PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4263

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARCO ANTRIONE CHERRY, JR., a/k/a Marco Antrione Cherry,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Robert G. Doumar, Senior 

District Judge. (2:11-cr-00071-RGD-FBS-1)

Argued: May 17, 2013 Decided: June 13, 2013

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion, 

in which Judge Wilkinson and Judge Wynn joined.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. Sherrie Scott 

Capotosto, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, 

Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, 

Federal Public Defender, Alexandria, Virginia; Richard J. 

Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Alexandria, Virginia, for 

Appellee.
2

DUNCAN, Circuit Judge:

Marco Cherry appeals his conviction of various firearm and 

drug crimes, arguing that the Speedy Trial Act required that his 

indictment be dismissed as untimely and that the district judge 

plainly erred in revealing details of his criminal history 

before the jury was polled. We determine that the Speedy Trial 

Act precludes dismissal of an untimely indictment when a 

defendant fails to move for dismissal prior to trial. Next, we 

find that although the district judge’s comments to the jury 

were erroneous, they did not rise to the level of plain error. 

Accordingly, we affirm Cherry’s convictions.

I.

1.

On March 9, 2010, Norfolk Police Officers Alex Keeling and 

Frank Been saw a black Hummer fail to stop at a stop sign. They 

attempted to initiate a traffic stop, activating their lights 

and siren and using their loudspeaker to instruct the driver of 

the vehicle to pull over. The driver failed to stop, and the 

officers gave chase. While in pursuit, Officer Keeling saw a 

cigar-shaped object, which he later determined was a marijuana 

cigar, being tossed out of the window.

After driving for several blocks, the driver pulled the 

vehicle over. The police identified the driver as Lamont 
3

Jordan; Cherry was the passenger. The officers approached the 

vehicle and smelled marijuana through its open windows. Officer 

Been took Jordan several feet away from the vehicle to speak 

with him. The officers decided to search the vehicle, and 

Officer Keeling ordered Cherry to step out of the car. Cherry 

became “very aggressive” and attempted to push Officer Keeling. 

J.A. 215. A struggle ensued, during which a metal object, which 

Officer Keeling thought to be a firearm, hit the ground. Cherry 

then attempted to flee. Officer Keeling tackled Cherry to the 

ground, and Officer Been, responding to Officer Keeling’s call

for backup, threatened to use a Taser on Cherry. When Officer 

Been activated the Taser, it automatically recorded a video of 

the encounter. Cherry stopped struggling and the officers took 

him into custody.

Once they had handcuffed Cherry and allowed him to stand 

up, the officers recovered from the ground two small bags 

containing pills, twenty of which turned out to be 3,4-

Methylenedioxymethamphetamine hydrochloride (commonly known as 

ecstacy), and nine of which turned out to be a different 

controlled substance, a stimulant called N-Benzylpiperazine. 

The Taser video shows the bags of pills lying on the ground as 

Cherry stood up, and recorded Officer Been exclaiming that there 

was “E [ecstasy] all over the place.” J.A. 270. Other police 

officers arrived at the scene, one of whom, Officer Eric Ortiz, 
4

recovered a Glock nine-millimeter pistol from the ground in 

front of the Hummer on the passenger side, where Officer Keeling 

had first struggled with Cherry.

2.

On July 12, 2010, Cherry was charged in a federal criminal 

complaint with possession with intent to distribute ecstasy in 

violation of 21 U.S.C. § 841(a)(1), possession of a firearm in 

furtherance of drug trafficking in violation of 18 U.S.C. § 

924(c), and possession of a firearm after a felony conviction in 

violation of 18 U.S.C. § 922(g). An arrest warrant was issued 

along with the complaint, and the warrant was filed as a 

detainer at the Chesapeake city jail, where Cherry was serving a 

Virginia state sentence.

