Second Circuit Provides Guidance on Courtroom Design, Predicate Offenses, and the First Step Act
In United States v. Eldridge, the Second Circuit (Chin, Sullivan, Nardini) affirmed the convictions of a group of co-defendants who were indicted on a litany of charges, many of which related to the attempted robbery of a rival dealer. This appeal concerned two of them, Thamud Eldridge and Kevin Allen, who raised three arguments: (1) that the placement of a waist-high curtain around the defense table during the trial prejudiced the jury; (2) that one of the convictions ought to be vacated in light of recent Supreme Court precedent; and (3) that the First Step Act qualifies the defendants for a sentence reduction.
Whether a Curtain Prejudiced the Jury Against Defendants
Before the trial, the U.S. Marshal’s service expressed security concerns to the trial court. The court agreed that, in light of the defendants’ criminal histories and the provocative nature of the testimony, the need might arise to place one or more defendants in leg shackles at some point during the trial. To minimize the disruptive and prejudicial impact of this measure, the court decided to place a waist-high black curtain running from the center of the courtroom to near the gallery, and wrapping around the defense table. This way, the jury would be unable to notice if any defendants were shackled. The curtain was in place prior to jury selection, over defendants’ objection.
As it turned out, shackles were never required. Nevertheless, the curtain remained throughout the trial. Both Eldridge and Allen argued on appeal that the curtain deprived them of a fair trial in violation of Taylor v. Kentucky, 436 U.S. 478 (1978). They claimed that the curtain implied to the jury that the defendants were guilty. Indeed, the placement of the curtain subtly encouraged the jury to align themselves with the prosecution, which was literally “on the same side.”
The panel rejected this argument. It held that the trial court reasonably concluded that the defendants might need to be shackled during the trial, and that the curtain would minimize any prejudice that this shackling might induce. All of this was placed appropriately on the record, as were the Marshal’s concerns that the defendants might pose security risks. Observing that the prejudice would be far greater if the shackles or curtain appeared midway through the trial, the trial court found a middle ground which balanced the need for security with minimizing prejudice if shackles became necessary.
The Circuit also distinguished this case from a New York Court of Appeals case, which found that a similar curtain did deny the defendants their right to a fair trial. But in that case, the defendants were in fact shackled, and the panel suggested that the record in People v. Cruz, 17 N.Y.3d 941, 944 (2011) appears to have been unclear about whether or not the jury saw the shackles. Here, the panel saw no indication in the record that the curtain suggested to the jurors that the defendants were in fact shackled or gave any impression of guilt. Faced with this, the Court deferred to the discretion of the trial court and refused to speculate as to what the jury may or may not have believed.
However, perhaps suggesting that this was a close call, the panel did offer a prophylactic tip to future trial courts (albeit in a footnote): Next time, put a curtain around both tables.
Crimes of Violence as Predicate Offenses
Among the charges against Eldridge was Count Seven—possessing and brandishing a firearm in furtherance of the crimes of violence charged in Counts Five and Six. The parties had stipulated before trial that Counts Five and Six qualified as predicate crimes of violence. The trial court later instructed the jury that it could find the defendants guilty of Count Six through either of two different theories—conspiracy to commit Hobbs Act robbery or attempted Hobbs Act robbery.
The jury found Eldridge and Allen guilty of Count Six. The problem, however, was that after the trial, the Supreme Court ruled that one of those theories – conspiracy to commit Hobbs Act robbery – is not a crime of violence. United States v. Davis, 139 S. Ct. 2319 (2019). And the jury did not specify which of the theories it relied on in rendering its guilty verdict for Count Six. This presented a potential error under Yates v. United States, 354 U.S. 298 (1957), which invalidates a conviction when a general verdict of guilty relied on multiple theories, one or more of which were legally insufficient.
The panel first analyzed whether Eldridge had waived this argument, since he did not raise it during the trial. This seemingly presents a Catch-22. At the time of the trial, there was no argument to make, since the Supreme Court had not yet made its ruling. At any rate, the government did not raise a waiver argument, and so the Circuit reviewed the claim for plain error. The panel concluded that, in light of Davis, the error was plain at the time of appellate review.
The panel then turned to the next step in plain error review and considered whether the error affected Eldridge’s substantial rights. Here, the panel looked to a previous ruling which held that substantial rights were unaffected when it was overwhelmingly likely that a reasonable juror would have convicted the defendant on the basis of the Government’s primary theory. United States v. Skelly, 442 F. 3d 94, 99 (2d Cir. 2006).
In this case, the panel held that the evidence at trial overwhelmingly showed that the jury would have convicted Eldridge of attempted Hobbs Act robbery—the theory included in Count Six that still qualifies as a predicate offense. This evidence was bolstered by the jury’s guilty verdict on Count Five (that Eldridge had engaged in kidnapping) and Count Seven (which demonstrated their conclusion that Eldridge had brandished a firearm). Accordingly, since Eldridge would likely have been found guilty on Count Six, and by extension, Count Seven, even in spite of the conspiracy instruction, no substantial right was violated and the panel declined to vacate his conviction.
Application of First Step Act
Eldridge’s final argument was brought in response to the First Step Act, passed by Congress in December of 2018. Prior to the enactment of the Act, a defendant who was convicted of two 924(c) charges in a single case would receive a 25-year consecutive mandatory minimum sentence for the second 924(c) conviction. Under the First Step Act, the defendant would not face a 25-year consecutive mandatory minimum unless their first 924(c) conviction came in a prior proceeding. This is a major benefit to defendants who otherwise would face the harsh result of a 25-year “stacked” sentence for each 924(c) conviction. Prosecutors also often used the threat of this result to induce defendants to plead guilty rather than to go to trial and face this much longer sentence. While the Act does apply to offenses committed prior to the law’s enactment, it does not apply when the sentence for those offenses was imposed prior to the enactment.
Eldridge argued that he was eligible for a First Step Act reduction because his sentence was still subject to appellate review. The panel rejected that argument, referring to longstanding precedent and the concurrence of other circuits that a sentence is “imposed” when the district court orally pronounces it. Because the sentence was “imposed” just before the Act was passed, Eldridge was ineligible for reduction.
In its ruling, the Circuit showed a willingness to defer to the judgment of the district court. The message on prejudice is implicit—district courts can minimize the chance of reversal by preparing a clean record documenting reasoning on security concerns. It is fair to be concerned that the decision may be taken as giving a “green light” to district courts that may wish to see trial defendants shackled in order to make courtroom security easier to manage. The factors identified by the district court as justifying the curtain and the possible use of shackles (criminal history, flight risk) are found in many cases. That no shackles were ever used also leads one to wonder if this elaborate “security theater” was, in fact, necessary. Also, it is difficult to imagine that the jury was unable to figure out that there was something odd about a curtain installed only in a single place in the courtroom. The Circuit’s decision also may create a split in how this issue will be addressed in state and federal courts in New York.
The Circuit provided a clear roadmap through a number of technical challenges stemming from the sometimes Byzantine nature of indictments and jury instructions. Left open for another case, however, is whether the First Step Act might apply if a defendant is re-sentenced after his initial sentence has been vacated. That issue—as the panel observed in a footnote—has divided other circuits. In light of this decision and the many other Circuits that have ruled in the same fashion, Congress should amend 924(c) again in a “Second Step Act” to allow some defendants who have been sentenced for multiple 924(c) convictions to seek some post-conviction reduction in their sentence.
By Harry Sandick and Michael K. Halper