PRECEDENTIAL
   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             _____________

                 No. 14-3754
                _____________

       UNITED STATES OF AMERICA

                       v.

             RAYMOND BROWN,

                       Appellant
               _______________

    On Appeal from the District Court of the
                  Virgin Islands
         (D.C. No. 3-13-cr-00022-005)
     District Judge: Hon. Curtis V. Gomez
                _______________

  Submitted Under Third Circuit L.A.R. 34.1(a)
             December 13, 2016

Before: CHAGARES, JORDAN and HARDIMAN,
             Circuit Judges.

           (Filed: February 22, 2017)
               _______________
Ryan T. Truskoski
P.O. Box 568005
Orlando, FL 32856
      Counsel for Appellant

Kim L. Chisholm
Ronald Sharpe
Office of United States Attorney
5500 Veterans Bldg. – Ste. 260
United States Courthouse
St. Thomas, VI 00802
      Counsel for Appellee
                      _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Raymond Brown appeals from his conviction and
sentence in the District Court of the Virgin Islands. He
argues that the use of dual juries (one for him, and one for a
co-defendant) violated his Fifth and Sixth Amendment rights.
He also asks us to reconsider our rule placing the burden on
defendants to object at sentencing, and he says we should
instead require the sentencing court to solicit objections. For
the reasons that follow, we will affirm.

I.     Background

      Brown and seven others were charged in a 69-count
Third Superseding Indictment with crimes related to multiple
conspiracies to purchase, transport, and distribute cocaine.




                              2
The central feature of the case was a cocaine enterprise
organized by Robert Tapia, a Virgin Islands law enforcement
officer.

       Ultimately, only Brown and one other defendant,
Walter Hill, proceeded to trial. Although both Brown and
Hill were connected to the enterprise, there was no allegation
that the two conspired with one another.                Brown
communicated with Tapia about potential cocaine purchases
and helped deliver the cocaine to Tapia, while Hill assisted in
the collection and subsequent transportation of the purchased
cocaine.

       Before trial, the Court observed that, “[w]hile initially
there was an overarching conspiracy, there is none now. And
nothing that ties the two defendants together.” (Supp. App. at
1.) Therefore, “[o]ut of an abundance of caution, the Court
… select[ed] two juries to hear th[e] matter.” (Id.) It
explained the process of empaneling two separate juries and
had counsel agree on the record to that procedure. It then
designated Brown’s jury “Panel A” and Hill’s jury “Panel B.”
Panel A convicted Brown on Count Six, for using a
communication to facilitate a drug crime, in violation of 21
U.S.C. §§ 843(b) and (d)(1) and 18 U.S.C. § 2. He was
acquitted on nine other counts.1




       1
         Panel B convicted Hill of conspiracy with intent to
distribute cocaine, possession with intent to distribute
cocaine, and use of a communication facility to commit a
drug crime.




                               3
       At sentencing, the Court determined that Brown had an
offense level of 28 and a criminal history category of I. It
then calculated the guideline range of imprisonment as 78 to
97 months. Because the minimum term of imprisonment
under the guidelines exceeded the statutory maximum
sentence, the Court turned to § 5G1.1(a) of the United States
Sentencing Guidelines.2 Pursuant to that section, and after
consideration of the sentencing factors enumerated in 18
U.S.C. § 3553, the Court sentenced Brown to the statutory
maximum term of 48 months. Brown did not object to the
sentence.

