PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4263

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
MARCO ANTRIONE CHERRY, JR., a/k/a Marco Antrione Cherry,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:11-cr-00071-RGD-FBS-1)

Argued:

May 17, 2013

Decided:

June 13, 2013

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion,

in which Judge Wilkinson and Judge Wynn joined.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Alexandria, Virginia, for Appellant.
Sherrie Scott
Capotosto, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia; Richard J.
Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.
Neil H.
MacBride, United States Attorney, Alexandria, Virginia, for
Appellee.

DUNCAN, Circuit Judge:

Marco Cherry appeals his conviction of various firearm and
drug crimes, arguing that the Speedy Trial Act required that his
indictment be dismissed as untimely and that the district judge
plainly

erred

in

revealing

details

before the jury was polled.

Act

precludes

dismissal

of

his

criminal

history

We determine that the Speedy Trial

of

an

untimely

indictment

defendant fails to move for dismissal prior to trial.

when

Next, we

find that although the district judges comments to the jury

were erroneous, they did not rise to the level of plain error.
Accordingly, we affirm Cherrys convictions.

I.
1.
On March 9, 2010, Norfolk Police Officers Alex Keeling and
Frank Been saw a black Hummer fail to stop at a stop sign.

They

attempted to initiate a traffic stop, activating their lights

and siren and using their loudspeaker to instruct the driver of
the vehicle to pull over.
officers gave chase.

The driver failed to stop, and the

While in pursuit, Officer Keeling saw a

cigar-shaped object, which he later determined was a marijuana

cigar, being tossed out of the window.
After driving for several blocks, the driver pulled the
vehicle

over.

The

police

identified
2

the

driver

as

Lamont

Jordan; Cherry was the passenger.

The officers approached the

vehicle and smelled marijuana through its open windows.

Officer

Been took Jordan several feet away from the vehicle to speak
with

him.

The

officers

decided

to

search

the

vehicle,

Officer Keeling ordered Cherry to step out of the car.

and

Cherry

became very aggressive and attempted to push Officer Keeling.

J.A. 215.

A struggle ensued, during which a metal object, which

Officer Keeling thought to be a firearm, hit the ground.

then attempted to flee.

Cherry

Officer Keeling tackled Cherry to the

ground, and Officer Been, responding to Officer Keelings call

for backup, threatened to use a Taser on Cherry.

When Officer

Been activated the Taser, it automatically recorded a video of

the encounter.

Cherry stopped struggling and the officers took

him into custody.

Once they had handcuffed Cherry and allowed him to stand
up,

the

officers

containing

recovered

pills,

twenty

from

of

Methylenedioxymethamphetamine
ecstacy),
controlled

and

nine

of

substance,

which
a

the

which

ground
turned

hydrochloride
turned

stimulant

out

called

two
out

small
to

be

bags
3,4-

(commonly

known

to

different

be

as

N-Benzylpiperazine.

The Taser video shows the bags of pills lying on the ground as
Cherry stood up, and recorded Officer Been exclaiming that there
was E [ecstasy] all over the place.

J.A. 270.

Other police

officers arrived at the scene, one of whom, Officer Eric Ortiz,

3

recovered

Glock

nine-millimeter

pistol

from

the

ground

in

front of the Hummer on the passenger side, where Officer Keeling

had first struggled with Cherry.
2.
On July 12, 2010, Cherry was charged in a federal criminal
complaint with possession with intent to distribute ecstasy in
violation of 21 U.S.C. 841(a)(1), possession of a firearm in
furtherance

of

drug

trafficking

in

violation

of

18

U.S.C.

924(c), and possession of a firearm after a felony conviction in

violation of 18 U.S.C. 922(g).
along

with

the

complaint,

An arrest warrant was issued

and

the

warrant

was

filed

as

detainer at the Chesapeake city jail, where Cherry was serving a

Virginia state sentence.
On Friday, April 1, 2011, the Chesapeake jail authorities
notified

Cherry

that

he

was

being

released

to

federal

detainer, and notified the U.S. Marshals Service that he had

completed his state sentence.
agent

with

the

Bureau

of

On Monday, April 4, 2011, an

Alcohol,

Tobacco,

Firearms

and

Explosives transported Cherry from the Chesapeake jail to the

U.S.

