United States of America v. Ellis Brown

United States Court of Appeals
For the Eighth Circuit
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No. 21-3807
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United States of America
Plaintiff - Appellee
v.
Ellis Brown
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 23, 2022
Filed: October 7, 2022
[Unpublished]
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Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
During Ellis Brown’s trial on a charge of depriving a suspect of his rights
under color of law in violation of 18 U.S.C. § 242, a juror (“Juror #3”) exited the
deliberation room and refused to return. The district court1 proposed a conference
1 The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

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with Juror #3 to determine whether she would continue with deliberations. Defense
counsel suggested the inquiry of Juror #3 should take place outside the presence of
the parties. Counsel for the government concurred. The court next inquired as to
the parties’ positions if Juror #3 continued to refuse to deliberate. The government
proposed seating an alternate juror, and defense counsel agreed.
When the court met with Juror #3 and asked whether she would return to the
jury room, the juror stated she was unable to deliberate further. The court made an
additional inquiry:
Is it at all possible, ma’am, for you to go back into the room and work
with the other jurors to try to reach a verdict if you can? . . . So my
question to you is do you think that that is something that you could do
or are you telling me that you are unable and unwilling to go back into
the room and try to do that?
Juror #3 continued to refuse to deliberate.
Court reconvened with all parties present. After reporting the conversation
with Juror #3, the court proposed seating an alternate juror. The government
responded, “Judge, that would be my request and my suggestion,” and defense
counsel stated, “Agreed.” The court made one final inquiry of counsel, stating , “[I]f
there’s anything different that anyone wants me to do, this is the time to say so.”
Neither party objected, the alternate juror was seated, and the court recessed before
addressing the reconstituted jury. After the recess, for the first time, defense counsel
suggested that the jury was hung “by the very nature of what [Juror #3] wanted to
do.” The court disagreed, reasoning that Juror #3 had simply been unwilling to
deliberate. The jury returned a guilty verdict.
While Brown asserts the district court erred when it excused Juror #3 and
seated an alternate juror, he invited the alleged error. Invited error occurs when “the
trial court announces its intention to embark on a specific course of action and
defense counsel specifically approves of that course of action.” United States v.
Campbell, 764 F.3d 874, 878 (8th Cir. 2014). In other words, a defendant cannot

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later complain when the district court gave him exactly what his lawyer requested.
United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002). Under the
invited-error doctrine, the party “who invites the district court to make a particular
ruling waives his right to claim on appeal that the ruling was erroneous.” United
States v. Corn, -- F.4th --, 2022 WL 4075766, at *2 (8th Cir. 2022) (citations
omitted).
Both before and after the district court’s conference with Juror #3, defense
counsel indicated that seating an alternate juror was appropriate based on Juror #3’s
refusal to deliberate. Notably, when the court provided a clear, final opportunity for
the parties to request a different course of action, neither party did so. While defense
counsel eventually expressed a concern that Juror #3’s refusal to deliberate may
indicate the existence of a hung jury, he did not raise this issue until after an alternate
juror was seated. Brown himself never raised any objection. Because Brown invited
the alleged error, we decline to review the dismissal of Juror #3. See id.; see also
Campbell, 764 F.3d at 879.
During the pendency of the appeal, Brown’s counsel moved to withdraw on
grounds that Brown was dissatisfied with his representation and wanted to pursue
ineffective assistance of counsel claims. We denied counsel’s motions but permitted
Brown to raise his ineffective assistance of counsel claims in a supplemental brief.
Brown’s pro se briefs assert ineffective assistance of counsel and prosecutorial
misconduct. We decline to consider Brown’s pro se claims. See United States v.
Halter, 411 F.3d 949, 951 (8th Cir. 2005) (stating we “generally do not consider a
claim of ineffective assistance of counsel unless a miscarriage of justice would result
or a full record on the issues in controversy has already been developed”); United
States v. Miranda-Zarco, 836 F.3d 899, 901–02 (8th Cir. 2016) (citations omitted)
(noting we generally do not consider pro se claims when the defendant is represented
by counsel).
The judgment of the district court is affirmed.
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