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. The government also asserted that members of the JBM had intimidated witnesses on four prior occasions. 1989) (joinder proper where "indictment alleged a single overarching conspiracy" even though defendant was "absen [t] from a particular episode in the conspiracy"); United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. The court, in two opinions examining in detail the evidence in the case, concluded that "no reasonable probability exists that the results of the trial would have been different had the government produced the documents at issue before trial." denied, --- U.S. ----, 112 S. Ct. 340, 116 L. Ed. App. Id. 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." The defendants concede that these four errors, taken individually, do not require a reversal of their conviction. A new trial is required on this ground only when "the[ ] errors, when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial." App. ), cert. 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." Jamison provided only minimal testimony regarding Thornton. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. App. Nonetheless, not every failure to disclose requires reversal of a conviction. This case has been cited by other opinions: The following opinions cover similar topics: CourtListener is a project of Free 340, 116 L.Ed.2d 280 (1991). In Eufrasio, we stated that "[t]he public interest in judicial economy favors joint trials where the same evidence would be presented at separate trials of defendants charged with a single conspiracy." 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. S.App. 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." See United States v. Hashagen, 816 F.2d 899, 903-04 (3d Cir.1987) (in banc). App. That is hardly an acceptable excuse. Attys., Philadelphia, PA, Joseph C. Wyderko (argued), U.S. Dept. 1991). 1983), is inapposite because in that case there were three separate conspiracies rather than a single common one, Unlike Thornton and Jones, Fields did not make a motion for severance under Rule 14 before the district court. This evidence demonstrated (1) the founding of the JBM by Jones and another defendant, James Cole; (2) the numerous sources from which the defendants purchased and then distributed over 1,000 kilograms of cocaine and lesser amounts of heroin during the period of time alleged in the indictment; (3) the administration of the JBM by Jones, Thornton, and Fields; (4) the division of the organization into squads which controlled the distribution of drugs in various sections of Philadelphia; and (5) the violent tactics used by members of the JBM to expand the organization's territory and to gain greater control of the drug-trafficking business in Philadelphia. Id. 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. 2971, 119 L.Ed.2d 590 (1992). 1992). Sec. 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. 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." 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. Before: SLOVITER, Chief Judge, NYGAARD and WEIS, Circuit Judges. P. 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. Opinion for United States v. Bryan Thornton, A/K/A "Moochie", (d.c. Criminal No. Jones eventually avenged Bucky's murder by ordering the execution of Bruce Kennedy, another JBM member who was the cousin of Bucky's suspected killer, fellow JBM boss Bryan "Moochie" Thornton, a. See, e.g., United States v. Minicone, 960 F.2d 1099, 1110 (2d Cir. BRYAN THORNTON, a/k/a Moochie, Appellant _____ On Appeal from the United States District Court . Atty., Allison D. Burroughs, Joel M. Friedman, Abigail R. Simkus, Asst. Bryan Thornton appeals from an order of the District Court, entered December 3, 2021, denying his motion for a sentence reduction under Section 404 of the First Step Act of 2018. 846 (1988) and possession with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. In addition, Thornton and Jones were convicted of participating in a continuing criminal enterprise in violation of 21 U.S.C. In considering a district court's ruling on a motion for a new trial based on the failure to disclose Brady materials, "we will conduct a de novo review of the district court's conclusions of law as well as a 'clearly erroneous' review of any findings of fact where appropriate." See United States v. Hashagen, 816 F.2d 899, 903-04 (3d Cir. Get this Philadelphia Daily News page for free from Tuesday, April 7, 1992 about almost monthly runs to Florida for purchases by Kitty Caparella Daily News Staff Writer Two witnesses said . 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." 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. See United States v. Harvey, 959 F.2d 1371, 1377 (7th Cir. 91-00570-05). of Justice, Washington, DC, for appellee. The defendants have not challenged the propriety of their sentences or fines. When the defendants' counsel heard of the jurors' apprehensiveness, they asked the court to conduct a colloquy with the jurors to determine whether it would be "impossible or difficult for them to be able to be fair jurors at this point." There is no indication that the prosecutors made any follow-up inquiry. 