Lead Opinion
delivered the opinion of the court in which GIBBONS, J., joined, and DONALD, J., joined in part. DONALD, J. (pp. 781-90), delivered a separate opinion concurring in part and dissenting in part.
Defendants appeal their criminal convictions arising out of a kickback scheme at a now-defunct community school in Dayton, Ohio. Defendant Shane Floyd was superintendent at the school and defendant Christopher Martin was the chair of the school’s board of directors. Both used their positions to ensure that the school paid over $400,000 in consulting fees to Global Educational Consultants (“Global”), a company owned by defendant Carl Robinson. Robinson, in turn, funneled money from Global’s payments back to Floyd and Martin, such that Global continued to receive payments regardless of whether it provided poor-quality services or no services at all. All three defendants were tried by jury, convicted,, and now appeal on several grounds. In light of the Supreme Court’s recent decision in Pena-Rodriguez v. Colorado, - U.S. -,
I.
Arise! Academy (“Arise”) was a community school—Ohio’s name for a charter school—in Dayton, Ohio. Arise sought to provide a flexible, nontraditional curriculum to better serve students who were deemed at risk of dropping out of school. By the summer of 2008, Arise faced declining enrollment, financial troubles, and scandal after its treasurer was indicted for embezzlement. Accordingly, the school’s sponsor under Ohio law sought a radical change in administration. The sponsor elevated Arise’s former principal, defendant Dr. Shane Floyd, to the role of superintendent, removed all existing board members, and appointed Floyd’s recommended candidates to take over the new board. The hope was that Floyd and the new board could turn the school around.
Instead, Floyd used his position at Arise to set up a kickback scheme. According to the Government, soon after Floyd was appointed as superintendent, he approached two former business partners, defendant Dr. Carl Robinson and Mike Ward, with a plan. Under this plan, Robinson would incorporate and be the owner of a new company, Global Educational Consultants, which would ostensibly provide management and education services to Arise. Ward, a former police officer, would be the “silent partner” in Global, and his role in the company would be concealed by Global’s ownership structure. Floyd would then use his position as superintendent to ensure that Arise signed a contract with Global for educational and management services. The three men would split the proceeds of this contract: Ward and Robinson would each pay themselves up to $100,000 from the contract’s proceeds per year—the amount Floyd was making in salary as superintendent of Arise—and all three men would split the remaining proceeds evenly.
The three men then put this scheme into effect. Floyd and the new board took over in July, 2008. According to documents filed with the Ohio Secretary of State, Robinson incorporated a company called Global Educational Consultants on July 28, 2008, disclosing himself as the owner but concealing Floyd’s and Ward’s involvement. By August 1, 2008, the newly formed Global signed a сontract with Arise for various
Each time Global was' paid, Ward, Floyd, and Robinson would go to the bank together, where Robinson would deposit the check into Global’s account and withdraw cash. The three men would then divide up the cash according to their agreement, sometimes at Floyd’s house, and at least once in Floyd’s car in the parking lot outside the bank. Floyd was instructed not to deposit the cash into a bank account “because it [could] be traced.” Floyd apparently disregarded these instructions, allowing the government to eventually track this exchange of cash between the three men. For example, according to subsequently obtained bank records, on May 11, Robinson deposited a $40,000 check from Arise into Global’s bank account. The next day, May 12, Robinson withdrew $5,000 in cash from the Global bank account, all in $20 bills. That same day, Floyd deposited $3,000 into his bank account, all in $20 bills. Similarly, a month later, on June 11,-Robinson again deposited a $65,000 check from Arise into Global’s bank account. The next day, June 12, Robinson took out a $5,000 cashier’s check in Global’s name and made the check out to Floyd. That same day, Floyd deposited the same cashier’s check into his account. Another month later, on July 15, Robinson deposited a $66,000 check from Arise into Global’s bank account. The next day, July 16, Robinson withdrew $6,000 in cash, all in $100 bills. That same day, Floyd deposited $2,200 into his bank account, all in $100 bills.
Global soon found that it had to pay off Arise board members in order to ensure prompt payments under the Global-Arise contract. Th’óugh selected by Floyd, Arise Board Chair Brian Moore initially held up payments to Global, questioning why the - consulting company was paid so much under the contract. Robinson reportedly told Ward to pay Moore in exchange for his approving payments to Global in a timely manner. Moore initially refused to accept the payments, but changed his mind after Ward offered him an initial $1,000 in cash in a gas station parking lot sometime in January or February of 2009. Global was then back-paid for several months of missed payments and paid monthly from then on. Soon thereafter, Moore quit his position as Board Chair after learning that Global was not providing the training it. was supposed to. He was replaced as chair by board member Kristal Screven. Screven reportedly also began receiving the same $l,000-a-month payments that Moore had received. Finally, in July 2009, defendant Christopher Martin replaced Screven as Board Chair. Ward then approached Martin and offered him the same deal Moore and Screven had accepted. Martin accepted this offer and was reportedly paid $1,000 every month until December. 2009 or January 2010. As an added bonus, Martin approached Ward in July. 2009 and asked for him to finance a trip to Las Vegas for a leadership conference hosted by the fraternity of which both men were members. Ward agreed, accompanied Martin to the conference, and paid for Martin’s food, airfare, hotel, and a prostitute at the conference.
