Preservation of Ex Parte Jury-Note Claims: Sixth Circuit Requires After-the-Fact Objection and Applies Plain-Error Review

Introduction

In United States v. Dwayne Robinson, Jr., No. 23-5486 (6th Cir. Apr. 7, 2025), a published opinion authored by Judge Murphy and joined by Judges Stranch and Thapar, the Sixth Circuit affirmed a felon-in-possession conviction and an Armed Career Criminal Act (ACCA) sentence. The case is notable for two reasons. First, the court formally held that when a district court communicates with a deliberating jury outside counsel’s presence and then discloses that communication, a defendant who fails to object at that point has forfeited the claim, and appellate review will be for plain error under Federal Rule of Criminal Procedure 51 and United States v. Vonner (516 F.3d 382 (6th Cir. 2008) (en banc)). Second, in the wake of the Supreme Court’s Erlinger v. United States (602 U.S. 821 (2024)), the panel applied existing Sixth Circuit precedent to hold that the failure to submit ACCA’s “different occasions” question to the jury can be harmless beyond a reasonable doubt when the record leaves no doubt the offenses were committed on different occasions.

The opinion addresses four issues raised by Robinson:

• Whether responding to a jury note without consulting counsel violated the Sixth Amendment;
• Whether a mistrial was required after detectives’ testimony implied other gun-related conduct;
• Whether instructing the jury that “ownership is irrelevant to possession” misstated the law under 18 U.S.C. § 922(g)(1); and
• Whether, after Erlinger, a jury must find ACCA’s “different occasions” and, if so, whether failure to obtain that finding is harmless.

The court rejected the first three claims under plain-error review and upheld the ACCA sentence after finding the Erlinger error harmless beyond a reasonable doubt.

Summary of the Opinion

Facts and trial: Detectives from Nashville’s TITANS unit surveilled Robinson (wanted on a warrant and suspected in a homicide) and arrested him at a church. His cousin, the owner of the Elantra he had driven, was seated in the driver’s seat with a baby in back; two firearms were seen on the floor under the front passenger seat. During a post-arrest interview, Robinson admitted he knew the guns were in the car, had touched them, and that they had been in his possession, though he denied ownership and attempted to exculpate his cousin. A jury convicted him of violating § 922(g)(1).

Sentencing: The district court applied ACCA’s 15-year mandatory minimum based on three prior convictions—1991 murder, 2013 hydrocodone possession with intent to sell, and 2017 heroin possession with intent to sell—concluding they were committed on different occasions. The court varied downward to the 180-month minimum from a Guidelines range of 235–293 months.

On appeal:

• Ex parte jury communication: The jury sent a note asking, in effect, what happens if they could not reach a unanimous verdict that night. The court responded—without consulting counsel—that the jury would return at 9:30 a.m. to continue deliberations. The panel held that because Robinson did not object after the court disclosed the note and response (before the verdict was taken), the claim was forfeited and subject to plain-error review. On the merits, no “obvious” Sixth Amendment violation occurred because the note reasonably concerned mere scheduling, not substantive instructions or a true deadlock.
• “Bad acts” evidence and mistrial: Two strands were challenged: (i) testimony that TITANS investigates shootings; and (ii) a detective’s statement on cross that an eyewitness had seen Robinson with a handgun the day before (in a different case). Under plain-error review, the court held the generic description of the unit’s function was not Rule 404(b) “other-acts” evidence at all; and the detective’s statement was invited because defense counsel “opened the door” by seeking broad concessions that no eyewitness had ever seen Robinson with a gun.
• Jury instruction on possession: The district court instructed, “Ownership is irrelevant to the issue of possession.” Although the Sixth Circuit’s pattern instruction says a defendant need not own a firearm to possess it, the panel found no “clear” error because Sixth Circuit cases have sometimes described ownership as “irrelevant” to possession and any tension with Rules 401/402 (relevance) is not clearly resolved against the district court’s phrasing. Under plain-error review, the claim failed.
• ACCA “different occasions” after Erlinger: The panel acknowledged Erlinger requires a jury finding on the “different occasions” element. But under United States v. Campbell (122 F.4th 624 (6th Cir. 2024)) and United States v. Cogdill (130 F.4th 523 (6th Cir. 2025)), the omission can be harmless if the entire record establishes beyond a reasonable doubt that any reasonable jury would find the prior offenses were on separate occasions. Given the decades-long gap between the 1991 murder and the later drug crimes, and the multi-year, different-drug separation between the 2013 hydrocodone and 2017 heroin offenses (with an intervening sentence), the error was harmless.