On Friday, April 1, 2011, the Chesapeake jail authorities 

notified Cherry that he was being “released” to a federal 

detainer, and notified the U.S. Marshals Service that he had 

completed his state sentence. On Monday, April 4, 2011, an 

agent with the Bureau of Alcohol, Tobacco, Firearms and 

Explosives transported Cherry from the Chesapeake jail to the 

U.S. District Court in Norfolk. That day, the court held 

Cherry’s initial appearance and issued an order of temporary 

detention. On Wednesday, April 6, 2011, the court held a 

detention hearing and ordered that Cherry be detained pending 

further proceedings. On May 4, 2011, a grand jury issued an 
5

indictment charging Cherry with the crimes set forth in the 

complaint.1 The district court set the case for trial on June 

30, 2011.

Prior to trial, Cherry’s court-appointed attorney filed a 

motion to withdraw. The court granted the motion and appointed 

another attorney. Cherry subsequently filed a motion to 

suppress, which the court denied. He also filed a motion to 

continue his trial, which the court granted. Cherry filed no 

motions related to the timeliness of his indictment under the 

Speedy Trial Act. The court ultimately held the trial on 

September 20-21, 2011.

At trial, the Norfolk police officers testified as to the 

circumstances surrounding Cherry’s arrest, the events preceding 

and succeeding it, and the evidence they had recovered from the 

scene. Cherry also testified: he stated that the object that 

fell from him during the struggle was a chain necklace, not a 

gun, and that the gun and tablets the police had recovered were 

not his. He also testified that he was not aware that smoking 

marijuana was illegal--testimony which was subsequently 

impeached when the government elicited testimony from him that 

 

1 A grand jury later returned a superseding indictment that 

differed from the original indictment only in that it changed 

the chemical description of ecstasy--replacing the term 

“methylenedioxyamphetamine” with 

“methylenedioxymethamphetamine.”
6

he had a recent previous arrest for marijuana possession. As to 

other aspects of Cherry’s criminal history, the parties 

stipulated that he had been convicted of a felony.

The trial lasted for two days. The jury deliberated during 

the afternoon of the second day and returned a verdict before 

the end of the day. During deliberations, the jury sent two 

notes to the court. First, they asked to see the video recorded 

by the Taser again, which they reviewed twice. Second, they 

asked the court, “Was there anybody else that was standing by 

the vehicle or on site before Officer Ortiz arrived?” J.A. 511. 

The court told the jury to consider the evidence that had been 

presented to them, and allowed them to have Officer Ortiz’s 

testimony read back to them.

When the jury had finished deliberating, the jury 

foreperson handed the verdict form, which she had signed, to the 

clerk, who passed it to the district judge. The judge returned 

the guilty verdict to the clerk, who proceeded to read it aloud. 

The clerk then asked, “Members of the jury, is this your 

verdict, so say you all?” J.A. 514. All the members of the 

jury indicated an affirmative response. At this point, the 

judge thanked the jury and added the following remarks:

Sometimes all of the information is not given to you.

This defendant had previously been convicted of 

distributing a controlled substance, had previously 

been convicted of resisting arrest, and had previously 
7

been convicted of carrying a firearm in furtherance of 

a drug trafficking crime.

I only tell you that to tell you that these things are 

not admissible because of the way the rules are 

written, that a person has to be judged on this 

particular crime, but I just thought I would tell you 

about that because it tells you a little bit about Mr. 

Cherry’s background and it will give you some idea of 

that.

I thank you for your paying close attention, just so 

you would know what, unfortunately, I know because I 

can see all of this information, and you haven’t seen 

it and it would not be admissible. But the rules of 

evidence under these circumstances didn’t permit it.

J.A. 514-15. Immediately following these comments, it became 

clear that the defense counsel wished to poll the jury. The 

clerk asked each juror, in succession, “Is this your verdict?” 

Id. at 515-16. And each juror replied that it was. Id.

II.

Cherry argues that we should reverse the verdict for two 

reasons. First, he contends that the district court should have 

dismissed the indictment as untimely under the Speedy Trial Act, 

notwithstanding his failure to move for its dismissal prior to 

trial. Second, he argues that the district judge’s comments to 

the jury revealing his criminal history before the jury could be 

polled constituted plain error. We address each of these 

arguments in turn.
8

A.

