605 F. App'x 285
5th Cir.2015Background
- Myron Saunders and Lamar Nero were convicted after a jury trial for a conspiracy to rob banks (June–Dec 2011), carrying a firearm during a crime of violence, two robberies, and one attempted robbery; they were acquitted on a separate attempted robbery count.
- During trial a juror (Juror 5) reported recognizing someone in the courtroom and said she did not feel safe; Juror 5 discussed this with other jurors; the court questioned jurors individually and dismissed Jurors 5 and 6, seating alternates.
- Juror 11 acknowledged awareness of Juror 5’s comments and said he had a concern “in the back of [his] mind” but repeatedly stated he could be impartial.
- The jury received a verdict form that read “we the Jury unanimously find beyond a reasonable doubt that the defendant ... is” with checkboxes for Guilty/Not Guilty; defendants did not object at trial and argued plain error on appeal.
- Nero argued the aiding-and-abetting jury instruction failed to require advance knowledge of a firearm under Rosemond; the court also instructed a Pinkerton theory of conspiracy liability.
- At sentencing the district court applied firearm and abduction enhancements; defendants appealed those enhancements and the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of mistrial after juror safety concerns | Court properly cured any potential prejudice by questioning jurors and replacing Jurors 5 and 6 | Trial should have been aborted or additional jurors dismissed (Juror 11 had residual safety concern) | No abuse of discretion; voir dire of jurors and dismissal of 2 jurors sufficient to continue trial |
| Verdict form wording suggesting burden of proof | Any error on the form was harmless because the court gave correct oral instructions repeatedly | Form could have confused jury about reasonable-doubtburden; raise plain error | Assume error but defendants’ substantial rights not affected; no plain-error relief |
| Aiding-and-abetting instruction for §924(c) firearm charge (Rosemond) | Jury was properly instructed under conspiracy/Pinkerton theory; any Rosemond error harmless | Instruction failed to require Nero’s advance knowledge of a firearm; plain error review | Assume Rosemond error but Pinkerton instruction and foreseeability meant Nero’s substantial rights unaffected; conviction affirmed |
| Sentencing enhancements (firearm and abduction) | Court’s factual findings supported enhancements after thorough sentencing hearing | Enhancements were improper | No reversible error; enhancements properly applied |
Key Cases Cited
- Nieto v. United States, 721 F.3d 357 (5th Cir.) (standard for abuse of discretion review of mistrial challenges)
- Spinella v. United States, 506 F.2d 426 (5th Cir.) (vague juror contacts not inherently prejudicial)
- Simtob v. United States, 485 F.3d 1058 (9th Cir.) (court must inquire into colorable juror-bias claims)
- Myers v. United States, 772 F.3d 213 (5th Cir.) (plain-error framework in criminal cases)
- Rodriguez v. United States, 735 F.3d 1 (1st Cir.) (verdict-form/burden-of-proof issues and harmlessness analysis)
- Cardinas Garcia v. United States, 596 F.3d 788 (10th Cir.) (verdict-form confusion and harmless-error considerations)
- Pinkerton v. United States, 328 U.S. 640 (Sup. Ct.) (conspirator liability for substantive offenses in furtherance of conspiracy)
- Wilson v. United States, 105 F.3d 219 (5th Cir.) (foreseeability in conspiracy liability)
- Alaniz v. United States, 726 F.3d 586 (5th Cir.) (disjunctive nature of Pinkerton liability)