United States v. Birchette

• Decision Date: 07 November 2018
• Docket Number: No. 17-4450,17-4450
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Trenton R. BIRCHETTE, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

908 F.3d 50

UNITED STATES of America, Plaintiff – Appellee,

v.Trenton R. BIRCHETTE, Defendant – Appellant.

No. 17-4450

United States Court of Appeals, Fourth Circuit.

Argued: September 28, 2018

Decided: November 7, 2018

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Kaitlin Gratton Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Keith Loren Kimball, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, Brian J. Samuels, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Before WILKINSON and HARRIS, Circuit Judges, and William L. OSTEEN, Jr., United States District Judge for the Middle District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Harris and Judge Osteen joined.

WILKINSON, Circuit Judge:

The Supreme Court held in Peña-Rodriguez v. Colorado that courts may receive evidence from jurors impeaching a jury verdict after a "threshold showing" that "racial animus was a significant motivating factor in [a] juror’s vote to convict." ––– U.S. ––––, 137 S.Ct. 855, 869, 197 L.Ed.2d 107 (2017). After a jury convicted Trenton Birchette of several firearm- and drug-related offenses, defendant requested leave to interview jurors for evidence of racial animus. The United States District Court for the Eastern District of Virginia denied his request. Birchette now challenges that ruling and raises other evidentiary issues. For the following reasons, we affirm the conviction.

I.

The United States charged defendant Trenton R. Birchette with Possession with Intent to Distribute Cocaine and Cocaine Base under 21 U.S.C. §§ 841(a)(1), (b)(1)(C) ; Use of a Communication Facility under 21 U.S.C. § 843(b) ; Possession of a Firearm in Furtherance of Drug Trafficking under 18 U.S.C. § 924(c)(1)(A) ; and Possession of a Firearm by a Convicted Felon under 18 U.S.C. § 922(g)(1).

The charges stemmed from a 2015 traffic stop of a vehicle with three occupants. Birchette was in the back seat. Detective Frank Vito and his colleagues found an unloaded Beretta 950B handgun and a small digital scale with cocaine residue in the seatback pocket in front of him. They found a folding knife and a loaded magazine matching the Beretta in a jacket near him. Detectives further suspected that Birchette concealed drugs in his anal cavity based in part on their observations and in part on defendant’s jailhouse phone calls, during which he implied that he was concealing drugs there. The detectives obtained a search warrant and drove Birchette to the hospital for the search. While the search came up empty, detectives later found a fist-sized bag of loose and packaged crack cocaine in the law enforcement vehicle that defendant had ridden in twice—once to jail and once to the hospital. Discolorations and a hair on the bag were consistent with storage in an anal cavity.

Before the trial began, the defense informed the United States that it would attempt to impeach Detective Vito’s character for truthfulness using his testimony from a past case. See Fed. R. Evid. 608(b). The United States motioned in limine to exclude the evidence. In the past case, the district court ruled that the detective’s "testimony lacked sufficient detail to support a finding of reasonable suspicion to search the defendant." J.A. 49 (summarizing Opinion and Order, United States v. Grant , Cr. No. 4-11cr20 (E.D. Va. Aug. 5, 2011), ECF No. 17). The district court prohibited Birchette from using Detective Vito’s past testimony to impeach his character for truthfulness, however, reasoning that the prior order lacked "any indication that Detective Vito was untruthful" and thus was "not probative of Detective Vito’s character for truthfulness or veracity." J.A. 54.

During Birchette’s trial, Detective Vito testified about the traffic stop, the subsequent search, and the ultimate discovery of narcotics in his vehicle. The defense cross-examined Detective Vito over omissions in his application for a search warrant of defendant’s anal cavity. The United States sought to elicit rebuttal testimony on redirect—over defense objection—that the search warrant had included information about Birchette’s prior felony conviction and prior police interactions involving cocaine. The district court overruled the objection, finding that defendant had opened the door to the testimony by probing omissions from the search warrant during cross examination. Moreover, defendant had also suggested that another passenger in the vehicle with him had been involved with past wrongdoings involving drugs. The evidence of Birchette’s own history with drugs rebutted the argument that the paraphernalia, firearms, or drugs in the vehicle belonged to the other passenger.

