United States of America v. RUDY DELGADO, JR. (01-2090) and EDUARDO FLORES (02-1009)

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0426P (6th Cir.)
File Name: 03a0426p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUDY DELGADO, JR.
(01-2090) and EDUARDO
FLORES (02-1009),
Defendants-Appellants.
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Nos. 01-2090;
02-1009
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-81120—Victoria A. Roberts, District Judge.
Argued and Submitted: September 12, 2003
Decided and Filed: December 5, 2003
Before: NELSON, GIBBONS, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Thomas J. Plachta, PLACHTA LAW OFFICES,
Mt. Pleasant, Michigan, for Appellant. Janet L. Parker,
ASSISTANT UNITED STATES ATTORNEY, Bay City,
2 United States v.
Delgado, et al.
Nos. 01-2090; 02-1009
Michigan, for Appellee. ON BRIEF: Thomas J. Plachta,
PLACHTA LAW OFFICES, Mt. Pleasant, Michigan, Richard
Ginsberg, Ann Arbor, Michigan, for Appellants. Janet L.
Parker, ASSISTANT UNITED STATES ATTORNEY, Bay
City, Michigan, for Appellee. Rudy Delgado, Jr., Pekin,
Illinois, pro se.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. The primary issue
presented in these criminal appeals is whether the district
court’s method of jury selection – a method in which the
parties were required to reduce a pool of 30 qualified jurors
to a panel of 14 by using all of their peremptory challenges,
with the court then designating two alternates by random
draw immediately before the beginning of jury deliberations
– violated, to the defendants’ prejudice, Rule 24 of the
Federal Rules of Criminal Procedure. We conclude that the
random designation of alternates at the end of the trial was
inconsistent with Rule 24(c), but that the violation did not
affect the defendants’ substantial rights. On that basis, and
because we reject all remaining claims of prejudicial error
(with the exception of an ineffective assistance of counsel
claim that would more appropriately be raised in a collateral
proceeding), the challenged judgments will be affirmed.
I
Rudy Delgado, Jr., and Eduardo Flores were indicted on
charges of conspiracy to possess and distribute more than 500
grams of cocaine, use of communications facilities to
facilitate the distribution of cocaine, and possession and
distribution of cocaine. They were jointly tried before a jury.

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1Most courts use a version of either the “struck jury” or the “jury
box” method of jury selection. Under the struck jury method , “for-cause
challenges are made first, until a sufficiently large panel of qualified
jurors remains to fill the juror and alternate juror positions sho uld all
peremptory challenges be exercised against different jurors.” United
States v. Underwood, 122 F.3d 389, 393 n.4 (7th Cir. 1997 ), cert. denied,
524 U.S. 93 7 (1998). Under the jury bo x method , “the parties exercise
both their for-cause and peremptory challenges one juror at a time during
voir dire questioning.” Id.
2Rule 24(b)(2) affords the government six peremptory challenges and
the defendant or defendants 10 peremptory challenges in felony cases.
See Fed. R. Crim. P. 24(b). District courts “may allow additional
peremptory challenges to multiple defendants,” id., but the court did not
do so in this case.
The district court used a form of the “struck jury” method
of jury selection.1 After screening for cause and thereby
reducing the jury pool to 30 qualified members, the district
court required the government and the defense to exercise all
of the peremptory strikes allowed under Rule 24(b), Fed. R.
Crim. P., leaving 14 jurors.2 The attorneys for the defendants
initially misunderstood the court’s procedure, believing that
jury selection would be complete, even if some peremptory
strikes remained unused, once the “first” 14 jurors were
acceptable to both the government and the defense. When the
defense attempted to “pass” a round of peremptory strikes,
however, the court explained that “[n]o one of the 30 has any
priority over anybody else” and that all of the parties’
peremptory strikes would therefore have to be used to select
a panel of 14 jurors. Mr. Delgado objected to the court’s
procedure, but the court overruled the objection.
