United States v. Bernard Moore, et al. (11th Cir. March 2020)
Fifth Amendment/Physical Restraint During Trial – The district court did not commit plain error by shackling defendants during trial without stating any reasons on the record where there was no evidence that the shackling affected the defendant’s rights.
Sixth Amendment/Juries – The trial court did not abuse its discretion in interviewing jurors in camera regarding their safety concern and summarizing those interviews to counsel.
Firearm Offenses/Rehaif – The district court retained jurisdiction over the defendants’ charges for possession of a firearm by a convicted felon despite the indictment’s omission of the mens rea element from Rehaif v. United States and the defendants’ convictions, while plain error based on a lack of evidence of their mens rea, were affirmed given that the government would have otherwise been able to prove their knowledge.
Bernard Moore and Derrick Miller brought several challenges to their convictions for drug trafficking and firearm possession as felons and in furtherance of drug trafficking.
First, the defendants argued that the district court erred in shackling them during trial., especially without at least conducting a hearing on the record to determine whether the security measure was necessary. The Court disagreed, employing the plain error standard instead of the usual abuse of discretion standard. While district courts are generally required to state their reasons for shackling defendants or otherwise restraining them, there was no evidence in the record that the alleged error affected the defendants’ rights, since there was no indication that the jury was ever aware of the shackles or that the shackles affected the defendants’ ability to participate in the trial. However, the Court admonished district courts that “in the typical case, the record should reflect why restraints are necessary.”
Another challenge involved a note sent to the judge from the jury, requesting an opportunity to discuss their safety after the trial. The defense moved for a mistrial and was denied. Instead, the district court engaged in an in camera colloquy with two jurors who were concerned about retribution from the defendant’s family. The district court denied the defense’s motion to strike the two jurors. On appeal, the defendants argued that the trial court had improperly cut off a juror attempting to articulate their concerns, provided a misleading summary to counsel of the in camera colloquy, and should have conducted a Remmer hearing.
The Court rejected the defendant’s arguments, holding that the trial court had not abused its discretion. The Court held that the judge had adequately allowed the juror to articulate their concerns and that the judge’s incomplete summary was harmless. The Court advised that the “best course of action” for district courts interviewing jurors in camera is “to confer with counsel to discuss the contours of an in camera interview” and “summarize its assessment of the interview on the record for the benefit fo the parties.” The Court added that trial courts can also have court reporters read the transcript of the interview to counsel. The Court also held that a Remmer hearing was not warranted because there was no indication of any “outside influence” on the jury.
Finally, the Court reviewed the defendants’ arguments two-fold argument based on Rehaif v. United States, where the U.S. Supreme Court held that 18 U.S.C. § 922(g) requires proving that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.” The defendants argued that 1) the district court lacked jurisdiction because the indictment failed to allege their knowledge and 2) their conviction must be vacated based on the lack of evidence in the record proving their knowledge of their felon status.
First, the Court concluded that the trial court had jurisdiction despite the defective indictment, distinguishing between subject matter jurisdiction and an indictment’s failure to allege a crime. In a lengthy discussion regarding the distinction, the Court emphasized that merely omitting an element of a crime alleged in an indictment is not akin to a wholesale failure to charge the defendant with an actual criminal offense, which would deprive the court of its jurisdiction.
Next, the Court held that the defendants’ conviction, based on a lack of evidence regarding their knowledge, was in fact plain error. However, reversal was not warranted because the Court determined that the Government would have easily been able to prove the defendants’ knowledge of their prior felony convictions, citing a tattoo by one defendant that reflected his previous sentence of 92 months and the defendants’ stipulations that they had prior felony convictions.
Appeal from Southern District of Florida
Opinion by Pauley (by designation from S.D.N.Y.), joined by Rosenbaum and Tjoflat
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