A few years after Arise closed, the $420,919 in payments to Global attracted the attention of the FBI, which was investigating Ohio community schools on another matter. Eventually, the Government signed a proffer agreement with Mike Ward, the “silent partner” at Global. On the basis of Ward’s expected testimony, the Government indicted Arise superintendent Shane Floyd, Arise board members Christopher Martin and Kristal Screven, and Global owner Carl Robinson. Charges included federal programs bribery, conspiracy to commit federal programs bribery, and making material false statements. See 18 U.S.C. § 666(a)(1)(B), (a)(2); 18 U.S.C. § 371; 18 U.S.C. § 1001(a)(2). Defendant Screven signed a plea agreement, leaving only Robinson, Martin, and Floyd to stand trial.
The jury trial began on Monday, May 18, 2015. The prosecution’s case depended heavily on the testimony of the unindicted-conspirator-turned-government-witness Ward, who testified as to the nature of the agreement between himself, Floyd, and Robinson, as well as his efforts to convince the board members Moore, Screven, and Martin to accept bribes in order to make sure Global was paid promptly. The Government’s case also relied heavily on the testimony of FBI Special Agent Jeffrey Rees, who testified as a lay witness under Fed. R. Evid. 701 and explained how he had come to investigate Arise; recounted the bank records he had found showing that Floyd, Robinson, and Ward had apparently split the proceeds from the Arise contract; and read to the jury portions of Martin’s rejected proffer agreement in which Martin admitted to receiving payments from Ward in exchange for prompt payments to Global.
Jury deliberations began on Friday, May 29, and continued until Tuesday, June 2. On Monday, June 1, the jury sent the court several questions, the gist of which was whether Robinson and Floyd could be held accountable for the acts of other parties—notably the unindicted co-conspirator Ward—and how the jury should proceed “if one or more juror members feel like the jury is intentionally being hung?” In response, the court read to the jury the Sixth Circuit pattern instructions for Pinkerton liability—i.e., that in a conspiracy, “the act of one conspirator may be treated as the act of all”—as well as a Sixth-Circuit pattern Allen charge—i.e., instructions to a potentially deadlocked jury to continue their deliberations and reconsider each other’s views in good faith. The same day, the district court also received a note from the jury asking for two demonstrative aids that had been visible to the jury during trial but not admitted into evidence, namely written portions from Martin’s failed proffer agreement that Agent Rees read to the jury, as well as a flow-chart showing money movement among the defendants. Over the objections of defense counsel, the court provided these demonstrative aids to the jury during deliberations, but also read an instruction that the aids “[were] not evidence [themselves] and
The next day, Tuesday, June 2, the jury again notified the court that it felt it would not be able to come to an agreement on the conspirаcy count. The court responded with a second pattern Allen charge, as well as some additional remarks urging the jurors to reconsider each other’s opinions. Several hours later, the jury rendered a verdict finding that all three defendants were guilty on all counts. The jury was polled and all members declared that theirs was the verdict that had been announced. The court then admonished the attorneys for both sides that “I did not inquire of the jurors whether they wanted to speak with counsel, and so I will ask you not to contact them since it was not preap-proved.”
Three months later, on the morning of Floyd’s sentencing hearing, Floyd’s attorney filed a motion for a new trial, which the other two defendants later joined. Robinson, Floyd, and Martin are all African-American, and Floyd’s counsel alleged that the only two African-American jurors looked uncomfortable during the verdict and polling. He therefore hired a private investigator to interview these two African-American jurors, who are identified in the record as A. R. and M. S. A. R. and M. S. reported that they were initially unconvinced by the evidence of the defendants’ guilt. However, instead of discussing these doubts in good faith, the jury foreperson— a white woman—reportedly told A. R. and M. S. that she believed they were reluctant to convict because they felt they “owed something” to their “black brothers.” This remark prompted a confrontation, requiring the marshal and the deputy clerk to intervene in an attempt to calm things down. Floyd argued that this intervention by court personnel constituted improper outside influence, necessitating a new trial.
However, the district court denied Floyd’s motion and Robinson’s and Martin’s derivative motions, in part because the evidence that Floyd relied on was inadmissible under Fed. R. Evid. 606(b), which codifies thе longstanding “no-impeachment rule” against using juror testimony to impeach a verdict. The district court therefore proceeded to sentencing. Over objection by Floyd’s counsel, the district court found Floyd responsible for an actual loss of $420,919—the entire value of Global’s contract with Arise—which enhanced his sentence and increased the amount for which he was liable in restitution.
II.
Floyd, Robinson, and Martin now appeal, seeking reversal of their convictions on six different grounds. First, all three defendants argue that the jury foreperson’s racist remarks show that stereotyping or animus affected the jury’s verdicts, warranting reversal under the holding of Pena-Rodriguez v. Colorado, - U.S. -,
A.
First, all three defendants argue that the jury foreperson’s remarks violated their Sixth-Amendment right to an impartial jury. While the foreperson’s reported remarks were certainly reprehensible, they do not, on the facts of this case, warrant a new trial or an evidentiary hearing.
As noted above, Floyd’s counsel hired a private investigator to interview the two African-Americans on the jury, A. R. and M. S. A. R. and M. S. reportedly told the investigator that jury deliberations had become openly hostile along racial lines. Specifically, the ten other jurors had been ready to convict at the beginning of deliberations, but A. R. and M. S. had doubts about the credibility of the unindicted-co-conspirator-turned-government-witness Mike Ward—whom the defense had shown to be an ex-police officer who lost his job due to a drug conviction—and also believed Floyd’s account of why he had deposited thousands of dollars in cash into his bank account—i.e., that he was a minister of a church with a tradition of parishioners giving cash gifts, and that these cash gifts had accumulated over time until he deposited them. A. R. and M. S.’s doubts prevented the jury from reaching a consensus for the next three days of deliberations, during which time the jury sent several notes to the court, prompting the Allen charges and Pinkerton liability instructions.
