United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2006 Decided January 12, 2007

No. 05-3146

UNITED STATES OF AMERICA,

APPELLEE

v.

GARREN J. ROY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00171-02)

Kenneth D. Auerbach, appointed by the court, argued the

cause for the appellant.

Jamila Z. Hoard, Assistant United States Attorney, argued

the cause for the appellee. Kenneth L. Wainstein, United States

Attorney at the time the brief was filed, and Roy W. McLeese III

and Elizabeth Trosman, Assistant United States Attorneys, were

on brief.

Before: GINSBURG, Chief Judge, and HENDERSON and

GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: Garren J. Roy

was convicted by a jury of four criminal counts, including one

count of possession of a firearm by a felon in violation of 18

U.S.C. § 922(g)(1). Roy appeals the district court’s denial of his

motion for a mistrial based on the court’s inadvertent

submission to the jury of an indictment which identified two

specific predicate crimes to support the felon-in-possession

count. Roy had previously stipulated his felon status. See

United States v. Jones, 67 F.3d 320, 325 n.10 (D.C. Cir. 1995).

Reviewing for plain error, we affirm the district court on the

ground that the indictment’s submission did not prejudice Roy

given the extensive curative measures the district court

undertook and the strength of the case against Roy. 

I.

On August 19, 2004, a second superseding indictment issued

charging Roy with five counts of unlawful conduct: (1)

possessing with intent to distribute 100 grams or more of

phencyclidine (PCP) in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iv); (2) possessing with intent to distribute cannabis in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); (3) using,

carrying or possessing a firearm during and in relation to a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1); (4)

felon-in-possession of a firearm in violation of 18 U.S.C. §

922(g)(1); and (5) felon-in-possession of ammunition in

violation of 18 U.S.C. § 922(g)(1). Before trial Roy moved to

exclude evidence of his felon status, which the district court

granted on July 9, 2004, directing that “the government prove

the prior conviction for purposes of the essential element of th[e]

922(g) charge with a stipulation that does not identify the nature

of the underlying crime” and that “the government not refer to

the prior conviction, except as necessary, to explain [the] felony

possession count to the jury.” 7/9/04 Tr. 112.

Roy’s trial began February 16, 2005 and concluded February

23, 2005. Viewed in the light most favorable to the government,
3

see United States v. Garner, 396 F.3d 438, 439 (D.C. Cir. 2005)

(citing United States v. Whitmore, 359 F.3d 609, 613 (D.C. Cir.

2004)), the evidence established the following facts. 

On the evening of March 12, 2004, a group of Metropolitan

Police Department officers met near an apartment building at

1941 Naylor Road, S.E. in Washington, D.C. to execute a search

warrant for apartment No. 1 based on suspected drug activity in

the apartment. As the officers approached the building, they

“could smell a strong smell . . . of PCP and marijuana.” 2/17/05

Tr. 36. Several of the officers entered the building, knocked on

the door to apartment No. 1 and announced their presence.

When there was no response, they entered the apartment

forcibly. Once inside, the officers again detected “the strong

smell of PCP, the chemical odor associated with PCP, and the

strong smell associated with that of marijuana,” id. 49, and

heard the sound of an interior door closing. The officers headed

down the hallway toward a closed bedroom door and en route

noticed a silver and black handgun lying on the kitchen counter.

The officers kicked the bedroom door open and saw an older

man, Edward Williams, sitting on the bed and Roy lying on the

floor near the window. Meanwhile, officers posted outside the

building and watching through the bedroom window had seen

Roy run into the bedroom and attempt to exit through the

window; when he discovered it was secured with bars, the

officers saw him lie down on the floor between the bed and the

window as if to hide. When the officers inside the bedroom

questioned Williams about the gun on the kitchen counter, Roy

told them the gun was his. While one of the officers detained

Roy and Williams there, the other officers began to search the

rest of the apartment. 

In the kitchen, the officers found the aforementioned gun—a

loaded “Keltec semi-automatic hand gun”—lying “within

inches” of five glass vials of a clear liquid substance,” id. 202,

which was later identified as PCP; a “clear ziplock containing
4

1

Williams, originally a co-defendant in this case, pleaded guilty on

February 15, 2005 to “maintaining a premises for purposes of drug

distribution” in violation of 21 U.S.C. § 856. 2/17/05 Tr. 140-41.

numerous empty zips” lying “[w]ithin a foot” of the gun, id.