The judgment was affirmed.

Analysis

Precedents Cited and How They Shaped the Decision

• Rule 51, preservation, and plain error:
  • United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc): Parties must object when a court asks for objections post-sentencing; failure triggers plain-error review.
  • Holguin-Hernandez v. United States, 589 U.S. 169 (2020): Rule 51(a) eliminates the need for formal “exceptions,” but litigants still must bring claimed error to the court’s attention.
  • Puckett v. United States, 556 U.S. 129 (2009): Parties cannot remain silent and save an error for appeal; plain-error principles discourage sandbagging.
  • United States v. Paul, 57 F. App’x 597 (6th Cir. 2003) (per curiam), and decisions from the First, Fourth, Fifth, Ninth, and Tenth Circuits (e.g., Rivera-Rodríguez; Wall; Throckmorton; McDonald; Roberts): Applied plain-error review to claims of ex parte jury communications where no timely objection was made. The Robinson panel formally joined this approach, making it binding Sixth Circuit law.
• Sixth Amendment “critical stage” doctrine:
  • United States v. Cronic, 466 U.S. 648 (1984): Denial of counsel at a critical stage can be structural error.
  • Sixth Circuit cases: French v. Jones, 332 F.3d 430 (6th Cir. 2003); Caver v. Straub, 349 F.3d 340 (6th Cir. 2003); Valentine v. United States, 488 F.3d 325 (6th Cir. 2007); Bourne v. Curtin, 666 F.3d 411 (6th Cir. 2012). These distinguish jury communications that implicate substantive law or deadlock (potential “critical stages”) from mere scheduling information (not a critical stage). Robinson applies that boundary and finds no obvious error when the note reasonably concerned scheduling.
• Rule 404(b) and the “open-the-door” doctrine:
  • United States v. Pritchard, 964 F.3d 513 (6th Cir. 2020); Gessa, 971 F.2d 1257 (6th Cir. 1992) (en banc): Three-step admissibility analysis for other-acts evidence and balancing under Rule 403.
  • United States v. Blanton, 520 F.2d 907 (6th Cir. 1975): Reversed where officer testified defendant was being investigated for an unrelated bank robbery; contrasts with neutral testimony here describing a unit’s function.
  • United States v. Segines, 17 F.3d 847 (6th Cir. 1994); United States v. Buentello, 423 F. App’x 528 (6th Cir. 2011); United States v. Abdullah, 162 F.3d 897 (6th Cir. 1998): A party may rebut misleading impressions created by the other side’s questioning; the “open the door” doctrine can permit otherwise-limited testimony.
• Possession vs. ownership under § 922(g)(1):
  • United States v. Brooks, 987 F.3d 593 (6th Cir. 2021); United States v. Bailey, 553 F.3d 940 (6th Cir. 2009): Actual and constructive possession standards.
  • Cases describing ownership as “irrelevant” to possession: United States v. Saikaly, 207 F.3d 363 (6th Cir. 2000); United States v. Hardin, 248 F.3d 489 (6th Cir. 2001); United States v. Solorio, 337 F.3d 580 (6th Cir. 2003); United States v. Hadley, 431 F.3d 484 (6th Cir. 2005); United States v. Bell, 434 F. App’x 515 (6th Cir. 2011). The panel reads these decisions as supporting (at least for plain-error purposes) the instruction given.
  • Evidence relevancy backdrop: Fed. R. Evid. 401’s low threshold; the panel notes potential tension between saying “ownership is irrelevant” and the Rules’ approach to probative value, but avoids resolving it on plain error.
• ACCA after Erlinger; harmless error:
  • Erlinger v. United States, 602 U.S. 821 (2024): A jury must find beyond a reasonable doubt that the defendant’s prior convictions were “committed on occasions different from one another.”
  • Neder v. United States, 527 U.S. 1 (1999); Washington v. Recuenco, 548 U.S. 212 (2006): Omission of an element can be subject to harmless-error review, even when framed as a “sentencing enhancement.”
  • United States v. Campbell, 122 F.4th 624 (6th Cir. 2024); United States v. Cogdill, 130 F.4th 523 (6th Cir. 2025): The Sixth Circuit applies harmless-error review to Erlinger omissions, considering “all relevant and reliable information” in the entire record (quoting Greer v. United States, 593 U.S. 503 (2021)). Campbell found harmlessness with months-long gaps, different locales and drugs; Cogdill did not where two drug crimes were close in time, same drug, same county.
  • Other cited authorities: United States v. Fields, 53 F.4th 1027 (6th Cir. 2022) (constitutional avoidance); United States v. Page, 232 F.3d 536 (6th Cir. 2000), limited by later cases including United States v. Stewart, 306 F.3d 295 (6th Cir. 2002), and superseded in approach by Campbell.

