On October 2, 1991 a grand jury in the United States District Court for the Eastern District of Pennsylvania returned a thirty-two count indictment charging Thornton, Jones, Fields, and twenty-three others with conspiracy to distribute cocaine, crack cocaine, and heroin between late 1985 and September 1991. 1972) (trial judge has "sound discretion" to remove juror). In order to warrant a reversal of the district court's discretionary decision to deny a motion for severance, a defendant has a heavy burden: "he must demonstrate clear and substantial prejudice resulting in a manifestly unfair trial." He testified that he saw Thornton on one occasion in 1989 with co-conspirator Aaron Jones and Reginald Reaves and on another occasion at Jamison's house when Thornton had a gun in his possession. See United States v. Cameron, 464 F.2d 333, 335 (3d Cir.1972) (trial judge has "sound discretion" to remove juror). We, as an appellate tribunal, are in a poor position to evaluate these competing considerations; we have only an insentient record before us. It follows that we may not consider his claim on appeal. In light of the non-disclosure by the DEA agents in this case, we believe that the prosecutors have an obligation to establish procedures, such as requiring written responses, which will ensure that the responsible agents are fully cognizant of their disclosure obligations. U.S. The court also referred to the testimony of numerous other government witnesses and to physical and documentary evidence demonstrating Jones' involvement with the JBM, his leadership of the organization, and his participation in numerous drug transactions. Bucky was killed, and it was thought that Frog would meet a similar fate when he landed in prison with the very men who were out to kill him. After questioning the juror and the Marshal who witnessed the communication, the district court concluded: I believe the Marshal. United States., 1 F.3d 149 Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. You already receive all suggested Justia Opinion Summary Newsletters. After these arrangements had been implemented, the district court denied the defendants' motion, concluding that "[t]he transportation arrangements which the court discussed with counsel have resulted in no further expressions of apprehension by the jurors to the deputy clerk. 853 (1988). The indictment alleges three murders were committed - two in 1988 and one in 1989 - to protect drug operations and eight attempted slayings. 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." 3 had nothing to do with any of the defendants or with the evidence in the case. 91-00570-03. Precedential, Citations: 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." Jamison provided only minimal testimony regarding Thornton. 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. 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. The court of appeals affirmed the court's refusal to discharge the juror, also holding that a hearing was not required because there was no evidence that the other jurors were influenced by outside sources. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. In McAnderson, four jurors informed the district court that they had received threatening phone calls and a fifth juror explained that she had heard about the calls from another juror. The defendants have not challenged the propriety of their sentences or fines. See United States v. Harvey, 959 F.2d 1371, 1377 (7th Cir. About Press Copyright Contact us Creators Advertise Developers Terms Privacy Policy & Safety How YouTube works Test new features Press Copyright Contact us Creators . We disagree. 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. 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." The district court erred in admitting a statement by a government witness that one of the defendants named in the indictment had stated that "he was having some problems with [members of the JBM] that they were trying to make [him] get down and he didn't want to get involved but they were coming at him too strong." We, as an appellate tribunal, are in a poor position to evaluate these competing considerations; we have only an insentient record before us. See, e.g., United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir. at 874, 1282, 1334, 1516. denied, --- U.S. ----, 112 S. Ct. 2971, 119 L. Ed. at 49. S.App. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. at 744-45. In light of the overwhelming evidence of defendants' guilt and the marginal importance of Jamison's and Sutton's testimony to the government's case against Thornton and Jones, we conclude that "there was no reasonable probability that the outcome of [the trial] would have been different had [the evidence] been available to defendant [s] for use at trial." In response, Fields moved to strike Juror No. denied, --- U.S. ----, 112 S.Ct. 12 during the trial; (4) the court improperly declined to conduct a voir dire of the jury after some jurors expressed feelings of apprehensiveness to the deputy clerk; (5) they were denied a fair trial as a result of four evidentiary errors; and (6) the district court abused its discretion in denying motions by Thornton and Jones for a new trial. Sec. 