United States v. Antonio Hall ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5119
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO R. HALL, a/k/a Mack,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cr-00744-RDB-1)
Argued: December 7, 2012 Decided: January 24, 2013
Before MOTZ, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Motz and Judge Duncan concurred.
ARGUED: Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC,
Baltimore, Maryland, for Appellant. John Francis Purcell, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
A federal jury convicted Defendant Antonio R. Hall of
several crimes, including the retaliatory murder of a government
witness who had provided information about Defendant’s criminal
activities. At trial, the district court empaneled an anonymous
jury and, according to Defendant, limited his note-taking during
jury selection. After his conviction, Defendant was sentenced
to multiple terms of life imprisonment. At his sentencing, only
one of Defendant’s two appointed attorneys was present in the
courtroom. On appeal, Defendant seeks a new trial and a new
sentencing hearing, arguing that the anonymous jury, note-
related order, and failure to have both lawyers present at
sentencing all constituted error. For the following reasons, we
disagree and affirm the district court’s rulings.
I.
In early 2008, federal agents conducted an investigation
into drug trafficking and related firearm violence in the
Westport neighborhood of Baltimore, Maryland. Kareem Guest
agreed to cooperate in the Westport investigation. Guest
provided information to the Federal Bureau of Investigation
(“FBI”), and that information was memorialized in a report
called the “Guest FBI 302.” The Guest FBI 302 identified
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several individuals as being involved in drug activities and
implicated Defendant as being involved in several murders.
With Guest’s help, the Westport investigation resulted in
the indictment of eight individuals. Defendant, however, was
not among them.
Though the attorneys for the eight indicted individuals
agreed in a written discovery agreement not to distribute the
Guest FBI 302 to their clients, one of the attorneys violated
the agreement and gave his client a copy of the report on May
20, 2009. The Guest FBI 302 then wound up being widely
distributed in Westport and even hung on a community telephone
pole.
On September 20, 2009, Defendant saw Guest walking in
Westport and told Kevin Duckett that he intended to kill Guest
for mentioning his name in the Guest FBI 302. Defendant then
followed Guest on foot and shot him several times, killing him.
Although a number of people saw Defendant shoot Guest, no
witnesses initially came forward. In fact, several witnesses
falsely testified before the grand jury that they did not see
the murder. At subsequent grand jury appearances and at
Defendant’s trial, the witnesses admitted that they had, in
fact, seen Defendant kill Guest. One witness explained that she
had initially been untruthful to protect her family. Another
witness stated that he had initially been untruthful because he
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feared Defendant. Witnesses also testified that Defendant
questioned them after their grand jury appearances. Following
their cooperation in this case, the government relocated several
witnesses due to safety concerns.
Defendant was charged in a superseding indictment with
conspiracy to traffic in crack cocaine in violation of 21 U.S.C.
§ 846 (Count I); conspiracy to use and carry firearms during and
in relation to a drug trafficking crime in violation of 18
U.S.C. § 924(o) (Count II); retaliation against a witness by the
willful and deliberate murder of Guest in violation of 18 U.S.C.
§ 1513(a)(1)(B) (Count III); using, carrying, and discharging a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c) (Count IV); and possession of
ammunition by a felon in violation of 18 U.S.C. § 922(g)(1)
(Count V). Because Count III as charged in the indictment is a
capital offense, the district court appointed Defendant two
attorneys as required by 18 U.S.C. § 3005. The government,
however, elected not to seek the death penalty.
Jury selection for Defendant’s trial began on August 1,
2011. Just before the venire members were brought into the
courtroom for voir dire, defense counsel told the court that the
clerk had inadvertently given him the attorney worksheet on
which to take notes, but not the panel selection report that the
government had had in its possession for approximately thirty
4
minutes. The panel selection report contained juror information
including juror number, name, age, occupation, employer, spouse
occupation, and home and work addresses.