This disagreement boiled over into confrontation on the last day of deliberations, June 2. The jury foreperson—a white woman—reportedly told A. R. and M. S. that she “[found] it strange that the colored women are the only two that can’t see” that the defendants were guilty, and accused A. R. and M. S. of deliberately trying to hang the jury. M. S. reported being so angered by this remark that her “eyes started watering” and she wanted to “smack the shit out of’ the foreperson. A verbal сonfrontation ensued, which required the marshal to enter the jury room to broker peace. After things calmed down, the deputy clerk persuaded the foreperson to apologize to A. R. and M. S. The foreperson did apologize for her remarks, but then said that she still felt A. R. and M. S. were protecting the defendants because they felt they “owed something” to their “black brothers.” Again, the foreperson’s words prompted a confrontation, and, again, the deputy clerk intervened, ultimately persuading A. R. and M. S. to return to deliberations. A few hours later, the jury delivered its unanimous guilty verdict.
During their interviews with Floyd’s investigator, A. R. and M. S. expressed anger and frustration with the foreperson’s behavior, but nevertheless stood by their ultimate decision to vote to convict. When asked whether the foreperson intended to sway her decision, M. S. reportedly re
Notwithstanding this evidence of juror impropriety, the district court denied Floyd’s motion for a new trial, as well as Robinson’s and Martin’s derivative motions. The district court gave several reasons for the denial. First, the district court concluded that Floyd’s motion was untimely because it was filed several months after the 14-day deadline and was based on evidence that could have been discovered immediately after the trial ended. See Fed. R. Crim. P. 33(b); see also United States v. Calderon,
Focusing on the marshal’s and deputy clerk’s intervention into jury deliberations to defuse confrontation, Floyd initially moved for a new trial or at least a hearing on the basis of the exception in Fed. R. Evid. 606(b)(2)(B) for when “outside influence was improperly brought to bear on any juror.” However, while this appeal was pending, the Supreme Court held in Pena-Rodriguez that the traditional “no-impeachment rule” codified in Fed. R. Evid. 606(b) may violate the Sixth Amendment right to an impartial jury when “a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.”
However, defendants’ argument is unpersuasive. First, unlike in Pena-Rodriguez, the district court here denied the motion because it was based on evidence gathered in violation of both a local court rule and a specific admonishment from the bench not to contact jurors. The court noted that these violations were enough on their own to deny Floyd’s motion, citing several cases from other circuits to that effect. See Ridings,
The practiсal mechanics of acquiring and presenting such evidence [of juror animus] will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of .which often limit counsel’s post-trial contact with jurors. These limits seek to provide jurors some protection when they return to their daily affairs after the verdict has been entered.
In direct contrast to the instant case, the defense counsel in Pena-Rodriguez did follow all the rules. It was the jurors in Pena-Rodriguez who approached defense counsel after the verdict and reported that another juror had made remarks during deliberations suggesting animus; the defense counsel then “reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors.” Id. at 861. Therefore, given Pena-Rodriguez’s reaffirmation of the validity of such local rules, it was not an abuse of discretion for the district court to deny Floyd’s motion on the basis of his counsel’s violation of these rules. Furthermore, given the' district court’s suggestion that these violations were enough on their own to deny Floyd’s motion, there is no reason to believe there would have been a different result had the court anticipated Pena-Rodriguez.
Second, the stated holding of Pena-Rodriguez would not apply even if the defendants had not violated a local court rule and their evidence was properly before the district court. Pena-Rodriguez makes clear that it does not apply to a mere “offhand comment indicating racial bias or hostility,” but only to a “clear statement” that “tend[s] to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Id. at 869 (emphasis added). Here, the foreperson’s reported comments clearly “indi-
The juror’s racist remarks in Pena-Rodriguez were very different. In that case, a Mexiean-American was charged with sexually assaulting two teenage sisters in the bathroom of a Colorado horse-racing facility. Id. at 861. During jury deliberations, one juror reportedly told the others that “I think [the defendant] did it because he’s Mexican and Mexican men take whatever they want,” that “Mexican men had a bravado that caused them to believe they could do whatever they wanted with women,” and that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Id. at 862. These remarks clearly demonstrated the juror’s animus against Mexicans and, crucially, the juror’s reliance on this bias in voting to convict. In contrast, none of the foreperson’s remarks here come close to the Pena-Rodriguez juror’s level of stereotyping or animus, аnd the foreperson’s remarks were not directed against Robinson, Martin, or Floyd in the same way that the Pena-Rodriguez juror’s remarks were directed against the defendant in that case.
Defendants counter that even if the foreperson’s remarks did not show that the foreperson’s animus affected the foreperson’s vote, the remarks might still show that the foreperson’s animus indirectly influenced A. R.’s and M. S.’s votes, such that there would still be a violation of Pena-Rodriguez and the Sixth Amendment. However, the facts of this case belie this theory. M. S. later reported that, despite the foreperson’s remarks, she stood by her vote to convict, because “I was still going on how I felt and the information that was presented to me and how I perceived it anyway.” Similarly, A. R. reported that she decided to convict after she and M. S. examined documents showing that Global had been incorporated only three days before the contract with Arise was approved, and also that Robinson-had been present at the meeting where that approval took place. Therefore, based on the information available, the foreperson’s animus appeared not to have influenced A. R.’s or M. S.’s vote. Pena-Rodriguez does not overcome the no-impeachment rule here.
