Filed: Jul. 23, 2010
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 08-2899 _ UNITED STATES OF AMERICA v. JELANI SOLOMON, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No.05-0385-001) District Judge: Honorable Terrence F. McVerry _ Submitted Under Third Circuit L.A.R. 34.1(a), July 12, 2010 Before: FUENTES, ALDISERT, and ROTH, Circuit Judges. (Opinion Filed: July 23, 2010 ) OPINION OF THE COURT FUENTES, Circuit Judge: Jelani So
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 08-2899 _ UNITED STATES OF AMERICA v. JELANI SOLOMON, Appellant _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No.05-0385-001) District Judge: Honorable Terrence F. McVerry _ Submitted Under Third Circuit L.A.R. 34.1(a), July 12, 2010 Before: FUENTES, ALDISERT, and ROTH, Circuit Judges. (Opinion Filed: July 23, 2010 ) OPINION OF THE COURT FUENTES, Circuit Judge: Jelani Sol..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2899
_____________
UNITED STATES OF AMERICA
v.
JELANI SOLOMON,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No.05-0385-001)
District Judge: Honorable Terrence F. McVerry
_____________
Submitted Under Third Circuit L.A.R. 34.1(a),
July 12, 2010
Before: FUENTES, ALDISERT, and ROTH, Circuit Judges.
(Opinion Filed: July 23, 2010 )
OPINION OF THE COURT
FUENTES, Circuit Judge:
Jelani Solomon appeals from his conviction, challenging the District Court’s
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decision to empanel a partially innominate jury, as well as the sufficiency of the evidence.
For the following reasons, we affirm Solomon’s conviction.1
I.
Because we write primarily for the parties, we discuss the facts only to the extent
necessary for disposition of this appeal.
Solomon was charged in a Nine count Indictment with two co-defendants, Wanda
Solomon (his mother) and Claron Hanner (his sister’s boyfriend), with various narcotics
and firearms offenses. Relevant to this appeal, Count One charged all three defendants
with conspiracy to distribute cocaine. Count Six charged Solomon and Hanner with
committing murder during and in relation to the drug trafficking crime charged in Count
One. The Government sought the death penalty against both defendants. Wanda and
Hanner pleaded guilty and were sentenced to 300 months imprisonment and 240 months
imprisonment, respectively. Solomon went to trial and was found guilty on all counts, but
the jury declined to impose the death penalty and he was instead sentenced to life
imprisonment.
Solomon began dealing drugs in 1994 around age fourteen. His mother was a drug
dealer who operated out of her home in Beaver County, PA.. In 1999, Shawn Helisek
began to purchase cocaine from Solomon. In 2000, Helisek was arrested by Pennsylvania
1
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231
and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291.
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authorities and agreed to help build a case against Solomon. During a controlled delivery,
Helisek wore a wire and provided Solomon with ten ounces of cocaine worth $7,000.
Helisek testified at the preliminary hearing against Solomon as the State’s primary witness.
Solomon was released on bond and continued his drug dealing activities while the State
charges against him were pending.
While Solomon ultimately decided to plead guilty, he also told his associates that he
wanted to ensure that no one would ever “snitch” on him again. He therefore hired
Hanner to murder Frank Helisek, Shawn Helisek’s father, to send a message. The night
before he pleaded guilty, Solomon instructed Hanner which route to take to Frank’s house,
where to park and where to shoot Frank. Hanner knocked on Frank’s door around 10:30
pm and shot him three times through the chest and abdomen. Hanner then met Solomon,
who gave him 11 ounces of cocaine and $5,000 for murdering Frank Helisek. The next
day, Solomon pleaded guilty and was sentenced to 30 to 72 months incarceration. Shortly
thereafter, Hanner was apprehended by law enforcement and ultimately decided to
cooperate in their case against Solomon and testified to his role in the murder at
Solomon’s trial.
Prior to jury selection, the District Court gave the parties notice that it was
considering empaneling an anonymous jury pursuant to 18 U.S.C. § 3432, and afforded
Solomon an opportunity to file objections. The Court ultimately decided to empanel a
partially innominate jury, i.e., the names and personal residences of the jurors were
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withheld from the Court and the parties. Jurors did, however, fill out an extensive 85
question questionnaire developed by the Government and by Solomon, and approved by
the Court. Included in this questionnaire was an inquiry into the general area of residence
of each venireperson. Both parties were also permitted to question the venirepersons
individually, and exercise peremptory challenges.
II.
18 U.S.C. § 3432 provides, in relevant part, that a “person charged with [a] capital
offense shall . . . be furnished with a . . . list of the venire[persons] . . . stating the place of
abode of each venire[person] . . . except that such list of the venire[persons] . . . need not
be furnished if the court finds by a preponderance of the evidence that providing the list
may jeopardize the life or safety of any person.” 2 (S.A. 3) A district court is not required
to hold an evidentiary hearing on juror safety before deciding to empanel an anonymous
jury. See United States v. Eufrasio, 935 F.2d 553, 574 (3d Cir. 1991). We have suggested
outside of the § 3432 context that district courts are also not required to “articulate express
findings” when empaneling an anonymous jury, even though doing so would be advisable.
