Case: 12-10046 Date Filed: 11/12/2013 Page: 1 of 29
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________
No. 12-10046 _____________
D. C. Docket No. 8:08-cr.00240-EAK-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROBERTSON,
Defendant-Appellant.
______________
Appeal from the United States District Court for the Middle District of Florida ______________
(November 12, 2013)
Before JORDAN, COX and DUBINA, Circuit Judges.
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). Case: 12-10046 Date Filed: 11/12/2013 Page: 2 of 29
Robertson challenges the district court’s denial of his pretrial motion to dismiss the
indictment, its ruling sustaining the government’s first Batson 1 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
1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). 2 Case: 12-10046 Date Filed: 11/12/2013 Page: 3 of 29
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, Porcelli 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
2 Porcelli was later appointed a U.S. magistrate judge in the Middle District of Florida. 3 Case: 12-10046 Date Filed: 11/12/2013 Page: 4 of 29
“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. Porcelli 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 occurred. 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
3 Robertson alleges that there was a second meeting at the jail with Cuneo, Olivera, and Porcelli. Cuneo and Porcelli deny that a second meeting at the jail occurred. Robertson claims that at this second meeting, Porcelli offered him immunity in exchange for information. Robertson says that Olivera explained that the government could offer him protection akin to the protection provided to “Sammy the Bull,” a notorious mobster who was not prosecuted for murders in exchange for his testimony against others. Robertson says his understanding of this 4 Case: 12-10046 Date Filed: 11/12/2013 Page: 5 of 29
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 skinhead 4 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
sort of immunity deal is why he volunteered self-incriminating information about the murders to the government. In keeping with the U.S. Attorney’s established policy against orally entering offers of immunity, Porcelli claims that he never orally extended any sort of immunity deal to Robertson. 4 While there may be various groups who share “skinhead” identifying characteristics, we use the term as it was used by Tampa Blood and Honour members at trial to describe persons espousing neo-Nazi, white supremacist ideology. 5 Case: 12-10046 Date Filed: 11/12/2013 Page: 6 of 29
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.
B. Jury selection
While selecting the jury, Robertson moved to peremptorily strike three black
venire members. He first moved to strike JMD, a male whose wife worked as a
911 operator and whose brother worked in some capacity with border patrol. The
6 Case: 12-10046 Date Filed: 11/12/2013 Page: 7 of 29
government raised a Batson challenge, and the court asked Robertson to offer a
race-neutral reason for the strike. Robertson pointed out JMD’s connection to, and
possible bias toward, law enforcement officers. The court sustained the Batson
challenge and denied Robertson’s request to strike JMD, finding that JMD could
serve as an impartial juror. Later, Robertson also sought to peremptorily strike the
remaining two black venire members, JWH, a male, and YT, a female. 5 The
government again raised Batson challenges, and Robertson offered weak or
incredible reasons for moving to strike both JWH and YT. The court denied
Robertson’s motions to strike JWH and YT because the court did not accept
Robertson’s proffered race-neutral reasons as sincere.
C. Trial testimony
Over the course of a nine-day trial, the three other participants in the
murders, Ken Hoover (“Hoover”), Hulse, and Marovskis, as well as other Tampa
Blood and Honour members, testified and established the following facts in the
government’s case against Robertson.
Blood and Honour is a white supremacist group that began in England for
the purpose of protecting the “superior” race of white people. The group is part of
the skinhead movement and espouses the teachings of Nazi Germany’s Third 5 The government’s brief identifies the black female juror at issue as JB, but a review of the court’s transcript makes it plain that Robertson moved to strike YT, not JB. [Compare Appellee’s Br. at 12, with R. 207 at 365–69.] 7 Case: 12-10046 Date Filed: 11/12/2013 Page: 8 of 29
Reich and Adolf Hitler. Blood and Honour members consider non-white persons
to be subhuman enemies who should be eliminated, or at least radically segregated
and relocated away from whites. The group views homeless people as degenerate
and worthless to society. They anticipate a future uprising of whites and a race
war in the United States, and thus are inclined to prepare themselves for war. The
group’s members thrive on proving themselves to one another by perpetrating
violent acts against their rivals and enemies.