Finally, repeating their initial argument before the district court, defendants contend that the marshal and deputy clerk’s interventions constituted unauthorized contacts with the jury, necessitating a hearing under Remmer v. United States,
This argument is also unpersuasive. First, like the evidence of juror misconduct, the evidence of alleged improper influence on the jurors was gathered in violation of a local rule and the court’s specific instructions that contacts were not preapproved. Therefore, the district court was within its discretion to exclude such evidence and deny the defendants’ motion on these grounds as well. See, e.g., Venske,
B.
Second, all three defendants take issue with the district court’s use of Allen charges—instructions to a potentially deadlocked jury to continue their deliberations and reconsider each other’s views in good faith. The defendants argue that the court’s use of Allen charges in this case coerced the jury into rendering a guilty verdict, in violation of the Sixth-Amendment “right of a defendant to rely on the рossibility of disagreement by the jury.” United States v. Harris,
As noted above, over the course of its three days of deliberations, the jury sent the court several notes suggesting that it was having trouble reaching a consensus. At 11:30 a.m. on Monday, June 1, the second day of deliberations, the jury sent the court a note asking: “if we cannot agree on Count One of conspiracy, can we rule on the other counts?” In response, the court instructed the jury:
Yes, you may. It is easier in some respects, because there is a certain logic in taking up the issues in the order in which I read them to you in my instructions, but I will not tell you the order in which you have to take up consideration of these issues. I would encourage you to resolve the conspiracy issue because ultimately all of these issues have to be resolved.
Defense counsel did not object. At about 2:00 p.m. the same day, the jury sent the court another note, asking: “How are we to proceed if one or more juror members feel like the jury is intentionally being hung?” In response, the court read the jury a full Allen charge from the Sixth Circuit Pattern Jury Instruction. Counsel objected to this first Allen charge. Immediately after the Allen charge was read, the jury asked
As important as it is for you to reach unanimоus agreement, it is just as important that you do so honestly and in good conscience. What I have just said to you is not meant to rush or to'pressure you into agreeing on a verdict. Take as much time as you need to discuss things. There is no hurry. But I can’t emphasize enough, ladies and gentlemen, how important it is for you to listen to one another both respectfully and carefully and to weigh the evidence and hear what your fellow jurors have to say.... Read the instructions, consider all of the instructions in context, and listen to each other as you deliberate, because everyone is trying to do justice here and people have legitimate disagreements. But as mature adults, every one of you has had a disagreement with someone and has been able to work through it at some point in your lives.
Counsel did not object to either the second Allen charge or the court’s additional comments. The jury then returned to deliberations, and, at about 2:45 p.m., returned a verdict finding all three defendants guilty on all counts.
Neither the court’s multiple Allen charges nor any of the specific language in the Allen charges warrants reversal. First, the two full Allen charges and other Allen-charge-like statements do not warrant reversal. Multiple Allen charges áre not per se coercive. See United States v. Barone,
Second, the district court’s specific language does not warrant reversal, either. Defendants take issue with the court’s
[T]his lawsuit must be decided—it must be decided at some time by some jury, which just means that if you are unable to decide this lawsuit that we’re going to have to declare a mistrial in this case and we will have to then call in twelve more jurors and try this case over again.
Harris,
Defendants also take issue with the court’s remark to the jurors that “as mature adults, every one of you has had a disagreement with someone and has been able to work through it at some point in your lives.” This remark was not coercive either. In context, it can reasonably be interpreted as a plea for civility and respect, and not as pressure on dissenting jurors to agree with the majority. There was no plain error here.
C.
Third, Robinson argues that FBI Special Agent Jeffrey Rees gave lay opinion testimony that inappropriately invaded the province of the jury. Robinson contends that Agent Rees’s use of the words “significant,” “notable,” and “suspicious,” to describe certain bank transactions crossed the line from Rees’s permissibly presenting conclusions to the jury based on his own personal knowledge or observation, see United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015), into Rees’s impermissibly drawing conclusions that the jury wаs competent to draw on its own, see United States v. Freeman,
As noted above, Agent Rees testified as a lay witness under Fed. R. Evid. 701 and explained to the jury how he had come to investigate Arise based on bank records he had uncovered. During the course of this testimony, Rees used the words “significant,” “notable,” and “suspicious” to describe certain transactions. For example, when eliciting why Rees decided to investigate Global, the prosecutor asked: “You said you noticed some suspicious transactions or things that were suspicious. What do you mean by that?” Rees responded:
Well, the first thing that caught my attention was the amount of money that Global was paid. They were paid a significant amount of money. It turned out to be over $400,000. Looking at individual’s bank records, I saw suspicious transactions in there as well, things involving cash, large cash withdrawals, some suspicious cash deposits.
Defense counsel did not object at the time. Later, the prosecutor asked: “And did you notice any notable transactions in Shane Floyd’s bank account?” Rees answered: “[I] [particularly noticed there were some significant cash deposits by Shane Floyd.” Defense counsel objected to the word “significant”—an objection that the court sustained, asking the prosecutor to clarify what was meant by the word. The prosecutor rephrased the question: “Were there any transactions that you noticed in Shane Floyd’s bank document records that were notable for the purposes of your investigation?” Reеs and the prosecutor both used the term “significant” several more times during Rees’s testimony, although defense counsel did not object. For example, in one exchange, the prosecutor asked Rees: “Can you describe to the jury what this email is and why it was significant?” Rees answered that it was an e-mail between Arise’s treasurer and Floyd and that “[i]t was significant because.it was forwarding a request for payment, a very significant payment of $66,000 in July.” Defense counsel again did not object.
