“Harmless-Error” Review for Anonymous Juries and the Enduring Use of Acquitted Conduct:
An Expert Commentary on United States v. Alhaji Jewru Touray, 23-13121 (11th Cir. 2025)

1. Introduction

The Eleventh Circuit’s published decision in United States v. Touray confronted four recurring criminal-procedure questions:

1. When may a district court empanel an anonymous (number-only) jury, and what happens if it fails to articulate the traditional Ross factors?
2. Under what circumstances is a multiple-conspiracies instruction required?
3. May a sentencing court continue to consider “acquitted conduct” after the Supreme Court’s recent Sixth-Amendment jurisprudence?
4. Must a judge give a separate explanation for the sentence imposed on each concurrent count?

Alhaji Jewru Touray was convicted by a jury of marijuana-trafficking conspiracy and possession, and by plea of illegal re-entry. The district court (N.D. Ga.) sua sponte seated an anonymous jury, declined a multiple-conspiracies charge, considered acquitted conduct to set drug quantity, and imposed identical 120-month concurrent sentences—well below the Guidelines range yet the statutory maximum on illegal re-entry. Touray appealed on all four fronts.

2. Summary of the Judgment

Writing for a unanimous panel (Chief Judge William Pryor, joined by Judges Luck and Brasher), the Eleventh Circuit:

• Assumed arguendo that the district court erred by not expressly applying the Ross framework for anonymous juries but held the error harmless because at least three Ross factors were actually present and the court offered a neutral explanation to jurors.
• Found no abuse of discretion in refusing Touray’s proposed multiple-conspiracies instruction; the pattern conspiracy charge adequately covered his defense theory.
• Re-affirmed circuit precedent (Culver) allowing the consideration of acquitted conduct at sentencing, so long as that conduct is proven by a preponderance and the ultimate sentence does not exceed the statutory ceiling authorized by the jury verdict.
• Upheld the 120-month concurrent sentences as both procedurally and substantively reasonable, emphasizing that §3553(a) analysis is “holistic” and need not be repeated count-by-count.

3. Analysis

3.1 Precedents Cited and Their Influence

1. United States v. Ross, 33 F.3d 1507 (11th Cir. 1994)
   Origin of the “five-factor” test for anonymous juries. Touray applies Ross but, crucially, treats an incomplete on-the-record analysis as curable by harmless-error review when the record otherwise supports the factors.
2. United States v. Bowman (11th Cir. 2002); United States v. Ochoa-Vasquez (11th Cir. 2005); United States v. LaFond (11th Cir. 2015)
   These cases flesh out when each Ross factor suffices. The Touray panel analogised its “three-factor” support to LaFond, confirming that not every factor is essential.
3. United States v. Calderon & Chastain
   Govern multiple-conspiracies instructions. The panel found the pattern conspiracy charge adequate under Calderon.
4. United States v. Culver, 598 F.3d 740 (11th Cir. 2010)
   Squarely allows consideration of acquitted conduct. Touray re-endorses Culver post-Apprendi/Booker/Alleyne.
5. Sentencing Precedents: Rita, Gall, Irey, Fowler
   Provide the framework for procedural/substantive reasonableness and “sentence-package” doctrine.

3.2 The Court’s Legal Reasoning

A. Anonymous Jury—From Structural to Harmless

The panel emphasized §1863(b)(7)’s statutory authorization but reiterated the constitutional risks (preemptory challenges & presumption of innocence). It distinguished “structural” errors from trial-type errors and placed the judge’s omission squarely in the latter camp. Importantly, it crafted what amounts to a new harmless-error safe harbor:

“Where at least three Ross factors are independently supported by the record and the district court provided jurors a neutral rationale, failure to articulate the factors on the record is harmless.”

This doctrinal refinement guides future panels in reviewing anonymous-jury challenges.

B. Multiple Conspiracies—Coverage by Pattern Charge

The court reaffirmed that when standard conspiracy instructions make clear the jury must find the charged conspiracy—and evidence of an “other” conspiracy is not overwhelming—no dedicated multiple-conspiracies instruction is required. “We doubt,” it repeated from Richardson, “that such an instruction is ever appropriate where there is sufficient evidence of membership in one charged conspiracy.”

C. Acquitted Conduct—Status Quo Preserved

The panel expressly declined to revisit the constitutionality of acquitted-conduct sentencing enhancements, despite defense reliance on evolving Sixth-Amendment doctrine and the 2024 Guideline amendment excising acquitted conduct from §1B1.3. Until Congress or the Supreme Court acts (or the Commission’s amendment becomes retroactive), Eleventh Circuit district judges remain free to use acquitted conduct proven by a preponderance.

D. Concurrent Sentencing—No “Count-by-Count” Explanation Required

By endorsing the “holistic” approach, the panel underscored that judges need not parse §3553(a) factors for each individual count when imposing identical concurrent terms; a unified explanation suffices, especially for a sentence below the combined Guideline range.

3.3 Likely Impact of the Decision

• Anonymous Juries: District judges inside the Eleventh Circuit may continue their “standard practice” of anonymity only if they build an adequate record. But appellate courts may now explicitly analyze harmlessness under the new Touray gloss—expect more government arguments that omissions are “harmless” whenever three factors can be teased from the record.
• Sentencing Practice: Until the Supreme Court speaks, Culver/Touray keep acquitted-conduct enhancements alive in the Eleventh Circuit, notwithstanding the 2024 Guidelines change. Practitioners must therefore preserve objections but recognize uphill odds on appeal.
• Instructional Requests: Defense counsel should frame multiple-conspiracies charges narrowly and link them to evidence showing “distinct, unrelated agreements”; generic requests are unlikely to survive.
• Appellate Strategy: The case reminds litigants that objections must be “in clear and simple language,” but alternative legal theories remain preserved so long as the essential issue (e.g., anonymous jury) is flagged.

4. Complex Concepts Simplified

Anonymous Jury

A jury whose members’ names (and sometimes other identifying information) are withheld from parties and the public, typically referred to only by number, to guard against external influence or intimidation.

Ross Factors

Five considerations (organized crime involvement, capacity to harm, past interference, high sentencing exposure, extensive publicity) used to justify an anonymous jury.

Acquitted Conduct

Facts underlying charges for which the defendant was found “Not Guilty” but which the sentencing judge nevertheless finds true by a preponderance of evidence for Guidelines purposes.

Multiple-Conspiracies Instruction

A special jury charge telling jurors that evidence of several separate conspiracies cannot support conviction for the one global conspiracy alleged, unless the defendant joined that singular conspiracy.

Harmless Error

An error that does not affect substantial rights and therefore does not warrant reversal. Appellate courts place the burden on the government to show harmlessness in criminal cases.

5. Conclusion

United States v. Touray crystallises two key propositions: (1) failure to articulate the Ross factors when seating an anonymous jury can be salvaged on harmless-error grounds if the record inherently supports at least three factors and the judge offers a neutral rationale; and (2) in the Eleventh Circuit, acquitted conduct remains fair game for sentencing until higher authority dictates otherwise. By simultaneously affirming the broad discretion of trial courts in jury management, jury instructions, and sentencing explanations, the opinion strengthens existing circuit precedent while providing new analytical contours—especially the “three-factor safe harbor”—for anonymous-jury review. Practitioners should heed these guideposts in future narcotics, firearms, and organized-crime prosecutions across the circuit.