United States v. Geshik-O-Binese Martin, 777 F.3d 984

Background

On Jan. 1, 2011, Craig Roy and Darla Beaulieu were stabbed and their house set on fire on the Red Lake Indian Reservation; both died of exsanguination.
Geshik-O-Binese Martin and Edward Robinson were convicted of robbery and murder under 18 U.S.C. § 1153; David Martin was convicted of robbery and acquitted of murder; other codefendants had mixed outcomes and two pled guilty earlier.
Geshik Martin signed a pretrial stipulation that he was an “Indian” for purposes of § 1153; Robinson did not contest Indian status but sought severance because defenses were antagonistic.
During jury selection the district judge spoke ex parte to the 51-person venire about jury service, differences between federal and state judges, jury nullification, and cited high-profile trials; defense counsel had consented to the judge meeting the venire but not the full substance of his remarks.
At trial key eyewitness testimony (Terin Stately) placed the group at Roy’s home and described blood, a weapon, and statements suggesting killings and arson; Geshik and David Martin testified claiming different versions (self-defense or limited purpose).
District court denied severance motions, declined David Martin’s requested lesser-included theft instruction, admitted Geshik Martin’s stipulation, allowed the prosecutor’s closing that pointed out which defendants testified, and applied a six-level guidelines enhancement to David Martin for infliction of permanent bodily injury.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ex parte contact with jury venire (judge spoke to venire outside presence of defendants)	Appellants: judge’s comments (nullification, high-profile cases, lawyer stereotypes) violated Rule 43(a) and due process; presumptively prejudicial.	Government/District Court: remarks were largely ministerial; defendants consented to meeting; any error was harmless.	Court: Remarks mostly ministerial and harmless; any Rule 43/constitutional violation would be harmless — no new trial.
Sufficiency/validity of stipulation that Geshik Martin is an “Indian” under § 1153	Martin: stipulation only established racial status, not the statutory elements (Indian blood + tribal/federal recognition); also not shown to be knowingly and voluntarily entered.	Government: stipulation explicitly tied to § 1153 in indictment; signed in open court with counsel present; no objection.	Court: Stipulation sufficient for § 1153 purpose and was knowingly/voluntarily entered; no reversible error.
Severance for Robinson and prosecutor’s closing reference to who testified (possible comment on silence)	Robinson: joint trial prejudiced him because defenses were antagonistic and prosecutor’s remark impermissibly drew attention to his not testifying.	Government: independent evidence tied to Robinson; prosecutor’s remark targeted impeachment of other witnesses (not a comment on Robinson’s silence).	Court: Denial of severance not an abuse—ample independent evidence; prosecutor’s remark rebutted Geshik’s testimony and was not a Griffin violation.
Lesser-included offense (theft) & sentencing enhancement based on acquitted conduct	David Martin: requested theft instruction; argued sentencing six-level enhancement under U.S.S.G. §2B3.1(b)(3)(C) improperly relied on acquitted conduct and unforeseeability of permanent injury.	Government: evidence showed violent robbery (no basis for theft instruction); sentencing may consider acquitted conduct by preponderance and Martin foresaw potential violence.	Court: Refusal to give theft instruction proper because defendant claimed complete innocence; sentencing enhancement properly applied (acquitted conduct may be considered by preponderance and facts supported foreseeability).

Key Cases Cited

United States v. Gagnon, 470 U.S. 522 (Sup. Ct.) (defendant’s presence at certain proceedings discussed)
United States v. U.S. Gypsum Co., 438 U.S. 422 (Sup. Ct.) (ex parte communications between judge and jurors risky and may create misleading impressions)
Zafiro v. United States, 506 U.S. 534 (Sup. Ct.) (mutually antagonistic defenses not per se a reason to sever; severance required only for serious risk of prejudice)
Griffin v. California, 380 U.S. 609 (Sup. Ct.) (prohibition on prosecutorial comment about defendant’s failure to testify)
Donnelly v. DeChristoforo, 416 U.S. 637 (Sup. Ct.) (court should not lightly infer prosecutor intended most damaging meaning from ambiguous remark)
United States v. Watts, 519 U.S. 148 (Sup. Ct.) (sentencing court may consider acquitted conduct by a preponderance)
United States v. Koskela, 86 F.3d 122 (8th Cir.) (ex parte judge–juror contacts presumptively prejudicial but can be harmless)
Shelton v. Purkett, 563 F.3d 404 (8th Cir.) (ministerial ex parte contacts are not prejudicial)
United States v. Stymiest, 581 F.3d 759 (8th Cir.) (definition of “Indian” under § 1153 requires Indian blood and tribal/federal recognition)
United States v. Nazarenus, 983 F.2d 1480 (8th Cir.) (stipulations construed according to their clear purport)