USA v. Jesse Penn, Jr.

Filing

PRECEDENTIAL OPINION Coram: SMITH, Chief Judge, FUENTES, Circuit Judges and *STARK, Chief District Judge. *Honorable Leonard P. Stark, Chief Judge of the United States District Court for the District of Delaware, sitting by designation. Total Pages: 18. Judge: SMITH Authoring.

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PRECEDENTIAL

\

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3779
_____________

UNITED STATES OF AMERICA
v.
JESSE NATHANIEL PENN, JR.,
Appellant
_____________

On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-12-cr-00240-001
District Judge: The Honorable Terrence F. McVerry
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 10, 2017

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Before: SMITH, Chief Judge, FUENTES, Circuit Judge,
and STARK,*
Chief District Judge
(Filed: August 30, 2017)
Candace Cain
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Rebecca R. Haywood
Michael L. Ivory
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
_____________________
*

Honorable Leonard P. Stark, Chief Judge of the United
States District Court for the District of Delaware, sitting
by designation.
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OPINION
_____________________
SMITH, Chief Judge.
Jesse Nathaniel Penn, Jr., was convicted of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). After opening statements at Penn’s trial, the
District Court removed one of the jurors, a student with
scheduled surgery, replacing him with an alternate. Penn
now appeals, arguing that removing the juror deprived
Penn of his “constitutional rights to due process,
fundamental fairness, equal protection and an impartial
jury” because the juror substitution violated Rule
24(c)(1) of the Federal Rules of Criminal Procedure.
Because the District Court did not abuse its discretion,
we will affirm the judgment of the District Court.
I.
A one-count indictment charged Jesse Nathaniel
Penn, Jr., with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). At Penn’s first trial,
the jury found him guilty. His conviction was vacated on
appeal. See United States v. Penn, 616 F. App’x 524 (3d
Cir. 2015). On retrial, Penn was again found guilty. This

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timely appeal followed.1
We consider only Penn’s contention that he was
deprived of his constitutional rights when the District
Court excused a seated juror without making a finding
that the juror was “unable to perform” his duties or that
there was a ground for disqualifying the juror.2
The facts relative to this issue are undisputed.
1

The District Court exercised jurisdiction under 18
U.S.C. § 3231. We have appellate jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
Penn raised two other issues solely for the purpose of
preserving the issues for further review. Both are
foreclosed. First, we agree that our decision in United
States v. Singletary, 268 F.3d 196, 204–05 (3d Cir.
2001), upholds the constitutionality of the felon-inpossession statute. Second, we conclude that Penn’s
challenge to the application of the 15-year mandatory
minimum sentence under the Armed Career Criminal Act
also fails. Penn argues that his convictions under 35 Pa.
Stat. Ann. § 780-113(a)(30) are not “serious drug
offenses” under the ACCA, but United States v.
Henderson states otherwise. See 841 F.3d 623, 631 (3d
Cir. 2016) (stating that “documents underlying [the
defendant’s] felony conviction under [35 Pa. Stat. Ann.
§] 780-113(a)(30) stemming from a January 25, 2004
indictment do . . . establish a serious drug offense under
ACCA”). Accordingly, we need not address these issues
further.

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Voir dire for Penn’s trial commenced on Monday,
August 24, 2015. The District Court asked the members
of the venire a series of preliminary questions. Among
the questions was whether there was “any legitimate
justifiable hardship reason, personal, professional,
business, medical condition or impairment, or otherwise
why you could not serve as a juror for the duration of this
short trial?” A92. Prospective Juror #207, a student at
Clarion University, indicated that serving on the jury
would be a hardship for him.
The next question was, “Defendant, Jesse
Nathaniel Penn, Jr., is an African-American, as you can
see. Do you have such strong personal feelings, either
positive or negative, regarding African-Americans which
would affect your ability to be a fair and impartial juror
in this case?” A93. No member of the venire responded
affirmatively to that question.
Later, the District Court held individual voir dire
in chambers. At that time, Prospective Juror #207
explained that he attended Clarion on a full-time basis
and that the trial, which would last two to three days,
would conflict with his scheduled tonsillectomy on
Wednesday, August 26. After the Court asked for a
“medical excuse,” the prospective juror stated that he had
been told his tonsils had to be removed and that the
appointment had been scheduled for “two and a half or
three weeks.” A111. In response, the Court asked him if
he could contact the doctor’s office when he left and
“reschedule it for the next day or Friday.” Id. The