Rees also described some of the payments between Robinson, Floyd, and Martin as “kickbacks.” During questioning about cash withdrawals from Global’s account, the prosecutor asked: “You indicated these cash withdrawals were significant to your investigation. Why is that?” Rees responded: “It’s significant because if you’re going to withdraw cash from the payments, it’s hard to trace where that cash is going. So it would be certainly easier to pay a kickback payment in cash than it would be in check.” Defense counsel did not object. Similarly, during cross-examination, defense counsel sought to show that Arise’s buy-out of Global’s contract was legitimate and asked: “Nothing criminal about it [i.e., the buyout]?” Rees responded: “That’s not true.... They were not entitled to that money. And they got kickbacks to give them that money.”
None of these remarks warrant reversal. First, a close reading of Rees’s testimony shows that his purpose for using the terms “significant,” “notable,” and “suspicious” was to explain to the jury why he launched the investigation into Global in the first place, not to tell the jury what conclusions to draw from this investigation. For example, the one time that defense counsel objected to the use of these words, the prosecution rephrased the question as “[w]ere there any transactions ... that were notable for the purposes of your investigation?’ Similarly, the prosecution later asked, “You indicated these cash with
Second, Rees’s use of the word “kickback” was not “egregious spoon-feeding of the government’s theory of the case to the jury.” Rees’s first use of the word “kickback” was in response to the prosecution’s question: “[y]ou indicated these cash withdrawals were significant to your investigation. Why is that?” Therefore, again, context shows that Rees was explaining why he was investigating—because the transactions he saw were consistent with a kickback scheme—rather than telling the jury what to conclude. This is not enough for a retrial, especially since defense counsel did not object to this remark, triggering plain-error review. See id. Furthermore, Rees’s second use of the word “kickback” was in response to the defense’s question on cross-examination: “Nothing criminal about it [i.e., the buyout]?” to which Rees responded, “[tjhat’s not trae. ... They were not entitlеd to that money. And they got kickbacks to give them that money.” In this context, Rees’s use of the word “kickbacks” was merely an isolated answer to a leading question by defense counsel on cross-examination. Given that there was no objection to this remark either, this remark is reviewed for plain error, and there was no plain error here.
Finally, Robinson also complains that the district court failed to demarcate Rees’s factual testimony from his opinion testimony. Such a failure can constitute error in some cases. See United States v. Rios,
D.
Fourth, Robinson also argues that presenting the jury with out-of-court state-
It is true that Martin’s out-of-court confessions did clearly incriminate Ward. For example, in one such statement read to the jury, Martin confessed that:
Mike Ward continued to press me about how much it would take to become a full-time board chair.... I eventually suggested to Mike Ward that I thought about $1,000 per month would help me tremendously in becoming a full-time board chair.
Neither Robinson’s nor Floyd’s attorney objected to this statement. In another statement read to the jury, Martin confessed that:
Mike Ward had told me it would be okay, that Brian Moore and Kristal Allen [née Screven] had done it too, and that it was okay for me to do it too.... Mike Ward was like others had done it, so you can do it too, Chris.
Again, neither Robinson’s nor Floyd’s attorney objected to this statement at the time. In a final statement read to the jury, Martin confessed that:
It was around October to November of 2009 that I accepted another cash payment from Mike Ward.... I knew I should not have accepted it, but I was thinking if I have to put up with this bullshit at the school, then I will take some compensation for it. It was wrong and I know now that I should not have done it.
There were no objections. These statements were not admitted into evidence, but they werе displayed to the jury as Rees was reading them aloud.
Furthermore, Agent Rees also recounted additional out-of-court statements by Martin that suggested a connection between Ward and Robinson. For example, in one line of questioning, the prosecutor elicited testimony from Rees on inconsistencies between his first and second interviews with Martin. According to Rees, during his first interview with Martin, Martin had said that he “did not receive any cash or anything of value from either Carl Robinson or Mike Ward.” However, Rees then said that “statements in [Martin’s second] interview conflicted] with statements in the first,” because Martin said during his second interview that “Mr. Ward had given him things of value including cash and a trip to Las Vegas that had expénses paid in it.” Rees further explained, “[a]nd that conflicted with his statement previous [sic] when he said he had received no cash or things of value from Mr. Ward or Mr. Robinson.” Defense counsel did not object to these statements at the time. Last of all, in closing arguments, the prosecution emphasized that “Carl Robinson, through his silent partner and minion, Mike Ward, ... provided cash, benefits and kickbacks to the shot callers Floyd and Martin.” Robinson now argues this connected him with Ward, whose name was not redacted from Martin’s out-of-court confession.
Nevertheless, there was no Bruton violation here. By eliminating any mention of Robinson’s name from the Martin out-of-court statements—and providing the Sixth Circuit pattern jury instructions—the district court complied with Richardson v. Marsh, a post-Bruton Supreme Court case that permits a co-defendant’s confession to be used at a joint trial so long as the confession is “redacted to eliminate not only the defendant’s name, but any reference to his or her existence.”
The Eleventh Circuit’s holding in United States v. Schwartz,
Finally, Robinson argues that Martin’s out-of-court confession violated Bruton in still another way, by mentioning Robinson obliquely in passing. Rees testified that Martin had said during his first interview that he “did not receive any cash or anything of value from either Carl Robinson or Mike Ward.” Rees then testified that “statements in [Martin’s second] interview eonflict[ed] with statements in the first” because Martin said during his second interview that “Mr. Ward had given him things of value including cash and a trip to Las Vegas that had expenses paid in it.” Rees then clarified: “[a]nd that conflicted with his statement previous [sic] when he said he had received no cash or things of value from Mr. Ward or Mr. Robinson.” However, these statements also do not violate the Confrontation Clause because they do not incriminate Robinson at all. Context shows that Ward first told Rees that he did not receive anything of value from either Robinson or Ward, but then changed his story and said he received something of value from only Ward. Although Martin’s reference to Robinson in his original statement is somewhat confusing, Rees’s account of Martin’s answer clears up any confusion and incriminates only Ward. Therefore, the district court did not err in permitting Rees to recount this testimony by Martin.
