United States v. Robert Smith

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 12, 2011
No. 09-15589
JOHN LEY
________________________ CLERK
D. C. Docket No. 08-00370-CR-01-BBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 12, 2011)
Before CARNES, ANDERSON and FARRIS,* Circuit Judges.
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:
We review convictions under the Hobbs Act de novo. See, e.g., United
States v. Gray, 260 F.3d 1267, 1271 (11th Cir. 2001). We consider evidence in
the light most favorable to the government, drawing all inferences and credibility
choices in favor of the jury’s verdict. See United States v. Guerra, 164 F.3d 1358,
1359 (11th Cir. 1999).
Smith argues (1) that there is insufficient evidence to establish the interstate
commerce jurisdictional element of the Hobbs Act robbery of a convenience store,
(2) the district court erred by admitting prior bad acts evidence, and (3) that he was
denied his right to proper advisement of his right to testify.
The Hobbs Act defines “commerce” broadly. It does not “lend itself to a
restrictive interpretation.” United States v. Culbert, 435 U.S. 371, 373 (1978).
The record reflects that on the date of the robbery (1) the shop sold goods
purchased from out of state and (2) all Citgo gas was transported from out of state.
Nothing more was required.
A pre-trial hearing established that the government intended to offer prior
bad acts evidence. Smith was convicted after a three day trial in which one of the
participants testified as a cooperating witness.
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The photographs about which Smith complains were from surveillance
footage taken in a robbery committed five days before the robbery in question.
Testimony indicated that Smith and one co-defendant were depicted in a
composite photograph from that robbery.
In determining whether the trial court erred in admitting evidence of prior
bad acts under Fed. R. Evid. 404(b) we consider identification, relevance other
than defendant’s character, and whether its probative value is outweighed by its
undue prejudice. Here the evidence met all requirements of the rule. See United
States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992)(en banc).
Evidence of prior bad acts is admissible to prove “motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b). Rule 404(b) “is a rule of inclusion ... [and] 404(b) evidence,
like other relevant evidence, should not lightly be excluded when it is central to
the prosecution's case.” United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir.
2003).
There was no error. The court applied the 404(b) balancing test, gave an
appropriate limiting instruction and properly concluded that the probative value
outweighed its prejudice.
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The record reflects that Smith understood his right to testify, had been
counseled about it by his attorney and that his waiver of the right was knowing
and voluntary. The most plausible reading of the challenged colloquy with the
judge reveals that Smith had already made up his mind not to testify before the
allegedly incorrect advice from the judge. Thus, Smith’s waiver of his right to
testify was knowing and voluntary without regard to the judge’s later advice.
Further, much of the evidence was beyond dispute. Police were on the scene
before two robbers exited the Otter Shop/Citgo gas station. The two exchanged
fire with the police and were arrested after they sought to evade detection by
running into a wooded area.
However, even assuming that Smith had not already made up his mind not
to testify, and even assuming that the judge’s advice might have been erroneous,
we address Smith’s claim of reversible error. Smith contends that he was deprived
of his right to testify because the district court erroneously informed him that by
taking the stand he would subject himself to cross-examination concerning his
entire criminal history. Because Smith did not object to the district court’s
comments at trial concerning his decision to testify, we review his claim only for
plain error. United States v. Vonn, 535 U.S. 55, 59, 63, 122 S.Ct. 1043, 1046,
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1048 (2002); see also United States v. Olano, 507 U.S. 725, 731–37, 113 S.Ct.
1770 (1993).
For Smith’s claim to warrant correction under plain error review, there must
be “(1) an error, (2) that is plain, (3) that affects substantial rights (which usually
means that the error was prejudicial), and (4) that seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v.
Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007) (citations omitted). Smith
argues that he need not satisfy the last two prongs of plain error review, however,
because the district court’s error was structural and therefore requires automatic
reversal. He is wrong about that.
On the first day of trial, the following exchange took place between the
district court, Smith, and his attorney:
The Court: Thank you. Mr. Smith, I think I talked to you about this at your
pretrial. Of course you have the right to testify if you want to.
You also have the Constitutional right not to testify. If you do not
testify I’ll instruct the jury they cannot even talk about that in
deliberations. On the other hand, if you do testify, Mr. Alley will
be able to cross-examine you about any criminal history you have
or what that might be or whether you have a criminal history. But
you would be subject to a very thorough cross-examination about
where you had been and what you had been doing that day before
they arrested you there. So I just wanted to be sure you
understood all that.
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Maybe there’s something else I should point out to him that I
haven’t. I don’t know.
Mr. Jones: I’ve addressed the issue with him a couple of times, Judge.
The Court: You don’t have to tell me right now, but at some point I’m going
to ask you whether you want to testify or not. Do you know now
or you want to keep thinking about it?
Mr. Smith: No, your Honor. I don’t wish to.
The Court: Testify?
Mr. Smith: Correct.
The Court: Okay. And you had talked to your lawyer about that, I assume,
and make [sic] a decision?
Mr. Smith: Right.
On the third day of trial, at the close of the government’s evidence, the
following exchange took place between the Assistant U.S. Attorney, the district
court, and Smith:
Mr. Alley [AUSA]: Just so the Court can confirm the Defendant’s not going
to testify, you did that earlier today as well as earlier in the
case, I believe.
The Court: I did it earlier in the case. We’ve had the discussion over
and over again, Mr. Smith, but you know you have the
right to testify?
Mr. Smith: Yes, Ma’am.
The Court: Okay. And you’ve chosen not to?
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Mr. Smith: Yes, Ma’am.
