One of the things that we want to take
       evidence is to prevent a Bruton problem
       with one defendant Greenaway
       implicating the other defendant.

       THE COURT: That's only in the Gover nment's case.
       So what is your problem?
5
       MR. ADAMS: One of the reasons my agent is
       hesitated (sic) --

       THE COURT: You told him never to mention it. That
       is on your examination, not defense
       counsel's examination.

       MR. ADAMS: I want to make sure you r ealize that.

On redirect, the government further explored the mention
of Richards in Harker's interview with Gr eenaway:

       Q: You were asked questions by [the defense attorney]
       about whether or not the defendant during your
       conversations with him mentioned Don Richards
       at all; do you remember that?

       A: Yes, I do.

       Q: He doesn't mention it in the written statement,
       correct?

       A: That is correct.

       Q: Does he mention Don Richards' name at all during
       the time you interviewed him, that night?

       A: He mentioned the name of Don during the
       interview.

       Q: Tell us why that name came up, why did he
       mention that name?

       A: In the beginning of the interview, one of the things
       we asked him -- because of the information we
       developed during the case was, we did not believe
       that he was the number one participant, the head
       king pin in this. So we asked him, we said, I said
       to him, "you weren't the one who planned this,
       were you? And Mr. Greenaway's r esponse was no,
       that was Don and the other guy who works for the
       Brinks, for Brinks.

Then, on recross, it was first ascertained by the defense
that Harkin's FD302 report reiterated Gr eenaway's oral
statement implicating Richards.

       Q: Mr. Harker, of course you don't have any
       memorandum of that statement, correct?

                               6
       A: That's not correct.

       Q: You have one?

       A: I don't have one on my person, no.

       Q: Does the U.S. Attorney have one?

       A: He has, yes.

       Q: The memorandum of that kind of information?

       A: We did a report, an FD302 to that effect, yes. It
       would have accompanied or should have
       accompanied the statement.

       THE COURT: You don't have it, counsel?

       MR. WATLINGTON: Of course not, your Honor.

When the government was questioned about Harker's FD
302 Report, it responded that although the document had
been produced in discovery, it was not disclosed because
the government had made a conscious decision that the
evidence should not go in to avoid the Sixth Amendment
dilemma which surfaces in joint trials of co-defendants. The
report was then provided to defense counsel.

After some discussion of the complication posed   by
Harker's testimony, the court asked the parties   how they
wished to proceed. Both defense counsel concurr   ed that
they were ready to proceed and no objection was   made.

The trial progressed. The remaining significant testimony
introduced by the prosecution was elicited from Richards'
mother, who testified that Greenaway and Richards were
"friends." This testimony obviously led the jury to assume
that the "friend" mentioned in Greenaway's statement was
Richards.

When it came time to instruct the jury, at the
government's request the District Court instructed the jury
not to consider the portion of Special Agent Harker's
testimony relating to Greenaway's statement referring to
"Don." There were no objections to the jury charge.

Three months after the jury delivered its guilty verdict on
all counts, Richards filed a motion for a new trial based on
the affidavit submitted by an alternate jur or, Jasha Joseph.

                                7
The affidavit alleged that during the trial two other jurors,
in the presence of other members of the panel, had opined
that Richards was guilty. The District Court denied the
motion without a hearing because disposition of the motion
would require an inquiry into jury deliberations prohibited
by Fed. R. Evid. 606(b).

Six months after the verdict, but prior to sentencing,
Richards filed a pro se motion for a new trial concerning
the juror, who was eventually elected jury foreman, and
that juror's familiarity with the gover nment's chief witness,
Ignatius Stevens, and Stevens' family.

During sentencing, the District Court reviewed the
transcript of the voir dire of the juror in question. The juror
acknowledged that he knew Stevens but assured the court
that he would judge the case strictly on the evidence. The
District Court noted that defense counsel questioned the
prospective juror but did not challenge his selection. The
District Court, therefore, denied this second motion for a
new trial.

Richards was sentenced to 121 months of imprisonment
on the Hobbs Act charge and 60 consecutive months of
imprisonment on the firearms char ge. The sentence
imposed on the Virgin Islands char ges was ordered to run
concurrent with the federal charges. A notice of appeal was
filed.

We have jurisdiction under 28 U.S.C. S 1291.

II.

