United States v. Ronn Darnell Sterling, 738 F.3d 228

Background

On Jan. 14, 2010 a masked robber used a silver handgun to vault a Regions Bank teller counter in Smyrna, GA; a getaway car later linked to defendants Brumfield (driver/owner) and Sterling was located and towed. A bag in the trunk contained matching clothing and a silver firearm; the bag bore both defendants’ fingerprints and Sterling’s DNA was in the gloves.
Defendants were indicted on three counts: armed bank robbery (18 U.S.C. § 2113), use of a firearm in relation to a crime of violence (18 U.S.C. § 924(c)), and felon-in-possession (18 U.S.C. §§ 922(g), 924(a)).
The government sought and the court admitted under Rule 404(b) the defendants’ prior 1995 armed bank robbery convictions (same participants, similar facts: vaulting teller counter, silver gun, masks, getaway driver) for limited purposes (intent, plan, preparation, lack of mistake).
At the start of trial Sterling repeatedly refused to participate, was interviewed in an adjacent room, was warned that persistent disruptive/nonresponsive conduct would result in being deemed to have waived his right to be present, and the court found he waived his presence; Sterling watched by live feed but did not attend in person.
Jury instructions limited the use of the prior-conviction evidence to intent, plan, preparation, and absence of mistake; the jury convicted both defendants on all counts. Sterling moved for a new trial (claiming Rule 43 violation) and Brumfield moved for acquittal on the gun-count; both appeals followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial commenced in defendant Sterling’s presence and whether his Rule 43 right to be present was waived	Government: trial may commence on the day of jury selection and a defendant may waive presence by voluntary absence or disruptive conduct after being warned	Sterling: trial had not commenced in his presence; court should have forced him into the courtroom and explicitly announced trial start before allowing waiver	Court held trial had commenced that day (interview room proceeding and explanation) and Sterling voluntarily waived his right to be present; proceeding in absentia was permissible
Admissibility of defendants’ prior 1995 armed-robbery convictions under Fed. R. Evid. 404(b)	Government: prior conviction admissible to show intent, plan, preparation, identity, and knowledge (esp. that Brumfield knew a gun would be used)	Defendants: prior convictions were improperly admitted as impermissible propensity evidence and were unduly prejudicial	Court held evidence admissible under Rule 404(b) for limited purposes (intent, plan, preparation, lack of mistake; knowledge as to Brumfield); any overbreadth as to Sterling was harmless given overwhelming other evidence
Sufficiency of the evidence against Brumfield for the § 924(c) gun-use/knowledge element	Government: circumstantial proof (prior joint armed robbery, planning over months, association with Sterling, physical evidence in car) sufficed to infer Brumfield knew a gun would be used	Brumfield: insufficient evidence that he knew a gun would be used or that he aided/abetted the firearm use	Court held the evidence (including prior conviction showing he previously participated when a gun was used) was sufficient to permit a reasonable jury to find knowledge and sustain convictions
Harmlessness of any Rule 404(b) error as to Sterling	Government: even if 404(b) admission was erroneous as to Sterling, other evidence (fingerprints, DNA, eyewitness descriptions, physical evidence) rendered any error harmless	Sterling: prior-conviction evidence was unduly prejudicial and likely affected the verdict	Court held that, as to Sterling, any prejudice from prior-conviction evidence was harmless given overwhelming independent proof of guilt

Key Cases Cited

United States v. Curbelo, 726 F.3d 1260 (11th Cir. 2013) (standard for reviewing Rule 43 interpretation)
United States v. Bradford, 237 F.3d 1306 (11th Cir. 2001) (defendant may waive presence by voluntary absence after trial commencement; balancing public interest)
Crosby v. United States, 506 U.S. 255 (1993) (Rule 43 requires initial presence at start of trial; waiver allowed if defendant was initially present and voluntarily absent)
United States v. Arias, 984 F.2d 1139 (11th Cir. 1993) (trial may not commence in absentia if defendant was never present at its start)
United States v. Benabe, 654 F.3d 753 (7th Cir. 2011) (day-of-jury-selection rule; defendants removed for disruptive behavior may watch by feed; harmless-error analysis)
United States v. Crews, 695 F.2d 519 (11th Cir. 1983) (defendant may waive right to be present during jury selection)
United States v. McNair, 605 F.3d 1152 (11th Cir. 2010) (Rule 404(b) admission reviewed for clear abuse of discretion)
United States v. Boffil-Rivera, 607 F.3d 736 (11th Cir. 2010) (standard for sufficiency review)
United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) (three-part test for Rule 404(b) admissibility)
United States v. Edouard, 485 F.3d 1324 (11th Cir. 2007) (intent is a proper nonpropensity purpose under Rule 404(b) when defendant pleads not guilty)
United States v. Zapata, 139 F.3d 1355 (11th Cir. 1998) (intent as material issue permitting 404(b) evidence)
United States v. Baker, 432 F.3d 1189 (11th Cir. 2005) (recognizing inherent prejudice of extrinsic-act evidence)
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (Beecum balancing for probative value vs. prejudice)
United States v. Pollock, 926 F.2d 1044 (11th Cir. 1991) (discussion on when extrinsic evidence may be essential to government’s case)
United States v. Hernandez, 896 F.2d 513 (11th Cir. 1990) (prior crime need not be identical to be probative)
United States v. Lampley, 68 F.3d 1296 (11th Cir. 1995) (temporal gap between similar crimes does not preclude admissibility)
United States v. Pendegraph, 791 F.2d 1462 (11th Cir. 1986) (limits on inferring knowledge from mere role as getaway driver)
United States v. Augustin, 661 F.3d 1105 (11th Cir. 2011) (clearly erroneous standard for reviewing district court factual findings)