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United States v. Marco Antrione Cherry, Jr., No. 12-4263

Decided June 13, 2013

The Fourth Circuit Court of Appeals affirmed the defendant’s convictions of various firearm and drug crimes. The court held that the Speedy Trial Act precludes dismissal of an untimely indictment when a defendant fails to move for dismissal prior to trial. The court also held that although the district judge’s comments to the jury were erroneous, they did not rise to the level of plain error.

On March 9, 2010, police officers pulled over Lamont Jordan’s vehicle, in which defendant Marco Cherry was a passenger. Cherry attempted to push one of the officers, a struggle ensued, and Cherry attempted to flee. The officer activated a Taser on Cherry and recovered Ecstasy bills and a nine-millimeter pistol from the ground as Cherry stood up. Cherry was charged with various firearm and drug crimes on July 12, 2010 and released from jail on April 1, 2011 after completing his state sentence. On April 6, 2011, the U.S. District Court in Norfolk held a detention hearing and ordered that Cherry be detained pending further proceedings. On May 4, 2011, the grand jury issued an indictment charging Cherry with the crimes set forth in the complaint. The district court set the case for trial on June 30, 2011. However, prior to trial, Cherry’s court-appointed attorney filed a motion to withdraw, which the court granted and appointed another attorney. Cherry then filed a motion to suppress, which the court denied, and a motion to continue his trial, which the court granted. No motions were filed under the Speedy Trial Act. The court ultimately held the trial on September 20, 2011. The trial lasted for two days and when the jury finished deliberating, the judge thanked the jury and, in doing so, alluded to the existence of inadmissible evidence. The defense counsel subsequently polled the jury and each juror replied in the affirmative that it was their verdict.

Cherry argued for reversal of the verdict on the basis of (1) the district court should have dismissed the indictment as untimely under the Speedy Trial Act, notwithstanding his failure to move for its dismissal prior to trial and (2) the district court’s comments to the jury revealing his criminal history before the jury could be polled constituted plain error.

First, the court explained that the Speedy Trial Act requires that a defendant be indicted within thirty days of arrest and tried within seventy days from the later of the filling of the information or indictment or the defendant’s initial appearance before a judicial officer. The “Sanctions” section of the Speedy Trial Act states that failure to timely bring a defendant to trial constitutes a waiver of the right to dismissal under this section. The court rejected Cherry’s argument that because the waiver clause is included only in § 3162(a)(2)—the speedy trial provision of the “Sanctions” section—and not § 3162(a)(1)—the speedy indictment provision.  As such, there is no requirement that a motion under the speedy indictment provision of the Act be filed before trial. The court found the waiver clause applies to “this section”—i.e., § 3162, which governs both the speedy trial right and the speedy indictment right. Thus, a defendant who fails to move for dismissal prior to trial on the basis of an untimely indictment waives his right to move for dismissal under the speedy indictment provision of the Speedy Trial Act.

Next, the court addressed the district court’s comments to the jury.  According to the court, the Federal Rule of Criminal Procedure 31(d) provides that “after a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the juror’s individually.” Because Cherry did not object after the court revealed his criminal history, the court reviewed the lower court’s action for plain error, under which the defendant must demonstrate an error occurred, that was plain, and affected his substantial rights. The court found that the judge’s injection of remarks that might influence juror’s decisions before they may be polled individually is thus improper. Nonetheless, the court found that Cherry could not prove the error affected the outcome of the trial or probably influenced the verdicts against him. The evidence against him was overwhelming and the circumstances surrounding the erroneous remarks were strong indicia that the jury had reached a unanimous guilty verdict.

Full Opinion

– Sarah Bishop