The district court had informed the parties that it would use
a random draw to remove two alternates from the panel of 14
just before the jury was sent to deliberate. Mr. Delgado
objected to this procedure also. Joined by Mr. Flores, he
moved for a mistrial on the grounds that the court’s method
of selecting jurors and alternates violated Rule 24 and the
4 United States v.
Delgado, et al.
Nos. 01-2090; 02-1009
3Mr. Delgado’s lawyer believed that the “last two” jurors were tho se
sitting furthest from the first seat in the jury box when the peremptory
strike process began, while the governm ent attorney believed that the “last
two” were the final two jurors called from the venire to replace
prospective juro rs who were excused for cause.
4In addition to the jury selection issues, Flores’ appeal raised several
issues relating to his sentence. Those issues are now moot, Flores having
been released fro m custody.
United States Constitution. The court denied the motion but
expressed a willingness to designate as alternates the “last
two” jurors called. When Delgado’s lawyer’s definition of
the “last two” jurors proved different from the government’s,
however, the court adhered to its plan to select alternates
randomly.3
Mr. Delgado’s attorney gave an opening statement before
the government presented its case, but Mr. Flores’ attorney
reserved his opening until the government rested. At that
time, Flores’ lawyer gave a statement indicating that Flores
would testify and that his testimony would paint Delgado as
a drug dealer. Mr. Delgado moved for a severance at this
point, citing “inconsistent defenses.” The district court
denied the motion.
The jury convicted the defendants of conspiracy and other
offenses. Delgado was sentenced to 135 months of
imprisonment, and Flores was sentenced to 27 months. Each
defendant filed a timely appeal.4
II
Jury selection procedures, including the manner in which
peremptory challenges are exercised, are traditionally left to
the discretion of the district courts. See, e.g., United States v.
Mosely, 810 F.2d 93, 96-97 (6th Cir.), cert. denied, 484 U.S.
841 (1987); United States v. Morris, 623 F.2d 145, 151 (10th

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5Peremptory challenges are “auxiliary” to the Sixth Amendm ent right
to an impartial jury; they are not themselves constitutionally guaranteed.
See, e.g., United States v. Martinez-Salazar, 528 U.S. 304 , 311 (2000 ).
The right to peremptory challenges in federal criminal trials is secured –
and governed – by Rule 24. See id.
Cir.), cert. denied, 449 U.S. 1065 (1980). In criminal trials,
that discretion is circumscribed by Rule 24 of the Federal
Rules of Criminal Procedure.5 We must therefore decide
whether the defendants were “denied any right for which Rule
24 provides.” United States v. Martinez-Salazar, 528 U.S.
304, 313 (2000).
A
We turn first to the defendants’ argument that they were
improperly required to use all of their peremptory challenges.
Rule 24(b) prescribes the number of peremptory challenges
that must be allowed in criminal trials but says nothing about
the method by which such challenges are to be exercised. See
United States v. Underwood, 122 F.3d 389, 392 (7th Cir.
1997), cert. denied, 524 U.S. 937 (1998); Morris, 623 F.2d at
151. District courts are thus free to use any method that does
not prevent defendants from intelligently exercising the
challenges to which they are entitled. See Underwood, 122
F.3d at 392.
Here the defendants argue that the district court’s chosen
method – a “struck jury” system, to repeat, in which jurors
were not seated in a sequence – impaired the ability of
defense counsel to exercise professional judgment when using
peremptory challenges. The defendants presumably wished
to maximize the strategic value of their peremptory strikes by
focusing on the jurors who were most likely to sit. With none
of the 30 qualified jurors more likely to sit than any other, the
value of any individual strike was arguably diminished.
6 United States v.
Delgado, et al.
Nos. 01-2090; 02-1009
We are not persuaded that any such diminution constituted
a meaningful impairment of the defendants’ right to
peremptory challenges. In United States v. Martinez-Salazar,
a criminal defendant lost the strategic use of a peremptory
challenge when he exercised the challenge against a juror who
should have been excused for cause. See Martinez-Salazar,
528 U.S. at 308-09. The Supreme Court, observing that the
defendant was accorded the full allotment of challenges
allowed by Rule 24(b), held that his right to peremptory
challenges was not impaired. See id. at 317. Under
Martinez-Salazar, we believe, the inability of defendants “to
make maximum strategic use of their peremptory challenges”
does not invalidate a district court’s method of exercising
peremptories. United States v. Patterson, 215 F.3d 776, 779-
80 (7th Cir.), vacated in part on other grounds, 531 U.S.