II.    Discussion3

       A.     Dual Juries

       Brown challenges the District Court’s decision to
empanel dual juries as violative of his Fifth Amendment right
to due process and Sixth Amendment right to trial before an
impartial jury.4 Because there was no contemporaneous

       2
          Section 5G1.1(a) of the Sentencing Guidelines states
that “[w]here the statutorily authorized maximum sentence is
less than the minimum of the applicable guideline range, the
statutorily authorized maximum sentence shall be the
guideline sentence.”
       3
        The District Court had jurisdiction pursuant to 18
U.S.C. § 3231 and 48 U.S.C. § 1612. We have jurisdiction
under 28 U.S.C. § 1291.
       4
         The Fifth Amendment protects a defendant from
deprivation of “life, liberty, or property, without due process




                              4
objection, we review the Court’s decision for plain error
under Federal Rule of Criminal Procedure 52(b), unless the
issue was waived.5 Puckett v. United States, 

,
135 (2009). We thus begin by asking whether there was
waiver, because “[t]he threshold question in deciding whether
there is appellate authority to grant relief under Rule 52(b), is
… whether the appellant who failed to object in the trial court
to an error that violated his rights was aware of the
relinquished or abandoned right.” Gov’t of Virgin Islands v.
Rosa, 

, 291 (3d Cir. 2005). Since waiver is a
threshold question under Rule 52(b), 

address it
even though the government did not argue the point in its
Answering Brief.

      On the procedural facts here, one could contend that
Brown did waive his right to complain about the empanelling
of dual juries. Not only did his counsel fail to object to


of law[.]” U.S. Const. amend. V. The Sixth Amendment
entitles a defendant to “a speedy and public trial, by an
impartial jury[.]” U.S. Const. amend. VI.
       5
          Brown argues that he should escape plain error
review because his trial counsel rendered ineffective
assistance by not objecting to the use of dual juries. But,
except in extraordinary circumstances, “claims of ineffective
assistance of counsel … are not cognizable on direct appeal.”
United States v. Givan, 

, 464 (3d Cir. 2003). To
spare Brown “from having res judicata attach to the
ineffective assistance claim,” we decline to address it here.
Gov’t of Virgin Islands v. Vanterpool, 

, 164 (3d
Cir. 2014).




                               5
proceeding in a single trial before two juries, but, after the
District Court solicited objections, counsel explicitly agreed
to it.6 And yet, “an explicit agreement or stipulation
constitutes a waiver of rights [only] if the defendant was
aware of the right.” 

the waiver of rights, so too
with the arguments associated with those rights – because the
government did not demonstrate, nor does the record show,
that Brown himself was aware of the rights implicated by the
joinder of his and Hill’s cases and the use of dual juries, we
cannot say that Brown knowingly and intelligently waived
any arguments bearing on those rights.7 See Brewer v.
Williams, 

, 404 (1977) (“[T]he proper standard
to be applied in determining the question of waiver as a
matter of federal constitutional law” requires the government
“to prove ‘an intentional relinquishment or abandonment of a


      6
          After explaining the dual jury process, the District
Court specifically stated that it did not “believe it ha[d] any
objection from counsel with the [dual jury] procedure as …
just outlined.” (Supp. App. 2.) Brown’s counsel was asked
to confirm that was the case, and he said, “Yes, Your Honor.”
(Id.)
      7
        We do not hold that a defendant must be personally
aware of and knowingly waive every issue that may arise in a
case, only those issues involving fundamental constitutional
rights. See McMahon v. Fulcomer, 

, 944 (3d
Cir. 1987) (“[T]he Supreme Court has cautioned ‘that courts
indulge in every reasonable presumption against waiver of
fundamental constitutional rights and that we do not presume
acquiescence in the loss of fundamental rights.’” (quoting
Johnson v. Zerbst, 

, 464 (1938))).




                              6
known right or privilege.’” (quoting Johnson v. Zerbst, 

, 464 (1938))).

