Sterling: Defendant waived right to be present at trial

In U.S. v. Sterling, No. 12-12255 (Nov. 21, 2013), the Court affirmed convictions for bank robbery, use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and possession of a firearm by a convicted felon. The Court rejected the argument that the trial court violated the defendant’s right to be present at trial. The Court noted that trial had commenced on the day of jury selection when the court informed Sterling of his rights in an interview room, and trial proceedings were explained, and Sterling waived his right to be present at trial. The Court noted that Sterling repeatedly interrupted the judge during pretrial proceedings, and provided nonresponsive answers to the court’s questions. Consequently, the court properly concluded that the public interest was served by continuing the trial without Sterling. The Court also rejected a challenge to the admission under Fed. R. Evid. 404(b) of the defendants’ prior bank robbery conviction. Although the prior conviction occurred 15 years before the bank robbery at issue, both defendants were incarcerated until approximately seven years before the robbery at issue. The prior robbery was strong circumstantial evidence that one robber would know that another robber would use a gun in the robbery.

Garza-Mendez: Not bound by state court "clarification"

In U.S. v. Garza-Mendez, No. 12-13643 (Nov. 15, 2013), the Court (2-1) affirmed the imposition of an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(C), finding that Garza-Mendez’ prior Georgia conviction for family-violence battery qualified as an “aggravated felony.” The Gwinnett County, Georgia 2007 judgment for Garza-Mendez’ family-violence battery stated that the was sentenced to 12 months of “confinement in the Gwinnett County Comprehensive Correctional Complex.” In 2012, Garza-Mendez obtained a “clarification” from another Gwinnett County judge stating that this was for 12 months of probation, not twelve months of incarceration. Under § 2L1.12(b)(1), a prior conviction counts as an aggravated felony if the defendant was sentenced to 12 months or more of incarceration. The Court held that it was not bound by the “clarification,” but by the original judgment which “could not be any clearer” that Garza-Mendez was sentenced to 12 months of “confinement.” The Court found no abuse of discretion in the district court’s declining to accord a downward departure or variance based on cultural assimilation, citing the district court’s finding that Garza-Mendez had a history of serious offenses, and that cultural assimilation refers to aliens who have “lived lawfully,” not to those who “haven’t been be able to do that.” Finally, the Court affirmed the district court’s requirement that Garza-Mendez report from Mexico to his probation officer during his three-year term of supervised release, after deportation. The Court cited the district court’s finding that extraterritorial reporting was appropriate in light of Garza-Mendez prior illegal re-entry.

Childers: Evidentiary rule subsumed Confrontation Clause

In Childers v. Floyd, No. 08-15590 (Nov. 14, 2013) (en banc) (per curiam), the Court, on remand from the Supreme Court for further consideration in light of Johnson v. Williams, held that, even though a prior Florida state court appellate decision had not expressly addressed Childers’s claim that limitations on cross-examination of a state witness violated his Confrontation Clause rights, Childers had not rebutted the presumption that the state appellate court adjudicated Childers’s Confrontation Clause claim on the merits. The Court noted that although the state appellate court decision “analyzed Childers’s claim under only the Florida rules of evidence, the underpinnings of these rules fit hand in glove with the rights guaranteed under the Confrontation Clause.” The underpinnings were the same because the Florida rule of evidence “gave Childers the same right of confrontation he enjoyed under the Confrontation Clause – the right to expose a witness’s motivation in testifying.” In limiting cross-examination, the trial judge balanced this right against the “danger of unfair prejudice” – a limitation which the Confrontation Clause also recognizes. [Dissenting, Judge Wilson stated that Florida’s evidentiary rule is less protective of the right of cross-examination than the Confrontation Clause].

Siler: Forcible Assault + Dangerous Weapon = 20 years

In U.S. v. Siler, No. 12-14211 (Nov. 13, 2013), the Court affirmed a conviction for assaulting a corrections officer with a deadly or dangerous weapon, in violation of 18 U.S.C. § 111(b), and a 20-year sentence for this offense. The statute at issue, § 111(a) and (b), establishes three levels of punishment: a maximum of one year for an offense involving only simply assault, a maximum of 8 years when the acts involve physical contact with the victim, and a maximum of twenty years when the offender uses a deadly or dangerous weapon or inflicts bodily injury. Siler placed a homemade rope around a corrections officer’s neck and forcibly choked him. He argued that he only qualified for a maximum of one year under the statute. Rejecting this argument, the Court interpreted § 111 to subject a person to the 20-year maximum when a person commits the acts set forth in subsection (a) of the statute, e.g., a forcible assault, and used a deadly or dangerous weapon during that assault. Because the jury so found, the Court affirmed the conviction and the 20-year sentence.

Robertson: Affirming murder convictions of white supremacist

In U.S. v. Robertson, No. 12-10046 (Nov. 12, 2013), the Court affirmed convictions for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Robertson was convicted of murdering homeless persons in order to improve his standing in the Tampa, Florida, Blood and Honour white supremacist group The Court affirmed the district court’s factual finding that there was no immunity deal that would have foreclosed the government from prosecuting Robertson for the murders charged in the indictment. The Court also affirmed the district court’s ruling that sustained three government Batson challenges to Robertson’s motions to peremptorily strike three black venire members. The Court did not agree that it could affirm the district court’s ruling as to Robertson striking of the first black venire member based on his subsequent attempt to strike two more blacks venire members. But the Court found that the district court properly relied on the fact that Robertson was a white defendant striking black venire persons in a trial involving a violent crime against a black victim, and that there were only three black venire members. The Court also noted that Robertson’s justification that the black venire person had ties to law enforcement was contradicted by his decision not to strike several other jurors who had law enforcement connections. Finally, the Court rejected the challenge to the sufficiency of the evidence of a racketeering motive, pointing out that Robertson and others “got tattoos commemorating their participation in the killings.”