203-04; “a clear glass vial with residue inside of it,” id. 204; a

shoebox with a bag inside “containing 100 grams of a green

weed substance, and $35,” id. 204; another box containing “90

grams of a loose weed substance, and two clear zips containing

green weed substance, and 14 zips with residue,” id. 206; a

green “cardboard box containing fourteen grams of a green

weed substance, and a box of ammunition with 38 rounds of 38

special ammunition,” id. 207; three more ziplocks containing

“numerous” clear, black and red ziplocks, id. 207, 208; a “black

ammunition pouch with one speed loader,” id. 207; three more

glass vials “with residue,” id. 208, 209; and in the freezer a glass

vial “with a clear liquid substance,” a tin containing “68 silver

foil wraps” and a glass containing a “brown weed substance,” id.

209. The officers also recovered from various locations in the

apartment, including a second bedroom, a plastic grocery bag

containing “glass vials with residue,” id. 210; a box containing

50 rounds of “ten millimeter ammunition,” id. 210; a pair of

“camouflage coveralls” with $595 in the left front pocket and

$1,945 in the right front pocket, id., 210-11; a “night vision

scope” marked as property of the Prince George’s County,

Maryland government, id. 211; a “green holster,” id. 212; a box

containing 32 rounds of 380 caliber ammunition, id. 212; a blue

backpack containing “392 rounds of assorted ammunition, and

three magazines,” id. 212-13; and a camouflage rifle case, id.

213.

Williams, who testified on behalf of the government

pursuant to a plea agreement,1

 stated that Roy and his friends

had frequented the apartment and kept clothes in the apartment’s

second bedroom for almost one year, ever since Williams’s
5

girlfriend, who was friendly with them, had moved out. A day

or two before the search, Williams said, he was awakened

around midnight by “a strong smell” of what he believed to be

marijuana mixed with PCP. Id. 129-30. Williams went to the

kitchen where he observed Roy at the kitchen counter with

another man. Roy was dipping a small spoon into a jar of

“[m]arijuana and PCP mixed” and packaging the “wet”

marijuana into pieces of tinfoil, which he then folded and placed

in “a little round can.” Id. 131-32. Williams told Roy to get his

drugs out of the apartment but Roy replied Williams should

mind his own business and go back to his bedroom. Id. 133.

According to Williams, he had changed the locks on the

apartment but that did not keep Roy and his friends out and he

was afraid to go to the police. Williams also testified that when

he left for work at 4:00 a.m. the morning of March 12, 2004, he

did not see the gun or drugs on the kitchen counter but when he

returned that evening he saw the gun there and asked Roy why

he had not removed it and the drugs from the apartment. In

addition, Williams corroborated the officers’ testimony that Roy

had admitted owning the gun and that he had tried

unsuccessfully to escape through the barred window.

For his part, Roy offered the testimony of his girlfriend and

her mother to show that he in fact resided in the mother’s house

located next door to the Naylor Road apartment building and the

testimony of a retired police officer to challenge the procedures

used in handling and securing the seized evidence.

On the morning of February 23, 2005 the trial judge

instructed the jurors and sent them to begin deliberating. After

the jurors had left the courtroom, the judge suggested to counsel

that the second superseding indictment be redacted before

submitting it to the jury to delete a “notice of enhancement”