In Bruton v. United States, 391 U.S. 123 (1968), Bruton
and his co-defendant, Evans, were tried jointly before a
jury. At trial, a federal officer testified that Evans had
confessed to the robbery and had implicated Bruton in his
confession. The judge instructed the jury that it should
consider Evans' confession solely in determining Evans'
guilt and that it should disregard the confession with
regard to Bruton's involvement.

The Supreme Court reversed Bruton's conviction, holding
that the introduction of a non-testifying co-defendant's
confession implicating Bruton violated the accused's right

                                8
to confront witnesses secured by the Confr ontation Clause
of the Sixth Amendment. Id. at 126. The Court emphasized
the significance of the confession to bolster the
prosecution's case against Bruton, observing that "Evans'
confession added substantial, perhaps even critical, weight
to the Government's case in a form not subject to cross-
examination since Evans did not take the stand.[Bruton]
was thus denied his constitutional right of confr ontation."
Id. at 128.

The Court also expressed doubts regar ding the remedial
effect of a curative instruction in the Bruton context. The
Court determined that where the incriminating statements
of a co-defendant, "who stands accused side by side with
the defendant, are deliberately spread before a jury in a
joint trial," the risk that the jury may not follow the
instruction is too profound. Id. at 135-36.

A later case, Richardson v. Marsh, 481 U.S. 200 (1987),
limited Bruton's scope. In Richar dson, the confession of a
co-defendant, Williams, was redacted to omit reference to
co-defendant Marsh. Later in the trial, however , Marsh
testified in such a way, that, despite the r edacted
confession, the jury might deduce that Marsh participated
in the crime because of Williams' confession. The Supreme
Court held that the redacted confession fell outside
Bruton's scope because it was evidence r equiring "linkage,"
i.e., it became incriminating only when linked with evidence
introduced later at trial. Id. at 208.

Most recently, in Gray v. Maryland, 523 U.S. 185 (1998),
Anthony Bell confessed to the police that he, defendant
Gray and another man beat a man to death. Bell and Gray
were tried jointly. A redacted statement of Bell's confession
was read by a detective substituting "deleted" or "deletion"
when Gray's name appeared. After reading the confession,
the detective answered affirmatively to the prosecutor's
question whether the officer was able to arr est Gray after
Bell's statement.

The Supreme Court held that the confession in Gray,
which substituted "blanks" and the wor d "delete" for Gray's
proper name, fell within the class of statements to which
Bruton's protective rule applied. Unlike Richardson's

                               9
redacted confession, the confession in Gray referred directly
to Gray's existence. Thus the Court determined that
redactions that simply replace a name with a blank space
or a word such as "deleted" so closely r esemble Bruton's
unredacted statements that the same legal r esult is
warranted. Id. at 195. The Court posited that a jury will
often react similarly to an unredacted confession and a
confession redacted in the Gray manner , because the jury
could easily recognize that the confession r efers to the
defendant. The juror "need only lift his eyes to the [co-
defendant], sitting at counsel table" to deter mine to whom
the deletion refers. Id. at 193.

In the present case, the government contends that the
Bruton error came about only after the defendant's cross-
examination of Special Agent Harker. W e disagree. The
initial reading of the confession of Gr eenaway violated
Bruton. Greenaway's reference to his "friend" was just as
blatant and incriminating of Richards as the word "deleted"
in the Gray case. In Gray, the Court held that the following
redaction violated Bruton:

       "QUESTION: Who was in the group that beat Stacey?

       "ANSWER: Me, deleted, deleted, and a few other guys."
       . . . .

       Why could the witness not instead have said:

       "QUESTION: Who was in the group that beat Stacey?

       "ANSWER: Me and a few other guys."

Gray, 523 U.S. at 208.

Greenaway's statement here was similar . Greenaway's
statement referred to the existence of thr ee participants in
the crime -- Greenaway, the "inside man," and "my friend."
Since the "inside man" was easily identified as the driver of
the Brink's van, the reference to "my friend" sharply
incriminated Richards, the only other person involved in
the case. To further direct the jury to Richards as the
unnamed "friend," the prosecutor called Richards' mother
to testify that Richards and Greenaway wer e friends. We
thus hold that Bruton, as interpreted in Gray, was violated.

                               10
Having concluded that a Bruton error occurred, we turn
to the impact of the introduction of the confession.

Without question, a Bruton err or is one of constitutional
dimension. See United States v. Dispozo Plastics, Inc., 172
F.3d 275, 286, n.10 (3d Cir. 1999). Because of the
significance of the error, we will affirm only if we find that
the error is harmless beyond a reasonable doubt. United
States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000).

