United States v. Ronn Darnell Sterling ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 12-12255
D.C. Docket No. 1:10-cr-00053-CAP-ECS-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONN DARNELL STERLING,
CORNELL DESMOND BRUMFIELD,
a.k.a. Carnell D. Brumfield,
Defendants - Appellants.
Appeals from the United States District Court
for the Northern District of Georgia
(November 21, 2013)
Before PRYOR and ANDERSON, Circuit Judges, and RESTANI, * Judge.
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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RESTANI, Judge:
Defendants-Appellants Ronn Sterling (“Sterling”) and Cornell Brumfield
(“Brumfield”) appeal their convictions for armed bank robbery, use of a firearm
during and in relation to a crime of violence, and possession of a firearm by a
convicted felon. Sterling argues that his right to be present at trial under Federal
Rule of Criminal Procedure 43 was violated, and both defendants argue that
evidence of their prior convictions was inadmissible. Additionally, Brumfield
argues that there was insufficient evidence to find him guilty on the gun charge.
The district court found that Sterling waived his right to be present at trial, that the
evidence of prior convictions was admissible as to both defendants under Federal
Rule of Evidence 404(b), and that there was sufficient evidence to sustain the
convictions. For the reasons set forth below, we affirm.
I. BACKGROUND
On January 14, 2010, a masked man vaulted over the teller counter of a
Regions Bank in Smyrna, GA, and robbed the bank using a silver handgun. After
emptying the tellers’ drawers, the man exited the bank and ran behind a shopping
center located behind the bank, removing his mask as he ran. He then disappeared
from the view of witnesses, who next saw another man remove a piece of paper
covering the license tag of a vehicle while leaning over the trunk. Based on an
eyewitness’s tip, police officers located a vehicle matching the description of the
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getaway car. The car was owned and driven by Defendant Brumfield. Although
Brumfield’s daughter was in the car, the alleged bank robber was not found.
Police officers attempted to open the trunk of the vehicle, but they were unable to
access it either from the outside or the back seat, even though there was evidence
that the trunk previously had functioned well. Brumfield’s vehicle was then towed
to the impound lot of the Smyrna Police Department by a private wrecker truck.
Upon arriving at the lot, the truck driver began the process of unhooking the
vehicle when he saw an individual matching the bank robber’s description lying on
the side of the flatbed, next to the open backseat door of the car. The suspect
walked away without being apprehended. In the trunk of the car, police officers
eventually found a bag with clothing matching the description of the bank robber’s
clothing as well as a silver firearm. The bag of clothing had both Brumfield’s and
Sterling’s fingerprints, and Sterling was a major contributor of the DNA found
inside the gloves.
Defendants were charged in a three-count indictment in connection with the
bank robbery. The charges included armed bank robbery, 18 U.S.C. § 2113(a), (d),
use of a firearm during and in relation to a crime of violence, id. § 924(c)(1)(A),
(c)(1)(C)(i), and possession of a firearm by a convicted felon, id. §§ 922(g)(i),
924(a)(2). In a pretrial hearing, the court decided, over an objection, to admit
evidence under Federal Rule of Evidence 404(b) of Sterling’s and Brumfield’s
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prior convictions for bank robbery. The convictions stemmed from a bank robbery
in Oklahoma in 1995 and involved Brumfield, Sterling, and a third person. During
that robbery, the criminals brandished a silver firearm, vaulted the counter of the
bank, wore masks, and used a getaway driver. At the pretrial hearing, the
government sought to admit evidence of the convictions for a litany of purposes,
including to show motive, intent, preparation, plan, knowledge, etc. The court
granted the government’s request, ostensibly allowing the evidence for the purpose
of proving motive, identity, preparation, and plan.
Sterling actively participated in the pretrial hearing. His jury trial began on
January 17, 2012. When the court called the case and addressed preliminary
matters, the judge was informed by Sterling’s counsel and the U.S. marshal that
Sterling did not want to have anything to do with the trial. Sterling, however, did
agree to speak with the court in an interview room. The judge, court reporter,
government counsel, and Sterling’s attorney obliged and moved proceedings there.