Legal Reasoning

1) Ex parte jury communication and Rule 51. The court framed the preservation issue under Rule 51(b): a party preserves a claim by informing the court of the action it wishes the court to take or its objection, and the absence of a contemporaneous opportunity to object “does not prejudice” the party. But, critically, if a party has the ability to object after the action (e.g., after the judge discloses a note and response), Rule 51 requires the party to object then. That is, while formalists “exceptions” are abolished (Rule 51(a)), parties cannot remain silent in the face of a curable problem. Because Robinson did not object when the judge disclosed the note and response before the verdict, he forfeited the claim and plain-error review applied.

On the merits, the panel examined whether the communication occurred at a “critical stage” (which could make denial of counsel structural under Cronic). Jury communications can be critical if they address substantive law or give deadlock instructions (e.g., an Allen charge). But a note limited to “tonight” and asking about “next steps” was reasonably understood as scheduling. The panel also emphasized that the factual ambiguity about the note’s exact wording underscored why timely objection is essential: without it, the record could not be developed. Under plain-error review, an “obvious” Sixth Amendment violation could not be shown.

2) “Bad acts” evidence and mistrial. The court first found that testimony describing the TITANS unit’s general mission (investigating neighborhood shootings) did not mention Robinson or any specific crime—thus it was not Rule 404(b) “other-acts” evidence at all. Second, defense counsel’s cross-examination sought sweeping concessions that no eyewitness had seen Robinson with a firearm. That opened the door to the detective’s narrow clarifying response that an eyewitness reported seeing Robinson with a handgun the day before “on a different case.” Because defense questioning created a misleading impression and elicited the response, allowing the clarification was within the trial court’s discretion and did not amount to plain error. Nor did the record require a mistrial under the Sixth Circuit’s prejudice factors.

3) Instruction: “Ownership is irrelevant to possession”. Section 922(g)(1) criminalizes possession; ownership is not an element. The panel acknowledged Sixth Circuit decisions that have used “irrelevant” shorthand when affirming possession convictions. It also acknowledged the low bar for relevance under Rules 401–402 and the Sixth Circuit’s Pattern Instruction that states the defendant “does not have to own the firearm to possess it,” not that ownership is categorically irrelevant. But because existing circuit law has suggested irrelevance and no controlling authority clearly prohibits that phrasing, the instruction was not “clearly erroneous” under the circuit’s plain-error standard for jury instructions.

4) ACCA “different occasions”: Erlinger error and harmlessness. Post-Erlinger, the “different occasions” finding is for the jury. Following Neder and Recuenco, the Sixth Circuit (in Campbell) holds this omission is subject to harmless-error review. The reviewing court considers the entire record, including uncontested facts in the presentence report (Greer), and asks whether any rational jury would find the prior offenses occurred on different occasions beyond a reasonable doubt. Applying Campbell and distinguishing Cogdill, the panel held the error harmless where Robinson’s prior crimes were separated by decades and years, involved different drugs, and included an intervening sentence—facts that leave “no doubt” the offenses were distinct.