clause that described alterations made to the gun. Both sides

agreed and, after the clause was deleted, the judge asked his

courtroom deputy to show the redacted indictment to counsel.
6

The prosecutor replied “Thank you,” 2/23/05 am Tr. 17; defense

counsel was silent. The judge then announced, “All right, that

can go back.” Id. That afternoon, the jury sent the judge a note

that it had reached a verdict. Before the judge recalled the jury,

defense counsel informed the court that the version of the

indictment that went to the jury identified two predicate felony

convictions for the felon-in-possession counts, namely, “Assault

With Intent to Kill” and “Use of a Handgun in the Commission

of a Crime of Violence.” Second Superseding Indictment filed

8/19/2004 at 2-3. Defense counsel explained that she “did not

notice when it went back originally” and therefore was “asking

for a redacted indictment to go back.” 2/23/2005 pm Tr. 3. She

then clarified that she wanted a version without the two prior

felonies to “go back to the jurors with a note stating that . . . the

wrong person’s indictment went back originally.” Id. While the

judge and counsel were still conferring, Roy informed his

counsel that he wanted a mistrial and his counsel so informed

the court. Without ruling on the mistrial request, the judge

proposed to recall the jurors, tell them that the indictment they

had been given “incorrectly named . . . a prior conviction”—in

fact it erroneously identified one of the two prior convictions as

assault with intent to kill rather than the actual predicate, assault

with intent to disable—and send them back to “revisit their

deliberations” with a different copy of the indictment that

omitted the specific crimes of which Roy had been convicted.

Id. 7-8.

Accordingly, the judge then recalled the jury and instructed

it that the indictment he had given it “was not the charged

document that should have been sent back to you,” that it was

“in error, particularly with respect to count four and five” and

“the prior conviction identified in counts four and five of the

indictment that you got was not what the defendant had been

previously convicted of.” 2/23/05 pm Tr. 11. He advised the

jurors he would provide the correct indictment and told them: 
7

I want to ask you to resume your deliberations, because

we want to make sure that whatever role the indictment

may or may not have played in your deliberations was

not affected by the incorrect copy of the indictment, and

incorrect language that’s in the copy that you got that

erroneously lists incorrectly and identifies incorrectly a

prior conviction in counts four and five. This is not what

the defendant was previously convicted of. . . . I want

to direct you to completely disregard and put out of your

mind any consideration whatsoever of the identified

prior conviction that you may have read in the copy of

the indictment that was sent back to you in error . . . . It

must not and may not play any role whatsoever in your

consideration of what your verdicts should be.

Id. 11-12. He then repeated his instruction that the jurors must

“disregard” the first indictment and that it “must play no role

whatsoever” in their deliberations.” Id. 12-13. The jury then

returned to the jury room to resume deliberation.

Some thirty-five minutes later the judge informed counsel he

had received two notes from the jury. The first note stated: “We

the jury have reached a verdict on all counts.” 2/23/05 Tr. 14.

After reading it to counsel, the judge proposed to respond with

a note requesting that the jurors indicate if any one of them was

“incapable” of or “uncomfortable” with following his last

instruction directing them to disregard the first indictment’s

reference to the prior convictions. Id. 15. When asked their

thoughts on the procedure, counsel for each side replied “no

objection.” Id. The second note stated: “The jury is concerned

with their safety. What is the procedure for leaving the building

safely?” Id. The judge suggested to counsel that the jurors’

concern might stem from “hav[ing] encountered in the

courtroom or outside of the courtroom people that they may

view as being the defendant’s family.” Id. Then, with the

agreement of counsel, he sent the jurors a note that he was
8

“making special arrangements for [their] departure from the

building.” Id. 19. He also sent the jury the following note in

accordance with his previous discussion with counsel:

Dear Jurors

 It is imperative that ALL jurors follow the last

instruction that I gave you in open court a while ago. If

for ANY reason, ANY juror feels unable to faithfully

follow my instruction, or feels uncertain about his/her

ability to follow my instruction, I must ask you to say so

now.

 Does ANY juror feel unable to follow, or feel

uncomfortable or uncertain about following, my

instruction? Please check one:

 _____ Yes _____ No

If YES, please identify your juror seat number(s): _____

 I await your response which I ask the foreperson to

sign below.

Thank you

Appellant’s App. 22. The note was signed by the judge and

contained a space for the jury foreperson to fill in the date and

time and to sign it. The jury returned the note with a checkmark

in the space next to “No.” Id. The judge then recalled the jury

which returned a unanimous verdict of guilty on counts one

through four and not guilty on count five. Id. 65. Following the

verdict, the court deferred ruling on Roy’s renewed mistrial

motion to allow him to file a written motion. 