The judge explained to Sterling his right to be present at trial and during the
jury selection process. The judge also explained that Sterling’s repeated
interruptions would cause him to be labeled a disruptive defendant and removed
from court. Based on Sterling’s communications with his attorney and Sterling’s
active participation in the pretrial hearing, the judge believed that Sterling had a
full understanding of what was transpiring, despite his repeated utterance of, “I do
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not understand what’s going on. I do not accept no offers of the court.”
The judge told Sterling that if he did not respond to the court’s questions and
if he continued to interrupt the court, these actions would be deemed a waiver of
his right to be present at trial. The judge reiterated these warnings several times,
but Sterling responded by repeating the same nonsensical phrases. The judge
noted that Sterling likely was refusing to come to the courtroom to avoid
identification by a witness, a concern that Sterling had expressed at the pretrial
hearing. 1 Finally, the judge said, “I find that you’re a disruptive defendant, that
you understand what I’m trying to tell you, and that you’ve waived your presence
in the courtroom.” When the court reconvened in the courtroom, the judge stated
that Sterling had waived his right to be present and Sterling’s attorney conceded,
“in his refusal to come up here . . . he was in fact waiving his right to be up here.”
The trial then continued without Sterling’s presence, although he was provided a
live video feed of the proceedings, and his counsel was permitted to meet with him
during breaks in the trial.
During the trial, the judge asked a marshal and Sterling’s counsel to ensure
1
The phrases Sterling repeated are often used by so-called “sovereign citizens,” who believe they
are not subject to the jurisdiction of the courts and who frequently deny that they are the
defendants in the action, instead referring to themselves as third-party intervenors, as Sterling
does here. Courts have been confronted repeatedly by their attempts to delay judicial
proceedings and have summarily rejected their legal theories as frivolous. See, e.g., United
States v. Benabe, 654 F.3d 753, 761–67 (7th Cir. 2011) (describing the conduct of another
“sovereign citizen” and collecting cases rejecting the group’s claims as frivolous); United States
v. Perkins, No. 1:10-cr-97-1-JEC-LTW, 2013 WL 3820716 (N.D. Ga. July 23, 2013). Sterling
does not press such theories here.
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Sterling could view the proceedings and to remind him that he could come watch
the trial in person at any time. The marshal reported back that the equipment was
working properly so that Sterling could hear and view the proceedings but that he
was trying to avoid watching it. After the government rested, the judge visited
Sterling again. The judge advised Sterling of his right to testify and present
evidence, but Sterling remained non-responsive. The court continued the trial
without Sterling.
At the close of trial, the judge instructed the jury regarding the limited bases
for which it could consider the evidence of prior convictions, borrowing largely
from the instruction proposed by Sterling:
Now, during the trial you’ve heard evidence of acts done by the
defendants on other occasions, that is, armed bank robbery. It may be
similar to acts the defendants are currently charged with. You must
not consider any of this evidence to decide whether the defendants
committed the acts charged here in this indictment now, but you may
consider this evidence for other very limited purposes. If other
evidence leads you to decide beyond a reasonable doubt that the
defendants committed the acts charged, then you may consider
evidence of similar acts done on other occasions to decide whether the
defendants had the state of mind and intent necessary for the crime
charged and acted accordingly [sic] to a plan or to prepare to commit
a crime, or whether they committed the charged acts by accident or
mistake.
The jury found both defendants guilty on all three counts. Before he was
sentenced, Sterling filed a motion for a new trial, arguing that he did not waive his
right to be present at the commencement of trial. The court denied Sterling’s
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motion, finding that Sterling voluntarily waived his right to be present at trial.
Sterling was sentenced to 562 months imprisonment, and Brumfield was sentenced
to 363 months. Both defendants filed timely appeals.