E.
Fifth, Martin argues that the district court .abused its discretion when it sent demonstrative aids to the jury during deliberations. Robinson incorporates Martin’s argument by reference under Fed. R. App. P. 28(1).
As noted above, on the second day of deliberations, the jury sent the district court a note asking for two demonstrative aids: “Chris Martin’s bullet points from the FBI” and “the red, slash, gray flow chart that shows money movement.” These aids had been displayed to the jury during Rees’s testimony but had not been admitted into evidence. Over defense counsel’s objection, the district court sent these aids to the jury, but also read a pattern jury instruction stating that “[the demonstrative aids] were offered to assist in the presentation and understanding of the evidence” and “[were] not evidence [themselves] and must not be considered as proof of any facts.”
This argument is not enough for a new trial. The law is unclear as to whether it is within a district court’s discretion to provide a deliberating jury with demonstrative aids that have not been admitted into
F.
Last of all, Floyd argues that the district court incorrectly calculated the loss to the government. Robinson and Martin again incorporate Floyd’s argument by reference under Fed. R. App. P. 28(1). The district court adopted the pre-sentence report’s finding of $420,919 in actual loss, which represented the entire amount paid by Arise to Global over the contract’s life. In accordance with the instructions at § 2C1.1 of the 2014 Sentencing Guidelines under which Floyd was sentenced, this amount of actual loss produced an additional 14 points for his sentence under the table at § 2Bl.l(b). Furthermore, this amount served as the amount for which Floyd is jointly and severally liable in restitution. Floyd now argues that this amount should be offset, in accordance with Application Note 3 to § 2C1.1, by the value of the legitimate services that Global provided to Arise, and asks for a remand to the district court to carry out this calculation. See United States v. Lianidis,
Nevertheless, Floyd’s argument fails for two interrelated reasons. First, Floyd’s is not the only interpretation supported by the facts of the case. There may be evidence that Global provided some valuable services, but there is also evidence that the entire Global contract was a sham: Floyd, Robinson, and Ward devised their scheme even before the Global-Arise contract was signed, and Robinson incorporated Global specifically in order to perpetuate the scheme. The entire value paid to a contractor is an appropriate amount for calculating loss when the entire contract was a sham. See United States v. Washington,
III.
For the reasons set forth above, the judgments of the district court are affirmed with respect to all three defendants.
Notes
. This $22,000 included $11,000 for services to Arise and $11,000 for services to PETE Academy, a separate community school located in the same building. PETE Academy merged with Arise in February 2009, but Global continued to receive payments for services to both Arise and PETE.
. Robinson incorporates this argument by reference.
. Martin and Robinson incorporate this argument by reference.
. There is disagreement as to the proper standard of review here. Robinson joined Floyd's motion to sever his trial from Martin’s, but did not object to any of the statements that he • now argues implicate the Confrontation Clause. This circuit has not decided whether a motion to sever counts as an objection that preserves a Confrontation Clause issue, see United States v. Ford,
. The Government cites several cases for the proposition that demonstrative aids can go to the jury during deliberation. However, most of the Government’s cases are inapposite. Three of 'the Government's cases consider the separate, issue of whether demonstrative aids may be admitted into evidence, which is not the same issue as whether non-admitted demonstrative exhibits may be provided to the jury during deliberations. See United States v. Bray,
Concurrence Opinion
CONCURRING IN PART AND DISSENTING IN PART
concurring in part, dissenting in part.
The Sixth Amendment guarantees provide an indispensable constitutional safeguard not only of the rights of the accused, but of society’s interest in a just outcome of judicial proceedings. “One touchstone of a fair trial is an impartial trier of facG^-⅛ jury capable and willing to decide the case solely on the evidence before it.’ ” McDonough Power Equipment, Inc. v. Greenwood,
Among the most crucial requirements for fairness in judicial proceedings is that racial bias not infect a jury’s deliberations and decisions. This ideal has been historically difficult to attain; as one'of our most compelling literary depictions of the criminal justice system put it, “[t]he one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box.”
Even a slight suspicion that racial bias corrupted the outcome of a trial may be sufficient to undermine many decades of arduous, patient labor to eliminate the shameful prevalence of such bias in the courts, detracting from “a course of decisions of long standing directed against racial discrimination in the administration of justice.” Cassell v. Texas,
hH
The significance of this case cannot be considered in isolation; it must be viewed in the full, historical sweep of events. Among the Civil War Amendments, “giv[ing] new force and direction” to the “imperative to purge racial prejudice from the administration of justice,” Pena-Rodriguez v. Colorado, — U.S. -,
114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious.
Rose,
A.
The beginnings of the fight to eliminate racial bias in our American justice system can be traced back to the enactment of the Civil Rights Act of 1875, which prohibited the exclusion of persons from jury service based on race. See 18 U.S.C. § 243. The Supreme Court shortly thereafter reiterated the importance of this prohibition. See Strauder,
The Supreme Court’s seminal decision in Batson was emblematic of the Court’s “unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn.” Batson,
Batson further revitalized and solidified this rule. There, the Court held that a defendant may raise an equal protection challenge to the use of peremptory challenges at his own trial by showing that the state used them for the purpose of excluding members of the defendant’s race. Batson,
Since Batson, the Supreme Court has persisted in its quest to minimize the role that race plays in the jury system. In Powers, the Court extended Batson to allow white criminal defendants to raise a Batson challenge to the exclusion of black-jurors. Powers,
Ultimately, “[t]he Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process.” Johnson v. California,
B.