The Court: Okay.
Although in the first exchange we quoted the district court told Smith that if
he testified he could be cross-examined “about any criminal history [he had] or
what that might be or whether [he had] a criminal history,” in reality only one of
Smith’s prior convictions would have been admissible for impeachment purposes
under Federal Rule of Evidence 609. Smith contends that the bad advice the
district court gave him deprived him of his right to testify and amounted to a
structural error.
A structural error is one that so fundamentally affects the structure of
judicial proceedings that it requires automatic reversal. In Johnson v. United
States, 520 U.S. 461, 468–69, 117 S.Ct. 1544, 1549–50 (1997), the Supreme Court
noted that it has “found structural errors only in a very limited class of cases.” Id.(citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963) (a total
deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct.
437 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S. 254,
106 S.Ct. 617 (1986) (unlawful exclusion of grand jurors of defendant’s
race); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944 (1984) (the right to self-
representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984) (the
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right to a public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078(1993) (erroneous reasonable-doubt instruction to jury)).
Although neither Smith nor this Court has been able to identify any case
holding that the abridgement or denial of the right to testify constitutes a structural
error, Smith analogizes the situation to the denial of the right to self-
representation, which has been found to be a structural error. See McKaskle, 465
U.S. at 177 n.8. He argues that, like the complete denial of the right to self-
representation, a deprivation of his right to testify should be considered a
structural error in the trial because it is not amenable to analysis under the
prejudice and fundamental fairness prongs of the plain error standard. As Smith
acknowledges, however, the Supreme Court has expressly reserved the question of
whether a structural error alleviates a defendant’s burden to show prejudice under
plain error review. See United States v. Marcus, --- U.S. ---, 130 S.Ct. 2159,
2164–65 (2010) (“[W]e have noted the possibility that certain errors, termed
‘structural errors,’ might ‘affect substantial rights’ regardless of their actual impact
on an appellant’s trial.”); Puckett v. United States, --- U.S. ---, 129 S. Ct. 1423,
1432 (2009) (reserving the issue of whether structural errors automatically satisfy
the third “plain error” criterion); United States v. Cotton, 535 U.S. 625, 632, 122
S.Ct. 1781 (2002) (same); Johnson, 520 U.S. at 469, 117 S.Ct. at 1550 (same).
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Assuming that the district court did err by advising Smith as it did, and
further assuming that the error was plain, see United States v. Teague, 953 F.2d
1525, 1533 n.8 (11th Cir. 1992) (en banc), and even further assuming that a
structural error would require automatic reversal even under plain error review,
the assumed error of the district court in this case did not constitute a structural
defect in the proceedings.
As the Supreme Court has explained, structural errors “defy analysis by
‘harmless-error’ standards because they affect the framework within which the
trial proceeds,” and a structural error is not “simply an error in the trial process
itself.” Gonzalez-Lopez, 548 U.S. at 149, 126 S. Ct. at 2564 (quotation marks and
alteration omitted). In discussing the difference between trial errors and structural
defects in Gonzalez-Lopez, the Court explained the criteria it has used to
determine whether an error should be considered structural:
[A]s we have done in the past, we rest our conclusion of structural error upon
the difficulty of assessing the effect of the error. The dissent would use
“fundamental unfairness” as the sole criterion of structural error, and cites a
case in which that was the determining factor, see Neder v. United States, 527
U.S. 1, 9, 119 S.Ct. 1827 (1999) [holding that a district court’s instruction
omitting an element of an offense was not a structural error because it did not
render the trial fundamentally unfair] . . . [W]e have also relied on the
irrelevance of harmlessness.
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Gonzalez-Lopez, 548 U.S. at 149 n.4, 126 S.Ct. 2564 n.4 (some citations omitted).
Under that explanation, when we determine whether the denial or abridgement of
the right to testify is a trial error or a structural defect, we should focus on how
difficult it is to assess the effect of the error on the outcome.
With that focus in mind, the error that Smith contends was made is not a
structural one. It is not impossible, or all that difficult, to assess the effect of the
claimed error on the outcome of the trial. A defendant who was persuaded not to
testify, or prevented from testifying, can establish the harm he suffered by
proffering the testimony that he would have given. As the Third Circuit has
explained, “it is precisely the fact that the contours of the defendant’s probable
testimony . . . can be assessed in the context of the evidence as a whole that
distinguishes the right-to-testify issue from structural defects, the effects of which
are inherently elusive, intangible, and not susceptible to harmless error review.”
Palmer v. Hendricks, 592 F.3d 386, 399 (3d Cir. 2010).
Smith has never made any attempt to proffer what his testimony would have
been, but that does not change the fact that he could have done so. Because he has
made no proffer, Smith has not met his burden under the third prong of plain error
review to demonstrate that the claimed error affected his substantial rights, which
“almost always requires that the error must have affected the outcome of the
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district court proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1299
(11th Cir. 2005). We need not reach the fourth prong of plain error review.
There are a few cases in which the Supreme Court has found structural error
based on the need to prevent behavior for reasons that have little or nothing to do
with any impact the error may have had on the outcome of the trial. Vasquez v.
Hillery, which involved the unlawful exclusion of grand jurors based on race, is
one example, and Waller v. Georgia, which involved the denial of the right to a
public trial, is another. See Vasquez, 474 U.S. at 263–64, 106 S.Ct. at 623;
Waller, 467 U.S. at 49–50, 104 S.Ct. at 2217. Misinformation about permissible
cross-examination if a defendant testifies simply is not that kind of error.
AFFIRMED.
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