II. STANDARD OF REVIEW
Our review of the district court’s trial of Sterling in absentia is a multistep
process. First, we review the district court’s interpretation of the relevant
procedural rule de novo. See United States v. Curbelo, 726 F.3d 1260, 1276 (11th
Cir. 2013). Next, we examine whether the district court properly exercised its
discretion to allow the trial to go forward after finding that the defendant
voluntarily waived his or her right to be present. United States v. Bradford, 237
F.3d 1306, 1311 (11th Cir. 2001). Under this prong, we adopt the district court’s
factual findings as to whether the defendant’s absence was voluntary unless they
are clearly erroneous. See id. If the district court properly found that the
defendant waived his right to be present, “we consider whether the district court
abused its discretion in concluding that there was on balance a controlling public
interest to continue the trial in the defendant’s absence.” Id. Lastly, if the district
court erred in continuing the trial in absentia, we determine whether the error was
harmless. Id.
We review a district court’s admission of evidence under Federal Rule of
Evidence 404(b) for a “clear abuse of discretion.” United States v. McNair, 605
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F.3d 1152, 1203 n.69 (11th Cir. 2010) (internal quotation marks omitted). Finally,
“[w]e review the ‘sufficiency of the evidence de novo, viewing all the evidence in
the light most favorable to the government and drawing all reasonable inferences
and credibility choices in favor of the jury’s verdict.’” United States v. Boffil-
Rivera, 607 F.3d 736, 740 (11th Cir. 2010) (quoting United States v. Taylor, 480
F.3d 1025, 1026 (11th Cir. 2007)).
III. DISCUSSION
A. Federal Rule of Criminal Procedure 43
Rule 43 specifies when the presence of a defendant is required for trial and
related proceedings and when the right to be present may be waived. Rule 43(a)
requires the defendant be present at: “(1) the initial appearance, the initial
arraignment, and the plea; (2) every trial stage, including jury impanelment and the
return of the verdict; and (3) sentencing.” Rule 43(c)(1) allows a “defendant who
was initially present at trial” to waive the right to be present:
(A) when the defendant is voluntarily absent after the trial has begun,
regardless of whether the court informed the defendant of an
obligation to remain during trial; (B) in a noncapital case, when the
defendant is voluntarily absent during sentencing; or (C) when the
court warns the defendant that it will remove the defendant from the
courtroom for disruptive behavior, but the defendant persists in
conduct that justifies removal from the courtroom.
Fed. R. Crim. P. 43(c) (emphasis added).
In Crosby v. United States, 506 U.S. 255 (1993), the Supreme Court held
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that Rule 43 means what it says, “marking the point at which the costs of delay are
likely to outweigh the interests of the defendant and society in having the
defendant present.” Id. at 261. In Crosby, the defendant attended pretrial hearings
but absconded prior to trial. Id. at 256. He was tried in absentia and convicted. Id.
at 257. The Court held that the trial court erred in finding a waiver when the
defendant clearly was not present at the start of trial. Id. at 261. It stated,
however, that Rule 43 allows a trial to proceed if the defendant was initially
present at trial and constructively waived his right to be present by voluntary
absence, recognizing that at that point “the costs of delay are likely to outweigh the
interests of the defendant and society in having the defendant present.” Id. at 261–
62. In United States v. Arias, we held that even if the defendant’s absence is
voluntary, the trial may not commence in his absence when he clearly was not
present at its beginning, an obvious application of Crosby. 984 F.2d 1139, 1141–
42 (11th Cir. 1993).
In Bradford, we rejected the argument that a trial had not commenced until
the precise moment that the jury was sworn. See 237 F.3d at 1309–10. In that
case, the defendant was present during jury selection, but refused to leave her cell
on the date trial before the jury was to commence. Id. at 1308. On appeal, we held
that “for purposes of Rule 43(b)(1), a trial has commenced when the jury selection
process has begun.” Id. at 1310 (internal quotation marks omitted). We did not
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have reason to consider, however, whether the trial might have begun even before
that point in the proceedings. We based our ruling in Bradford on the language of
Rule 43(a), which mentions “jury impanelment” as one stage of trial. Id. We also
noted that our holding would “prevent a defendant from obstructing the
proceedings by voluntarily absenting himself after the trial has begun in his
presence.” Id. (citing Taylor v. United States, 414 U.S. 17, 19–20 (1973)).
