United States v. Alexander Michael Roy

761 F.3d 1285, 2014 WL 3819927, 2014 U.S. App. LEXIS 14994
Court of Appeals for the Eleventh Circuit·Decided August 5, 2014·No. 12-15093·Published·Cited by 6 cases

Opinions

WILSON, Circuit Judge:

This appeal involves a defense attorney’s temporary absence from the courtroom at his client’s trial when inculpatory testimony was admitted into evidence and contributed to his conviction. Appellant Alexander Michael Roy (Roy) alleges that his criminal conviction was obtained in violation of the Sixth Amendment and the Supreme Court’s holding in United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, [1287]*12872047, 80 L.Ed.2d 657 (1984), which creates a presumption of prejudice and requires a new trial when counsel is absent during a “critical stage” of the trial. Because (1) Roy was a sole defendant during his criminal trial, (2) the afternoon session of Roy’s trial commenced while his counsel was actually and physically absent, and (3) during that absence, evidence directly inculpating Roy in a crime for which he was eventually convicted was presented to the jury, we conclude that Roy was denied counsel at a critical stage, and based on Cronic, we are required to reverse Roy’s conviction as to all counts of the indictment and remand the case to the district court for a new trial.

I.

Pursuant to a “reverse sting” operation conducted in conjunction with the Osceola County Sherriffs Office (OCSO), Detective Athena Ross of the Sumter County Sher-riffs Office (SCSO) placed an advertisement on Craigslist purportedly soliciting sex for two women. Roy responded to the advertisement, after which Ross, acting undercover, told Roy that the advertisement was for herself, a thirty-year-old woman named Denise, and her daughter, a thirteen-year-old girl named Torie. Roy, “Denise,” and “Torie” (played by a second undercover SCSO detective) discussed various potential sexual activities by email, telephone, and text message. Eventually, they arranged a meeting at a Waffle House restaurant in Kissimmee, Florida. Roy drove to the restaurant and entered the parking lot, but he drove away without ever parking his vehicle. OCSO deputies pulled him over and arrested him, finding condoms and lubricant in his pockets.

OCSO conducted two searches of Roy’s home, leading to the seizure of a desktop computer, a laptop, a thumb drive, and three compact discs, all of which contained photographs and videos containing child pornography. Detectives also found the text of online conversations Roy had with L.B., a minor with whom Roy had carried on a romantic relationship. L.B. was depicted in some of the pornography found on his computer, which Roy himself created. Much of the child pornography depicted other underage girls.

Roy was indicted by a federal grand jury in the Southern District of Florida on one count of enticing or attempting to entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b) (Count 1) and four counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Counts 2-5). A motion to suppress the evidence seized during the execution of the warrants was denied.

During a portion of Roy’s jury trial, defense counsel was absent from the courtroom immediately following a lunchtime recess. There was no explanation for the absence in the record. Prior to the recess, the court had stated that the trial would recommence at 1:30 p.m. Instead, it started at 1:29 p.m. without defense counsel present; counsel did not arrive until 1:36 p.m. The record does not reflect any reaction by the court or the government either to counsel’s absence or to his late arrival, though the court reporter did note both in the transcript. During counsel’s absence, the government offered the following testimony from its computer forensics expert witness, Detective Charlie Longson of OCSO:

Q. Now, did you have occasion to find during your forensic examination a folder on the desktop computer named “My Pictures,” which would fall within the “My Documents” file that was on that computer?
A. Yes, I did.
[1288]*1288Q. And within the “My Pictures” folder, were there other subfolders?
A. Yes.
Q. And how were they categorized within that general folder of “My Pictures”?
A. Those folders were categorized by date, the year first, month second, and the date third.
Q. And were you able to determine any folders that had — or contained notable images within them?
A. Yes. I did find folders with notable images.
Q. And what were — what was the first folder of concern that you found?
A. The first one I found was named “2006-03-11.”
Q. And would that folder have been created by a user of that computer? A. Yes, it was.
Q. And did you find any images within that folder?
A. Yes, I did. I found six images.
Q. And would you please describe the images to the ladies and gentlemen of the jury within that March 11, 2006, folder that you found?
A. These images are a nude white female who was bound to a table by her feet with rope. The subject was laid across the table and had her head covered with an orange cloth which was secured around her neck with silver duct tape.
Q. Were you able to determine forensically how those pictures had been taken?
A. Yes. They were taken with a Kodak v530 zoom digital camera.
Q. And were you able to determine forensically a date and time those images were taken?
A. Yes, I was. These were taken on March the 10th, 2005, at 6:49 p.m.

Counsel returned soon after this exchange and, upon his return, did not raise any objections. Direct examination of Detective Longson continued uninterrupted. Detective Longson later testified as to the identity of the individual portrayed in the photographs, L.B., as well as her date of birth: May 9, 1989. The jury found Roy guilty on all counts, and the district court sentenced him to life imprisonment.

Roy raises four claims on appeal. Of these, we address only the Sixth Amendment denial of counsel claim. Specifically, Roy contends that his counsel’s absence occurred during a critical stage of trial when inculpatory evidence was admitted against him and that, therefore, he is entitled to a new trial pursuant to Cronic, 466 U.S. at 658-59, 104 S.Ct. at 2046-47.

II.

“The claim that the temporary absence of trial counsel during the taking of evidence constitutes a Sixth Amendment violation presents a mixed question of law and fact and, as such, is subject to plenary review.” Vines v. United States, 28 F.3d 1123, 1127 (11th Cir.1994).

A criminal defendant is entitled to the “Assistance of Counsel for his defence.” U.S. Const, amend. VI. In Cronic, the Supreme Court “conclude[d] that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” 466 U.S. at 659, 104 S.Ct. at 2047; see also Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct.

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United States v. Alexander Michael Roy, 761 F.3d 1285, 2014 WL 3819927, 2014 U.S. App. LEXIS 14994 (11th Cir. 2014).

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