## Facts

- Gary Bush was tried in the Eastern District of New York and convicted of armed bank robbery and related offenses, including conspiracy.
- The prosecution’s theory was that Bush served as the driver of the getaway car.
- Bush testified in his own defense, admitting he drove the car but denying knowledge that a bank robbery had occurred.
- Bush claimed he had parked near the bank while headed to a car dealership, heard a noise, returned to find Morris Fillyaw in the car, and accepted money to give him a ride.
- During Bush’s testimony, Juror No. 2 stated he was confused and had a question; the judge instructed the juror to write it down and said the court would address it if confusion remained after the testimony.
- After cross-examination, the judge asked if the question remained; Juror No. 2 said he could not follow the testimony about where cars were parked, and the judge directed defense counsel to clarify it on redirect.
- After redirect, defense counsel directly asked Juror No. 2 whether the question was answered; Juror No. 2 said yes, and other jurors then asked brief clarifying questions, which Bush answered.
- Defense counsel made no objection to juror questioning and at times facilitated it.
- On appeal, Bush argued that jurors’ direct questioning of a criminal defendant is per se reversible error; the government conceded the conspiracy sentence exceeded the statutory maximum.

## Issues

1. Whether juror questioning of a testifying criminal defendant constitutes per se reversible error.
2. Whether, absent a contemporaneous objection, the trial court’s allowance of juror questions amounted to plain error or an abuse of discretion.
3. Whether the conspiracy sentence must be corrected because it exceeded the statutory maximum.

## Decision

- The Second Circuit rejected a per se reversal rule for juror questioning of a criminal defendant.
- The court held that juror questioning is generally within the trial judge’s discretion, similar to questioning by the judge.
- Because there was no objection, the court reviewed for plain error and found none.
- The court also found no abuse of discretion in the trial judge’s management of the limited, clarifying questions.
- The court affirmed the convictions.
- The court vacated the sentence only on the conspiracy count and remanded for the limited purpose of reducing that sentence to the statutory maximum.

## Legal Principles

- Juror questioning of witnesses, including a defendant who testifies, is not categorically prohibited and is not per se reversible error.
- The trial judge has discretion to permit and control juror questions to protect fairness and avoid prejudice.
- When defense counsel does not object, appellate review is for plain error; relief requires a clear or obvious error that affects substantial rights and seriously impairs the fairness or integrity of the proceedings.
- Absent a concrete showing of prejudice from the juror questions, limited clarification-oriented questioning will not justify reversal.
- A sentence exceeding the statutory maximum must be corrected on remand, even if the correction does not change the overall prison term.

## Conclusion

The Second Circuit held that limited juror questioning of a testifying defendant, managed by the trial court and unobjected to by the defense, did not constitute plain error or an abuse of discretion; it affirmed the convictions but remanded solely to reduce the conspiracy sentence to the statutory maximum.


United States v. Bush, 47 F.3d 511 (2d Cir. 1995)