As Justice Blackmun noted, discrimination has survived into our times, and is “not less real or pernicious” for “[pjerhaps ... tak[ing] a form more subtle than before.” Mitchell,
Research has revealed the profusion of implicit attitudes that people hold towards a wide range of characteristics, chief among them the more salient and immutable traits like race and gender. People
Implicit biases threaten the very foundation of our criminal justice system. Our system is one that is built on fairness. The right to a fair trial. The right to a trial by jury of one’s peers. The right to be assumed innocent until proven guilty. The prevalence of these biases that are so pervasive and involuntary erodes the rights that our Constitution aims to protect, and undermines the advances that our society has made towards eliminating the role that race рlays in our criminal justice system. The majority’s decision overlooks the far-reaching impact of these biases and, more importantly, the devastating impact that they very likely played in Defendants’ trial.
II.
With this highly charged history and these important principles firmly in mind, I turn to the issues presented in the case at hand. Defendants raised the violation of their right to a fair and impartial jury by way of appealing the district court’s refusal to grant their motion for a new trial or, in the alternative, an evidentiary hearing.
A.
I begin with the district court’s chief reason for denying Defendants’ motion for a new trial: that the juror statements were improperly obtained and “amount[ed] to no more than “weakly authenticated juror statements containing vague allegations of ‘harassment’ and ‘verbal abuse.’ ” United States v. Floyd, No. 2:14-CR-126,
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
Fed. R. Evid. 606(b)(1).
The undeniable importance of this evidentiary rule does not mean that it is paramount where basic constitutional rights are at issue. This year, the Supreme Court decided Pena-Rodriguez,
[W]here a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the [Rule 606(b)] no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.
Id. at 869. The Court clarified that “[n]ot every offhand comment indicating racial bias or hostility” will suffice; rather, “there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Id. With regard to racial bias in the jury deliberations here, the majority finds it dispositive that, unlike the situation in Pena-Rodriguez, the foreperson “did not make comments showing that animus was [a] ‘significant motivating factor’ in her own vote to convict.” It is true that the Pena-Rodriguez Court set, as a requirement for a statement indicating jury bias to trigger judicial inquiry, that “the statement ... tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Id. at 859. But this does not gainsay that the Pena-
That the facts in Pena-Rodriguez do not mirror precisely the facts in the present case is readily noted. In Pena-Rodriguez, following a three-day trial, the court gave counsel permission to speak with the jurors. Two jurors voluntarily spoke to counsel and stated that during deliberations another juror had expressed anti-Hispanic bias towards the defendant and defendant’s alibi witness. According to the jurors, the biased juror had made such comments as he “believed the defendant was guilty because in [the juror’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” Id. at 862. The juror also stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.” Id. The Supreme Court concluded that “[w]hen jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence.” Id. at 870.
The jury foreperson’s racial animus in the present case, in contrast, was not aimed directly at the Defendants but, rather, was directed at the two black jurors. I do not believe, however, that this difference is sufficient to overcome the taint of racial prejudice on the proceedings. In Pena-Rodriguez, the Supreme Court rested its decision on the idea that “[t]he jury is to be ‘a criminal defendant’s fundamental protection of life and liberty against race or color prejudice.’ ” Id. at 868 (quoting McCleskey v. Kemp,
The present case differs from Pena-Rodriguez, too, in that counsel here acted in violation both of the district court’s express order not to contact jurors and of the district court’s local rules. This conduct played a major role in the district court’s denial of Defendants’ motion for a new trial or evidentiary hearing. In Pena-Rodriguez, the Supreme Court concluded that the rules of professional ethics and local court rules will guide the practical mechanics of acquiring and preserving evidence, id., and especially noted that defendant’s counsel did not seek out the two jurors’ allegations of racial bias, id. at 870. Certainly, I cannot condone counsel’s violation of the district court’s local rules, much less the disobedience of express orders of the court. Such rules and orders are vital safeguards put in place to protect the privacy of jurors. Nevertheless, as important as they are, such considerations must bend in the face of possible constitutional violations. The Supreme Court has cautioned,
The district court also based its denial of the motion for a new trial on the fact that after the three days of deliberation, each juror was polled individually and responded that the verdict was unanimous, un-coerced, and a fair reflection of his or her vote. Floyd,
The white jury foreperson accused the two black members of the jury of deliberately trying to hang the jury because of their shared race with the Defendants, raising the suggestion that the two jurors were protecting Defendants because “maybe [they] felt [they] owed something to [their] black brothers.” The foreperson also stated, “I find it strange that the colored women are the only two that can’t see” the defendants’ guilt. These comments escalated the tension in the jury room to the point that the marshal’s intervention was required. The severity of this situation diminishes the weight properly given to the two black jurors’ confirmation that their votes were uncoerced. In essence, the white jury foreperson’s comments embody the decades-old concern given voice by Justice Marshall in Batson: “Exclusion of blacks from a jury, solely because of race, can no more be justified by a belief that blacks are less likely than whites to consider fairly or sympathetically the State’s case against a black defendant than it can be justified by the notion that blacks lack the ‘intelligence, experience, or moral integrity’ to be entrusted with that role.” Batson,
The jury foreperson’s remarks are characterized by the majority as “racially insensitive.” However, what is at issue is not the interpersonal quality of sensitivity (or its absence), but rather the constitutional implications associated with the injection of racial animus and racial considerations into jury deliberations. Aside from the racial prejudice that the jury foreperson’s comments suggest she harbored, also trou
In other words, the foreperson’s comments arguably exerted pressure on the two unpersuaded jurors to change their minds, and votes, in order to disprove the “belief’ alluded to by Justice.Marshall in Batson, “that blacks are less likely than whites to consider fairly ... the State’s case against a black defendant....” Id. at 104,
Ultimately, I believe that the evidence of racial animus and harassment presented by Defendants, notwithstanding the undeniable formal improprieties connected with its production, created reasonable grounds to doubt the validity of the jury verdict. I would remand this case to the district court for, at a minimum, an evidentiary hearing on Defendants’ claims.