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prospective juror responded that rescheduling surgery
would conflict with basketball preseason practice, which
started the following week. He added, “Sometimes that’s
not easy to get surgery postponed.” Id. The District
Court advised that it was not inclined to excuse the
student from jury service because he did not “have any
medical evidence” to show he had surgery scheduled and
had not advised the jury operations office of his surgery.
A112.
Further discussion revealed that the August 26
appointment was the earliest appointment the prospective
juror could secure after getting sick with bronchitis for
the fourth time in July, that he was a varsity basketball
player on a basketball scholarship, that he would be
unable to perform activities for two weeks after the
surgery, and that mandatory practices began the “[n]ext
week.” A112–13.
After the prospective juror left chambers, the
District Judge said he had no objection to keeping him on
the jury, adding, “I don’t believe him . . . because if he
truly was having surgery on Wednesday, he would have
notified the jury office that he is not available for a
medical reason and his doctor would send a note to that
effect.” A114. The Court completed voir dire, after
which the student was seated as the ninth juror. The jury
was sworn in that afternoon and the Court gave the panel
preliminary instructions. After the prosecution and the
defense made their opening statements, the Court
adjourned for the day.

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The following morning, the District Court received
a doctor’s note from the student, called the doctor’s
office, and talked to the student again.3 The doctor’s
note advised that the student had an appointment that day
with his primary care physician in preparation for his
surgery scheduled for the next day, Wednesday, August
26. The document concluded with the doctor’s electronic
signature. In its discussion with the student, the District
Court indicated that the trial was underway, that the
student had been sworn in as a juror, and that it was
unlikely that he would be excused. The District Court
also contacted the doctor’s office and learned that the
surgery could be rescheduled. The doctor’s office
confirmed, however, that surgery remained scheduled for
the following morning.
Before reconvening, the District Court advised
both prosecution and defense counsel about the note, the
meeting with the student, and the call with the doctor’s
office. The District Judge indicated he had “rethought
about it.” A162. Because there was “medical support”
for the student’s need to undergo a tonsillectomy and the
scheduling of his surgery, the District Court asked
counsel for their consent to excuse the student and

3

The chronological sequence of these three events on
Tuesday morning is not clear from the District Judge’s
on-the-record recounting.

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replace him with an alternate.4 A163.
The prosecution consented to excusing the student.
Moreover, one of the prosecutors asserted that he had
watched the student the day before and saw that the
student was “yawning, disinterested, and clearly did not
want to be there.” A163–64. Defense counsel disagreed
that the student looked disinterested.
The Court redirected counsel to the issue of
whether the student would “be a conscientious juror that
he has this now verified medical condition with a surgery
scheduled and not being able to do it.” A164. Defense
counsel argued that the surgery was not a “front burner”
problem or a “distraction” because the doctor’s office
was willing to reschedule the surgery.
A164–65.
Moreover, defense counsel stated that the District Court
had not “made any findings.” A165.
The Court told counsel “that [the student is] very
reluctant about being here.” A165–66. The Court also
noted that the student repeated that, in addition to
missing his surgery, he would miss class and basketball.
4

The request for consent appears to have been a
courtesy. Other courts have held that “[t]he trial judge
does not need a defendant’s consent to replace a juror
with an alternate before the jury retires; all that is
required is a reasonable cause for the replacement.”
United States v. Fajardo, 787 F.2d 1523, 1526 (11th Cir.
1986) (citing United States v. Ellenbogen, 365 F.2d 982,
989 (2d Cir. 1966)).