The Speedy Trial Act requires that a defendant be indicted 

within thirty days of arrest and tried within seventy days from 

the later of the filing of the information or indictment or the 

defendant’s initial appearance before a judicial officer. 18 

U.S.C. § 3161(b), (c)(1); United States v. Leftenant, 341 F.3d 

338, 343 (4th Cir. 2003). The district court’s interpretation 

of the Speedy Trial Act is a question of law, which we review de 

novo. Leftenant, 341 F.3d at 342.

The “Sanctions” section of the Speedy Trial Act, 18 U.S.C. 

§ 3162, lays out in subsection (a) the consequences for failing 

to timely indict or bring to trial a defendant:

(1) If, in the case of any individual against whom a 

complaint is filed charging such individual with an 

offense, no indictment or information is filed within 

the time limit required by section 3161(b) as extended 

by section 3161(h) of this chapter, such charge 

against that individual contained in such complaint 

shall be dismissed or otherwise dropped. . . .

(2) If a defendant is not brought to trial within the 

time limit required by section 3161(c) as extended by 

section 3161(h), the information or indictment shall 

be dismissed on motion of the defendant. The defendant 

shall have the burden of proof of supporting such 

motion but the Government shall have the burden of 

going forward with the evidence in connection with any 

exclusion of time under subparagraph 3161(h) (3). . . 

. Failure of the defendant to move for dismissal prior 

to trial or entry of a plea of guilty or nolo 

contendere shall constitute a waiver of the right to 

dismissal under this section.

18 U.S.C. § 3162(a) (emphasis added).
9

Cherry argues that because the waiver clause is included 

only in § 3162(a)(2)--the speedy trial provision of the 

“Sanctions” section--and not § 3162(a)(1)--the speedy indictment 

provision--there is no requirement that a motion under the 

speedy indictment provision of the Act be filed before trial. 

Indeed, he contends that the speedy indictment provision does 

not even require the defendant to file a motion at all. Cherry 

cites the principle that “where Congress includes particular 

language in one section of a statute but omits it in another 

section of the same Act, it is generally presumed that Congress 

acts intentionally and purposely in the disparate inclusion or 

exclusion,” Russello v. United States, 464 U.S. 16, 23 (1983)

(alterations and citation omitted), arguing that had Congress 

intended the speedy indictment right to be waived upon failure 

to move for dismissal before trial, it would have included the 

waiver language not only in § 3162(a)(2), but also in § 

3162(a)(1).

This argument rests on, as the government puts it, a 

contention “that ‘section’ does not mean section.’” Appellee’s 

Br. at 15. Although creative, this argument cannot change the 

plain language of the statute.2 The waiver clause applies to 

 

2 The implausibility of Appellant’s interpretation was 

further illustrated at oral argument; even Cherry’s appellate 

counsel referred to 18 U.S.C. § 3162(a)(1) and (2) as 

(Continued)
10

“this section”--i.e., Section 3162, which governs both the

speedy trial right and the speedy indictment right. Despite 

Cherry’s attempt to argue otherwise, § 3162(a)(2) is only a 

paragraph of a subsection of the Speedy Trial Act, and not its 

own “section.” Its waiver provision--that “[f]ailure of the 

defendant to move for dismissal prior to trial or entry of a 

plea of guilty or nolo contendere shall constitute a waiver of 

the right to dismissal under this section”--thus refers not only 

to that paragraph, but to all of § 3162.

The terminology used throughout the U.S. Code bears out 

this intuitive reading. The terms “section,” “subsection,” and 

“paragraph” are used consistently, and “section” always refers 

to the subdivision smaller than a chapter and larger than a 

subsection. See U.S. Senate, The United States Code, 

http://www.senate.gov/pagelayout/legislative/one_item_and_teaser

s/usCode_page.htm (last visited May 30, 2013) (“The U.S. Code is 

organized by subject area into 50 titles. Titles are further 

broken down by chapter and section. Citations to the U.S. Code 

look like this: 42 U.S.C. 1382 or 42 § 1382. This means the law 

appears in title 42, section 1382 of the Code.”).