        When addressing a waiver of the right to a jury trial in
the context of a guilty plea, we have required that the
defendant be individually informed of and understand that
right before he can knowingly waive it. Taylor v. Horn, 

, 440 (3d Cir. 2007). To that end, the trial court
engages in a colloquy to ensure “the defendant fully
understands the nature of the right and how it would likely
apply in general in the circumstances[.]” 

v.
Tovar, 

, 92 (2004)). That practice is also used to
ensure that a criminal defendant’s waiver of other key
constitutional protections is knowing and intelligent. See
United States v. Stewart, 

, 84 (3d Cir. 1992)
(recognizing that a colloquy is required before waiving “the
privilege against compulsory self-incrimination, the right to a
trial by jury, and the right to confront one’s accusers” after
the Supreme Court decision in Boykin v. Alabama, 

(1969)); see also United States v. Peppers, 

,
135-36 (3d Cir. 2002) (requiring a colloquy when waiving
right to counsel by proceeding pro se).

       We need not decide whether a colloquy with the
defendant is essential, even if it is advisable, when a court
proposes to proceed before dual juries rather than following
the standard practice of trying a case before a single jury. It
is enough to say that there must be some indication on the
record that the defendant was actually aware of his due
process and jury rights and that he himself – not just his
counsel – knowingly sanctioned a procedure that arguably
impinges on those rights. The government here did not assert
waiver, and thus did not sustain its burden necessary for




                               7
waiver. 

. There simply is nothing to
suggest that Brown was personally aware of his right to an
impartial jury and then, “with an understanding of the
ramifications and consequences[,]” 

,
went ahead and waived any objection to being tried together
with Hill before dual juries. Therefore, the statement of
Brown’s counsel agreeing that there was no objection to the
joint trial before dual juries does not constitute a waiver of
Brown’s ability to raise arguments now concerning joinder
and the right to an impartial jury. We thus review for plain
error.

        On plain error review, we can only correct an error not
raised at trial where the appellant demonstrates that (1) there
is a legal error; (2) the legal error is clear or obvious; (3) the
error affected the appellant’s substantial rights such that it
affected the outcome of district court proceedings; and (4) the
error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” 

(alteration in original) (quoting United States v. Olano, 

, 736 (1993)).

        The use of dual juries seems to have very little
precedent in this Circuit – we have found only one example
of it, which was not challenged on appeal. See United States
v. Cruz, No. 98-5170, 

(stating in
Appellant’s Opening Brief, at *3-4, that the District Court had
decided “to resolve the issue regarding the admissibility of
the statements made by codefendants … by empaneling [sic]
two juries; one for [Appellant] and one for the three
remaining defendants”). The practice has, however, occurred
and been constitutionally challenged in several other courts of
appeals. Each circuit court that has addressed the use of dual




                                8
juries has upheld the practice unless a defendant can “show
some specific, undue prejudice.” Mack v. Peters, 

, 235 (7th Cir. 1996); see also Lambright v. Stewart, 

, 1186 (9th Cir. 1999) (upholding use where there
was no due process violation and neither defendant
“convincingly pointed to some other specific trial right which
was compromised”); United States v. Lebron-Gonzalez, 

, 831 (1st Cir. 1987) (requiring defendant to carry
“heavy burden of making a strong showing of prejudice”);
United States v. Lewis, 

, 20 (D.C. Cir. 1983)
(analyzing whether there was any specific prejudice resulting
from dual juries); United States v. Hayes, 

,
1366 (11th Cir. 1982) (same); United States v. Rowan, 

, 690 (6th Cir. 1975) (same). A review of Federal
Rule of Criminal Procedure 14 and our precedent governing
the use of joint trials supports the uniform holdings of our
sister circuits, and we agree that the use of dual juries is not
per se unconstitutional.

        Rule 14 provides relief to defendants from “prejudicial
joinder.” Under that rule, “[i]f the joinder of offenses or
defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or the
government, the court may order separate trials of counts,
sever the defendants’ trials, or provide any other relief that
justice requires.” Fed. R. Crim. P. 14. Permitting courts to
“provide any other relief that justice requires” affords great
latitude to trial courts to craft remedies that fit the
circumstances of each case. 