1033 (2000). The defendants must identify some other defect
in the district court’s procedure if they are to show that Rule
24(b) was violated.
The defendants’ only other argument is that the required
use of all peremptory challenges conflicts with the “historic
purpose” of peremptories by forcing parties to strike jurors
that they find acceptable. But the defendants were not forced
to strike jurors that they preferred over the remaining jurors;
they were only required to strike the jurors they perceived as
least favorable. We do not think the district court’s procedure
was inconsistent with the “true nature of the peremptory
challenge right,” which is to allow the rejection (not the
selection) of prospective jurors. Mosely, 810 F.2d at 97
(citing Pointer v. United States, 151 U.S. 396 (1894)). There
was no impermissible impairment of the defendants’ right to
exercise peremptory challenges under Rule 24(b).
B
Now we turn to the district court’s designation of alternates.
At the time of the defendants’ trial, Rule 24(c) provided that

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6Rule 24 was amended in 2002, but the changes to subsection (c)
were “intended to be stylistic only.” Fed. R. Crim. P. 24, advisory
comm ittee notes.
7According to one court of appeals, Rule 24(c) “assumes that jurors
will be selected either by the jury-box system or by a struck-jury method
in which defend ants know the seq uence in which m embers of the pool
will be seated.” United States v. Patterson, 215 F.3d 77 6, 780 (7th Cir.),
vacated in part on other grounds, 531 U.S. 1033 (2000). We agree
insofar as the selection of alternates is concerned . The rule do es not, we
believe, prohibit a district court from selecting 12 regular jurors through
a struck jury method in which the jurors are not put in a sequence, so long
as the alternates are separately selected in a distinct order.
8In United States v. Broadus, 7 F.3d 460, 463 n.1 (6th Cir. 1993), we
criticized a procedure in which alternates were selected random ly because
the district court did not allow ad ditional perem ptory challenges as
required by Rule 24(c). That criticism does not apply in the case at bar,
because both defendants waived the right to additional peremptory
challenges.
“The court may empanel no more than 6 jurors, in
addition to the regular jury, to sit as alternate jurors. An
alternate juror, in the order called, shall replace a juror
who becomes or is found to be unable or disqualified to
perform juror duties.”6
This provision, as we read it, assumes that alternate jurors
will be designated separately – and sequentially – before the
trial begins.7 The district court’s selection of alternates by
random draw just prior to jury deliberations was inconsistent
with the rule. See, e.g., United States v. Brewer, 199 F.3d
1283, 1286-87 (11th Cir. 2000); United States v. Love, 134
F.3d 595, 601 (4th Cir. ), cert. denied, 524 U.S. 932 (1998);
and United States v. Sivils, 960 F.2d 587, 593-94 (6th Cir.),
cert. denied, 506 U.S. 843 (1992), in which we characterized
a random draw of alternates just before the jury retired to
deliberate as a “departure from Rule 24(c).”8
8 United States v.
Delgado, et al.
Nos. 01-2090; 02-1009
9Indeed, Flores’ attorney agreed at trial that “it would be better to
choose the two alternates by lot at the end,” given the district court’s
method of impaneling the jury. Because Flores objected to the district
court’s method, we do not interpret this statement as a waiver of the
alternates issue.
Federal rules of procedure should not, of course, be
disregarded by courts any more than by litigants. We
“encourag[e] strict adherence” to Rule 24(c). Sivils, 960 F.2d
at 594. “Not every violation of Rule 24,” however, “calls for
reversal.” Love, 134 F.3d at 601 (internal quotation marks
omitted). A violation of the rule constitutes reversible error
only if it affected the defendant’s substantial rights – i.e., if it
caused actual prejudice to the defendant. Fed. R. Crim. P.
