Prior to trial, the defendants had made a general request for all materials that would be favorable to the defense under the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. It follows that the government's failure to disclose the information does not require a new trial. The Supreme Court has stated that we must "presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an overwhelming probability that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant." 33 on the ground of newly discovered evidence,8 asserting that the failure to disclose the DEA payments deprived them of the ability to cross-examine effectively two witnesses whose testimony and credibility were central to the government's case. Subscribe Gerald A. Stein (argued), Philadelphia, PA, for appellant Aaron Jones. 127 0 obj There is no indication that the prosecutors made any follow-up inquiry. 1511, 117 L.Ed.2d 648 (1992). 933, 938, 122 L.Ed.2d 317 (1993). Hill, 976 F.2d at 139. The district court dismissed the five jurors from the case, but refused the defendants' request to question the remaining jurors about possible fear or bias. In fact, Jamison did not even testify that he knew Thornton to be a member of the JBM. at 55, S.App. App. Atty., Allison D. Burroughs, Joel M. Friedman, Abigail R. Simkus, Asst. 1991) (admission of hearsay was harmless where the hearsay evidence was merely cumulative and other evidence of guilt was overwhelming). 1988) (joinder proper even though defendants' "respective acts committed in furtherance of the conspiracy occurred during chronologically distinct periods").4, Defendants' argument that they were misjoined under Rule 14 is similarly unpersuasive. Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S. Ct. 3102, 3109 n. 8, 97 L. Ed. R. Crim. This site is protected by reCAPTCHA and the Google. at 743. For the foregoing reasons, we will affirm the judgments of conviction and sentence. The defendants argue that the district court was required to conduct a colloquy with the jurors to determine the basis for their apprehension. The jury found the defendants guilty of conspiracy to distribute and to possess with intent to distribute cocaine and heroin in violation of 21 U.S.C. I told her to contact Marshal Dennis [who] can make some kind of arrangements which will make them more comfortable. 8(b)2 de novo and the denial of a motion for severance under Fed.R.Crim.P. App. Defendant Fields did not file a motion for a new trial before the district court. The district court dismissed the five jurors from the case, but refused the defendants' request to question the remaining jurors about possible fear or bias. bryan moochie'' thornton. In response, Fields moved to strike Juror No. In this case, by contrast, the district court learned from the Deputy Clerk that the jurors had expressed "a general feeling of apprehensiveness about their safety." The district court denied the motion, stating, "I think Juror No. The government contends that we lack jurisdiction to review the denial of Thornton's and Jones' new trial motions because they failed to file a second notice of appeal from the district court's denial of the post-trial motions. Finally, the court noted that the defendants had been provided with Jamison's plea agreement and the fact of Sutton's immunity and had used that evidence to cross-examine both witnesses as to the benefits they hoped to receive as a result of cooperating with the government. 1 F.3d 149, Docket Number: endobj <>stream ), cert. at 742. See, e.g., United States v. DeVarona, 872 F.2d 114, 120 (5th Cir.1989) (joinder proper where "indictment alleged a single overarching conspiracy" even though defendant was "absen[t] from a particular episode in the conspiracy"); United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir.1988) (joinder proper even though defendants' "respective acts committed in furtherance of the conspiracy occurred during chronologically distinct periods").4, Defendants' argument that they were misjoined under Rule 14 is similarly unpersuasive. Foley Police Department. Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. at 744-45. Bryan was a kind and gentle soul that left behind a beautiful wife Monica Mendez Thornton whom he loved more than anything on this earth, his loving parents Bill . Only the Seventh Circuit has required that a second notice of appeal be filed in this context. l a w . 2d 648 (1992). 0000002002 00000 n Precedential, Citations: 664, 121 L.Ed.2d 588 (1992). Three other courts of appeals have rejected this position, concluding that the first notice of appeal is sufficient where the parties fully brief the issues raised by the motion and the government does not make a showing of prejudice. Michael Baylson, U.S. 914 F.2d at 944. ), cert. United States Immigration and Customs Enforcement. 3 and declining to remove Juror No. Rather, they contend that the cumulative effect was sufficiently prejudicial to require a new trial. Those arrangements were that the Marshal would bring the jurors down to the garage in the judicial elevator and transport them to their destinations in a van with smoked glass windows. at 742. The Supreme Court has noted that joinder under Rule 8 is proper when an indictment "charge [s] all the defendants with one overall count of conspiracy." United States v. Lane, 474 U.S. 438, 447, 106 S. Ct. 725, 731, 88 L. Ed. P. 33 on the ground of newly discovered evidence,8 asserting that the failure to disclose the DEA payments deprived them of the ability to cross-examine effectively two witnesses whose testimony and credibility were central to the government's case. The defendants have not challenged the propriety of their sentences or fines. 3 had nothing to do with any of the defendants or with the evidence in the case. 725, 731, 88 L.Ed.2d 814 (1986); see also Eufrasio, 935 F.2d at 567 ("As long as the crimes charged are allegedly a single series of acts or transactions, separate trials are not required."). Eufrasio, 935 F.2d at 568 (quotation and emphasis omitted). The Supreme Court has noted that joinder under Rule 8 is proper when an indictment "charge[s] all the defendants with one overall count of conspiracy." United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 0000002533 00000 n 929 F.2d at 970. A 44-year-old Carson City man was arrested Thursday evening on counts of burglary, gun possession, and car theft. It seems to me a colloquy is going to make the problem worse and the best way to do it is to treat it in a low key way. App. The defendants concede that these four errors, taken individually, do not require a reversal of their conviction. at 1683. The indictment alleged that all defendants were members of a criminal organization known as the Junior Black Mafia ("the JBM"), which sold and distributed for resale large amounts of cocaine and heroin in the Philadelphia area. The district court denied the motion, stating, "I think Juror No. We will address each of these allegations seriatim. We review the evidence in the light most favorable to the verdict winner, in this case the government. That is hardly an acceptable excuse. Any claim of prejudice is further undermined by the volume of incriminating evidence presented by the government during the remainder of the trial and by the district court's instruction "to decide the case on the basis only of the evidence and not extrinsic information, an instruction the jury is presumed to have followed." 