Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, March 31, 2020

Moore: No Plain Error for Shackling and Rehaif Indictment Error Not a Jurisdictional Defect

In United States v. Moore et al., No. 17-14370 (Pauley (SDNY), Rosenbaum, Tjoflat), the Court affirmed the defendants’ gun and drug convictions.

First, reviewing for plain error, the Court held that, although the district court failed to make any security finding for shackling the defendant, there was no prejudice.  There was no indication that the shackles were visible; the jury returned a split verdict; and the defendant was able to participate in the trial.  The Court emphasized that shackling should not be the norm, and it is not difficult for courts to explain why they are needed, but that the defendant failed to object in this case.

Second, the Court rejected the defendants’ arguments pertaining to a jury note expressing concern about their names appearing on the verdict form.  Specifically, the Court rejected the arguments that: the court interrupted a juror attempting to articulate concerns; the court provided a misleading summary of its in camera interview with the jurors; and that the court failed to conduct a Remmer hearing, which is necessary only where there was evidence of external influence on the jury.  The Court provided a roadmap for how district courts should address jury security concerns in the future, which was similar to what the court did here.

Third, and finally, the Court rejected the defendants’ Rehaif challenge to the indictment.   The Court rejected the argument that the failure to track/cite the language of 924(a)(2) was a jurisdictional defect; rather, the Court found that it was the mere omission of an element, which is non-jurisdictional in nature.  Therefore, applying plain error, the Court found that the defendants could not show prejudice because the record reflected that the defendants had served lengthy prison sentences in the past, including for felon-in-possession offenses.