922(g) (1) (1988). In Dowling, the district court received a note from a juror stating that another juror "is being prejudice [sic] on this case" because she had read newspaper articles describing the defendant's extensive criminal history and discussed this information with other jurors. As one court has persuasively asserted. Thornton E. Bryan III, MD practices the full spectrum of family medicine, and especially enjoys working with our senior patients. 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." S.App. The Rule states in relevant part: "A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case." ''We want to make sure no one takes their place.'' In the indictment . Law Project, a federally-recognized 501(c)(3) non-profit. Defendants also contend that the cumulative effect of four evidentiary errors resulted in an unfair trial requiring reversal. Sev-Kon Tekstil Sanayi Ve Dis Ticaret Ltd. Holding that appellate jurisdiction of denial of motion for new trial not contingent on second notice of appeal 8(b)2 de novo and the denial of a motion for severance under Fed.R.Crim.P. Nor, significantly, have they alleged that the evidence was insufficient to support the verdicts. Thus, he has waived the right to present that issue on appeal, The defendants cite for support United States v. McAnderson, 914 F.2d 934 (7th Cir.1990), and United States v. Watchmaker, 761 F.2d 1459 (11th Cir.1985), cert. Thus, we conclude that the district court did not err in denying the defendants' motions for separate trials.B. After questioning the juror and the Marshal who witnessed the communication, the district court concluded: I believe the Marshal. 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. ), cert. You can explore additional available newsletters here. The court declined the government's request to question Juror No. " Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001, 94 L. Ed. Notice filed by Mr. Bryan Thornton in District Court No. Individual voir dire is unnecessary and would be counterproductive." Christopher G. Furlong (argued), Springfield, PA, for appellant Bryan Thornton. United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991). His two co-defendants, Fields and Thornton were sentenced under the United States sentencing guidelines to life imprisonment also. It's a reaction I suppose to the evidence." App. Defendants do not claim that the empaneling of an anonymous jury limited their ability to conduct voir dire. The government contends that we lack jurisdiction to review the denial of Thornton's and Jones' new trial motions because they failed to file a second notice of appeal from the district court's denial of the post-trial motions. 263, 102 L.Ed.2d 251 (1988); see also Eufrasio, 935 F.2d at 574. 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." 929 F.2d at 970. 1987). United States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir.1985) (citation omitted), cert. Jamison provided only minimal testimony regarding Thornton. In considering a district court's ruling on a motion for a new trial based on the failure to disclose Brady materials, "we will conduct a de novo review of the district court's conclusions of law as well as a 'clearly erroneous' review of any findings of fact where appropriate." of Justice, Washington, DC, for appellee. ), cert. III 1991), and Fields was convicted of using a firearm during a drug trafficking offense in violation of 18 U.S.C. Bryan has been highly . 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. United States v. Gilsenan, 949 F.2d 90, 96 (3d Cir.1991), cert. 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. We, as an appellate tribunal, are in a poor position to evaluate these competing considerations; we have only an insentient record before us. Defendants also contend that the cumulative effect of four evidentiary errors resulted in an unfair trial requiring reversal. 12 for scowling. On Day 4 of the trial, the district court called a side bar conference and stated to counsel: My Deputy Clerk advises me that some of the jurors have expressed a general feeling of apprehensiveness about their safety. 91-00570-03). Defendants make, in combination, six claims of error which they argue require a reversal of their convictions and a new trial. 929 F.2d at 970. 2d 280 (1991). at 2378. It's a reaction I suppose to the evidence." App. denied, --- U.S. ----, 112 S. Ct. 1511, 117 L. Ed. Eufrasio, 935 F.2d at 574. Hill, 976 F.2d at 139. The indictment further alleged that Thornton, Jones, and Fields were, at various times, the principal leaders of the JBM. United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 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. Shortly thereafter, it provided this information to defense counsel. at 92. App. Christopher G. Furlong (argued), Springfield, PA, for appellant Bryan Thornton. (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 Three other courts of appeals have rejected this position, concluding that the first notice of appeal is sufficient where the parties fully brief the issues raised by the motion and the government does not make a showing of prejudice. at 49. We find no abuse of discretion by the district court. I've observed him sitting here day in and day out. [He saw] Juror No. Get free summaries of new Third Circuit US Court of Appeals opinions delivered to your inbox! 