District

Court

in

Norfolk.

That

day,

the

court

held

Cherrys initial appearance and issued an order of temporary

detention.

On

Wednesday,

April

6,

2011,

the

court

held

detention hearing and ordered that Cherry be detained pending

further proceedings.

On May 4, 2011, a grand jury issued an

4

indictment

charging

complaint. 1

Cherry

with

the

crimes

set

forth

in

the

The district court set the case for trial on June

30, 2011.
Prior to trial, Cherrys court-appointed attorney filed a
motion to withdraw.
another

The court granted the motion and appointed

attorney.

Cherry

subsequently

suppress, which the court denied.

filed

motion

to

He also filed a motion to

continue his trial, which the court granted.

Cherry filed no

motions related to the timeliness of his indictment under the

Speedy

Trial

Act.

The

court

ultimately

held

the

trial

on

September 20-21, 2011.

At trial, the Norfolk police officers testified as to the
circumstances surrounding Cherrys arrest, the events preceding
and succeeding it, and the evidence they had recovered from the
scene.

Cherry also testified: he stated that the object that

fell from him during the struggle was a chain necklace, not a
gun, and that the gun and tablets the police had recovered were
not his.
marijuana

He also testified that he was not aware that smoking

was

illegal--testimony

which

was

subsequently

impeached when the government elicited testimony from him that

1

A grand jury later returned a superseding indictment that

differed from the original indictment only in that it changed
the
chemical
description
of
ecstasy--replacing
the
term
methylenedioxyamphetamine
with
methylenedioxymethamphetamine.

he had a recent previous arrest for marijuana possession.

other

aspects

of

Cherrys

criminal

history,

the

As to
parties

stipulated that he had been convicted of a felony.

The trial lasted for two days.

The jury deliberated during

the afternoon of the second day and returned a verdict before

the end of the day.

During deliberations, the jury sent two

notes to the court.

First, they asked to see the video recorded

by the Taser again, which they reviewed twice.

Second, they

asked the court, Was there anybody else that was standing by
the vehicle or on site before Officer Ortiz arrived?

J.A. 511.

The court told the jury to consider the evidence that had been
presented

to

them,

and

allowed

them

to

have

Officer

Ortizs

testimony read back to them.

When

the

jury

had

finished

deliberating,

the

jury

foreperson handed the verdict form, which she had signed, to the
clerk, who passed it to the district judge.

The judge returned

the guilty verdict to the clerk, who proceeded to read it aloud.

The

clerk

then

asked,

Members

verdict, so say you all?

jury

indicated

an

of

J.A. 514.

affirmative

the

jury,

is

this

All the members of the

response.

At

this

point,

judge thanked the jury and added the following remarks:

Sometimes all of the information is not given to you.
This defendant had previously been convicted of
distributing a controlled substance, had previously
been convicted of resisting arrest, and had previously

your

the

been convicted of carrying a firearm in furtherance of

a drug trafficking crime.
I only tell you that to tell you that these things are
not admissible because of the way the rules are
written, that a person has to be judged on this
particular crime, but I just thought I would tell you
about that because it tells you a little bit about Mr.
Cherrys background and it will give you some idea of
that.
I thank you for your paying close attention, just so
you would know what, unfortunately, I know because I
can see all of this information, and you havent seen
it and it would not be admissible.
But the rules of
evidence under these circumstances didnt permit it.
J.A. 514-15.

Immediately following these comments, it became

clear that the defense counsel wished to poll the jury.

The

clerk asked each juror, in succession, Is this your verdict?

Id. at 515-16.

And each juror replied that it was.

Id.