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When defense counsel said nothing had changed since
voir dire, the District Court responded, “Yes, it has. We
now have evidence.” A167. The Court overruled
defense counsel’s objection, excused the student, and
seated an alternate juror.
Defense counsel then put on the record that the
student was African-American and that there was only
one other African-American on the jury, a middle-aged
woman. (From this, we infer that the alternate was not
African-American.)
The District Court responded,
“[T]he fact that [the student] is an African-American has
absolutely no bearing on the Court’s decision to allow
this young man to go forward with his surgery that’s
scheduled for tomorrow.” A168.
After a recess, the jury trial resumed. The next
day, the jury convicted Penn of being a felon in
possession. This timely appeal followed.
On appeal, Penn argues that substituting the
alternate for the student deprived Penn of his
constitutional rights to due process, fundamental fairness,
equal protection, and an impartial jury.
II.
Penn’s constitutional claims are subject to plenary
review. See Gov’t of V.I. v. Davis, 561 F.3d 159, 163 (3d
Cir. 2009). We review the removal of a juror for an
abuse of discretion. See United States v. Cameron, 464
F.2d 333, 335 (3d Cir. 1972).

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III.
Penn’s constitutional claims fail. Penn’s equal
protection claim, the only one of Penn’s constitutional
claims for which Penn cites any caselaw, is meritless.
All of Penn’s arguments are based on the District Court’s
alleged failure to comply with Rule 24(c)(1) of the
Federal Rules of Criminal Procedure.
A. Penn’s Constitutional Claims Are Based on His
Claim that Rule 24(c)(1) Was Violated
Penn argues that four constitutional rights were
violated: equal protection, due process, fundamental
fairness, and an impartial jury.
Most of his argument is undeveloped. Penn comes
closest to developing an argument about his right to equal
protection through his emphasis on the student’s race and
invocations of Batson v. Kentucky, 476 U.S. 79 (1986).
See, e.g., Reply Br. 29 (“[O]nce the jury was chosen
through a process of peremptory challenges, in a case
involving an African-American defendant and
replacement of an African-American juror, removal of
the juror contrary to Rule 24 implicated Mr. Penn’s
constitutional rights [and] is reversible error and cannot
be dismissed as harmless.”). But his argument is wrong
on the merits.

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Penn seems to believe that, under Batson5 or some
novel permutation thereof,6 he was entitled to maintain
the racial composition of the jury as it was selected. Of
course, there is no such right. See United States v.
Mendoza, 510 F.3d 749, 754 (7th Cir. 2007) (“Mendoza
is not entitled to any Hispanics on the jury, nor by
implication is he entitled to any one individual juror.”
(citation omitted) (citing Taylor v. Louisiana, 419 U.S.
522, 538 (1975))).

5

Penn suggests that Batson might have applied directly
in this case to the judge’s decision to replace the student.
Even if such claims existed, which Penn does not show,
there would be no viable Batson claim here because Penn
failed to “show[] that the totality of the relevant facts
gives rise to an inference of discriminatory purpose” and
a fortiori failed to “prove[] purposeful racial
discrimination” in the removal of the student. Wilson v.
Beard, 426 F.3d 653, 666 (3d Cir. 2005) (internal
quotation marks omitted) (quoting Johnson v. California,
545 U.S. 162, 168 (2005)).
6

On reply, Penn analogizes to cases in which a district
court deprives the defendant of his or her peremptory
strikes. See, e.g., Reply Br. 21 (“Here, the district court
also impaired Mr. Penn’s right to peremptory
challenges . . . .”). This argument, like Penn’s others, is
premised on the District Court’s failure to offer sufficient
findings under Rule 24(c)(1). As discussed below, the
District Court did not abuse its discretion under the Rule.