Jason Zinn, the U.S. leader of Blood and Honour, urged Justin Harrigan
(“Harrigan”) to create a Tampa chapter of Blood and Honour. Harrigan included
as members Hoover, Hulse, Marovskis, Robertson, and Jason Perfetti (“Perfetti”).
To become a full member of the group, a person went through a probationary
period as a “probate” until he proved himself to the group. The group viewed
Harrigan as its leader but held its regular meetings at Hoover’s house. The
members accumulated weapons and ammunition, exchanged stories about violent
things they had done, listened to skinhead music, and studied military tactics and
white supremacist ideology. The men all dressed similarly, obtained skinhead
tattoos, and wore steel-toed boots for the purpose of inflicting additional injury and
pain during fights.
8 Case: 12-10046 Date Filed: 11/12/2013 Page: 9 of 29
On the night of Friday, September 11, 1998, Marovskis, Harrigan, Hoover,
Robertson, Perfetti, and Steve McAlister (“McAlister”) were at Hoover’s house
listening to skinhead music and drinking beer. Marovskis, Robertson, Harrigan,
and McAlister left the house with Perfetti’s pistol looking for street people,
prostitutes, and drug dealers in order to “mess with” them. The men called this
practice of terrorizing homeless people “bum rolling.” Harrigan tried to shoot at a
black man on a bicycle, but the gun failed to fire. They spotted a white prostitute
on the street with a black man, pulled their car over to pretend to ask for directions,
and sprayed the woman in the face with pepper spray before driving away,
laughing. Robertson then drove the group to a bridge where a homeless man was
known to stay. Robertson approached the man, who was apparently intoxicated,
and began kicking and punching him. He and Marovskis continued to inflict a
“boot party,” kicking him with their steel-toed boots. McAlister chased the man
into the river and continued to assault him. Before leaving the scene, Robertson
threw a large chunk of rock or cinderblock and struck the man in the head.
Hoover and Hulse, who missed out on Friday night’s events, drank
throughout the day Saturday, September 12, with Marovskis and Robertson before
heading out for another night of bum rolling. Robertson drove the group around
town because he knew where to find vulnerable people. He took with him a three-
9 Case: 12-10046 Date Filed: 11/12/2013 Page: 10 of 29
foot tire iron or crowbar with prongs on one end.6 The group spotted their first
victim, Williams, a homeless black man, sitting on the front steps of a building in
an industrial area. As they approached, Williams tried to flee, but Robertson
caught him and hit him over the head with the crowbar. Williams fell to the
ground screaming, but Robertson continued to beat him in the head, face, and
upper torso. The others gave Williams a “boot party” and hit him. Before
returning to the car, Robertson jabbed Williams in the eye with his weapon and
bragged to the others that he had stabbed the man through the eye and into the
brain.7
The four men had difficulty finding their next victim. They stopped at
Hoover’s house for more beer, and while there, Hulse retrieved an axe. Robertson
then took the group to a wooded lot where he believed another homeless man
lived. This time, each of the men brought along a weapon—Robertson, the
crowbar, Marovskis, a club, Hoover, a metal cane, and Hulse, the axe. The four
discovered their second victim, Arseneau, a homeless white man, sitting in a chair
at an encampment in a clearing. Arseneau attempted to run away, but as with
Williams, Robertson stopped him by hitting Arseneau over the head with the
6 Marovskis testified that Robertson had a pronged crowbar. Hoover also described Robertson’s weapon as a crowbar. Hulse, however, testified that Robertson had a tire iron. 7 A medical examiner testified that although Williams’s eye had been hit, there was no penetration of the brain through the eye socket. 10 Case: 12-10046 Date Filed: 11/12/2013 Page: 11 of 29
crowbar. Hulse then hit Arseneau with the axe. Arseneau fell to the ground
screaming, and all four men continued to attack. In the process, Hulse accidentally
hit Hoover in the eye with the axe. The group knew that they had killed Arseneau
when they left the scene.
The group returned to Hoover’s house. Hoover removed his bloody shirt
outside, and Marovskis washed it, ripped it up, and threw it away. Hoover cleaned
his eye while Robertson washed the weapons. The next day, the men bragged to
Harrigan about the two murders. Harrigan told them to stop talking about it.
Robertson threw his and Hulse’s weapons into a river.