52(a); see, e.g., Brewer, 199 F.3d at 1286-87; Love, 134 F.3d
at 601; Sivils, 960 F.2d at 593.
In the case at bar, we are not persuaded that the district
court’s method of selecting alternates actually prejudiced the
defendants. All of the prospective jurors had been passed for
cause and presumably were impartial. Further, the drawing
of alternates by lot was a neutral procedure that in no way
advantaged the government.9 Cf. Love, 134 F.3d at 602
(violation of Rule 24(c) that accorded the government no
advantage was not prejudicial). Mr. Delgado has asserted that
the jurors drawn as alternates “were the best defense jurors,”
but that is nothing more than speculation – and speculation
cannot support a finding of actual prejudice. See id. at 602-
03; Sivils, 960 F.2d at 594. Finally, the consensus among this
and other courts of appeals is that similar violations of Rule
24(c) are harmless. See, e.g., United States v. Sogomonian,
247 F.3d 348, 353 (2d Cir. 2001); Brewer, 199 F.3d at 1287;
Love, 134 F.3d at 601-03; United States v. Olano, 62 F.3d
1180, 1190 n.3 (9th Cir. 1995), cert. denied, 519 U.S. 931
(1996); Sivils, 960 F.2d at 594.

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To repeat, we do not condone departures from the literal
requirements of Rule 24(c). The rule “represents a national
consensus of bench and bar and ought not to be disturbed.”
Love, 134 F.3d at 601 (internal quotation marks omitted). In
the absence of actual prejudice to the defendants, however,
there is no basis for reversal.
III
Mr. Delgado argues that the district court abused its
discretion by denying his motion for severance. Because
“[f]ederal courts strongly favor joint trials,” the district
court’s ruling is “entitled to great deference.” United States
v. Breinig, 70 F.3d 850, 852-53 (6th Cir. 1995). We are not
persuaded that the district court erred.
A motion for severance should be granted if there is “‘a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.’” Id. at
853 (quoting Zafiro v. United States, 506 U.S. 534, 539
(1993)). There was no such “serious risk” in this case.
Delgado has not contended that the joint trial compromised
any of his specific trial rights. Nor has he demonstrated that
the joint trial undermined the reliability of the jury’s verdict.
Delgado maintains that Mr. Flores’ testimony unfairly
prejudiced him. It is hard to see how, given that Flores’
testimony (so far as it related to Delgado) was largely
cumulative of an informant’s testimony that Delgado had sold
the informant cocaine. In any event, Flores’ testimony would
have been admissible against Delgado regardless of whether
the defendants were tried separately. Under the
circumstances, it does not seem to us that the denial of the
motion for severance could have caused the “compelling and
unfair” prejudice necessary to call the reliability of the jury’s
verdict into doubt. Breinig, 70 F.3d at 853.
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Nos. 01-2090; 02-1009
IV
Mr. Delgado is represented on appeal by his trial attorney,
Thomas Plachta. We accepted a pro se brief from Mr.
Delgado, however, in which he raised several issues that were
not raised in the brief filed by his lawyer. One of those issues
is a claim that Mr. Plachta provided constitutionally
ineffective assistance at trial insofar as he failed to request
certain jury instructions.
Ordinarily, a claim of ineffective assistance of counsel
should be raised in a collateral proceeding so that a record can
be developed on the merits of the claim. See, e.g., United
States v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996). The
parties suggest that the record is sufficient in this case for
disposition of Delgado’s claim on direct appeal. Be that as it
may, an appeal in which Mr. Plachta continues to represent
Mr. Delgado is not a proceeding in which we would feel
comfortable deciding the claim that Mr. Plachta was
ineffective. We prefer to remit the ineffective assistance
claim to a proceeding under 28 U.S.C. § 2255, should Mr.
Delgado choose to pursue that means of relief.
V
None of the remaining claims raised in Mr. Delgado’s pro
se brief requires reversal.
A
Mr. Delgado argues that the government violated the rule
of Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn
over materials that could have been used to impeach Ronald
Carboni, an informant who testified for the government.