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Penn also failed to substantiate his claims that his
rights to due process, fundamental fairness, or an
impartial jury were infringed by the substitution of the
alternate juror. Because these arguments are totally
undeveloped, they could be considered waived. Cf.
Avaya Inc., RP v. Telecom Labs, Inc., 838 F.3d 354, 416–
17 (3d Cir. 2016); John Wyeth & Brother Ltd. v. CIGNA
Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997)
(“[A]rguments raised in passing . . . , but not squarely
argued, are considered waived.”); Rodriguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011) (“It should go without saying that we deem waived
claims not made or claims adverted to in a cursory
fashion, unaccompanied by developed argument.”).
However, we need not rule on waiver because
Penn’s constitutional arguments are all premised on the
idea that the District Court abused its discretion under
Rule 24(c)(1) of the Federal Rules of Criminal
Procedure. Thus, we turn to the question of whether the
District Court complied with Rule 24(c)(1).
B.
The District Court Did Not Abuse Its
Discretion when Replacing the Student
Rule 24(c)(1) of the Federal Rules of Criminal
Procedure states, “The court may impanel up to 6
alternate jurors to replace any jurors who are unable to
perform or who are disqualified from performing their
duties.” In this case, after talking with the student twice,
seeing the student’s “medical evidence” that surgery was
scheduled, and hearing the student’s concerns about

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missing his surgery, his classes, and his basketball
practice, the District Court excused the student from
further service over defense counsel’s objections.
On appeal, Penn argues (1) that the District Court
needed to make explicit findings on the record and (2)
that those findings needed to show that it was essentially
impossible for the student to continue service. These
arguments fail because the District Court’s reasoning was
clear and because excusing a juror for the reasons that
appear on this record does not constitute an abuse of
discretion.
First, Penn’s argument that the District Court
“made no findings,” Penn Br. 48, is contradicted by the
record. It is true that the District Court did not issue a
written document labeled “Findings.” But Rule 24(c)
imposes no such obligation on the District Court.7 See
United States v. Bradley, 173 F.3d 225, 230 (3d Cir.
1999) (upholding the dismissal of a juror because “the
Penn refers to “procedures” or “formal procedures
under Rule 24,” e.g., Penn Br. 47, but has not identified
any procedures required by any authority that the District
Court failed to follow, see, e.g., United States v. Simpson,
992 F.2d 1224, 1228 (D.C. Cir. 1993) (“Although the
trial judge did not verify the juror’s claim with the
court’s medical staff, nothing in the rule or case law
suggests that the judge must temper his discretion by
performing any particular test to determine whether a
juror is competent.”).
7

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record shows that the court dismissed her for inability to
serve as a juror[] and that the court had sufficient
information to support the dismissal”); United States v.
Franks, 511 F.2d 25, 37–38 (6th Cir. 1975) (relying on
the trial record to hold that a District Court “properly”
excused “a juror midway through the trial with ‘no more
than a cursory examination’ into the juror’s illness”); cf.
Cameron, 464 F.2d at 335 (“[T]he trial judge, in his
sound discretion, may remove a juror and replace him
with an alternate juror whenever facts are presented
which convince the trial judge that the juror’s ability to
perform his duty as a juror is impaired.” (emphasis
added)); United States v. Pineda, 743 F.3d 213, 217 (7th
Cir. 2014) (“This Court will not overturn the trial court’s
decision to dismiss a juror pursuant to Rule 24(c) unless
no legitimate basis for the court’s decision can be found
in the record . . . .”); United States v. Virgen-Moreno, 265
F.3d 276, 288 (5th Cir. 2001) (“The district court was not
required to conduct an evidentiary hearing . . . . The
reasons that [the juror] offered [in a note] were sufficient
factual support for the district court’s decision.”); United
States v. Reese, 33 F.3d 166, 173 (2d Cir. 1994)
(“Whether and to what extent a juror should be
questioned regarding the circumstances of a need to be
excused is also within the trial judge’s sound
discretion.”).8

Forty-five years ago, we wrote, “Both parties to this
appeal have pointed out the paucity of reported cases
which have considered what grounds may properly
8