The district court recognized the oversight and sua sponte
ordered the empanelment of an anonymous jury, directing the
clerk to strike the juror names from the panel selection report
and provide both parties with a redacted copy. The district
court instructed that the panel selection report “never leaves
the courthouse” and that Defendant “takes no notes in this trial
off of that trial table and goes back anywhere with them.” J.A.
193.
Defendant objected to the redaction of names from the panel
selection report. The district court overruled the objection,
explaining that “given the fact that this defendant in this case
is charged with murdering a government witness, anonymity of the
jury . . . is perfectly appropriate . . . .” J.A. 195. With
respect to the government possessing the unredacted panel
selection report for approximately thirty minutes, the district
court stated that there was no prejudice to Defendant because
the government did not have time to look at the list and would
not have any recollection of the jurors’ names.
Defendant, in turn, filed a Motion for Mistrial based on
the court’s empaneling an anonymous jury. In the motion,
Defendant also objected to the district court’s order regarding
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Defendant’s notes during the jury selection process. The
district court denied Defendant’s motion.
On August 11, 2011, the jury found Defendant guilty on all
counts. * At his sentencing hearing, Defendant objected to
proceeding because one of his two appointed attorneys was not
present. The district court overruled the objection and
sentenced Defendant to four terms of life imprisonment.
II.
On appeal, Defendant contends that the district court erred
by (1) empaneling an anonymous jury sua sponte; (2) ordering
that Defendant take no notes during jury selection; and (3)
sentencing Defendant with only one of his two attorneys present.
We address each issue in turn.
A.
With his first argument, Defendant contends that the
district court erred when it sua sponte empaneled an anonymous
jury. We review a district court’s decision to empanel an
anonymous jury for an abuse of discretion. United States v.
Dinkins, 691 F.3d 358, 371 (4th Cir. 2012).
*
The government dismissed Count II.
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A federal district court may empanel an anonymous jury in
any non-capital case in which “‘the interests of justice so
require.’” Id. at 372 (quoting 28 U.S.C. § 1863(b)(7)). In a
capital case, however, the district court may empanel an
anonymous jury only after determining “by a preponderance of the
evidence that providing the list may jeopardize the life or
safety of any person.” 18 U.S.C. § 3432; see also Dinkins, 691
F.3d at 372. The district court must, therefore, base its
decision to empanel an anonymous jury in a capital case on the
evidence in the record and may not rely solely on the indictment
to support its decision. Dinkins, 691 F.3d at 373.
This Circuit has not yet addressed whether a case loses its
capital nature for Section 3432 purposes if the government does
not seek the death penalty. In interpreting similar statutes,
we have indicated that, regardless of whether the government
actually seeks the death penalty, an offense is capital if the
death penalty may be imposed under the enabling statute. See,
e.g., United States v. Ealy, 363 F.3d 292, 297 n.2 (4th Cir.
2004); United States v. Boone, 245 F.3d 352, 358-59 (4th Cir.
2001). Yet, in other cases, we have suggested that a defendant
may lose the benefits afforded a capital defendant if the
government does not in fact seek the death penalty. See, e.g.,
United States v. Robinson, 275 F.3d 371, 384 (4th Cir. 2001);
United States v. Cowan, Nos. 95–5508, 95–5509, 1996 WL 521049,
7
at *10 n.4 (4th Cir. Sept. 16, 1996) (unpublished) (per curiam).
We need not resolve this issue here, however, because even
assuming that this is a capital case to which the higher
standard applies, we hold that the district court did not err by
empaneling an anonymous jury.
The decision to empanel an anonymous jury is “an unusual
measure which must be plainly warranted by the particular
situation presented.” Dinkins, 691 F.3d at 372 (citations and
quotation marks omitted). A district court may empanel an
anonymous jury only in rare circumstances when two conditions
are met: “(1) there is strong reason to conclude that the jury
needs protection from interference or harm, or that the
integrity of the jury’s function will be compromised absent
anonymity; and (2) reasonable safeguards have been adopted to
minimize the risk that the rights of the accused will be
infringed.” Id. (citations omitted).