Specifically, Delgado says that transcripts of Mr. Carboni’s
testimony in previous trials, transcripts of Carboni’s own plea
and sentencing hearings, an investigative report on Carboni’s
drug activities, and records of government payments to

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10It appears that Delgado raised a Brady claim in the district court
only as to the investigative report. The district court’s rejection of that
claim is reviewed de novo , see, e.g., United States v. Corrado, 227 F.3d
528, 538 (6th C ir. 200 0), while the other aspects of his Brady challenge
are reviewed under a “plain error” standard, see Fed. R. Crim. P. 52(b).
Carboni were withheld in violation of Brady. We are not
persuaded.10
First, because they are records of public court proceedings,
transcripts of Mr. Carboni’s trial testimony, plea hearing, and
sentencing hearing were available to Mr. Delgado from
sources other than the prosecution. Brady does not apply to
materials that are not “wholly within the control of the
prosecution.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998),
cert. denied, 528 U.S. 842 (1999).
Second, the investigative report does not seem to have been
materially inconsistent with Mr. Carboni’s trial testimony. In
any event, Mr. Delgado’s attorney had the report during trial
and could have recalled Carboni to question him about it. It
follows from this that the report is not Brady material. See,
e.g., United States v. Corrado, 227 F.3d 528, 538 (6th Cir.
2000) (noting that Brady applies to suppressed exculpatory
evidence that “was not discovered by the defendant until after
trial”).
Third, Mr. Delgado has not shown that the government
failed to disclose any records of payments to Mr. Carboni.
See Coe, 161 F.3d at 344 (holding that the defendant bears
the burden of proving that materials were not disclosed to
him).
Finally, the jury was made aware that Mr. Carboni had been
convicted on drug charges and was testifying pursuant to a
plea agreement with the government. Mr. Delgado’s lawyer
cross-examined Carboni about his plea agreement, the
judgment in his criminal case, and the sentence he faced had
12 United States v.
Delgado, et al.
Nos. 01-2090; 02-1009
he not made a deal. Delgado has not explained how the
materials that he argues should have been disclosed would
have improved his attorney’s ability to impeach Carboni and
ultimately to secure an acquittal. Thus, we cannot conclude
that the materials “undermine[] confidence in the outcome of
the defendant’s trial,” as is required for a Brady violation.
Corrado, 227 F.3d at 538.
B
Mr. Delgado also argues that the government violated the
rule in Giglio v. United States, 405 U.S. 150 (1972), by
failing to correct false testimony offered by Mr. Carboni.
Delgado has not shown, however, that any of the testimony in
question – all of which dealt with Carboni’s conduct, not
Delgado’s – was materially false. Carboni might have
downplayed his own culpable behavior, but, as noted above,
the facts of Carboni’s plea agreement, conviction, and
sentence were made known to the jury. We do not see how
any self-serving shading of testimony by Carboni could have
significantly prejudiced Delgado.
C
Finally, Mr. Delgado argues that there was insufficient
evidence of his having conspired with anyone to possess and
distribute cocaine. He contends that the evidence showed
only that he had dealings with Mr. Carboni, who, as a
government informant, cannot be a conspirator. See United
States v. Williams, 274 F.3d 1079, 1084 (6th Cir. 2001).
Contrary to Mr. Delgado’s contention, the jury heard
evidence that he conspired with persons other than Mr.
Carboni. Carboni testified, for example, that his first
purchase of cocaine from Delgado was facilitated by Mr.
Flores. Carboni also described three-way telephone calls with

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11There was testimony that Dee’s full name is Daniel Cabasas.
Delgado and a person named “Dee,”11 during which Delgado
instructed Dee to provide Carboni with cocaine. Delgado has
not shown that the evidence, taken in the light most favorable
to the government, would not permit a reasonable jury to find
him guilty of conspiracy. See Jackson v. Virginia, 443 U.S.
307, 319 (1979).
VI
The judgments entered against Mr. Delgado and Mr. Flores
are AFFIRMED. Mr. Delgado remains free to raise his
claim of ineffective assistance of trial counsel by way of a
motion under 28 U.S.C. § 2255 to vacate his sentence.

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