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. On appeal, defendants raise the same arguments they made before the district court. Only the Seventh Circuit has required that a second notice of appeal be filed in this context. See Grooms v. Wainwright, 610 F.2d 344, 347 (5th Cir.) Although the defendants claim that they were prejudiced by the timing of these two rulings, we find no prejudice here. 3375, 3383, 87 L.Ed.2d 481 (1985) (Opinion of Blackmun, J.)). It is evident that the information that was not disclosed fell within the Brady rule, and should have been disclosed by the government. ), cert. U.S. In denying defendant Thornton's motion for a new trial, the district court found: Sutton did not provide any testimony, on either direct or cross examination, about Thornton. See Eufrasio, 935 F.2d at 567. As we have explained, " [a] trial judge is usually well-aware of the ambience surrounding a criminal trial and the potential for juror apprehensions." We understand the government's brief to explain that the prosecutors themselves did not know of the DEA payments to the witnesses. at 75. At the fifteen-day jury trial that followed, the government introduced a substantial amount of evidence in support of its charges against the three defendants, including the testimony of ten cooperating witnesses who were members of or who had had direct dealings with the JBM, more than sixty wiretapped or consensually recorded conversations concerning members of the JBM, and physical evidence, including documents, photographs, drugs, weapons, and drug-related paraphernalia. bryan moochie'' thorntonnovavax vaccine update canada. United States v. McGill, 964 F.2d 222, 241 (3d Cir. 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. 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. The court also referred to the testimony of numerous other government witnesses and to physical and documentary evidence demonstrating Jones' involvement with the JBM, his leadership of the organization, and his participation in numerous drug transactions. The district court also found that "Thornton was convicted on the basis of the strength of government witnesses Rodney Carson, Earl Stewart, and William Mead" and on the basis of "a large number of drug-related and JBM-related tape recorded conversations which demonstrated Thornton's role in the JBM." I don't really see the need for a colloquy but I'll be glad to hear the other side. 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. denied, --- U.S. ----, 112 S.Ct. Cart 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. (from 1 case), Reinforcing the district courts wide latitude in making the kind of credibility determinations underlying the removal of a juror in the context of the court observing that a juror protested too much and I just dont believe her Subscribe 3 and Mr. Fields in substance exchanging smiles and making really an exchange of non-verbal communication by virtue of rubbing one's hand against the face. [I]f it were simply an honest reaction, be it scowling, be it smiling or whatever it is, that is not a reason to remove a juror. 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." In Perdomo, we held that "the prosecution is obligated to produce certain evidence actually or constructively in its possession or accessible to it." Only the Seventh Circuit has required that a second notice of appeal be filed in this context. Bucky was. at 937 ("There is a preference in the federal system for joint trials of defendants who are indicted together."). . We review the district court's ruling for abuse of discretion and must be "particularly deferential" to the district court's "substantial discretion" to empanel an anonymous jury. 1976), cert. It follows that the government's failure to disclose the information does not require a new trial. BRYAN THORNTON, a/k/a Moochie, Appellant _____ On Appeal from the United States District Court . at 55, S.App. 12 during the trial; (4) the court improperly declined to conduct a voir dire of the jury after some jurors expressed feelings of apprehensiveness to the deputy clerk; (5) they were denied a fair trial as a result of four evidentiary errors; and (6) the district court abused its discretion in denying motions by Thornton and Jones for a new trial. AbeBooks.com: The Fall of JBM: From Kingpin to Key Witness (9780998799322) by Carson, Rodney and a great selection of similar New, Used and Collectible Books available now at great prices. App. This case was filed in U.S. Courts Of Appeals, U.S. Court Of Appeals, Third Circuit. Defendants' final contention on appeal concerns the government's failure to disclose until after trial two letters from the Drug Enforcement Administration (DEA) detailing payments made to two cooperating government witnesses, Dwight Sutton and Darrell Jamison. Filed: Gerald A. Stein (argued), Philadelphia, PA, for . Rather, they contend that the cumulative effect was sufficiently prejudicial to require a new trial. * 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. " Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001, 94 L. Ed. Specifically, the district court found, contrary to Jones' argument, that several witnesses other than Sutton testified that Jones wore a "JBM" ring and gave orders to other members of the organization, that Jamison was not the only witness who participated in a recorded conversation with Jones, and that the conversation between Jamison and Jones was incriminating on its face even without Jamison's testimony. App. denied, --- U.S. ----, 113 S.Ct. 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 the fifteen-day jury trial that followed, the government introduced a substantial amount of evidence in support of its charges against the three defendants, including the testimony of ten cooperating witnesses who were members of or who had had direct dealings with the JBM, more than sixty wiretapped or consensually recorded conversations concerning members of the JBM, and physical evidence, including documents, photographs, drugs, weapons, and drug-related paraphernalia. S.App. Defendants Bryan Thornton, Aaron Jones, and Bernard Fields appeal from judgments of conviction and sentence following a jury trial on several drug-related charges. In light of the non-disclosure by the DEA agents in this case, we believe that the prosecutors have an obligation to establish procedures, such as requiring written responses, which will ensure that the responsible agents are fully cognizant of their disclosure obligations. Nothing in this statement intimates that the jurors were exposed to "extra-record information." Defendants next argue that the district court erred in empaneling an anonymous jury. 914 F.2d at 944. More recently, in United States v. Joseph, 996 F.2d 36 (3d Cir. 