In Dinkins, we identified five factors, hailing from United
States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994), and
referred to as the Ross factors, for determining whether “strong
reasons support[] the empaneling of an anonymous jury”:
(1) the defendant’s involvement in organized crime,
(2) the defendant’s participation in a group with the
capacity to harm jurors, (3) the defendant’s past
attempts to interfere with the judicial process, (4)
the potential that, if convicted, the defendant will
suffer a lengthy incarceration and substantial
monetary penalties, and (5) extensive publicity that
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could enhance the possibility that jurors’ names would
become public and expose them to intimidation or
harassment.
Dinkins, 691 F.3d at 373 (citations omitted). The list of Ross
factors is not exhaustive, nor does the presence of any one
factor or set of factors automatically compel a court to empanel
an anonymous jury. Id. Rather, a district court must engage in
a context-specific inquiry based on the facts of the particular
case. Id.
Applying the standards outlined in Dinkins, we first
consider whether the district court abused its discretion by
determining that disclosure of the venire members’ names could
have jeopardized their lives or safety.
We begin by addressing the first and third Ross factors:
whether the record shows that Defendant participated in
organized criminal activity and interfered with the judicial
process in the past. At the time the district court ruled on
the anonymous jury issue, the record contained evidence
supporting the conclusion that Defendant participated in
organized criminal activity as a drug trafficker and that he had
previously attempted to interfere with the judicial process.
The indictment alleged that Defendant conspired with others to
obtain and distribute cocaine in Westport and that he killed
Guest for providing information to law enforcement officers. In
its response to Defendant’s pretrial motions and at the motions
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hearing on July 22, 2011, the prosecution proffered that several
witnesses would testify that “they bought [drugs] from
[Defendant] for years[,]” that one witness referred to Defendant
as “King Kong” because he “ran” Westport, that Defendant told
Duckett he was going to kill Guest for naming him in “those
papers[,]” and that Defendant shot people in the past because of
“a drug beef” and because they provided information about
Defendant to the police. J.A. 123, 157-58. The government also
provided the district court with witness statements to the same
effect. Accordingly, the preponderance of the evidence before
the district court at the time of its decision showed that
Defendant participated in organized criminal activity as a drug
trafficker and that he had previously interfered with the
judicial process by murdering Guest and shooting at least one
other person for assisting authorities.
Next, we examine the fourth Ross factor: whether Defendant
faced the possibility of severe punishment if convicted. Here,
Defendant’s potential punishment of multiple life sentences
lends support to the conclusion that he “had an incentive to
resort to extreme measures in any effort to influence the
outcome of [his] trial.” Id. at 376 (quotation omitted).
Because the record does not indicate whether Defendant
participated in a group with the capacity to harm jurors or
whether the case garnered extensive publicity, we do not address
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the second or fifth Ross factors. Nevertheless, based on the
applicable Ross factors, we conclude that when the district
court rendered its decision to empanel an anonymous jury, the
record established by a preponderance of the evidence that the
lives or safety of the venire members may have been jeopardized,
had their names been provided to the parties.
We next consider whether the district court adopted
reasonable safeguards to minimize the risk that Defendant’s
constitutional rights would be infringed by empaneling an
anonymous jury. Id. at 378. Further, we examine Defendant’s
challenge of the district court’s decision to empanel an
anonymous jury sua sponte.
This Court has held that the decision to empanel an
anonymous jury may affect a defendant’s constitutional right to
a presumption of innocence by suggesting to the jurors that “the
defendant is a dangerous person from whom the jurors must be
protected.” Id. at 372 (quotation marks omitted). Further, a
court’s decision to withhold certain biographical information
from the parties may affect a defendant’s constitutional right
to trial by an impartial jury by hindering the defendant’s
ability to conduct an informed voir dire examination and to
challenge effectively the seating of individual jurors. Id.
In this case, the district court adopted reasonable
safeguards to minimize the risk that Defendant’s constitutional
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rights would be infringed. First, the venire members were not
informed that their names were withheld from the parties.