At a hearing held August 3, 2005 the court denied Roy’s

motion for mistrial or, alternatively, a new trial. At the same

hearing, the court sentenced Roy to concurrent prison terms of

78 months on the PCP count, 60 months on the cannabis count

and 78 months on the felon-in-possession count, to be followed
9

2

Giving the jury a copy of the indictment appears to be common

practice. See Ralph A. Jacobs, White Collar Pretrial Motions, 16

Litig., Jan. 1990, at 17, 20 (“In most courts, the indictment goes to the

jury room, where it may become a road map for deliberations.”).

“[W]hether to permit the jury to have the indictment during

deliberations is [a] decision committed to the [trial] court's discretion.”

Dallago v. United States, 427 F.2d 546, 553 (D.C. Cir. 1969). We

assume that it would have been within the district court’s discretion to

submit a properly redacted indictment to the jury in this case. We

note, however, that this practice often carries significant risks and has

few corresponding benefits. But cf. United States v. Chan Chun-Yin,

958 F.2d 440, 444 (D.C. Cir. 1992) (court “mitigated” effect of

overbroad knowledge instruction “by reading the indictment to the

jury which contained the proper actual knowledge requirement and by

allowing them to take a copy of it to the jury room to use during

deliberations”).

by a term of 60 months on the section 924(c)(1) count and

subsequently by concurrent supervised release terms of 4, 2, 3,

and 2 years on counts 1 through 4, respectively. 

Roy filed a notice of appeal on August 5, 2005.

II.

Roy appeals the district court’s denial of his mistrial motion

on the ground that submission of the unredacted indictment to

the jury improperly permitted it to consider as evidence of his

guilt the prior convictions enumerated therein.2

 We review the

denial of a mistrial for abuse of discretion. United States v.

Gartmon, 146 F.3d 1015, 1027 (D.C. Cir. 1998) (citing United

States v. Williams, 822 F.2d 1174, 1188 (D.C. Cir. 1987)).

Further, because Roy did not object to the indictment before it

was submitted to the jury—notwithstanding the court’s

invitation to counsel to inspect it—we review the denial for

plain error. See United States v. Thompson, 27 F.3d 671, 673

(D.C. Cir. 1994) (“For purposes of determining our standard of
10

review of an alleged error in admission of evidence, however, a

post-verdict motion for a new trial is not the same as a timely

objection: the delay eliminates any chance that the judge could

correct the error without a duplicative trial, and according

review as if a timely objection had been raised virtually invites

strategic behavior by defense counsel. Thus we review only for

plain error.”) (citations omitted); United States v. Fennell, 53

F.3d 1296, 1301 (D.C. Cir. 1995) (plain error review of judge’s

and prosecutor’s references to unobjected-to previous felony

indictment); United States v. Myles, 96 F.3d 491, 495 (D.C. Cir.

1996) (same for judge’s reading of indictment count disclosing

prior felony conviction); cf. United States v. Dale, 991 F.2d 819,

850-51 (D.C. Cir. 1993) (plain error review of jury instruction

if objection not made “before the jury retires”). Under the plain

error standard, “ ‘there must be (1) error, (2) that “affect[s]

substantial rights”—i.e., that is prejudicial . . . and the error must

also be “plain.” ’ ” United States v. Alexander, 331 F.3d 116,

125 n.12 (D.C. Cir. 2003) (quoting United States v. Perkins, 161

F.3d 66, 72 (D.C. Cir. 1998) (quoting Fed. R. Crim. P. 52(a))).

“If these three conditions are met, ‘an appellate court may then

exercise its discretion to notice a forfeited error, but only if []

the error seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’ ” Id. (quoting Johnson v.

United States, 520 U.S. 461, 467 (1997)) (alteration in original).

“On plain error review, the defendant bears the burden of

persuasion with respect to prejudice.” Id. (citing Perkins, 161

F.3d at 72 n.6). Roy has not met his burden here.

In determining the extent to which a defendant has been

unfairly prejudiced, “we consider a number of factors, including

the force of the unfairly prejudicial evidence, whether that force

was mitigated by curative instructions, and the weight of the

admissible evidence that supports the verdict.” United States v.

McLendon, 378 F.3d 1109, 1112 (D.C. Cir. 2004) (citing United

States v. Eccleston, 961 F.2d 955, 959-60 (D.C. Cir. 1992)).