II.
Cherry argues that we should reverse the verdict for two
reasons.

First, he contends that the district court should have

dismissed the indictment as untimely under the Speedy Trial Act,

notwithstanding his failure to move for its dismissal prior to
trial.

Second, he argues that the district judges comments to

the jury revealing his criminal history before the jury could be
polled

constituted

plain

error.

We

arguments in turn.

address

each

of

these

A.
The Speedy Trial Act requires that a defendant be indicted
within thirty days of arrest and tried within seventy days from
the later of the filing of the information or indictment or the
defendants initial appearance before a judicial officer.

18

U.S.C. 3161(b), (c)(1); United States v. Leftenant, 341 F.3d

338, 343 (4th Cir. 2003).

The district courts interpretation

of the Speedy Trial Act is a question of law, which we review de

novo.

Leftenant, 341 F.3d at 342.

The Sanctions section of the Speedy Trial Act, 18 U.S.C.

3162, lays out in subsection (a) the consequences for failing
to timely indict or bring to trial a defendant:
(1) If, in the case of any individual against whom a
complaint is filed charging such individual with an
offense, no indictment or information is filed within
the time limit required by section 3161(b) as extended
by section 3161(h) of this chapter, such charge
against that individual contained in such complaint
shall be dismissed or otherwise dropped. . . .
(2) If a defendant is not brought to trial within the
time limit required by section 3161(c) as extended by
section 3161(h), the information or indictment shall
be dismissed on motion of the defendant. The defendant
shall have the burden of proof of supporting such
motion but the Government shall have the burden of
going forward with the evidence in connection with any
exclusion of time under subparagraph 3161(h) (3). . .
. Failure of the defendant to move for dismissal prior
to trial or entry of a plea of guilty or nolo
contendere shall constitute a waiver of the right to
dismissal under this section.
18 U.S.C. 3162(a) (emphasis added).

Cherry argues that because the waiver clause is included

only

in

3162(a)(2)--the

speedy

trial

provision

of

the

Sanctions section--and not 3162(a)(1)--the speedy indictment

provision--there

is

no

requirement

that

motion

under

the

speedy indictment provision of the Act be filed before trial.

Indeed, he contends that the speedy indictment provision does
not even require the defendant to file a motion at all.
cites

the

principle

that

where

Congress

includes

Cherry

particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion,

Russello v. United States, 464 U.S. 16, 23 (1983)

(alterations and citation omitted), arguing that had Congress

intended the speedy indictment right to be waived upon failure
to move for dismissal before trial, it would have included the
waiver

language

not

only

in

3162(a)(2),

as

the

but

also

in

it,

3162(a)(1).
This

argument

rests

on,

government

contention that section does not mean section.

Br. at 15.

puts

Appellees

Although creative, this argument cannot change the

plain language of the statute. 2

The waiver clause applies to

The implausibility of Appellants interpretation was

further illustrated at oral argument; even Cherrys appellate
counsel referred to 18 U.S.C. 3162(a)(1) and (2) as
(Continued)
9

this

section--i.e.,

Section

3162,

which

governs

both

the

speedy trial right and the speedy indictment right.

Despite

Cherrys

only

attempt

to

argue

otherwise,

3162(a)(2)

is

paragraph of a subsection of the Speedy Trial Act, and not its

own section.

Its waiver provision--that [f]ailure of the

defendant to move for dismissal prior to trial or entry of a

plea of guilty or nolo contendere shall constitute a waiver of
the right to dismissal under this section--thus refers not only
to that paragraph, but to all of 3162.
The terminology used throughout the U.S. Code bears out
this intuitive reading.

The terms section, subsection, and

paragraph are used consistently, and section always refers

to the subdivision smaller than a chapter and larger than a
subsection.

See

U.S.