 

“subsections.” Oral Argument at 3:45, available at

http://www.ca4.uscourts.gov/OAaudiotop.htm.
11

Moreover, all other circuits to have addressed this 

question have determined that a defendant who does not file a 

speedy indictment motion before trial waives his right to raise 

that issue. See United States v. Spagnuolo, 469 F.3d 39, 41 

(1st Cir. 2006); United States v. Gamboa, 439 F.3d 796, 804 (8th 

Cir. 2006); United States v. Lewis, 980 F.2d 555, 560 (9th Cir. 

1992), abrogated on other grounds by Bloate v. United States, 

559 U.S. 196 (2010).

We join our sister circuits in interpreting the plain 

language of § 3162(a)(2) to mean that a defendant who fails to 

move for dismissal prior to trial on the basis of an untimely 

indictment waives his right to move for dismissal under the 

speedy indictment provision of the Speedy Trial Act.3

B.

Next, Cherry argues that the district court erred by 

revealing his criminal history before the jury could be polled. 

Federal Rule of Criminal Procedure 31(d) provides that “[a]fter 

a verdict is returned but before the jury is discharged, the 

court must on a party’s request, or may on its own, poll the 

jurors individually.” If the poll reveals that the verdict was 

 

3 Cherry and the government also disagree about whether 

Cherry was indicted within thirty days of his arrest, as 

calculated under the Speedy Trial Act. Because we hold that he 

waived any right to move for dismissal by failing to raise the 

issue before trial, we do not reach this question.
12

not unanimous, the court may direct the jury to deliberate 

further or declare a mistrial. Rule 31(d) “establishes an 

absolute right to have the jury polled.” United States v. 

Edwards, 469 F.2d 1362, 1366 (5th Cir. 1972).

Because Cherry did not object after the court revealed his 

criminal history, we review the court’s action for plain error. 

Under the plain error standard, a defendant must demonstrate 

“(1) that an error occurred, (2) that the error was plain, and 

(3) that it affected his substantial rights.” United States v. 

Penniegraft, 641 F.3d 566, 575 (4th Cir. 2011). If the 

defendant establishes those threshold requirements, we may 

exercise our discretion to correct the error “when failure to do 

so would result in a miscarriage of justice, such as when the 

defendant is actually innocent or the error seriously affects 

the fairness, integrity or public reputation of judicial 

proceedings.” Id. (quoting United States v. Olano, 507 U.S. 

725, 736 (1993)) (alteration omitted).

1.

It is fundamental that “[n]otwithstanding the broad 

discretion accorded trial judges,” a judge “must maintain such a 

demeanor that ‘every one shall recognize that what is said from 

the bench is the cool and well-balanced utterance of an 

impartial judge, and has in it naught of the heat and 

partisanship of the advocate.’” United States v. Godwin, 272 
13

F.3d 659, 676-77 (4th Cir. 2001) (quoting Wallace v. United 

States, 281 F.2d 656, 665 (4th Cir. 1960)). For this reason, 

the “privilege of the judge to comment on the facts has its 

inherent limitations.” Quercia v. United States, 289 U.S. 466, 

470 (1933). These limitations apply even after a jury has 

returned a verdict, for a verdict is not final until it has been 

recorded, after the parties have had adequate time to request a 

poll. See Government of the Virgin Islands v. Hercules, 875 

F.2d 414, 419 (3d Cir. 1989) (“‘[A] verdict is not final when 

announced.’ Rather, ‘the test for validity of the verdict is 

whether it ‘was certain, unqualified and unambiguous considering 

the circumstances of the receipt of the verdict and poll of the 

jurors relative to their verdict.’”) (alteration and citations 

omitted).