Police found Williams’s body on Sunday, September 13. An autopsy
revealed that he died from fractures to his cheeks, upper and lower jaws, bones
around his eyes, and the base of his skull. The same day, officers found
Arseneau’s body. His autopsy revealed that he died as a result of cerebral bruising
and lacerations to his head.
After these murders, Tampa Blood and Honour continued to initiate new
members. Hoover, Robertson, and Marovskis all got the same tattoos of spider
webs to commemorate their participation in the killings. The group continued to
engage in violence, including attacks on homeless people. In March 1999, another
group member was charged with murdering a six-year-old mixed-race girl. The
11 Case: 12-10046 Date Filed: 11/12/2013 Page: 12 of 29
resulting investigation made the group members feel uneasy, and they disbanded
and limited their contact with one another. At some point in time, Robertson
suspected and accused Marovskis of telling the police about their involvement in
the murders of Williams and Arseneau. After Robertson confronted and accused
Marovskis, Marovskis was somewhat upset and confessed to William Folberth,
another member of Tampa Blood and Honour, that he and the three other men had
killed “some bums.”
D. Motion for judgment of acquittal, conviction, sentence, and appeal
At the close of the government’s case, Robertson moved for a judgment of
acquittal, arguing that the government had not presented evidence that he
committed murder for the purpose of maintaining or increasing his position in
Tampa Blood and Honour. The court denied the motion.
On the basis of the testimony described above and other evidence, the jury
found Robertson guilty on both counts of murder in aid of racketeering. The
district court sentenced Robertson to two concurrent terms of life imprisonment, to
be followed by two concurrent 60-month terms of supervised release, if he is ever
released. Robertson appeals his convictions, arguing that: (A) the district court
abused its discretion in denying his motion to dismiss the indictment; (B) the
district court clearly erred in ruling to sustain the government’s first Batson
12 Case: 12-10046 Date Filed: 11/12/2013 Page: 13 of 29
challenge to Robertson’s motion to strike JMD; and (C) the district court
erroneously denied his motion for judgment of acquittal because the evidence was
insufficient to show that he committed the murders for the purpose of maintaining
or increasing his position within Tampa Blood and Honour. 8
II.
We review for abuse of discretion the denial of a motion to dismiss the
indictment. United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011).
When reviewing the district court’s ruling on Batson challenges, the court’s
determination “is entitled to great deference, and must be sustained unless it is
clearly erroneous.” United States v. Hill, 643 F.3d 807, 837–38 (11th Cir. 2011)
(citing Felkner v. Jackson, ___U.S. ____, 131 S. Ct. 1305, 1307 (2011)).
We review de novo the denial of a motion for acquittal based on the
sufficiency of the evidence, resolving all inferences and credibility choices in the
government’s favor. United States v. Anderson, 326 F.3d 1319, 1326 (11th Cir.
2003).
III.
A. Robertson’s motion to dismiss the indictment
8 Robertson’s court-appointed trial counsel filed an initial brief on Robertson’s behalf, but at Robertson’s request, the court-appointed attorney withdrew from the case to allow retained counsel to represent Robertson on appeal. We granted Robertson’s substitute counsel leave to file a replacement appellant’s brief. We rely on and discuss the arguments in the replacement brief. 13 Case: 12-10046 Date Filed: 11/12/2013 Page: 14 of 29
Robertson claims that he received an oral immunity deal from the
government in exchange for his assistance with the murder investigations, and
therefore, he is entitled to immunity from prosecution for both murders. Robertson
advances several arguments supporting the plausibility of his claim, including his
contention that Flanagan disavowed the affidavit in support of Robertson’s claim
because Flanagan did not want to contradict the testimony of Porcelli, a magistrate
judge. The district court, however, drew the opposite inference about Flanagan’s
denial of the affidavit’s claims, finding that Flanagan’s disavowal strongly
indicated that there was in fact no immunity deal. [See R. 206 at 42 (“It is very
clear in the mind of [Flanagan] that there was no immunity of any kind.”).]