Id. In the First Amendment context, however, we have held that it is insufficient for a
district court to rely on conclusory and generic findings to justify restricting public access
2
While we generally review a district court’s decision to empanel an innominate
jury for abuse of discretion, because Solomon did not object to the District Court’s
decision on the First Amendment ground he raises on appeal, or on the sufficiency of the
District Court’s justifications for its decision, we review this portion of his appeal for
plain error. See United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010).
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to prospective jurors. United States v. Wecht, 537 F.3d 222, 241 (3d Cir. 2008). We have
also held that so long as a defendant is permitted a full voir dire, a district court may
empanel an anonymous jury “if the court believes there is potential for juror
apprehension.” See e.g.,
Eufrasio, 935 F.2d at 574.
Here, the District Court explained its reasoning for empaneling a partially
innominate jury, noting that it had heard testimony during pretrial proceedings and change
of plea hearings:
That, if believed by the jurors, might well cause [the jury] to be
apprehensive – not only for their own safety but, perhaps more
acutely, for the safety of their families. It cannot be ignored that
Defendant Solomon is charged in Count Six . . . with willfully,
deliberately, maliciously, and with premeditation causing the death
of an innocent person. . . . [T]he government will be proffering
evidence to attempt to prove that Defendant contracted with and
paid a co-defendant drugs and money to kill the victim in order to
intimidate and/or retaliate against the victim’s son who was
expected to testify against Defendant in a criminal drug distribution
trial the next day. These underlying facts, if believed, could easily
result in the potential for juror apprehension.
(S.A. 3.) Thus, the District Court decided that the preponderance of the evidence weighed
in favor of empaneling a partially anonymous jury. We agree.
Relying on Wecht, Solomon argues, for the first time, that the District Court’s
reasoning was conclusory and generic and does “not overcome the presumption that
juror’s names should remain in the public domain.” Appellant’s Br. at 29. Yet,
Solomon’s claim that the District Court’s reasoning was conclusory and generic is itself
conclusory and unpersuasive. Despite Solomon’s protestation to the contrary, the District
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Court did give a specific reason for its ruling: that the nature of the charges—having a
witness’s father murdered and the cooperating witness’s testimony recounting that
murder—supported empaneling a partially anonymous jury.
Furthermore, Solomon’s reliance on Wecht is misplaced. Wecht involved an
interlocutory appeal brought by media outlets that objected to juror anonymity based on
the First Amendment right to public access to trials. 537 F.3d at 240-41. We reversed the
district court, holding that it had failed to articulate “the necessary findings and
consideration of alternatives to overcome the presumption that jurors’ names should be
publicly available.”
Id. at 239. Wecht was a First Amendment case that does not mention
§ 3432. Additionally, unlike in Wecht, where there was no indication that the defendant’s
friends and relatives would be inclined to influence jurors, here, Solomon stood accused of
murdering a witness’s father. Cf. United States v. Scarfo,
850 F.2d 1015, 1017 (3d Cir.
1988) (affirming anonymous empaneling of the jury when the defendant had solicited the
murders of a judge and of prospective witnesses).
Finally, the District Court did not empanel an entirely anonymous jury. Rather, it
crafted a compromise and withheld from itself and both parties only the prospective jurors
names and specific addresses. Indeed, jurors filled out an extensive questionnaire
developed by both parties, and indicated their general area of residence in response to one
question. Moreover, as noted, both parties were also permitted to question the
venirepersons individually, and to exercise peremptory challenges.
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Accordingly, Solomon has not shown any error, much less plain error, and
therefore, we affirm the District Court’s decision to empanel a partially innominate jury.
Next, Solomon challenges the sufficiency of the evidence used to convict him of
the cocaine conspiracy. In turn, he also challenges his conviction on Count Six, murder in
aid of drug trafficking, since he should have been acquitted of the drug conspiracy.3 After
reviewing the extensive trial transcripts, particularly the cooperating witnesses’ testimony,
we find the evidence introduced at trial was undoubtedly sufficient to support convictions
on Counts One and Six, and we therefore affirm these convictions.4
III.
For the foregoing reasons, we affirm the judgment of the District Court.
3
We will sustain a jury verdict “if there is substantial evidence, taking the view
most favorable to the Government, to support it. If any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt, then the verdict of
the jury must be sustained.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)
(internal quotation marks & citations omitted).
4
Solomon conflates his sufficiency of the evidence argument with an allegation of
a variance between the conspiracy charged in the Indictment and the evidence introduced
at trial. To the extent that Solomon argues a variance between the single conspiracy
charged in Count One and the purported multiple conspiracies proved at trial, this claim
also fails. Not only was the evidence more than sufficient to prove a single conspiracy,
but the jury charge included an instruction on single versus multiple conspiracies, curing
any potential defect. See United States v. Perez, 280 F.3d 318, 347 (3d Cir. 2002).
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