These factors do not weigh in favor of mistrial here. 
11

First, we do not see what more the district judge could have

done to “cure” the submission of the unredacted indictment.

After removing the indictment from the jury’s possession, he

repeatedly and emphatically directed that it “disregard” the

references to the “incorrect” prior conviction. He took the extra

precaution of sending a note to the jurors before they returned

their verdict stressing the importance of complying with his last

instruction and asking if any one of them felt “unable to follow”

the instruction or “uncomfortable or uncertain about following”

it. The jurors expressly responded in the negative. These

precautions were calculated to ensure that the jury did not

consider the incorrect indictment in reaching its verdict and the

jury’s response confirmed that in fact it did not. “ ‘We normally

presume that a jury will follow an instruction to disregard

inadmissible evidence inadvertently presented to it . . . .’ ”

McLendon, 378 F.3d at 1114 n.6 (quoting Greer v. Miller, 483

U.S. 756, 767 n.8 (1987)). We have no reason to doubt that the

jurors followed the court’s instruction here and disregarded the

predicate crimes listed in the first copy of the indictment.

Significantly, the judge did not simply direct the jurors to

disregard the language in the incorrect indictment—a curative

instruction a juror might, perhaps, have chosen to ignore; instead

he repeatedly and emphatically explained to them that the first

indictment they received was simply wrong in that the crimes it

identified were not the crimes of which Roy was convicted. The

jurors were therefore especially likely to follow his instruction

to disregard the unredacted indictment rather than rely on

information they knew to be incorrect.

Second, the case against Roy was strong. According to the

testimony of two witnesses, Roy himself admitted that the gun

belonged to him and Williams’s testimony was that Roy and his

friends used the apartment to prepare and store drugs. Further,

the contraband seized from the apartment when the officers

searched it—including the gun, PCP and marijuana and mixtures

of the two and the copious preparation and packing
12

3

We would ordinarily be hesitant to hold that curative instructions

given after the jury has notified the court that it had reached a verdict

are adequate. In this case, however, we find that despite the timing of

the instructions Roy has failed to meet his burden of showing

prejudice because the government’s case against him was strong and,

more important, because the error in the indictment allowed the trial

judge to instruct the jury that the original indictment was incorrect

instead of merely instructing it to disregard accurate information.

materials—left no doubt of the kind of drug activities occurring

in the apartment, which Roy frequented and where he was

arrested after his unsuccessful attempt to escape through the

window. The only arguably exculpatory evidence was the

testimony of Roy’s girlfriend and her mother that he had lived

with them in a house next door to the Naylor Road apartment

building, a fact not inconsistent with Roy’s use of the apartment

to prepare and store illegal narcotics.3

Third, while one of the prior convictions identified in the

incorrect indictment—“Use of a Handgun in the Commission of

a Crime of Violence”—is, as the district court noted, “similar”

to counts 3 and 4 of the indictment here—use of a gun during

drug trafficking and felon-in-possession of a handgun—and

therefore more likely to cause unfair prejudice, this similarity is

outweighed by the other two factors, namely, the extensive

curative measures and the weight of the evidence of guilt,

including Roy’s own admission that the gun belonged to him.

Indeed, in United States v. Myles, supra, the trial judge, as part

of his instruction on the felon-in-possession count, read aloud to

the jury the portion of the indictment setting out the predicate

felony which in that case was the identical crime of which the

jury forthwith convicted him—possessing cocaine with intent to

distribute. Yet we found no plain error based solely on “the

strong evidence presented by the Government on the distribution

count” which established that “the court's misstep did not affect

the outcome of the trial.” Myles, 96 F.3d at 497. Here, where
13

the judge took great pains to cure any effect of the jury’s

inadvertent exposure to the incorrect indictment and the

prosecution’s case was strong, we find that Roy has not satisfied

his burden of proving that the submission of that indictment to

the jury affected Roy’s substantial rights so as to constitute plain

error. Additionally, in these circumstances we cannot say that

the error in this case “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings” under the fourth prong

of the plain error inquiry. United States v. Olano, 507 U.S. 725,

732 (1993) (citation and internal quotation omitted).

For the foregoing reasons, the judgment of the district court

is affirmed.

So ordered.