Robertson also argues that Cuneo’s notes, indicating cooperation between Porcelli
and Flanagan, combined with Cuneo’s testimony that Olivera “might have said
something” at some point about offering Sammy the Bull-like immunity, [R. 204 at
156 (emphasis added)], support Robertson’s understanding that he had an
immunity deal. But ultimately, the district court found Porcelli and Cuneo’s
testimonies that there was no oral immunity deal to be more credible than
Robertson’s testimony. [See R. 206 at 42. (“[E]valuating . . . the consistency and
inconsistency of the testimony that I’ve heard the Court believes that the motion[
to dismiss is] not well taken.”).]
14 Case: 12-10046 Date Filed: 11/12/2013 Page: 15 of 29
Hence, Robertson’s arguments fail to convince us that the district court
abused its discretion by denying his motion to dismiss the indictment. We must
accept the district court’s factual findings and credibility determinations as true
unless the party seeking the motion can show they are clearly erroneous. United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Robertson’s
testimony that there was an oral offer of immunity is in direct conflict with Porcelli
and Cuneo’s testimonies that there was never such an offer. The district court’s
acceptance of Porcelli and Cuneo’s testimony over Robertson’s “is conclusive on
[this] court unless [we conclude that] the [district court] judge credit[ed]
exceedingly improbable testimony.” Id. Exceedingly improbable testimony is
“contrary to the laws of nature, or . . . so inconsistent or improbable on its face that
no reasonable factfinder could accept it.” Id. Porcelli and Cuneo’s testimony was
neither inconsistent nor improbable. Thus, we affirm the district court’s denial of
Robertson’s motion to dismiss the indictment.
B. The government’s first Batson challenge 9
Robertson argues that in sustaining the government’s first Batson challenge,
the district court (1) failed to require the government to make a prima facie
showing of discrimination; (2) skipped step three of Batson’s analysis; and (3) 9 In Robertson’s statement of the issues, he asserts that the court erroneously sustained two Batson challenges, but his actual argument addresses only the first Batson challenge involving JMD. Compare Appellant’s Br. at v, with id. at 24–29. 15 Case: 12-10046 Date Filed: 11/12/2013 Page: 16 of 29
improperly yielded to the government’s purpose of ensuring that the jury panel
included a black juror.
1. There was a prima facie showing of racial discrimination.
Pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) and its
progeny, the district court must follow a three-part test to determine whether the
striking party is discriminating on the basis of race. United States v. Walker, 490
F.3d 1282, 1291 (11th Cir. 2007). The party raising the Batson challenge must
first make a prima facie showing that the striking party employed a peremptory
challenge on the basis of race. Id. The court should consider “all relevant
circumstances” supporting the challenging party’s assertion of discrimination.
Batson, 476 U.S. at 96–97, 106 S. Ct. at 1723. Relevant circumstances might
include the striking party’s “pattern” of striking venire members of a particular
race, or making questions or statements during voir dire to members of a particular
race that support the inference of a discriminatory purpose. Id. at 96–97, 106
S. Ct. at 1723. We have also reasoned that the subject matter of the case being
tried—for instance, the prosecution of a racially motivated crime—is a relevant
circumstance, United States v. Stewart, 65 F.3d 918, 925 (11th Cir. 1995), as are
“the race and ethnicity of the defendant” and “the racial composition of the pool of
16 Case: 12-10046 Date Filed: 11/12/2013 Page: 17 of 29
remaining potential jurors,” United States v. Allen-Brown, 243 F.3d 1293, 1298
(11th Cir. 2001).
We have emphasized, as Robertson points out, that the district court should
not require an explanation for a peremptory strike from the striking party unless
and until the court is satisfied that the challenging party has made its prima facie
case of discrimination. Cent. Ala. Fair Hous. Ctr., Inc. v. Lowder Realty Co., 236
F.3d 629, 636 (11th Cir. 2000); Stewart, 65 F.3d at 925 (“No party challenging the
opposing party’s use of a peremptory strike . . . is entitled to an explanation for that
strike, much less to have it disallowed, unless and until a prima facie showing of
racial discrimination is made.”). Robertson argues that the district court clearly
erred in sustaining the government’s Batson challenge to his first effort to
peremptorily strike a black venire member, JMD, because, rather than requiring the
government to establish a prima facie case of discrimination, the district court
began with the second step of Batson and required Robertson to articulate race-
neutral reasons for his first peremptory strike.