Senate,

The

United

States

Code,

http://www.senate.gov/pagelayout/legislative/one_item_and_teaser
s/usCode_page.htm (last visited May 30, 2013) (The U.S. Code is
organized by subject area into 50 titles. Titles are further
broken down by chapter and section. Citations to the U.S. Code
look like this: 42 U.S.C. 1382 or 42 1382. This means the law
appears in title 42, section 1382 of the Code.).

subsections.
Oral
Argument
at
3:45,
http://www.ca4.uscourts.gov/OAaudiotop.htm.

10

available

at

Moreover,

all

other

circuits

to

have

addressed

this

question have determined that a defendant who does not file a

speedy indictment motion before trial waives his right to raise
that issue.

See United States v. Spagnuolo, 469 F.3d 39, 41

(1st Cir. 2006); United States v. Gamboa, 439 F.3d 796, 804 (8th
Cir. 2006); United States v. Lewis, 980 F.2d 555, 560 (9th Cir.
1992), abrogated on other grounds by Bloate v. United States,
559 U.S. 196 (2010).
We

join

our

sister

circuits

in

interpreting

the

plain

language of 3162(a)(2) to mean that a defendant who fails to

move for dismissal prior to trial on the basis of an untimely
indictment

waives

his

right

to

move

for

dismissal

under

the

speedy indictment provision of the Speedy Trial Act. 3

B.
Next,

Cherry

argues

that

the

district

court

erred

by

revealing his criminal history before the jury could be polled.

Federal Rule of Criminal Procedure 31(d) provides that [a]fter
a verdict is returned but before the jury is discharged, the
court must on a partys request, or may on its own, poll the
jurors individually.

If the poll reveals that the verdict was

Cherry and the government also disagree about whether

Cherry was indicted within thirty days of his arrest, as
calculated under the Speedy Trial Act. Because we hold that he
waived any right to move for dismissal by failing to raise the
issue before trial, we do not reach this question.

11

not

unanimous,

further

or

absolute

the

declare

right

to

court
a

may

direct

mistrial.

have

the

the

Rule

jury

jury

31(d)

polled.

to

deliberate

establishes
United

States

an
v.

Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972).

Because Cherry did not object after the court revealed his
criminal history, we review the courts action for plain error.
Under the plain error standard, a defendant must demonstrate
(1) that an error occurred, (2) that the error was plain, and
(3) that it affected his substantial rights.
Penniegraft,
defendant

641

F.3d

establishes

566,

575

those

(4th

Cir.

threshold

United States v.
2011).

requirements,

If

the

we

may

exercise our discretion to correct the error when failure to do

so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects
the

fairness,

proceedings.

integrity

or

public

reputation

of

judicial

Id. (quoting United States v. Olano, 507 U.S.

725, 736 (1993)) (alteration omitted).

1.
It

is

fundamental

that

[n]otwithstanding

the

broad

discretion accorded trial judges, a judge must maintain such a

demeanor that every one shall recognize that what is said from
the

bench

impartial

is

the

judge,

cool
and

and

has

in

partisanship of the advocate.

well-balanced
it

naught

utterance
of

the

of

heat

an
and

United States v. Godwin, 272

12

F.3d

659,

676-77

(4th

Cir.

2001)

(quoting

States, 281 F.2d 656, 665 (4th Cir. 1960)).

Wallace

v.

United

For this reason,

the privilege of the judge to comment on the facts has its

inherent limitations.
470

(1933).

These

Quercia v. United States, 289 U.S. 466,

limitations

apply

even

after

jury

has

returned a verdict, for a verdict is not final until it has been

recorded, after the parties have had adequate time to request a
poll.

See Government of the Virgin Islands v. Hercules, 875

F.2d 414, 419 (3d Cir. 1989) ([A] verdict is not final when
announced.

Rather, the test for validity of the verdict is

whether it was certain, unqualified and unambiguous considering

the circumstances of the receipt of the verdict and poll of the
jurors relative to their verdict.) (alteration and citations
omitted).
The

purpose

of

jury

poll

is

to

give

each

juror

an

opportunity, before the verdict is recorded, to declare in open

court his assent to the verdict which the foreman has returned,
to ensure that a unanimous verdict has in fact been reached and
that no juror has been coerced or induced to agree to a verdict
to which he has not fully assented.
772

F.2d

66,

68

(4th

Cir.