Sterling argues that the trial process had not yet begun when the district
court found that Sterling had waived his right to be present. At oral argument,
Sterling’s counsel clarified that, under Sterling’s reading of Rule 43, the trial court
was required to forcibly bring Sterling into the courtroom, in the presence of the
prospective jury, and clearly inform him that the trial was beginning. Absent these
actions, Sterling contends that his conviction should be vacated.
In response, the government argues that Sterling’s reading of “initially
present at trial” is too strict. The government distinguishes Crosby from the
present case and instead relies on our sister circuit’s holding in United States v.
Benabe, 654 F.3d 753, 771–72 (7th Cir. 2011), which held that trial begins the day
of jury selection, but not necessarily at the time that a prospective juror enters the
courtroom.
In Benabe, the defendants repeatedly disrupted pretrial proceedings. Id. at
761–65. At a hearing the day before jury selection, the district court ordered that
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the defendants be removed from the courtroom for the trial since they were
disruptive and refused to agree to not interrupt jury selection. Id. at 765–66. The
court ensured that the defendants were able to watch the trial proceedings by way
of a live video feed. Id. at 765. The Seventh Circuit directly addressed the
question of what it means to be initially present at trial, and it concluded that the
phrase refers simply to the day of jury selection, given the varied practices in
managing jury selection and the need to move defendants outside the presence of
the jury. Id. at 771–72. In Benabe, the court declined to nullify the trial based on
the failure to bring the defendants into the courtroom on the day of jury selection,
because “[t]he courtroom door remained open to these defendants on the morning
of [jury selection] and every day thereafter.” Id. at 773. The court also noted that
this would simply give defendants an additional opportunity to misbehave in front
of prospective jurors. Id. at 771. Because the waiver was procured the day before
trial, the court found a technical violation of Rule 43, but it held that the error was
harmless. Id. at 774.
Benabe is in line with an earlier decision of our court that held a defendant
may waive his or her right to be present during jury selection, which is expressly
listed in Rule 43(a) as a stage of trial. See United States v. Crews, 695 F.2d 519
(11th Cir. 1983). Nothing in Bradford or Crosby overruled our decision in Crews.
Reading Bradford and Crews, together with the persuasive reasoning of Benabe,
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we conclude that trial commences no later than on the day of jury selection,
without respect to whether the defendant is present at the time prospective jurors
enter the courtroom. It seems absurd to require the court to bring a combative
defendant into the presence of prospective jurors, only to taint the pool with his
own disruptive behavior and perhaps prejudice a cooperative codefendant.
Additionally, we reject Sterling’s argument that the district court was required to
use a talismanic phrase that the trial was beginning, especially where here it was
obvious that the trial was beginning based on the judge’s explanation of the video
procedures and the calling of the case in open court. Accordingly, trial had
commenced on the day of jury selection when court was held in the interview
room, Sterling was informed of his rights, and the trial proceedings were
explained. At that time, Sterling was permitted under Rule 43 to waive his right to
be present.
Because we find that Sterling could have waived his right to be present at
trial when court was held in the interview room, we turn now to whether Sterling’s
purported waiver was effective. To be effective, a defendant’s waiver under Rule
43(c) must be voluntary. See Bradford, 237 F.3d at 1311. The court convened
with Sterling’s consent in the room in which he was held, and the district judge
clearly stated that unless Sterling answered otherwise, his presence at trial would
be deemed waived. Based on Sterling’s lucid behavior at the pretrial hearing and
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his assent to proceeding in the interview room, the judge concluded that Sterling
understood what was transpiring. The court advised Sterling of his right to be
present at the trial as well as jury selection. The court also instructed Sterling that
if he refused to attend, he could watch the proceedings through a live feed and his
counsel would be available to him on breaks, but trial would otherwise proceed
without him. Sterling refused to respond to the court, and therefore the district
court properly found that Sterling constructively waived his right to be present at
trial. Cf. Bradford, 237 F.3d at 1311–12 (finding waiver voluntary where the
record demonstrated that the defendant understood possible consequences of
failing to appear and still elected not to appear). The record does not demonstrate
error on the part of the district court, let alone evidence that would leave us with “a
definite and firm conviction that a mistake has been committed.” See United
States v. Augustin, 661 F.3d 1105, 1134 (11th Cir. 2011), cert. denied, 132 S. Ct.
