12-4167-cr
United States v. Purnell


                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of November, two thousand thirteen.

PRESENT:
                     JOHN M. WALKER, JR.
                     JOSÉ A. CABRANES,
                     RAYMOND J. LOHIER, JR.
                                  Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                             v.                                        No. 12-4167-cr

ERVAN PURNELL,

            Defendant-Appellant.
_____________________________________

FOR APPELLEE:                                           MARTIN S. BELL, (Jennifer G. Rodgers, on the
                                                        brief), Assistant United States Attorneys for
                                                        Preet Bharara, United States Attorney for the
                                                        Southern District of New York, New York,
                                                        NY.




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FOR DEFENDANT-APPELLANT:                                          JAMES M. BRANDEN, New York, NY.

        Appeal from October 1, 2012 judgment of the United States District Court for the Southern
District of New York (Paul A. Engelmayer, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of conviction is AFFIRMED.

         Defendant-appellant Ervan Purnell (“defendant”) appeals from the District Court’s
judgment following a jury trial in which he was convicted of attacking an on-duty official of the
United States Office of Veterans Affairs with a deadly and dangerous weapon, causing bodily injury
in violation of 18 U.S.C. §§ 111(a)-(b) and 1114. During its deliberations, the jury sent two notes to
the district judge indicating that it was deadlocked; both times, the District Court instructed the jury
to continue its deliberations.1 The jury later sent a third note stating that “there is one juror who is
being unreasonable . . . . [w]e are concerned that prior experiences which he has shared with the
jurors but did not disclose at voir dire have influenced him.”

        When the district judge solicited comments from both sides on how to proceed, defense
counsel expressed uncertainty about the propriety of the Court’s inquiring into any aspect of
deliberation, and suggested that “some version of the Allen charge would be helpful.” Noting that in
the case of simple jury deadlock an Allen charge might be helpful, the district judge stated that “the
note describes a different and more fundamental and potentially structural problem” of a juror’s
“potential misconduct” in failing to disclose relevant information during voir dire and possibly
prejudicing the jury by disclosing it, and therefore “an Allen charge . . . really is not responsive to the
problem at hand.” The government then submitted a letter to the Court proposing measures for
proceeding, which was joined in all relevant respects by the defense. The jury identified the juror at
issue, who was questioned by the district judge and was subsequently removed from the jury.
Defense counsel agreed that the juror’s withholding of information during voir dire justified his
removal.

       Following the juror’s removal and replacement with an alternate, the jury convicted
defendant of the one count. The District Court subsequently sentenced defendant principally to one
hundred and eight months’ imprisonment and three years of supervised release. This appeal
followed. We assume the parties’ familiarity with the facts and procedural history of this case, to
which we refer only as necessary to explain our decision to affirm.




1
    Between the first and second notes, an alternate was appointed to replace a juror who had fallen ill.
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                                            DISCUSSION

        Defendant raises one claim on appeal through counsel, and several claims submitted in a
supplemental pro se brief. Through counsel, defendant argues that it was an abuse of discretion for
the District Court to decline defense counsel’s suggestion that the Court deliver an Allen charge in
response to the jury’s third note. Defendant’s arguments made pro se include (1) that the government
withheld a redacted version of a videotape shown at trial in violation of Brady v. Maryland, 373 U.S.
83 (1963); (2) that the government withheld a photograph of the victim that purports to show a lack
of injury, in violation of Brady, id.; and (3) that defense counsel provided ineffective assistance. For
the reasons that follow, we deny these claims.

                                                    A.
         The defendant’s first argument is that a new trial is warranted because the District Court
erred in declining defense counsel’s suggestion to issue “some version” of an Allen charge in
response to the jury’s indication of potential juror misconduct. “A trial judge’s handling of juror
misconduct and the Court’s findings with respect to a jury’s impartiality are reviewed for abuse of
discretion.” United States v. Haynes, 729 F.3d 178, 192 (2d Cir. 2013). “Faced with a credible
allegation of juror misconduct during trial, a court has an obligation to investigate, and, if necessary,
correct the problem.” Id. “‘The [district] court has broad flexibility in such matters, especially when
the alleged prejudice results from statements made by the jurors themselves . . . .’” United States v.
Cox, 324 F.3d 77, 86 (2d Cir. 2003) (quoting United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994)).

         Here, faced with potential juror misconduct, the trial judge presciently noted that adopting
defense counsel’s suggestion for an Allen charge might present a “colorable claim” for appeal that
he failed to “inquire as to the nature of the breakdown in the voir dire process.” We recently held in
a similar case, United States v. Haynes, that a trial court abused its discretion by not investigating a
credible claim of juror misconduct. 729 F.3d at 192 (finding that the trial court “abused its discretion
by failing to” inquire into allegation that juror discussed the case during trial). On review of the
record, we conclude that the trial judge acted well within his discretion in deciding not to give an
Allen charge and instead to investigate the jury’s allegation of misconduct. The judge appropriately
responded to the jury’s first two notes by encouraging deliberation towards a verdict. When the third
note suggested misconduct, he explained that encouraging the jury to “open-mindedly deliberate
really is not responsive to the problem at hand.” Given the nature and credibility of the allegation,
the judge’s decision to halt deliberations and investigate was a proper exercise of his discretion.

                                                   B.
        Second, defendant’s pro se claims are similarly without merit. On review of the record, we
find no evidence that the government withheld material information from the defense and therefore
deny the two claims of Brady violations. We do not reach Purnell’s claim that his attorney provided
ineffective assistance, which is more properly brought through a motion under 28 U.S.C. § 2255. See
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United States v. Gomez, 705 F.3d 68, 80 (2d Cir. 2013) (finding that the record of “advice [defendant]
received from counsel . . . is entirely undeveloped” and stating that defendant may bring an
ineffective assistance claim under 28 U.S.C. § 2255).

                                       CONCLUSION
       We have considered all of defendant’s arguments on appeal and find them to be without
merit. Accordingly, we AFFIRM the October 1, 2012 judgment of conviction of the District Court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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