United States of America v. Marcus Andrew Burrage

United States Court of Appeals
For the Eighth Circuit
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No. 22-2438
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Marcus Andrew Burrage,
lllllllllllllllllllllDefendant - Appellant.
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No. 22-2439
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Marcus Andrew Burrage,
lllllllllllllllllllllDefendant - Appellant.
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Appeals from United States District Court
for the Southern District of Iowa - Central
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Submitted: March 15, 2023
Filed: August 2, 2023
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted Marcus Burrage of assaulting a person assisting a federal
officer, and a second jury convicted Burrage of drug offenses. On appeal, Burrage
raises several challenges to his convictions. We conclude that there is no reversible
error, and therefore affirm the judgment of the district court.*
I.
In February 2017, Burrage began a term of supervised release after serving a
prison term for distributing heroin. By the spring of 2017, Burrage started selling
heroin again. From the spring of 2017 through May 2018, Burrage distributed
substantial quantities of heroin in central Iowa.
Burrage acquired his heroin in Chicago. He and his associates traveled back
and forth between Iowa and Chicago as they replenished their supply. On April 9,
2018, law enforcement officers in Chicago conducted a traffic stop of a vehicle that
had been reported stolen. The occupants of the vehicle were Burrage and his
girlfriend.
After Burrage refused to exit the vehicle, officers placed Burrage in handcuffs
and searched him. The search discovered more than eighteen grams of heroin and six
thousand dollars in cash. Officers arrested Burrage and transported him to jail.
*The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.
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Law enforcement officers in Iowa also had been investigating Burrage for drug
trafficking. The next day, April 10, 2018, officers executed a search warrant on an
apartment in Nevada, Iowa, where Burrage lived with his girlfriend. The search
located twenty-one grams of heroin, thirteen grams of marijuana, digital scales,
plastic baggies, and other drug-trafficking paraphernalia.
Shortly after officers completed the search in Iowa, Burrage posted bond and
was released from custody in Chicago. Burrage learned from his girlfriend about the
search of the apartment in Iowa. He absconded and remained at large until authorities
arrested him on a warrant for supervised release violations in May 2019. A grand
jury charged Burrage with conspiring to distribute heroin during 2017 and 2018, and
with possession with intent to distribute heroin on or about April 10, 2018.
While awaiting trial on the heroin charges, Burrage was detained in the Polk
County Jail in Des Moines. The jail provided for the secure custody, safekeeping,
and care of federal detainees under an intergovernmental agreement with the United
States Marshals Service.
A single correctional officer supervised each housing unit in the jail, and a unit
typically housed between fifty-five and sixty detainees. Federal and state detainees
were commingled, and each correctional officer was responsible for maintaining the
safety and security of staff and detainees.
On March, 9, 2021, Correctional Officer Devan Pierce was the officer on duty
in Burrage’s housing unit. That morning, Pierce removed two detainees for improper
behavior at breakfast, and the incident created a tense atmosphere in the unit. After
breakfast, Pierce observed a large group of detainees gathering in the unit’s television
room. He entered to investigate and noticed a detainee with a bloody nose. After
trying unsuccessfully to remove the injured detainee, Pierce called in a group known
as the utility response team for backup.
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While the utility response team assisted with the situation in the television
room, Officer Pierce worked to return the remaining detainees to the “bunks” where
they slept and kept their personal items. A detainee became belligerent, and Pierce
and another officer decided to remove that detainee from the unit. As Pierce
attempted to place wrist restraints on the detainee, Burrage struck Pierce in the back
of the head, causing an immediate sharp pain. Officers apprehended Burrage and
placed him in a holding cell. In the weeks following the attack, Pierce suffered
concussion-like symptoms and missed work.
As a result of this incident, a grand jury charged Burrage with assaulting a
person assisting an officer or employee of the United States in the performance of
official duties. See 18 U.S.C. §§ 111, 1114(a). Burrage proceeded to trial first on the
assault charge, and a jury found him guilty. In a separate trial on the drug charges,
a jury found Burrage guilty on all counts. The district court sentenced him to 375
months’ imprisonment.
II.
On appeal, Burrage first argues that the district court violated his right under
the Sixth Amendment to a trial by an impartial jury drawn from a fair cross section
of the community. See Duren v. Missouri, 439 U.S. 357, 363-64 (1979). Burrage,
an African American, complains that the thirty-eight prospective jurors for his first
trial included no African Americans, and that the forty-five member venire panel for
his second trial included only one African American. He also objects that the 300-
member jury pools from which the venire panels were drawn included only six and
four African Americans, respectively.
