United States v. Marco Cherry, Jr.
2013 U.S. App. LEXIS 11909
| 4th Cir. | 2013Background
- Cherry was charged in a May 4, 2011 grand jury indictment with possession with intent to distribute ecstasy, possession of a firearm in furtherance of drug trafficking, and possession of a firearm after a felony conviction; he had been arrested following a March 9, 2010 police pursuit where ecstasy and a Glock were found.
- Police recovered two bags of pills near Cherry after a struggle in the Hummer, including ecstasy and a stimulant, and a Taser video captured the events.
- Cherry’s initial appearance occurred April 4–6, 2011, and he was detained pending further proceedings; a suppression motion and a trial date were set, with no Speedy Trial Act dismissal motion filed prior to trial.
- Trial occurred September 20–21, 2011, with Cherry testifying and the government impeaching his statements about marijuana legality; the jury deliberated and returned a verdict the same afternoon.
- During deliberations the jury asked to review the Taser video and whether others were present at the scene; after verdict, the judge made remarks about Cherry’s prior convictions before the poll, which defense counsel later sought.
- The convictions were affirmed on appeal, with Speedy Trial Act and plain-error challenges analyzed and resolved in Cherry’s favor on the former and unfavorably on the latter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment was timely under the Speedy Trial Act | Cherry | Cherry | Waived; no pretrial motion needed; indictment timely waiver applies to §3162 |
| Whether the judge’s pre-poll remarks about Cherry’s criminal history were plain error | Cherry | Cherry | Plain error occurred but did not affect substantial rights; convictions affirmed |
Key Cases Cited
- United States v. Spagnuolo, 469 F.3d 39 (1st Cir. 2006) (waiver of speedy-indictment motion when not raised before trial)
- United States v. Gamboa, 439 F.3d 796 (8th Cir. 2006) (waiver of speedy-indictment issue when not raised before trial)
- United States v. Lewis, 980 F.2d 555 (9th Cir. 1992) (waiver of speedy-indictment right prior to trial)
- Bloate v. United States, 559 U.S. 196 (2010) (Supreme Court on speedy-trial issues within Speedy Trial Act)
- United States v. Leftenant, 341 F.3d 338 (4th Cir. 2003) (statutory interpretation of 3162 and timing of dismissals)
- United States v. Carter, 772 F.2d 66 (4th Cir. 1985) (police/jury polling context and unanimity procedures)
- United States v. Harlow, 444 F.3d 1255 (10th Cir. 2006) (comments influencing jury prior to polling)
- United States v. Randle, 966 F.2d 1209 (7th Cir. 1992) (reversible error where judge denied poll opportunity)
- Quercia v. United States, 289 U.S. 466 (1933) (limits on judge’s comments after verdict)
- Olano v. United States, 507 U.S. 725 (1993) (plain-error standard)
- Godwin v. United States, 272 F.3d 659 (4th Cir. 2001) (judicial impartiality and demeanor)