After three days of trial, the jury began deliberations. About four-and-one-half hours later, the jury returned a verdict form with guilty on one count and undecided on three others. The court gave the jury an Allen charge, urging them to deliberate further and reflect on the viewpoints of their fellow jurors. See Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Within half an hour of the Allen charge, a female juror asked the judge to release her from the jury without explaining why. That juror, like Birchette, was African-American. The court declined the juror’s request. Eleven minutes later, the jury returned a unanimous verdict of guilty on all counts.

The district court found that, after the verdict, a male, African-American juror approached defense counsel and said: (1) he was "sorry they had to do that"; (2) "a white lady said, ‘the two of you are only doing this because of race’ "; and (3) "we worked it all out." J.A. 907. The court also reviewed—without making any finding on its credibility—an affidavit from a defense paralegal claiming that the juror also said that (4) a white female juror said to the two African-American jurors, "It’s a race thing for you" and (5) the juror said to counsel, "I appreciate what y’all do." Id. at n.2. Counsel did not ask the juror any questions during this interaction per local rules of professional ethics.

The defendant made an ex parte request for leave to interview jurors based both on the first three statements above and on the female juror’s request to be excused from the jury. The request was later expanded to include all five of the above statements. The district court denied the request. It found that the alleged statements involving race were "internal jury deliberations." J.A. 913. In the court’s view, Birchette had not shown good cause to interview jurors because the statements "do not reflect racial bias against Defendant." Id. Defendant now appeals.

II.

We first review the district court’s denials of Birchette’s request to interview jurors. We review these orders for abuse of discretion. United States v. Gravely , 840 F.2d 1156, 1159 (4th Cir. 1988). This is a deferential standard, designed primarily to correct the arbitrary exercise of authority while upholding the range of reasonable judgment calls a trial judge is well positioned to make. See, e.g. , United States v. Vidacak , 553 F.3d 344, 348 (4th Cir. 2009). As we explain below, the district court did not abuse its discretion in denying defendant’s request to interview jurors in search of evidence that could be used to impeach the jury’s guilty verdict.

A.

There are good reasons for limiting the parties’ interactions with jurors after the verdict. Jury service needs to come to a timely conclusion. See Peña-Rodriguez , 137 S. Ct. at 865, 869. It ordinarily ends, logically enough, when the jurors reach a verdict. Losing parties may have an incentive to uncover the course of deliberations with an eye to undermining the jury’s conclusion. See McDonald v. Pless , 238 U.S. 264, 267-69, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). The judicial system, by contrast, possesses an interest in protecting the confidentiality of juror discussions and in allowing jurors to resume their normal routines. See Tanner v. United States , 483 U.S. 107, 118-20, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). The willingness of jurors to serve and to speak freely during deliberations depends on this no-impeachment principle. See Rakes v. United States , 169 F.2d 739, 745-46 (4th Cir. 1948). Post-verdict interrogations have at least the potential to stretch out or to turn adversarial, and thereby undermine the no-impeachment presumption.

At common law, the no-impeachment rule generally prohibited courts from receiving evidence from jurors after the verdict that described what took place in the jury room. Although several variations of the rule have developed over time, Federal Rule of Evidence 606(b)(1) best expresses the operative principle:

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.

There are several exceptions to the no-impeachment rule through which a court can hear testimony from jurors. A juror may testify whether "extraneous prejudicial information was improperly brought to the jury’s attention"; "an outside influence was improperly brought to bear on any juror"; or "a mistake was made in entering the verdict on the verdict form." Fed. R. Evid. 606(b)(2).

Over the centuries, parties have requested additional exceptions to common law and statutory no-impeachment rules. Courts have long declined to create new...