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. The government produced witness agreements (including immunity agreements) and information documenting payments to several cooperating witnesses. 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. 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." 91-00570-05), 1 F.3d 149 (3d Cir. It's a reaction I suppose to the evidence." App. 848 (1988 & Supp. Since in this case both parties have briefed the new trial issues on the merits and the government has not claimed prejudice, we conclude that we have jurisdiction over defendants' appeals from the district court's denial of their new trial motions. 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.R.Crim.P. The defendants concede that these four errors, taken individually, do not require a reversal of their conviction. at 92. R. Crim. 3582(c)(2). I told her to contact Marshal Dennis [who] can make some kind of arrangements which will make them more comfortable. 933, 938, 122 L.Ed.2d 317 (1993). United States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir. App. 3 and declining to remove Juror No. App. 2-91-cr-00570-003. (from 1 case). denied, 429 U.S. 1038, 97 S.Ct. In light of the district court's curative instructions and the overwhelming evidence of the defendants' guilt in this case, including specific evidence concerning the numerous acts of violence committed in furtherance of the conspiracy, we conclude that these evidentiary errors were harmless and did not deprive the defendants of a fair trial. Defendants next argue that the district court erred in empaneling an anonymous jury. 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. 1194, 10 L. Ed. denied, 441 U.S. 922, 99 S.Ct. Defendants make, in combination, six claims of error which they argue require a reversal of their convictions and a new trial. 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. United States v. Hill, 976 F.2d 132, 145 (3d Cir. at 742. In Perdomo, we held that "the prosecution is obligated to produce certain evidence actually or constructively in its possession or accessible to it." denied, 488 U.S. 910, 109 S.Ct. R. Crim. Sign up for our free summaries and get the latest delivered directly to you. App. The indictment further alleged that Thornton, Jones, and Fields were, at various times, the principal leaders of the JBM. Notice filed by Mr. Bryan Thornton in District Court No. About Press Copyright Contact us Creators Advertise Developers Terms Privacy Policy & Safety How YouTube works Test new features Press Copyright Contact us Creators . ), cert. The defendants concede that these four errors, taken individually, do not require a reversal of their conviction. See Perdomo, 929 F.2d at 970-71. Sec. The court of appeals upheld the district court's decision, stating that " [a]ny discussion of the fear which caused the removal of the jurors risked conjuring up in the remaining jurors some element of that fear." The prosecutors have an obligation to make a thorough inquiry of all enforcement agencies that had a potential connection with the witnesses. The court of appeals upheld the district court's decision, stating that "[a]ny discussion of the fear which caused the removal of the jurors risked conjuring up in the remaining jurors some element of that fear." It is evident that the information that was not disclosed fell within the Brady rule, and should have been disclosed by the government. As we have explained, "[a] trial judge is usually well-aware of the ambience surrounding a criminal trial and the potential for juror apprehensions." The court declined the government's request to question Juror No. 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." 1982); see also United States v. Davis, 960 F.2d 820, 824 (9th Cir. Opinion for United States v. Bryan Thornton, A/K/A "Moochie", (d.c. Criminal No. 1993), we defined constructive possession to mean that "although a prosecutor has no actual knowledge, he should nevertheless have known that the material at issue was in existence." See Eufrasio, 935 F.2d at 567. Gerald A. Stein (argued), Philadelphia, PA, for appellant Aaron Jones. Such balancing demonstrates the exercise of discretion rather than its abuse.6 Our conclusion is reinforced by the fact that no further expressions of apprehensiveness occurred during the following eleven days of the trial and by the court's instruction to the jury that "there was never the slightest realistic basis for any feeling of insecurity." . at 93. at 742. Bryan is a Certified Information Systems Security Professional as well as an EnCase Certified Examiner. denied, 493 U.S. 1034, 110 S. Ct. 753, 107 L. Ed. 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. The record in this case demonstrates that the defendants suffered no such prejudice. Body Mass Index (BMI) is a simple index of weight-for-height that is commonly used to classify underweight, overweight and obesity in adults. 761 F.2d at 1465-66. Before long Bryan 'Moochie' Thornton at the behest of leader Aaron Jones ordered a hit on Bucky and Frog. Defendant Fields did not file a motion for a new trial before the district court. For the foregoing reasons, we will affirm the judgments of conviction and sentence. 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. Although the defendants claim that they were prejudiced by the timing of these two rulings, we find no prejudice here. 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. Directly to you by Free Law Project, a non-profit dedicated to creating high open! Can make some kind of arrangements which will make them more comfortable to a! One in 1989 - to protect drug operations and eight attempted slayings,... Can make some kind of arrangements which will make them more comfortable `` ) several witnesses! # x27 ; thorntonnovavax vaccine update canada can make some kind of arrangements which will make them more.... Free Law Project, a non-profit dedicated to creating high quality open legal information. the need a. Gerald A. Stein ( argued ), Philadelphia, PA, for failure to disclose the information that was disclosed! 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