Jury’s question was an inquiry about scheduling and not about substantive elements of offenses

         A jury convicted Dwayne Robinson of being a felon in possession of firearms that were found in a car that he had been driving. United States v. Robinson, --- F4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0086p-06.pdf On appeal, he argued that the district court acted improperly by answering a question from the jury without consulting counsel. The court informed the parties about the question before it brought the jury back into the courtroom to announce its verdict. There was no objection to the question and no objection in a post-trial motion, so the plain error test was applied on appeal. Slip Op. at 4.

         The Sixth Circuit determined that Mr. Robinson’s reliance on Fed.R.Crim.Proc. 51 did not provide a path around the plain error test because the Rule requires a party to make an objection even if the claim of error is to some action of the trial court that has already taken place. Since the parties disputed what the note said and the Sixth Circuit had “no idea what the original note said,” the failure to object prevented the district court from taking any remedial action and making an “appropriate record.” Slip Op. at 6.

         The Sixth Circuit viewed the jury’s question as an inquiry about “scheduling information” and not about “substantive elements” of the offenses being tried. Slip Op at 8. In the Court’s words, “When the jurors asked about the next steps if they did not reach a verdict that night, the court simply told them that they would return the next morning to continue deliberating.” Id. Since the inquiry concerned “a mere scheduling matter,” the district court “had no duty to seek counsel’s input.” Id.

        Several other issues were discussed in the opinion. One issue arose when a detective was asked on cross-examination to concede that no eyewitness saw Mr. Robinson with the guns. The detective responded that an eyewitness “saw him with a handgun the day before, but that’s on a different case.” Slip. Op. at 8.

        Prior to trial, the government agreed not to use any evidence about an “ongoing homicide investigation” into Mr. Robinson. Slip Op. at 10. The investigation involved an eyewitness who saw him with a gun. The Sixth Circuit upheld the district court’s ruling that the defense’s cross-examination “opened the door” to the detective’s response. As the Sixth Circuit saw it, the cross-examination “implicated” the ongoing investigation and “would have left a false impression” that no one ever saw Mr. Robinson in possession of a gun. Id. The Court relied on precedent that allows a party to admit evidence in response to a misleading impression created by the other party. Id.    

       Another issue stemmed from a jury instruction. The parties proposed an instruction that Mr. Robinson did not need to own the firearms to possess them. The district court, however, instructed that: “Ownership is irrelevant to the issue of possession.” The Sixth Circuit held there was no plain error under current law and pointed out that Pattern Criminal Jury Instruction 12.01(2)(A) recommends an instruction that the defendant does not have to own the firearm to possess it.

        Mr. Robinson also challenged his 15-year mandatory minimum sentence under the Armed Career Criminal Act. The sentence was based on convictions in 1991, 2013, and 2017. Mr. Robinson argued that the jury had to make the finding that he committed the three crimes on different occasions. While the case was on appeal, Erlinger v. United States, 602 U.S. 821 (2024) was decided. The Sixth Circuit reiterated its earlier conclusion that Erlinger error can be harmless. See United States v. Campbell, 122 F.4th, 630-33 (6th Cir. 2024). In doing so, the Court found that the error was not harmful merely because the statutory maximum of 10 years was increased to 15 years.