1985)

United States v. Carter,

(quoting

States, 255 F.2d 9, 17 (1st Cir. 1958)).

might

influence

jurors

decisions

individually is thus improper.

Miranda

v.

United

To inject remarks that

before

they

may

be

polled

It is error for a judge to

13

remark on the culpability of the defendant, the merits of the

case, or the correctness of the verdict before a party has the
opportunity to request a poll.

See United States v. Harlow, 444

F.3d 1255, 1267 (10th Cir. 2006) (recognizing that intervening

comments by a judge can undermine the defendants right to poll
the jury); United States v. Randle, 966 F.2d 1209, 1213 (7th
Cir. 1992) (finding reversible error where, after receiving the
verdict from the jury, the judge proceeded to read the probation
officers

memorandum,

which

detailed

the

defendants

criminal

history).
By commenting on inadmissible aspects of the defendants
criminal history before allowing defense counsel a reasonable
amount of time in which to request a poll of the jury, the court
erred.

And because all district judges are no doubt aware of

their duty to take special care to maintain an appearance of

impartiality, Anderson v. Warden, Md. Penitentiary, 696 F.2d
296, 299 (4th Cir. 1982), the courts error was plain.
2.
Even

where

district

court

plainly

errs,

we

will

not

overturn a verdict unless that error affected the defendants

substantial rights, which generally means that the error must
have been prejudicial.

Olano, 507 U.S. at 734.

The defendant

has the burden of showing that the error affected the outcome
of the trial, or probably influenced the verdicts against
14

him.

United States v. Rolle, 204 F.3d 133, 139 (4th Cir. 2000)

(quoting

Olano,

507

U.S.

at

734-35)

(alterations

omitted).

Where the evidence is overwhelming and a perfect trial would

reach the same result, a substantial right is not affected.
Godwin, 272 F.3d at 680 (citation omitted).

Cherry is unable to

shoulder this burden: the evidence against him was overwhelming

and

the

strong

circumstances

indicia

that

surrounding

the

jury

the

had

erroneous

reached

remarks

unanimous

are

guilty

verdict.
Both
testimony
arrest

Officer

Keeling

concerning

and

the

and

Cherrys

items

Officer

activities

recovered

Been
at

gave

the

afterward.

time

In

detailed
of

his

particular,

Officer Keeling testified as to his struggle with Cherry next to

the Hummer, and stated that he heard the sound of a metal object
falling

to

the

ground,

which,

based

police officer, he thought was a gun.

on

his

experience

as

He also testified that,

after he tackled Cherry to the ground, placed him in handcuffs,

and stood him up, he and his partner were able to recover two
bags of suspected narcotics from that site.

J.A. 223.

As

Officer Keeling put it, as soon as we picked him up we saw [the

bags] sitting right there, [l]iterally, within three feet of
where he had tackled Cherry to the ground.

Id. at 244.

This

testimony was corroborated by Officer Beens testimony, as well

as by the recording made by Officer Beens Taser.
15

Of particular

significance, in the video, after the altercation between Cherry

and Officer Keeling, Officer Been can be heard saying, Damn, E
all over the place--in other words, that [t]heres ecstasy on
the

ground

and

its

large

Officer Ortiz also testified.

quantity

of

it.

Id.

at

270.

He stated that he arrived at the

scene while Officer Keeling was with Cherry on the ground, and
that he recovered a small semiautomatic handgun from the ground,
five to ten feet from the Hummer.

He further stated that he did

not see any jewelry or anything else in the vicinity.

opposing

evidence

was

Cherrys

own

testimony,

The only
which

was

impeached and uncorroborated.

Mitigating any potential damage done by the courts illadvised comments was the fact that the jury was already aware
that Cherry was a convicted felon.