3 and defendant Fields consisting of smiles, nods of assent, and other non-verbal interaction. bryan moochie'' thornton Tatko na pesmaricu. See Grooms v. Wainwright, 610 F.2d 344, 347 (5th Cir.) The government produced witness agreements (including immunity agreements) and information documenting payments to several cooperating witnesses. You can explore additional available newsletters here. In Eufrasio, we stated that "[t]he public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy." 3284, 111 L.Ed.2d 792 (1990). startxref As the Supreme Court recently explained, "a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." 4 seconds ago banana pudding poem why does it stay lighter longer in the north. United States., 1 F.3d 149 Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. In order for the coconspirator exception to the hearsay rule to apply, the declarant must be a member of the conspiracy at the time the statement is uttered. endobj Although this court has never expressly considered this issue, we have held, relying on Burns, that notice and prejudice are the touchstones for determining the timeliness of a premature notice of appeal in a criminal case. macken funeral home rochester, mn obituaries; hsbc us bloomberg. 929 F.2d at 970. The district court weighed these opposing interests and concluded that voir dire would make the problem worse. 846 (1988) and possession with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. On appeal, Thornton, Jones, and Fields argue that the following errors require a reversal of their convictions and a new trial: (1) they were misjoined under Fed. Thus, the court concluded that there was no reasonable probability that the outcome of the trial would have been different had the DEA payments been disclosed. See generally United States v. Casoni, 950 F.2d 893, 917-18 (3d Cir. View the profiles of people named Brian Thornton. ), cert. S.App. See United States v. Cameron, 464 F.2d 333, 335 (3d Cir. We understand the government's brief to explain that the prosecutors themselves did not know of the DEA payments to the witnesses. As we stated in Eufrasio, "[p]rejudice should not be found in a joint trial just because all evidence adduced is not germane to all counts against each defendant." In this case, all three defendants were charged with participation in a single overarching drug conspiracy beginning in late 1985 and ending in September 1991. Sec. Moreover, the indictment alleged as overt acts in furtherance of the conspiracy the substantive acts with which these defendants were charged, further demonstrating the efficiency of a joint trial. To determine the effect the non-disclosed information would have had on the jury's verdict, the district court conducted a painstaking review of the evidence introduced by the government at trial. sovereign hill cafe menu; advantages and disadvantages of tourism in tunisia; mississippi public service commission district map Sec. 2d 481 (1985) (Opinion of Blackmun, J.)). See United States v. Ofchinick, 883 F.2d 1172, 1177 (3d Cir.1989), cert. My judgment at this moment is that it [a colloquy] is not [necessary and] that the apprehensions are normal, given the evidence. [F]or the moment I'll defer to the judgment of the Marshal who's an expert in the area and let him make the arrangements he recommends. at 92 (record citations omitted). We review the joinder of two or more defendants under Fed.R.Crim.P. denied, 441 U.S. 922, 99 S.Ct. ), cert. 0000014613 00000 n Thornton asserts that he should not have been joined with Jones and Fields because he was incarcerated on June 27, 1990 on an unrelated charge, and the government failed to prove his continuing participation in the conspiracy after that date. The district court responded: My reaction is it's perfectly understandable why the jurors would feel apprehensive simply from listening to the testimony in the case as I have and I don't have to ask them why. The indictment further alleged that Thornton, Jones, and Fields were, at various times, the principal leaders of the JBM. Gerald A. Stein (argued), Philadelphia, PA, for . endobj 131 0 obj See Perdomo, 929 F.2d at 970-71. III 1991), and Fields was convicted of using a firearm during a drug trafficking offense in violation of 18 U.S.C. 1989) (joinder proper where "indictment alleged a single overarching conspiracy" even though defendant was "absen [t] from a particular episode in the conspiracy"); United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. App. [i]n determining whether to [question jurors] , the court must balance the probable harm resulting from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by that misconduct. Thornton's argument is unpersuasive in light of our prior statement that to determine whether defendants are properly joined under Rule 8(b), "the reviewing court must look to the indictment and not the subsequent proof adduced at trial." Phone (208) 381-6500 Fax (208) 381-6505 About Thornton E. Bryan III Biography Thornton E. Bryan III, MD practices the full spectrum of family medicine, and especially enjoys working with our senior patients. Sev-Kon Tekstil Sanayi Ve Dis Ticaret Ltd. Holding that appellate jurisdiction of denial of motion for new trial not contingent on second notice of appeal The district court ordered the trial of these three defendants to be severed from the remaining defendants, and then denied motions by Thornton and Jones for separate trials. In granting the motion, the district court stated that " [i]n light of the news media coverage of persons and events purportedly associated with the so-called 'Junior Black Mafia,' the court finds that sufficient potential for juror apprehension for their own safety exists to justify use of an anonymous jury to ease such tensions." denied, 497 U.S. 1029, 110 S.Ct. The court issued a curative instruction as to three of the errors, and the other error was clearly harmless.7. 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