United States v. James Robertson

736 F.3d 1317, 2013 WL 6018910
Court of Appeals for the Eleventh Circuit·Decided November 12, 2013·No. 12-10046·Published·Cited by 17 cases

Opinions

DUBINA, Circuit Judge:

Appellant James Robertson (“Robertson”) appeals his convictions for two counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Robertson challenges the district court’s denial of his pretrial motion to dismiss the [1320] indictment, its ruling sustaining the government’s first Batson1 challenge, and its denial of his motion for acquittal. After reviewing the record, reading the parties’ briefs, and having the benefit of oral argument, we affirm Robertson’s convictions.

I.

On Sunday, September 13, 1998, police found the bodies of two homeless men, Alfred Williams and Richard Arseneau, at different locations in Tampa, Florida. Both had been beaten severely and had died from trauma to the skull. The previous night, Robertson and three other members of a local white supremacist group, Tampa Blood and Honour, sought these victims, beat them severely, and left them for dead. The police lacked any evidence of the murderers’ identities or motives, and the two cases went cold.

A. The government’s alleged immunity offer preceding Robertson’s indictment

In 2002, while under indictment in the Middle District of Florida for bank robbery with co-defendant William Schroeder (“Schroeder”), Robertson entered a plea agreement with the government that secured his cooperation. The agreement provided that any information Robertson offered would not be used against him to enhance his bank robbery sentence. The agreement did not promise that Robertson’s statements would not be used against him for the prosecution of other crimes. Robertson’s attorney at the time contacted the government to say that Robertson wished to cooperate against Schroeder. The assistant U.S. Attorney on the case, Anthony Porcelli (“Porcelli”),2 agreed to ask the district court to depart downward in sentencing Robertson pursuant to USSG § 5K1.1. Robertson then filed a motion asking for a downward departure under USSG § 5K2.0, claiming that he participated in the robbery under duress. Doubting Robertson’s claim of duress, Por-celli obtained recordings of Schroeder’s telephone calls from jail to Robertson, who was not in custody at that time. The calls revealed that Schroeder and Robertson had an amiable relationship, and consequently, Porcelli felt certain that Robertson was attempting to commit a fraud upon the court.

During Robertson’s sentencing hearing, Robertson testified that Schroeder coerced him into committing the robbery. Porcelli then impeached Robertson with the phone recordings. Porcelli also withdrew the government’s § 5K1.1 motion. The court continued the sentencing hearing to allow Robertson’s counsel to review the phone calls. Robertson fired his first attorney and hired new attorneys.

Soon thereafter, one of Robertson’s new attorneys, Dyril Flanagan (“Flanagan”), contacted Porcelli to say that Robertson had information relating to “some murders.” [R. 204 at 187.] Porcelli expressed his doubts about Robertson’s offer but told Flanagan that Robertson could continue to cooperate pursuant to his existing plea agreement in the bank robbery case. Por-celli says that he never promised Robertson immunity in exchange for any of the information Robertson provided concerning the murders.

At Porcelli’s direction, two FBI agents, Carl Cuneo (“Cuneo”) and Jose Olivera (“Olivera”), met with Robertson and Flanagan at the jail where Robertson was in custody. Robertson told the agents that he was one of four men who had been together at the time two murders oc[1321] curred. Robertson offered the agents the name of Charles Marovskis (“Marovskis”) and claimed that Marovskis had violently beaten two homeless men to death, with various weapons while Robertson watched. Robertson withheld more information from the agents until he could reach a deal with the government, and he requested protection for himself and his family. Flanagan and Porcelli communicated afterward about whether Robertson’s provision of information would warrant the government’s renewal of a § 5K1.1 motion in the bank robbery case.3

Without receiving a formal immunity agreement, Robertson and Flanagan met again with Agent Cuneo and a Tampa police task force agent at the FBI’s downtown Tampa office. Porcelli did not attend the meeting. Robertson offered more information about the murders and discussed his and others’ involvement with a local skinhead4 group, Tampa Blood and Honour. Porcelli did not believe that Robertson’s information was complete or entirely truthful, and he opened a federal investigation of the murders.

Meanwhile, in July 2003, the district court sentenced Robertson for bank robbery without the government’s renewal of a § 5K1.1 motion for downward departure or any other reduction for acceptance of responsibility. By early 2005, Robertson had become a suspect in the federal murder investigations. The government indicted him and co-defendant Cory Hulse (“Hulse”) in May 2008 for two counts of murder for the purpose of maintaining and increasing their positions in an enterprise engaged in racketeering activity, in violation of the violent crimes in aid of racketeering (“VICAR”) statute, 18 U.S.C. § 1959(a). Hulse pled guilty and agreed to testify against Robertson.

Robertson moved to dismiss the indictment with prejudice, arguing that the government procured the indictment against him by means of his immunized statements. At some point prior to the court’s hearing on Robertson’s motion to dismiss, Flanagan executed an affidavit in support of Robertson’s assertion that there was an oral immunity deal, but Flanagan later rejected the affidavit. Robertson’s trial counsel informed the court that Flanagan signed the document “inadvertently.” [R. 206 at 15-16.] The district court held a hearing at which Robertson, Cuneo, and now-Magistrate Judge Porcelli testified. Cuneo admitted his notes reflected that the government and Flanagan were coordinating the details of a potential agreement. However, Porcelli denied he ever extended an immunity deal of any sort to Robertson. The district court declined to credit Robertson’s testimony and denied his motion to dismiss the indictment. The case proceeded to trial.

[1322] B. Jury selection

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United States v. James Robertson, 736 F.3d 1317, 2013 WL 6018910 (11th Cir. 2013).

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