B.
I differ with the majority as well with respect to the Allen charges. The majority concludes that the charges were not improper. The Allen charge is one that delicately balances the obligation of each juror both to consider carefully the arguments of the other jurors about the proper verdict, and to vote his or her conscience rather than simply acquiesce to the opinions of others. United States v. Scott,
Defendants’ argument is that the district court’s first instruction
Contrary to the Government’s argument, this coercive instruction in the present case was not “cured” by the subsequent Allen charges. Rather, the instruction, followed by two Allen charges given in such close proximity to each other, and accompanied by the district court’s additions of “listen to one another both carefully and respectfully” and “as mature adults, every one of you has had a disagreement with someone and has been able to work through it at some point in your lives,” very likely compounded the coercion. The latter instruction, particularly, by asserting a likeness between a juror’s solemn responsibilities and the ordinary process of resolving discord and reaching agreement.in everyday life, arguably mischaracterized the legal and constitutional import of a jury’s deliberations. The district court’s repeated pressing of the jury to continue deliberations exceeded “the limit[ ] beyond which a trial court should not venture in urging a jury to reach a verdict.” Scott,
It is doubtless a task of some difficulty for a court, on appellate review, to weigh the prejudicial impact of a variation of the approved Allen charge. See id. at 337 (citing United States v. Flannery,
III.
The history of racial bias in thе courtroom is not only a stain on our shared past; its corrosive effects persist to this day. The enduring shadow of bias also dims public confidence in the fairness of the courts. The majority’s decision represents a step backwards from the strides we have made towards eradicating this disgraceful legacy from our criminal justice system. For the reasons set forth above, I differ with the majority with regard to the issues of racial animus within the jury and to the Allen charges, which, operating in a mutually reinforcing manner, exerted pressure on the two black jurors who were not prepared to vote for a guilty verdict. In combination with the racial animus contained in the jury foreperson’s remarks, these circumstances raise serious doubts about the fairness and impartiality of the jury’s decision. With regard to the remaining issues in this case, I concur with the majority.
. Harper Lee, To Kill a Mockingbird 224 (1988). The words are spoken by the character of the attorney, Atticus Finch.
. The words ''bias” and "discrimination,” while clearly distinguishable as referring to beliefs and practices, respectively, are also closely intertwined. One group of scholars has referred to the two terms as being linked in a "rhetorical relationship ... [that] is bidirectional. Identifying a discriminatory behavior inclines one to view its psychological correlate as a form of bias, and conversely, identifying a psychological state as biased bolsters the condemnation of a discriminatory behavior.” R. Richard Banks, Jennifer L. Eberhardt & Lee Ross, Discrimination and Implicit Bias in a Racially Unequal Society, 94 Calif. L. Rev. 1169, 1188 n.104 (2006). In assessing the conceptual relationship, the authors caution against mechanistic assumptions of a causal link between biased belief and discriminatory behavior. Id. at 1187 n.97.
. The Court also extended Batson to the use of peremptory challenges based upon gender. J.E.B. v. Alabama ex rel. T.B.,
. Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U.L. Rev. 795, 802 (2012).
. Id.
. H. Andrew Sagar & Janet W. Schofield, Racial and Behavioral Cues in Black and White Children's Perceptions of Ambiguously Aggressive Acts, 39 J. Personality & Soc. Psychol. 590, 597 (1980). The authors cautioned that the correlation had been noted, to that point, "only in the case of males observing interactions between males” and welcomed further study on different gender combinations of observers and actors. Id. The authors found that black subjects also showed a tendency to interpret black behaviors as aggressive, though the tendency was not- as pronounced as among white subjects. The study, which tested black and white 6th-grade students, was an attempt to determine the validity of earlier research showing that the act of shoving another person during a dispute was interpreted as violent by 73% of subjects when the person doing the shoving was black, and by 13% of subjects when the person doing the shoving was white. Id. at 590 (citing B.L. Duncan, Differential Social Perception and Attribution of Intergroup Violence: Testing the Lower Limits of Stereotyping of Blacks, 34 J. of Personality & Soc. Psychol. 590 (1976)).
.Technically, Defendant Floyd filed the motion for a new trial and the other two Defendants moved to join in the motion. The district court denied the motion for a new trial and denied the motions as moot. Because the district court based both denials on the same
. The jury’s first note to the district court asked, “If we cannot agree on Count One of conspiracy, can we rule on other counts?” In response, the district court instructed the jury as follows:
Yes, you may. It is easier in some respects, because there is a certain logic in taking up the issues in the order in.which I read them to you in my instructions, but I will not tell you the order in which you have to take up consideration of the issues. I would encourage you to resolve the conspiracy issue because ultimately all the issues have to be resolved.