The purpose of a jury poll “is to give each juror an 

opportunity, before the verdict is recorded, to declare in open 

court his assent to the verdict which the foreman has returned,” 

to ensure that “a unanimous verdict has in fact been reached and 

that no juror has been coerced or induced to agree to a verdict 

to which he has not fully assented.” United States v. Carter, 

772 F.2d 66, 68 (4th Cir. 1985) (quoting Miranda v. United 

States, 255 F.2d 9, 17 (1st Cir. 1958)). To inject remarks that 

might influence jurors’ decisions before they may be polled 

individually is thus improper. It is error for a judge to
14

remark on the culpability of the defendant, the merits of the 

case, or the correctness of the verdict before a party has the 

opportunity to request a poll. See United States v. Harlow, 444 

F.3d 1255, 1267 (10th Cir. 2006) (recognizing that “intervening 

comments by a judge can undermine the defendant’s right to poll 

the jury”); United States v. Randle, 966 F.2d 1209, 1213 (7th 

Cir. 1992) (finding reversible error where, after receiving the 

verdict from the jury, the judge proceeded to read the probation 

officer’s memorandum, which detailed the defendant’s criminal 

history).

By commenting on inadmissible aspects of the defendant’s 

criminal history before allowing defense counsel a reasonable 

amount of time in which to request a poll of the jury, the court 

erred. And because all district judges are no doubt aware of 

their duty to “take special care to maintain an appearance of 

impartiality,” Anderson v. Warden, Md. Penitentiary, 696 F.2d 

296, 299 (4th Cir. 1982), the court’s error was plain.

2.

Even where a district court plainly errs, we will not 

overturn a verdict unless that error affected the defendant’s 

substantial rights, which generally means that the “error must 

have been prejudicial.” Olano, 507 U.S. at 734. The defendant 

has the burden of showing that the error “‘affected the outcome 

of the trial,’ or ‘probably influenced the verdicts’ against 
15

him.” United States v. Rolle, 204 F.3d 133, 139 (4th Cir. 2000) 

(quoting Olano, 507 U.S. at 734-35) (alterations omitted). 

“Where the evidence is overwhelming and a perfect trial would 

reach the same result, a substantial right is not affected.” 

Godwin, 272 F.3d at 680 (citation omitted). Cherry is unable to 

shoulder this burden: the evidence against him was overwhelming 

and the circumstances surrounding the erroneous remarks are

strong indicia that the jury had reached a unanimous guilty 

verdict.

Both Officer Keeling and Officer Been gave detailed 

testimony concerning Cherry’s activities at the time of his 

arrest and the items recovered afterward. In particular, 

Officer Keeling testified as to his struggle with Cherry next to 

the Hummer, and stated that he heard the sound of a metal object

falling to the ground, which, based on his experience as a 

police officer, he thought was a gun. He also testified that, 

after he tackled Cherry to the ground, placed him in handcuffs, 

and stood him up, he and his partner “were able to recover two 

bags of suspected narcotics” from that site. J.A. 223. As 

Officer Keeling put it, “as soon as we picked him up we saw [the 

bags] sitting right there,” “[l]iterally, within three feet” of 

where he had tackled Cherry to the ground. Id. at 244. This 

testimony was corroborated by Officer Been’s testimony, as well 

as by the recording made by Officer Been’s Taser. Of particular 
16

significance, in the video, after the altercation between Cherry 

and Officer Keeling, Officer Been can be heard saying, “Damn, E 

all over the place”--in other words, that “[t]here’s ecstasy on 

the ground and it’s a large quantity of it.” Id. at 270. 

Officer Ortiz also testified. He stated that he arrived at the 

scene while Officer Keeling was with Cherry on the ground, and 

that he recovered a small semiautomatic handgun from the ground, 

five to ten feet from the Hummer. He further stated that he did 

not see any jewelry or anything else in the vicinity. The only 

opposing evidence was Cherry’s own testimony, which was 

impeached and uncorroborated.