Federal Rule of Criminal Procedure 12(b)(3), formerly Rule 12(b)(2), provides
that defects in instituting the prosecution “must be raised by pretrial motion if the
basis for the motion is then reasonably available and the motion can be determined
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without a trial on the merits.” This rule governs a constitutional claim of
discrimination in the selection of a petit jury. See Davis v. United States, 411 U.S.
233, 235-38 (1973); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 362 (1963).
The district court may set a deadline for the parties to make pretrial motions.
Fed. R. Crim. P. 12(c)(1). “If a party does not meet the deadline for making a Rule
12(b)(3) motion, the motion is untimely. But a court may consider the defense,
objection or request if the party shows good cause.” Fed. R. Crim. P. 12(c)(3). To
show good cause, a party must show cause and prejudice. United States v. Blanks,
985 F.3d 1070, 1072 (8th Cir. 2021).
In the assault case, Burrage raised his Sixth Amendment fair cross section
claim and a related discovery request on the first day of trial, February 17, 2022, after
the court and the government examined prospective jurors. This occurred well after
the pre-trial motion deadline of September 20, 2021.
In the drug trial, Burrage first made an oral objection to the jury pool at the
final pre-trial conference on April 6, 2022, well after the pre-trial motion deadline of
March 14, 2022. He eventually requested an expert on April 10, 2022, and filed a
discovery request and a motion objecting to the jury venire on the first day of trial,
April 11, 2022.
The district court denied Burrage’s motions and the related requests as
untimely, and concluded that Burrage had failed to show good cause for his delay.
Fed. R. Crim. P. 12(c)(1), (3). The court elaborated on its conclusions in later orders
denying Burrage’s motions for new trials.
Burrage argues that his motions were timely because the grounds were not
reasonably available before trial. Alternatively, he maintains that the court abused
its discretion in determining that he failed to show good cause to excuse the delay.
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Burrage asserts that he lacked knowledge of the factual and legal bases to challenge
the racial composition of the jury pools until he saw the jury venires in the courtroom
at his trials.
“The Constitution does not guarantee a defendant a proportionate number of
his racial group on the jury panel or the jury which tries him; it merely prohibits
deliberate exclusion of an identifiable racial group from the juror selection process.”
United States v. Jefferson, 725 F.3d 829, 835 (8th Cir. 2013) (internal quotation
omitted). As the Second Circuit put it, “the Sixth Amendment guarantees the
opportunity for a representative jury venire, not a representative venire itself.” United
States v. Jackman, 46 F.3d 1240, 1244 (2d Cir. 1995). As such, it is the number of
African-Americans in the jury pool, not the number who showed up for jury selection
in a particular case, that is relevant to assessing the merits of Burrage’s fair cross
section challenge. United States v. Erickson, 999 F.3d 622, 627 (8th Cir. 2021).
Citing State v. Lilly, 930 N.W.2d 293 (Iowa 2019), Burrage argues that he
lacked standing to bring a fair cross section challenge until he discovered that the
panel of prospective jurors in his cases did not include African Americans. In Lilly,
however, the defendant brought a fair cross section challenge before trial based on
the racial composition of the pool of jurors who were summoned to the courthouse
for a particular time period. Id. at 297-98, 298 n.2. Lilly does not support Burrage’s
contention that he must challenge only the panel of jurors summoned to a particular
courtroom, and our precedent says the opposite in any event. Erickson, 999 F.3d at
627.
The current jury selection plan for the Southern District of Iowa has been in
place since July 7, 2020. The plan requires the clerk of court to maintain records
relating to each master wheel, qualified wheel, jury pool, and jury panel. On order
of the court, the clerk must make these records available for the purpose of
determining the validity of the selection of any jury. The clerk can generate various
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reports, including reports showing the racial composition of jury pools. Information
on the racial composition of jury pools was thus reasonably available to Burrage, and
could have been obtained “in the exercise of due diligence” before the pre-trial
motion deadlines in these cases. See Shotwell, 371 U.S. at 363.
Burrage complains that the district judge was unaware that the clerk collected
data on the race of potential jurors. But whether or not the district judge was familiar
with the information gathered by the clerk, the relevant reports were available to
Burrage on request. Burrage could have inquired about information on the racial
composition of jury pools before the pre-trial motion deadlines. The district court did
not abuse its discretion in denying Burrage’s motions as untimely.
III.