The record, however, indicates that the Bruton issue has
not been preserved. When the problem came to light, the
District Court questioned counsel on how the matter
should be handled. Defense counsel elected to pr oceed
without requesting a mistrial. Consequently, a new trial can
be awarded only if the introduction of Gr eenaway's
statement constitutes plain error.

Fed. R. Crim. P. 52(b) provides: "Plain errors or defects
affecting substantial rights may be noticed although they
were not brought to the attention of the Court." This Rule
delineating the plain error exception is, however, used
"sparingly." See United States v. Frady , 456 U.S. 152, 163
n.14 (1982). In United States v. Young , 470 U.S. 1, 15
(1985), the Supreme Court authorized the courts of appeals
to correct only particularly egregious err ors, those that
"seriously affect the fairness, integrity or public reputation
of judicial proceedings." Id. at 15 (quoting United States v.
Atkinson, 297 U.S. 151, 163 (1936)). Only when a
miscarriage of justice would result should we r eview under
Rule 52(b). Frady, 456 U.S. at 165 n.14.

When reviewing for plain error, we consider, on a case-
by-case basis, "the obviousness of the err or, the
significance of the interest protected by the rule that was
violated, the seriousness of the error in the particular case,
and the reputation of judicial proceedings if the error
stands uncorrected. . . ." United States v. Thame, 846 F.2d
200, 205 (3d Cir. 1988). The definitive goal is the
prevention of manifest injustice. Commonwealth of the
Virgin Islands v. Smith, 949 F .2d 677, 681 (3d Cir. 1991).

Admission of a co-defendant's confession can
unquestionably jeopardize the fundamental fair ness of a
criminal trial; an error embroiling the Sixth Amendment

                               11
right to confront witnesses rates high on the significance
scale. The statement in this case, however, was not
sufficiently egregious to requir e a mistrial because the error
was not particularly obvious nor was it serious given the
other evidence of Richards' guilt. The cr edible testimony of
Stevens, the co-conspirator and driver of the Brink's van,
independently identified Richards as the participant in the
robbery who handled the gun and harmed the Brink's
messenger. Stevens also testified that he planned the
robbery with Richards for two weeks and that, after the
robbery, Richards met with him and told him where to pick
up his share of the robbery proceeds.

Additionally, given the District Court's attempt to cure
the problem by asking the attorneys how they wished to
proceed, there is no indication that the r eputation of the
judicial proceedings was tarnished by admission of the
evidence.

Considering all these factors, we hold that a manifest
injustice did not occur by the Bruton err or and that the
admission of the co-defendant's statement was not so
prejudicial as to constitute plain error .

III.

Defense counsel apparently assumed that the FBI agent's
discussion of Greenaway's statement at trial would not
implicate Richards by name. That hope was dashed when
Special Agent Harker revealed that Greenaway had indeed
mentioned Richards as the person who planned the
robbery.

In addition to the Bruton problems raised by the
reference to Richards in Greenaway's undisclosed oral
statement, Richards contends that the gover nment violated
the Jencks Act, 18 U.S.C. S 3500, in failing to disclose
Special Agent Harker's complete report r ecounting
Greenaway's oral statement.

18 U.S.C. S 3500 provides, in relevant part:

       S 3500. Demands for production of statements and
       reports of witnesses

                                12
        (b) After a witness called by the United States has
       testified on direct examination, the court shall, on
       motion of the defendant, order the United States to
       produce any statement . . . of the witness in the
       possession of the United States which relates to the
       subject matter as to which the witness has testified. If
       the entire contents of any such statement r elate to the
       subject matter of the testimony of the witness, the
       court shall order it to be delivered dir ectly to the
       defendant for his examination and use.

18 U.S.C. S 3500(b) (1957).

It is obvious that a Jencks Act violation occurr ed and
that the government's failure to tur n over the material
resulted in the Bruton error . Once again, however, defense
counsel did not make a motion for a mistrial and agr eed to
proceed with the trial. We, ther efore, are restricted to plain
error review.

The same concerns discussed under the Bruton issue --
the significance of the right invoked, the seriousness and
obviousness of the error, and the r eputation of the judicial
proceedings are considered in r eviewing the consequences
of the Jencks Act violation. Our plain error analysis of the
Bruton issue mirrors the reasoning applicable here. A
significant interest was implicated in that the Jencks Act
violation caused the Bruton violation. The obviousness, as
discussed, is questionable because the material was
deliberately withheld to avoid the Bruton pr oblem. The
seriousness also was minimal given the separate r eliable
evidence of Richards' guilt. Factoring in the absence of
damage to the fairness of the judicial pr oceedings, we
conclude that no manifest injustice occurred by the
evidentiary violation.