The government counters that it did present a prima facie case of racial
discrimination and that the district court implicitly found that the government met
its initial burden. Appellee’s Br. at 35–36 (citing United States v. Campa, 529
F.3d 980, 998 (11th Cir. 2008) (“We understand the district court to have ruled
17 Case: 12-10046 Date Filed: 11/12/2013 Page: 18 of 29
implicitly that the defendants had made a prima facie showing of racial
discrimination because a district court cannot ignore the prima facie showing
requirement.” (internal quotation marks omitted))). The government further argues
Robertson’s discriminatory motive is manifest because he later moved to
peremptorily strike the other two black venire members, JWH and YT. 10 See
Appellee’s Br. at 37 (citing Lowder Realty Co., 236 F.3d at 637). Robertson
replies that the government cannot point to the existence of a pattern of
discrimination at the time that Robertson attempted to strike JMD because JMD
was the first black juror that he attempted to strike. The government submits, via
letter citing supplemental authority, that we should not ignore Robertson’s
subsequent attempted strikes. See, e.g., United States v. Charlton, 600 F.3d 43, 54
(1st Cir. 2009) (consulting “all of the relevant circumstances that bear upon the
issue of racial animosity” when deciding whether the district court overlooked
evidence supporting a prima facie case); Wade v. Terhune, 202 F.3d 1190, 1198
10 Robertson moved to peremptorily strike JWH because “[h]e ha[d] a brother who was a defendant in a criminal case.” [R. 207 at 349–50.] Robertson again attempted to exercise a peremptory strike on a black female juror, YT, because, as a nursing assistant, YT might be biased against him based on her presumed sympathy for crime victims who suffer severe trauma. [See R. 207 at 365–68.] The court asked Robertson’s counsel if he was serious; counsel conceded that the reason was weak. The following day, the government summarized, for the record, Robertson’s three attempts to strike the three black venire members and the court’s findings that Robertson’s counsel’s race-neutral reasons were bogus, to which the court responded, “That’s correct.” [R. 209 at 10.] 18 Case: 12-10046 Date Filed: 11/12/2013 Page: 19 of 29
(9th Cir. 2000) (rejecting the premise that the time of the challenge is “the only
relevant time” for the appellate court “to assess the would-be prima facie case”).
We will not consider Robertson’s subsequent motions to strike JWH and YT
because there were relevant circumstances supporting an inference of
discrimination at the time Robertson moved to strike JMD. 11 At the moment the
government objected to Robertson’s motion to strike JMD, the record reflects that
several “relevant circumstances” supported the inference that Robertson was
discriminating against JMD on the basis of his race. The district court was aware
that (1) Robertson, a white defendant with white supremacist convictions, sought
to strike a black venire person; (2) Robertson was on trial for committing a violent
crime against a black victim; and (3) there were only three black potential jurors
among the venire members. Thus, without considering Robertson’s subsequent
attempts to strike the remaining black venire members for disingenuous reasons,
we conclude that the district court had reason to suspect that Robertson’s first
peremptory strike was for a discriminatory purpose.
11 Moreover, we do not agree with the government’s assertion that we should look at subsequent events to substantiate the existence of a prima facie case at the time of the government’s first Batson challenge. We have reasoned that “Batson and its progeny prescribe an orderly step-by-step process for resolving issues involving allegations of racial discrimination in the use of peremptory strikes, and that process is linear, not circular.” Stewart, 65 F.3d at 925. More specifically, we’ve said that “the prima facie case determination is the self-contained, first step in a one-direction process, which is not affected by events or determinations that occur thereafter.” Id. at 925–26. Hence, we consider the relevant circumstances existing at the time of the first Batson challenge. 19 Case: 12-10046 Date Filed: 11/12/2013 Page: 20 of 29
Although the court did not elaborate on how the government met its burden
at step one, the district court’s prima facie finding was implicit. See Campa, 529
F.3d at 998; Allen-Brown, 243 F.3d at 1298 (reasoning that although “[t]he trial
judge did not elaborate on the reasons for his suspicion that the Constitutional
rights of the prospective jurors potentially excluded from the jury on the basis of
race were being violated[, t]he totality of the circumstances . . . was sufficient to
allow the district court to conclude that the first Batson step was met” (emphasis
added)); cf. Greene v. Upton, 644 F.3d 1145, 1155 (11th Cir. 2011) (reasoning that
“Batson does not require elaborate factual findings,” and therefore holding that a
trial court’s ultimate ruling on a Batson challenge is itself a finding of fact as to
whether the striking party discriminated in violation of Batson). Moreover,
because Batson “compels the trial court to act if it has a reasonable suspicion that
Constitutional rights are being violated in its presence,” Allen-Brown, 243 F.3d at
1298, and because the district court is in the better position to assess the Batson
challenge, we give deference to the district court’s implicit prima facie finding of
discrimination.