Burrage next contends that the evidence is insufficient to support his
conviction for assault under 18 U.S.C. §§ 111, 1114(a). The statutes make it a crime
to assault “any person assisting” an “officer or employee of the United States or any
agency in any branch of the United States Government” in the “performance of
[official] duties or on account of that assistance.” 18 U.S.C. § 1114. Section 111
applies to state prison guards responsible for housing and supervising federal
prisoners under an intergovernmental agreement between a county jail and the United
States Marshals Service. United States v. Luedtke, 771 F.3d 453, 455 (8th Cir. 2014).
Burrage asserts that Officer Pierce was not assisting an officer of the United
States when he was assaulted, because the detainee with a bloody nose and another
detainee extracted by the utility response team were state detainees. But federal and
state detainees were commingled in the Polk County Jail, and the jail provided for the
secure custody, safekeeping, and care of federal detainees under an intergovernmental
agreement with the Marshals Service. Pierce testified that correctional officers
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generally cannot distinguish between state and federal detainees, and that it was his
duty to maintain the safety and security of detainees in the jail.
Before the assault, Officer Pierce called in backup to deal with a detainee’s
medical situation, ordered detainees back to their bunks, and started to restrain a non-
cooperative detainee. Pierce testified that his actions were taken for the safety of
everyone in the unit. A reasonable jury could have found that Officer Pierce was
assisting the United States Marshals Service in its duty to provide for the safekeeping
of federal detainees. 18 U.S.C. § 4086; Luedtke, 771 F.3d at 455. There was
sufficient evidence to support the conviction.
IV.
Burrage next argues that the jury instructions incorrectly set forth the elements
of the assault charge. We review the district court’s jury instructions for abuse of
discretion. United States v. Williams, 605 F.3d 556, 567 (8th Cir. 2010). We
consider the instructions as a whole to determine whether they fairly and adequately
presented the issue to the jury. United States v. Hayes, 518 F.3d 989, 994 (8th Cir.
2008).
Burrage complains that the instruction setting forth elements of the offense
required the jury to find only that Officer Pierce was “engaged in the performance of
his official duties,” without reference to a federal function. On that basis, Burrage
contends that the jury could have convicted without finding that Pierce was assisting
an officer or employee of the United States. The jury instructions, however, defined
“engaged in the performance of his official duties,” as “providing assistance to the
United States Marshals Service in their duty to provide for the care and supervision
of federal prisoners in custody at the Polk County Jail.” When read as a whole, the
instructions required the jury to find that Officer Pierce was assisting the United
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States Marshals Service at the time of the assault. There was no abuse of discretion
in fashioning the instructions.
V.
Burrage also maintains that the district court erred in admitting evidence
arising from his arrest in Chicago on April 9, 2018. Burrage contends that the
evidence was impermissible “character” or “propensity” evidence under Federal Rule
of Evidence 404(b) and was unfairly prejudicial under Rule 403. We review the
district court’s ruling for abuse of discretion. United States v. O’Dell, 204 F.3d 829,
833 (8th Cir. 2000).
Burrage was charged with conspiring to distribute heroin from at least the fall
of 2017 through May 21, 2018, in the Southern District of Iowa and elsewhere.
Witnesses testified that Burrage obtained heroin in Chicago and traveled back and
forth between Iowa and Chicago to replenish his supply. The disputed evidence
showed that investigators seized more than eighteen grams of heroin and six thousand
dollars in cash from Burrage in Chicago during the course of the charged conspiracy
in April 2018.
Burrage’s possession of heroin in quantities suitable for distribution during the
charged conspiracy is direct evidence that he participated in the conspiracy. The
evidence is not proof of some “other crime, wrong, or act” that would be governed
by Rule 404(b). O’Dell, 204 F.3d at 833-34. The large amount of seized cash is
likewise probative of Burrage’s participation in the charged conspiracy, given that
drug trafficking is a cash business. See United States v. Stephenson, 924 F.2d 753,
763-64 (8th Cir. 1991).
Under Rule 403, the district court “may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed.
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R. Evid. 403. Evidence of drug activity by a conspirator during the conspiracy is
relevant evidence of the existence of the conspiracy. United States v. Brown, 956
F.2d 782, 786 (8th Cir.1992). The evidence here was prejudicial in the sense that it
tended to prove the existence of the conspiracy, but it was not unfairly prejudicial
because it was directly relevant to the charged offense. United States v. Skarda, 845
F.3d 370, 378 (8th Cir. 2016). The district court did not abuse its discretion in
admitting the evidence.
* * *
The judgment of the district court is affirmed.
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