Although the jurors had not

been told what crimes Cherry had been convicted of, the parties
stipulated that he had been convicted in a court in Virginia of
a qualifying felony crime punishable by imprisonment for a term
exceeding one year prior to the occurrence of the acts charged
as violations in the indictment.

Id. at 360.

Furthermore,

during the trial, the members of the jury also became aware that
Cherry had previously been arrested for possession of marijuana,
as the government elicited testimony from Cherry as to that fact
in order to impeach his statement that he was not aware that
smoking marijuana was illegal.

Id. at 401.
16

Cherry

makes

much

of

the

fact

that

the

jury

twice

interrupted their deliberations to ask questions of the court.

The jury requested to see the Taser video recording again, and
asked whether there was anybody else standing by the vehicle
before Officer
scene.

Ortiz,

who

recovered

the

gun,

arrived

at

the

Such requests are not uncommon, and we do not find them

to be evidence of a lack of unanimity among the jurors as to

their ultimate findings.

Moreover, despite Cherrys attempts to

cast the deliberations as long--and by implication, contentious-the jury returned its verdict on the same afternoon it retired.
The fact that the jury foreperson presented the court with
a signed verdict form before the judges erroneous recitation of
Cherrys

criminal

history

further

indicates

the

unlikelihood

that his statements affected the trials outcome.

The clerk

read the verdict aloud and asked, Members of the jury, is this
your verdict, so say you all?
question,

the

jurors

all

J.A. 514.

indicated

an

In response to this
affirmative

response.

While a collective affirmation is not a substitute for a poll,

we find in this instance that it constitutes further evidence of
the unanimity of the jury and indicates the irrelevance of the
judges comments to the outcome of the trial.

See United States

v. Miller, 59 F.3d 417, 421 (3d Cir. 1995) (When [a collective

poll] is considered against the backdrop of a relatively simple
case,

short

period

of

deliberation
17

by

the

jury,

and

no

indication

in

the

record

that

any

of

the

jurors

displayed

reluctance or disagreement with the verdict, we cannot say that

the district court abused its discretion.); Carter, 772 F.2d at
67-68.
We further note that the judges comments in this case are
distinguishable
circuits

from

that

those

Cherry

in

relies

Randle, 966 F.2d 1209.

the
on,

two

cases

Harlow,

from

444

our

F.3d

sister

1255,

and

The judicial comments to the jury in

both of those cases were considerably more egregious than those

at

issue

here.

In

Harlow,

the

judge

relayed

personal

conversation he had with a government witness which revealed

that

168

children

methamphetamine
defendant

provided

and

communities.

had

the

been
by

implicated
the

terrible

conspiracy

impact

444 F.3d at 1260.

in

of

the

use

involving

methamphetamine

of
the
on

He went on to commend the

jurors on rendering a public service on par with several highly

publicized

cases.

Id.

In

Randle,

the

judge

read

out

the

probation report, which stated in part, there is no combination

or

conditions

that

can

assure

that

this

defendant

continue to get into trouble with the law.

speaks for itself.

966 F.2d at 1213.

will

not

His track record

The judges comments

here were less inflammatory, although we acknowledge that they

could

have

been

jurys verdict.

understood

as

implying

the

accuracy

of

the

See Harlow, 444 F.3d at 1268 (quoting Quercia,

18

289 U.S. at 470 (The influence of the trial judge on the jury
is necessarily and properly of great weight and his lightest
word or intimation is received with deference, and may prove
controlling.)).

Moreover, in Randle, the only case of these

two to result in a reversal, the judge denied defense counsels

request to conduct an individual poll outright.
1213.

966 F.2d at

Here, in contrast, the court allowed for a poll as soon

as it became clear that defense counsel desired that one be

conducted.
Given these circumstances, it is difficult to imagine that
a different outcome might have resulted had the court not erred.
Accordingly,

we

find

that

the

error

did

not

affect

Cherrys

substantial rights and does not warrant reversal.

III.
For the foregoing reasons, each of Cherrys convictions is
AFFIRMED.

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