2447 (2012).
Finally, the district court appropriately balanced the public’s interest with
Sterling’s right to be present, concluding that there was a controlling public interest
to continue the trial in Sterling’s absence given the presence of a prospective jury
and a co-defendant. In conducting this balancing in Bradford, we looked to factors
including a defendant’s disruptive behavior and any inconvenience to the jury and
witnesses that would result in a delay. Bradford, 237 F.3d at 1313. Sterling
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continually interrupted the court during pretrial proceedings and stated, “I have no
desire to participate in these proceedings.” Similarly, when court convened in the
interview room, Sterling repeatedly interrupted the judge and provided
nonresponsive answers to the court’s questions. As in Bradford, “[g]iven that
[defendant’s] absence was a result of [defendant’s] own decision not to attend
rather than the result of external circumstances . . . there was no reason to believe
that the trial could have soon taken place with [the defendant] present. . . . Under
Rule 43(b)(1), if [a defendant] voluntarily elected not to come once trial
commenced, the court was under no obligation to force [the defendant].”
Bradford, 237 F.3d at 1314. There was a sufficient basis for the district court to
conclude that the public interest in proceeding with trial outweighed any interest in
delay, and it permissibly chose to continue the trial without Sterling.
We conclude that the district court’s interpretation of Rule 43 was proper
and that the court did not err in proceeding without Sterling once his rights were
explained to him. Accordingly, Sterling voluntarily and permissibly waived his
right to be present at trial, and no error, harmless or otherwise, occurred.
B. Prior Conviction Under Federal Rule of Evidence 404(b)
Rule 404(b)(1) generally prohibits the introduction of propensity evidence at
trial. Rule 404(b)(2), however, provides an exception to this general rule for
evidence that is also probative for some other purpose, “such as proving motive,
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opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Here, although the court stated during the pretrial hearing that
the evidence was admitted for the purposes of motive, identity, preparation, and
plan, it instructed the jury that it could consider the evidence for the purposes of
intent, plan, preparation, and lack of accident or mistake. Because we assume that
the jury properly followed the court’s instructions, we need consider only whether
the evidence of prior convictions here was properly admitted for the limited
purposes stated in the jury instructions, not the additional purposes discussed at the
pretrial conference.
We apply a three-part test to determine admissibility of evidence of prior
crimes under Rule 404(b): 1) the evidence must be relevant to an issue other than
the defendant’s character; 2) sufficient evidence must be presented to allow a jury
to find that the defendant committed the extrinsic act; and, 3) the probative value
of the evidence must not be substantially outweighed by its undue prejudice. See
United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). “A defendant who
enters a not guilty plea makes intent a material issue which imposes a substantial
burden on the government to prove intent, which it may prove by qualifying Rule
404(b) evidence absent affirmative steps by the defendant to remove intent as an
issue.” United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007) (quoting
United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998)). “Thus, where the
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state of mind required for the charged and extrinsic offenses is the same, the first
prong of the Rule 404(b) test is satisfied.” Id.
“Extrinsic evidence of other crimes, wrongs, or acts is inherently prejudicial
to the defendant,” and may entice the jury to draw the prohibited inference that a
defendant previously convicted of a crime likely committed the same crime again.
United States v. Baker, 432 F.3d 1189, 1205 (11th Cir. 2005). Accordingly, the
third prong of the test calls for “the incremental probity of the evidence . . . to be
balanced against its potential for undue prejudice.” United States v. Beechum, 582
F.2d 898, 914 (5th Cir. 1978). This type of evidence is often disfavored because of
the possibility for its misuse, especially where the government has a strong case.