Accordingly, their anonymity created neither an inference of
danger nor an adverse effect on the presumption of innocence.
See id. at 378.
Second, the district court’s decision to withhold the
venire members’ names did not affect Defendant’s ability to
conduct an informed voir dire examination. Notably, only the
prospective jurors’ names were withheld. Both parties were
provided with all other juror information, including juror
number, age, occupation, employer, spouse occupation, and home
and work addresses. See id. at 379 (concluding that the
defendants’ right to an impartial jury was not infringed
because, although the names and addresses of the venire members
and their spouses were withheld, other information, such as the
zip codes, county, and neighborhoods of the prospective jurors,
was provided).
Finally, the fact that the district court empaneled an
anonymous jury sua sponte does not change our analysis. Because
the purpose of an anonymous jury is to protect the jury and the
integrity of the justice system, and an anonymous jury is
permissible so long as the district court takes reasonable
precautions to safeguard the defendant’s rights, “no principle
would distinguish an order to empanel an anonymous jury made sua
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sponte from one based on a party’s motion.” United States v.
Shryock, 342 F.3d 948, 971 (9th Cir. 2003).
In sum, the evidence in the record supports the district
court’s decision to empanel an anonymous jury, and the district
court took reasonable precautions to safeguard Defendant’s
rights. Accordingly, the district court did not abuse its
discretion by empaneling an anonymous jury.
B.
Defendant next contends the district court erred by
ordering that he take no notes during jury selection. The
government argues that Defendant mischaracterizes the district
court’s order. According to the government, the district court
ordered that Defendant could not take any notes about the jurors
out of the courtroom.
“[T]he district court has broad discretion in the conduct
of voir dire and will be reversed only for an abuse of
discretion.” United States v. ReBrook, 58 F.3d 961, 969 (4th
Cir. 1995) (citation omitted). Here, we discern none.
After deciding to strike the jurors’ names from the panel
selection sheets, the district court gave the following order:
THE COURT: . . . This sheet [attorney worksheet] never
leaves the courthouse. And there are no notations
made of any kind at all. [Defendant] takes no notes
in this trial off of that trial table and goes back
anywhere with them. . . .
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[DEFENSE COUNSEL]: No notes?
THE COURT: He’s not taking any notes of any kind.
[DEFENSE COUNSEL]: Of the jury selection.
THE COURT: Of jury selection and taking them back and
taking them anywhere.
J.A. 193-94. As part of his motion for mistrial, Defendant
objected to the order, characterizing it as forbidding him from
taking notes during jury selection.
While the district court’s order was not as clear as it
ideally should have been, we understand it to have prohibited
Defendant from removing any notes from the courtroom and not
from taking any notes. Notably, Defendant never asked the
district court for a clarification of its ruling, nor did he ask
the district court for additional attorney-client consultation
time during voir dire because he understood that he was not to
take notes. Further, even assuming that the district court had
indeed ruled that Defendant was not allowed to take notes during
jury selection, Defendant does not cite, nor did we find, any
authority to support his argument that his constitutional right
to be present during jury selection includes a right to take
notes. In sum, we cannot conclude that the district court
abused its discretion with its jury selection notes order.
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C.
With his last argument on appeal, Defendant briefly
contends that the district court erred by ordering him to
proceed to sentencing without one of his attorneys present.
Specifically, Defendant’s other counsel indicated that he could
not attend the sentencing hearing due to a scheduling conflict.
Defendant, however, does not allege any prejudice resulting from
the absence of one of his appointed attorneys. Additionally,
Defendant faced a mandatory minimum term of life imprisonment
without release for Count I. See 21 U.S.C. §§ 841(b)(1)(A) and
851. Under these unique facts, we conclude that the absence of
one of his attorneys at his sentencing did not prejudice
Defendant.
III.
In sum, we conclude that the district court did not err in
its various rulings and, accordingly, we affirm.
AFFIRMED
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