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.