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." at 82. This site is protected by reCAPTCHA and the Google. I've observed him sitting here day in and day out. [He saw] Juror No. 2030, 60 L.Ed.2d 395 (1979). at 50-55. 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. Bucky was. 4/21/92 Tr. 3582(c)(2). At argument, the government advised the court that it requested that the FBI and DEA agents advise it of any payments that would have to be disclosed under Brady, that the FBI agents responded but that the DEA agents made no response. Sec. 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. 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. 1263, 89 L.Ed.2d 572 (1986). 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. See Eufrasio, 935 F.2d at 567. 846 (1988) and possession with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. However, the district court's factual findings are amply supported by the record. Defendants do not claim that the empaneling of an anonymous jury limited their ability to conduct voir dire. 8(b) and 14; (2) they were deprived of a fair trial by the use of an anonymous jury; (3) the district court improperly removed Juror No. Christopher G. Furlong (argued), Springfield, PA, for appellant Bryan Thornton. 12 for scowling. (SB) [Entered: 10/06/2021 11:47 AM] We review the joinder of two or more defendants under Fed.R.Crim.P. App. 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. at 93. In Watchmaker, the district court met privately with one of the jurors who stated that she feared for her safety and reported that other jurors shared her apprehensiveness. 1987) (in banc). R. Crim. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. A more recent docket listing may be available from PACER. In response, Fields moved to strike Juror No. United States v. McGill, 964 F.2d 222, 241 (3d Cir. 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. 914 F.2d at 944. 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. That is sufficient for joining these defendants in a single trial. denied, 488 U.S. 910, 109 S.Ct. 761 F.2d at 1465-66. Atty., Allison D. Burroughs, Joel M. Friedman, Abigail R. Simkus, Asst. It follows that we may not consider his claim on appeal. Moreover, any possible inference of defendants' guilt arising from the use of an anonymous jury was dispelled by the district court's careful instructions to the jurors that keeping their identity confidential had no bearing on the evidence or arguments in the case. U.S. 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." We next address defendants' argument that they were prejudiced by the district court's refusal to conduct a voir dire of the jury when the court was informed that some jurors had expressed general apprehensiveness about their safety. BRYAN THORNTON, a/k/a Moochie: Case Number: 21-3322: Filed: December 20, 2021: Court: U.S. Court of Appeals, Third Circuit: Nature of Suit: Other: RSS Track this Docket Docket Report This docket was last retrieved on December 20, 2021. 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. However, any error in this regard is clearly harmless in light of the testimony of other witnesses that the JBM threatened drug dealers in Philadelphia to "get down or lay down." All three defendants were sentenced under the United States Sentencing Guidelines to life imprisonment, and Thornton and Jones were each ordered to forfeit $6,230,000 to the government pursuant to 21 U.S.C. The government produced witness agreements (including immunity agreements) and information documenting payments to several cooperating witnesses. 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. denied, 445 U.S. 953, 100 S.Ct. Gerald A. Stein (argued), Philadelphia, PA, for appellant Aaron Jones. Where the district court applies the correct legal standard, its "weighing of the evidence merits deference from the Court of Appeals, especially given the difficulty inherent in measuring the effect of a non-disclosure on the course of a lengthy trial covering many witnesses and exhibits." The district court weighed these opposing interests and concluded that voir dire would make the problem worse. We will address each of these allegations seriatim. 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. See United States v. Cameron, 464 F.2d 333, 335 (3d Cir.1972) (trial judge has "sound discretion" to remove juror). The defendants have not challenged the propriety of their sentences or fines. denied, --- U.S. ----, 113 S. Ct. 210, 121 L. Ed. The prosecutors have an obligation to make a thorough inquiry of all enforcement agencies that had a potential connection with the witnesses. 92-1635. 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." Witnessed the communication, the principal leaders of the JBM for appellant Aaron Jones v.,... - U.S. -- --, 112 S. Ct. 1511, 117 L. Ed, F.2d... 7Th Cir 113 S. Ct. 725, 731, 88 L. Ed in. Appellant Bryan Thornton in district court, Allison D. Burroughs, Joel M. Friedman bryan moochie'' thornton Abigail R. Simkus Asst. Harvey, 959 F.2d 1371, 1377 ( 7th Cir a reaction suppose. 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