Impact and Implications

• New preservation rule for ex parte jury notes in the Sixth Circuit: The court expressly “formally join[ed]” other circuits in holding that, when the judge discloses an ex parte jury communication and the response, a defendant must object then and there to preserve the issue. Failing to do so triggers plain-error review. Practically:
  • Defense counsel should immediately ask to put the original note in the record, confirm the exact text, the time of receipt, and the court’s response, and state any requested alternative response.
  • If the note arguably reflects deadlock or confusion over substantive law, counsel should state that and request appropriate input or instructions (e.g., an agreed, non-coercive deadlock instruction).
• Sixth Amendment “critical stage” narrowed for routine jury logistics: Routine scheduling information to the jury does not, without more, trigger the structural-error framework. Counsel should nevertheless ensure the record clarifies whether a note implicates deadlock or substantive law, because that can change the analysis.
• 404(b) and “opening the door” cautions: The opinion underscores that broad cross-examination designed to elicit blanket “no one ever saw him with a gun” concessions may invite otherwise limited or excluded rebuttal testimony. Pretrial agreements not to reference separate investigations can be undone by defense questioning that creates a false impression. Carefully cabined questions reduce this risk.
• Possession instructions and ownership: The panel’s discussion signals that, while “ownership is irrelevant” survived plain-error review, trial courts are best served by tracking the Sixth Circuit Pattern Instruction: “The defendant does not have to own the firearm to possess it.” That avoids any unnecessary tension with Rules 401–402 while communicating the correct legal point that ownership is not required for actual or constructive possession.
• ACCA after Erlinger: Harmlessness is alive and well: Erlinger ensures a jury must decide “different occasions,” but Robinson (following Campbell) makes clear that failure to submit the question is not automatically reversible. Where the record is unequivocal—e.g., offenses separated by years, different locations or drugs, and especially an intervening sentence—appellate courts may affirm on harmless-error grounds. Defense counsel should:
  • Demand a jury determination on “different occasions” going forward, with clear special interrogatories;
  • Dispute any PSR facts bearing on the occasions analysis, because uncontested PSR facts may be used to support harmlessness on appeal; and
  • Recognize that close-in-time, same-drug, same-county combinations may defeat harmlessness (Cogdill), while lengthy gaps and differing conduct likely will not (Campbell, Robinson).

Complex Concepts Simplified

• Forfeiture vs. waiver:
  • Forfeiture: Failing to make a timely objection, often leading to plain-error review.
  • Waiver: Intentional relinquishment of a known right, which generally bars review.
  • In Robinson, the court applied plain-error review to the evidentiary and instruction issues (forfeiture), and did not need to resolve the government’s waiver argument on the mistrial point because there was no error.
• Plain error:
  • The appellant must show a clear or obvious error that affected substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
  • “Obvious” means “clear under current law” at the time of appeal.
• Critical stage and structural error:
  • A “critical stage” is one where there is a reasonable probability the defendant could suffer significant consequences without counsel’s assistance (e.g., substantive jury instructions or deadlock charges). Denial of counsel at such a stage may be structural error (automatic reversal).
  • Mere scheduling communications are not a critical stage.
• Rule 404(b) “other-acts” evidence:
  • Evidence of other crimes, wrongs, or acts cannot be used to prove propensity, but may be admissible for non-propensity purposes (intent, knowledge, absence of mistake, etc.), subject to Rule 403 balancing.
  • Neutral descriptions of a police unit’s function are not “other-acts” evidence.
  • “Opening the door” allows responsive evidence to correct a misleading impression created by the other side’s questions.
• Actual vs. constructive possession:
  • Actual possession: Direct physical control of the firearm.
  • Constructive possession: Knowing ability and intent to exercise control over the firearm, directly or through others.
  • Ownership is not required for either, although evidence of ownership may bear on constructive possession’s control/intent dimension.
• ACCA “different occasions” and harmlessness:
  • After Erlinger, a jury must find that the three predicate offenses were committed on different occasions.
  • Failure to submit that finding can be harmless if the record establishes beyond a reasonable doubt that any rational jury would find separate occasions (considering timing, location, nature of the offenses, and intervening events like sentences).
  • Appellate courts may consider uncontested PSR facts in assessing harmlessness.

Conclusion

United States v. Robinson cements two important points in Sixth Circuit practice. First, the court expressly adopts a preservation rule for ex parte jury communications: when the court discloses a jury note and its response, counsel must object then to avoid plain-error review. This clarification of Rule 51 and alignment with other circuits carries immediate trial-management consequences and underscores the importance of an “appropriate record” contemporaneously with jury communications. Second, on the remedial side of the ledger, the court confirms that post-Erlinger errors in failing to submit ACCA’s “different occasions” to the jury can be harmless—especially where record facts (even from an uncontested PSR) show lengthy temporal gaps, differing conduct, or intervening sentences that make separate occasions indisputable.

The opinion also offers practical guidance on evidence and instructions. It reinforces that neutral descriptions of law-enforcement units are not inherently 404(b) evidence and that defense counsel can “open the door” to otherwise constrained testimony. And while the panel left unresolved any tension between saying “ownership is irrelevant” and the Rules of Evidence’s relevance framework, it signaled that pattern instructions—stating that ownership is not required for possession—remain the safer course.

Overall, Robinson is a careful application of preservation and harmless-error doctrines that will shape trial practice and appellate strategy in the Sixth Circuit, particularly in the wake of Erlinger and ongoing ACCA litigation.