IV.

Two motions for a new trial based on juror misconduct
were filed following the verdict. Thefirst, filed three months
after trial, was supported by an affidavit fr om an alternate
juror who allegedly witnessed misconduct committed by
two other jurors while the trial was pr ogressing. The basis
of the motion was that the alternate jur or overheard two

                               13
jurors comment in the presence of other jurors and prior to
the close of the evidence that they believed Richar ds was
guilty. The second motion was filed by Richar ds pro se and
concerned statements made by a potential jur or who was
eventually seated. During voir dire, this jur or indicated a
familiarity with the government's chief witness, Ignatius
Stevens. The District Court denied the motion r egarding
intra-jury influence, by relying on Fed. R. Evid. 606(b)
which prevents inquiry by a court to a jury by asking the
effect of information on its ver dict.2

The District Court correctly denied the motion. First, a
Fed R. Crim. P. Rule 33 motion for a new trial based on
juror misconduct requires that the defendant establish, as
a preliminary matter, that the evidence is newly discovered
and that the defendant's failure to discover the information
during the trial was not a result of lack of diligence. The
affidavit by the alternate juror was not presented until
three months after the trial and was vague as to why the
disclosure of improper jury influence was untimely.3 While
the defense asserts that Joseph did not alert the defense
before that time, that does not suffice to cloak the
information as "newly discovered." If the juror had come
forward prior to deliberation, the District Court could have
held a hearing on the possible presence of impr oper intra-
_________________________________________________________________

2. The Rule reads:

        (b) Inquiry into validity of verdict or indictment.

       Upon an inquiry into the validity of a verdict . . ., a juror may
not
       testify as to any matter or statement occurring during the course
of
       the jury's deliberations or to the effect of anything upon that or
any
       other juror's mind or emotions as influencing the juror to assent
to
       or dissent from the verdict . . . or concerning the juror's mental
       processes in connection therewith, except that a juror may testify
on
       the question whether extraneous prejudicial information was
       improperly brought to the jury's attention or whether any outside
       influence was improperly brought to bear upon any juror. Nor may
       a juror's affidavit or evidence of any statement by the juror
       concerning a matter about which the jur or would be precluded from
       testifying be received for these purposes.

3. The affidavit was also unclear as to why Joseph believed that there
was a prejudicial effect upon those jur ors who heard the statements of
the two jurors concerning their pr emature determination of guilt.
14
jury prejudice. Evaluating evidence of misconduct occurring
three months after the fact, however, would require the
District Court to interview the jurors in contravention of
Rule 606(b). Although the statements by the jur ors
occurred prior to deliberation, the jur ors would necessarily
be queried as to their thought process to deter mine
whether or not the premature statements af fected their
verdict. Therefore, inquiry as to the statements of these
jurors would be prohibited under the rule. It was not an
abuse of discretion in the District Court's failure to grant a
new trial based on this allegation of intra-jury influence.
See United States v. Gilsenan, 949 F.2d 90, 97 (3d Cir.
1991) ("Of course, under Fed. R. Evid. 606(b), a hearing
could not be held for the court to ask the jury the effect of
the information on its verdict").

The second motion for a new trial based on jur or
misconduct alleged that the jury foreman was biased
because he was a friend of the government's witness,
Ignatius Stevens, and Stevens' family. To or der a new trial
because of a juror's failure to disclose information at voir
dire, requires the complaining party to show that a juror
"failed to answer honestly a material question on voir dire,
and then further show that a correct response would have
provided a valid basis for challenge for cause." McDonough
Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556
(1984). The motives for concealing information may vary,
but only those reasons that affect a jur or's impartiality can
be said to affect the fairness of a trial.

The District Court reviewed the transcript of the voir dire
of the juror in question and determined that the juror did
not withhold any information. The juror stated he knew the
government's witness but that he would nonetheless be fair
and impartial and judge the case strictly on the evidence.
The District Court noted that defense counsel asked
questions of the prospective juror and did not challenge the
juror for cause or ask that the juror be stricken.

Therefore, the District Court did not abuse its discretion
in denying the appellant's motion for a new trial based on
the misconduct of this juror.

                                15
V.

For the reasons stated above, we will affir m the judgment
of sentence.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                16