14 does not
require severance even if prejudice is shown; rather, it leaves
the tailoring of the relief to be granted, if any, to the district
court’s sound discretion.” Zafiro v. United States, 

, 538-39 (1993) (citation omitted). As a result, we require




                                9
“[d]efendants seeking a severance [to] bear a heavy burden
and … demonstrate not only that the court would abuse its
discretion if it denied severance, but also that the denial of
severance would lead to clear and substantial prejudice
resulting in a manifestly unfair trial.” United States v. Lore,

, 205 (3d Cir. 2005) (internal quotation marks
omitted).

        We see no reason why the rule should be any different
when the joint trial is before two juries rather than one. In
fact, depending on the circumstances, a joint trial before
separate juries could be more protective of defendants’ rights
than the use of a single jury. See 

(concluding that the use of dual juries was “a way of
minimizing any prejudice from jointly trying the
defendants”). Therefore, as required for severance generally,
in order to successfully challenge the use of dual juries, a
defendant “must demonstrate clear and substantial prejudice
resulting in a manifestly unfair trial.” United States v. Balter,

, 433 (3d Cir. 1996), as amended (Aug. 16, 1996)
(quoting United States v. Voigt, 

, 1094 (3d Cir.
1996)).

       Brown argues that empaneling two juries violated due
process and his right to an impartial jury because the jury was
“exposed to irrelevant evidence that by its very nature did not
apply to him.” (Opening Br. at 13.) He provides one
example of confusion, where, on cross-examination, a witness
mixed-up the two defendants and the government had to
correct the error on redirect. But there is no dispute that the
error was corrected. And we have often declined to find
prejudice “‘in a joint trial just because all evidence adduced is
not germane to all counts against each defendant’ or some




                               10
evidence adduced is ‘more damaging to one defendant than
others.’” 

(quoting United States v.
Console, 

, 655 (3d Cir. 1993)). Without any
indication that there was “clear and substantial prejudice
resulting in a manifestly unfair trial[,]” Brown cannot show
that the use of dual juries constituted error, let alone plain
error. 

(quoting United States v. Urban,

, 775 (3d Cir. 2005)).

        It is a “fundamental principle that the federal system
prefers ‘joint trials of defendants who are indicted together []’
because joint trials ‘promote efficiency and serve the interests
of justice by avoiding the scandal and inequity of inconsistent
verdicts.’”8 

(alteration in original)
(quoting 

). If dual juries can be
empanelled without “a serious risk that [such] a joint trial
would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable
judgment about guilt or innocence,” the practice is not in
itself unconstitutional. 

we do not mean by this
ruling to encourage the practice. The potential complications
are not insignificant. Nevertheless, Brown has not shown any
obvious error affecting substantial rights or the fairness of the
proceedings. We will therefore affirm his conviction.


       8
         Given the District Court’s comment that “nothing []
ties the two defendants together” (Supp. App. at 1), we are
conscious of the concern that joinder here may have lacked
the robust justification it ordinarily has. But the record
indicates that there actually was overlap in the factual
background of Brown’s and Hill’s cases, and we cannot say
that joinder was plainly erroneous.




                               11
       B.    Failure to Object at Sentencing

       Brown also challenges the Court’s failure to solicit
objections before imposing sentence, arguing that we should
overturn our recent en banc decision in United States v.
Flores-Mejia, 

(3d Cir. 2014). In Flores-Mejia,
“we h[e]ld that, in a criminal prosecution, unless a relevant
objection has been made earlier, a party must object to a
procedural error after the sentence is pronounced in order to
preserve the error and avoid plain error 

. Under Flores-Mejia, because Brown did not object to
his sentence, an appeal of that sentence would be subject to
plain error review. Brown does not, however, appeal any
aspect of his sentence. Reconsidering Flores-Mejia would
thus have no affect on his appeal – there is simply no alleged
error to which we could apply a more generous standard of
review. We have, then, no occasion to reconsider our well-
reasoned decision in Flores-Mejia at this time, even if we
were inclined or empowered to do so.

III.   Conclusion

      For the foregoing reasons, we will affirm Brown’s
conviction and sentence.




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