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The District Court clearly articulated its reasoning
on the record. The District Court explained its concern
that the student might “be a disruption . . . to the other
members of the jury,” indicated that the “medical
support” for the student’s condition and scheduled
surgery was important, and concluded, after meeting with
the student, that he was “very reluctant about being
here . . . [b]ecause he is going to miss his surgery, he has
missed his classes, and he is going to miss his basketball
next week because the surgery will be rescheduled.”
A162–66.
Second, before the District Court and on appeal,
Penn suggests that the words “unable to perform” and
“disqualified” in Rule 24(c)(1) only allow jurors to be
replaced when it is impossible for them to serve. For
instance, Penn argues that the student was not “unable to
perform” or “disqualified” because the surgery could be
postponed.
Courts have not construed Rule 24(c)(1) to create
such a high bar to replacing jurors. Indeed, courts have
upheld a District Court dismissing jurors under Rule
24(c) for many reasons that did not completely prevent a
juror from serving:
 “a planned business trip,” Reese, 33 F.3d at
support the trial judge’s removing a juror and replacing
him.” United States v. Cameron, 464 F.2d 333, 335 (3d
Cir. 1972). That lack of authority continues to this day,
so we look to other circuits’ persuasive precedent.

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173;
 “sinus problems [that] were a distraction to the
proceedings” even though “the juror in question
was well enough to continue,” United States v.
Puche, 350 F.3d 1137, 1152 (11th Cir. 2003)
(describing United States v. Fajardo, 787 F.2d
1523 (11th Cir. 1986));
 when a juror “had a serious argument with her
husband on the telephone the night before,”
United States v. Brown, 571 F.2d 980, 984 (6th
Cir. 1978);
 “the illness and hospitalization of [the juror’s]
87-year old mother in New Mexico,” United
States v. Dominguez, 615 F.2d 1093, 1094–96
(5th Cir. 1980); and
 when a juror-nurse’s “patient suffered a heart
attack,” Cameron, 464 F.2d at 335 (describing
United States v. Houlihan, 332 F.2d 8 (2d Cir.
1964)).
See also United States v. De Oleo, 697 F.3d 338, 342 (6th
Cir. 2012) (citing other cases).
Most notably, in a persuasive opinion, United
States v. De Oleo, the United States Court of Appeals for
the Sixth Circuit held that a district court did not abuse its
discretion by replacing a juror-student who “did not want
to miss the beginning of school.” De Oleo, 697 F.3d at

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341–42. The Sixth Circuit explained that “it is not the
conflict’s objective seriousness but its impact on a
particular juror that matters.” Id. at 342.
Here, as in De Oleo, the juror-student was
concerned about missing classes. In Penn’s case, the
student’s “objective seriousness” is higher than in De
Oleo because delaying the surgery could also affect the
student’s health and ability to play basketball, for which
he had a scholarship. Moreover, the District Court
clearly assessed the “impact” of the conflict on the
student when the District Court concluded that the
student was “very reluctant about being here.” A165–66.
Thus, it seems reasonable that the impact of missing
classes was higher on the Penn juror than on the De Oleo
juror.
Penn argues that De Oleo cannot be compared to
this case because, in De Oleo, “the student was promised
by the judge she would not miss classes and was
replaced, as promised, when the trial ran longer than
expected.” Reply Br. 27. We fail to appreciate why that
difference matters. We recognize that the circumstances
in De Oleo were slightly different than here. In De Oleo,
the defense failed to object when the district court added
the student to the jury on the condition that that student
would be excused if trial ran long. De Oleo, 697 F.3d at
342.
At all events, whether the circumstances here are
exactly the same as those in De Oleo is not
determinative. It should go without saying that decisions

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related to juror substitution are within the discretion of
the trial court. See United States v. Thornton, 1 F.3d 149,
154 (3d Cir. 1993) (“In light of the district court’s wide
latitude in making the kind of credibility determinations
underlying the removal of a juror, we conclude the
rulings here were well within its discretion.”); see also
De Oleo, 697 F.3d at 342 (“[D]istrict judges are in the
best position to view a juror’s demeanor and determine
whether she [or he] is able to shoulder the obligations of
jury service.”); Dominguez, 615 F.2d at 1095 (“It is
settled law in this and other circuits that it is within the
trial judge’s sound discretion to remove a juror whenever
the judge becomes convinced that the juror’s abilities to
perform his duties become impaired.”).
The District Court’s decision here was clearly
within its discretion.
IV.
The decision to substitute a juror was within the
sound discretion of the District Court. Because the
District Court acted well within its discretion in excusing
the juror, we will affirm.

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