Submitted Under Third Circuit L.A.R. 34.1(a) December 13,
Appeal from the District Court of the Virgin Islands (D.C.
No. 3-13-cr-00022-005) District Judge: Hon. Curtis V. Gomez
T. Truskoski Counsel for Appellant
Chisholm Ronald Sharpe Office of United States Attorney
Counsel for Appellee
Before: CHAGARES, JORDAN and HARDIMAN, Circuit Judges.
JORDAN, Circuit Judge.
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.
and seven others were charged in a 69-count Third Superseding
Indictment with crimes related to multiple conspiracies to
purchase, transport, and distribute cocaine. The central
feature of the case was a cocaine enterprise organized by
Robert Tapia, a Virgin Islands law enforcement officer.
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.
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.
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. 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