In U.S. v. Cherry the defendant was convicted by a jury of possession with intent to distribute, possession of a firearm in furtherance of drug trafficking, and possession of a firearm after a felony conviction.
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 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.
The defendant appealed his conviction arguing among other things that the judge's comments prior to polling the jury constituted plain error. The defendant had to argue the plain error standard because his attorney at trial had failed to object to the judge's comments.
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.
In applying this test, the 4th Circuit Court of Appeals determined that "yes" it was error for the judge to comment on the defendant's record prior to polling the jury; however, the trial judge's comments did not substantially impact the defendant's rights. The appellate court pointed out that
the evidence against him [Cherry] was overwhelming and the circumstances surrounding the erroneous remarks are strong indicia that the jury had reached a unanimous guilty verdict.
The appellate court also noted that
Mitigating any potential damage done by the court's ill-advised 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.”