Mitigating any potential damage done by the court’s illadvised comments was the fact that the jury was already aware 

that Cherry was a convicted felon. Although the jurors had not 

been told what crimes Cherry had been convicted of, the parties 

stipulated that he had been “convicted in a court in Virginia of 

a qualifying felony crime punishable by imprisonment for a term 

exceeding one year prior to the occurrence of the acts charged 

as violations in the indictment.” Id. at 360. Furthermore, 

during the trial, the members of the jury also became aware that 

Cherry had previously been arrested for possession of marijuana, 

as the government elicited testimony from Cherry as to that fact 

in order to impeach his statement that he was not aware that 

smoking marijuana was illegal. Id. at 401.
17

Cherry makes much of the fact that the jury twice 

interrupted their deliberations to ask questions of the court. 

The jury requested to see the Taser video recording again, and 

asked whether there was anybody else standing by the vehicle 

before Officer Ortiz, who recovered the gun, arrived at the 

scene. Such requests are not uncommon, and we do not find them 

to be evidence of a lack of unanimity among the jurors as to 

their ultimate findings. Moreover, despite Cherry’s attempts to 

cast the deliberations as long--and by implication, contentious-

-the jury returned its verdict on the same afternoon it retired.

The fact that the jury foreperson presented the court with 

a signed verdict form before the judge’s erroneous recitation of 

Cherry’s criminal history further indicates the unlikelihood

that his statements affected the trial’s outcome. The clerk 

read the verdict aloud and asked, “Members of the jury, is this 

your verdict, so say you all?” J.A. 514. In response to this 

question, the jurors all indicated an affirmative response. 

While a collective affirmation is not a substitute for a poll, 

we find in this instance that it constitutes further evidence of 

the unanimity of the jury and indicates the irrelevance of the 

judge’s comments to the outcome of the trial. See United States 

v. Miller, 59 F.3d 417, 421 (3d Cir. 1995) (“When [a collective 

poll] is considered against the backdrop of a relatively simple 

case, a short period of deliberation by the jury, and no 
18

indication in the record that any of the jurors displayed 

reluctance or disagreement with the verdict, we cannot say that 

the district court abused its discretion.”); Carter, 772 F.2d at 

67-68.

We further note that the judge’s comments in this case are

distinguishable from those in the two cases from our sister 

circuits that Cherry relies on, Harlow, 444 F.3d 1255, and 

Randle, 966 F.2d 1209. The judicial comments to the jury in 

both of those cases were considerably more egregious than those 

at issue here. In Harlow, the judge relayed a personal 

conversation he had with a government witness which revealed 

that 168 children had been implicated in the use of 

methamphetamine provided by the conspiracy involving the 

defendant and the terrible impact of methamphetamine on 

communities. 444 F.3d at 1260. He went on to commend the 

jurors on rendering a public service on par with several highly 

publicized cases. Id. In Randle, the judge read out the 

probation report, which stated in part, “there is no combination 

or conditions that can assure that this defendant will not 

continue to get into trouble with the law. His track record 

speaks for itself.” 966 F.2d at 1213. The judge’s comments 

here were less inflammatory, although we acknowledge that they 

could have been understood as implying the accuracy of the 

jury’s verdict. See Harlow, 444 F.3d at 1268 (quoting Quercia, 
19

289 U.S. at 470 (“The influence of the trial judge on the jury 

is necessarily and properly of great weight and his lightest 

word or intimation is received with deference, and may prove 

controlling.”)). Moreover, in Randle, the only case of these 

two to result in a reversal, the judge denied defense counsel’s 

request to conduct an individual poll outright. 966 F.2d at 

1213. Here, in contrast, the court allowed for a poll as soon 

as it became clear that defense counsel desired that one be 

conducted.

Given these circumstances, it is difficult to imagine that 

a different outcome might have resulted had the court not erred. 

Accordingly, we find that the error did not affect Cherry’s 

substantial rights and does not warrant reversal.

III.

For the foregoing reasons, each of Cherry’s convictions is

AFFIRMED.