Id. “In other words, if the government can do without such evidence, fairness
dictates that it should; but if the evidence is essential to obtain a conviction, it may
come in. This may seem like a heads I win; tails you lose proposition, but it is
presently the law.” United States v. Pollock, 926 F.2d 1044, 1049 (11th Cir.
1991).
A prior crime need not be factually identical in order for it to be probative.
See United States v. Hernandez, 896 F.2d 513, 522 (11th Cir. 1990) (finding that
past conviction for possession with intent to distribute marijuana was sufficiently
similar to charge of possession with intent to distribute 500 grams of cocaine).
Additionally, the prior crime need not be very recent, especially where a
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substantial portion of the gap in time occurred while the defendant was
incarcerated. See id. at 522–23 (six-year period between crimes); see also United
States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (prior acts from fifteen
years prior).
Although advanced at oral argument repeatedly by the defendants, the
question before us is not simply whether the prior convictions could be viewed as
propensity evidence. Virtually all evidence admissible under Rule 404(b)(2) could
be used by the jury for such a purpose, contrary to the standard type of jury
instruction used here. Instead, we must examine whether the district court abused
its discretion in failing to conclude that undue prejudice generated by the evidence
of the prior convictions, including the chance that the jury will convict the
defendant for the prior crime and not the one presently charged, substantially
outweighed the probative value of the evidence.2
Here, the prior crime involved both defendants robbing a bank together,
using a gun. Although the prior conviction occurred fifteen years before the bank
robbery at issue here, both defendants were incarcerated until approximately seven
years before the robbery at issue. With respect to Brumfield, evidence of this prior
armed bank robbery was strong circumstantial evidence that he had knowledge that
2
Although Sterling also challenges the admissibility of the convictions under the first prong of
the test, his challenge goes only to whether the evidence could be considered for purposes of
identity. Because the jury was not instructed to consider such a purpose, we need not consider
whether the evidence could have been considered for this reason.
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Sterling was armed. The prior crime “directly show[ed] knowledge on
[Brumfield’s] part that [Sterling] would use a gun in the robbery” and distinguishes
Brumfield’s role in the prior robbery from our decision in United States v.
Pendegraph, 791 F.2d 1462, 1466 (11th Cir. 1986), in which we stated that a jury
cannot infer knowledge from evidence that a defendant was “presumably” the
driver of the getaway car and involved in planning an armed robbery.
Accordingly, the jury was permitted to consider the evidence of the prior
conviction of armed bank robbery to decide whether Brumfield knew that Sterling
would be armed.
The evidence was also relevant as to Sterling’s intent to use the gun during
the commission of the crime, as he had previously used a weapon when robbing
another bank. Assuming arguendo that this particular evidence was overly
prejudicial as to Sterling, despite the limiting instruction given to the jury, we find
it was harmless. There was otherwise overwhelming evidence of guilt to support
Sterling’s conviction, including the physical evidence found in the vehicle, the
eyewitness’s descriptions, and Sterling’s unexplained behavior.
C. Sufficiency of the Evidence
Brumfield challenges his conviction on all counts based on a lack of
evidence sufficient to support the charges, although he filed a Rule 29 motion for
judgment of acquittal only with respect to the gun charges. As noted above, it was
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undisputed that a gun was in fact used during the commission of the bank robbery.
Based on the evidence of the prior conviction for armed bank robbery, a reasonable
jury could conclude that Brumfield knew that a gun would be used by Sterling in
committing the crime, especially when combined with other evidence that
Brumfield was involved in planning the crime over a period of months while
Sterling stayed with Brumfield. After a review of the record as a whole, we affirm
Brumfield’s conviction on all counts.
IV. CONCLUSION
The district court did not err in concluding that Sterling waived his right to
be present at trial. Additionally, the district court did not err in admitting into
evidence the defendants’ prior convictions, and there was sufficient evidence to
support all counts against Brumfield. For the foregoing reasons, the convictions of
both Sterling and Brumfield are
AFFIRMED.
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