2. The district court properly exercised its discretion to reject Robertson’s race-neutral reason and sustain the Batson challenge.
Once the district court is satisfied that the challenging party has shown a
prima facie case of discrimination, the court proceeds to step two, requiring the 20 Case: 12-10046 Date Filed: 11/12/2013 Page: 21 of 29
striking party to offer a race-neutral reason for employing his peremptory strike.
Walker, 490 F.3d at 1291. Finally, in the third step, the district court must decide,
in light of both parties’ representations, whether the challenging party persuasively
demonstrated the striking party’s discriminatory motive. Id.
Robertson contends that the district court improperly rejected his plausible
reason for striking JMD. Robertson also argues that the district court failed to
continue to the third step of Batson and “conflated the final two steps” by deciding
that Robertson’s proffered reason was not a good enough reason to strike JMD.
Reply Br. at 3. Robertson argues that even if the district court had properly
followed the three-step Batson challenge process, it lacked grounds to sustain the
government’s challenge to JMD because Robertson offered a plausible reason for
the strike and had yet to exercise a peremptory strike on a black juror.
Robertson’s claim that the district court procedurally erred and conflated the
second and third steps of Batson is without merit. The court asked Robertson to
proffer a race-neutral reason for the strike, satisfying step two of Batson. Then,
apparently persuaded that Robertson’s strike was racially motivated, the court
denied his motion to strike, satisfying step three. Cf. Hightower v. Terry, 459 F.3d
1067, 1072 n.9 (11th Cir. 2006) (“We may . . . make the common sense
judgment—in light of . . . the trial court’s ultimate ruling—that the trial court
21 Case: 12-10046 Date Filed: 11/12/2013 Page: 22 of 29
implicitly found the [striking party]’s race-neutral explanations to be credible,
thereby completing step three of the Batson inquiry.” (internal quotation marks
omitted)).
As for Robertson’s argument that his proffered race-neutral reason was
sincere, he cannot demonstrate that the district court clearly erred in sustaining the
government’s Batson challenge. As fact-finder and judge of credibility, the court
had great discretion to accept Robertson’s race-neutral reason as truth or to reject it
as pretext. See Walker, 490 F.3d at 1291 (explaining that “the district court’s
determination concerning the actual motivation behind each challenged strike
amounts to pure factfinding, and we will reverse only if the decision is clearly
erroneous”).12 Thus, we defer to the district court’s determination that Robertson
attempted to strike JMD for a discriminatory purpose.
3. The district court’s ruling was not tainted by an improper attempt to seat black persons on the jury.
Finally, Robertson asserts that the district court improperly “acquiesce[d] to
the [g]overnment’s demand that the court impose a racial quota on the composition
12 Moreover, while the district court did not articulate exactly why Robertson’s reason was not persuasive, we note that Robertson did not attempt to strike several other venire persons with JMD’s allegedly race-neutral, objectionable quality—a connection to law enforcement officers. This supports the inference that Robertson’s proffered race-neutral reason was pretextual. See Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 2325 (2005) (“If a [striking party]’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.”). 22 Case: 12-10046 Date Filed: 11/12/2013 Page: 23 of 29
of the jury,” and therefore, ruled against him to ensure that a black person was
included on the panel. Appellant’s Br. at 27. Robertson points to the prosecutor’s
response to his race-neutral reason for striking JMD. The prosecutor said,
Your Honor, I don’t think that sounds like a plausible reason given the responses of the other jurors.[13] It’s concerting [sic] to me that this case involves a black victim and white supremacy. I do not want to see a juror [sic] without a black juror unless it’s for a good reason.
[R. 207 at 341 (emphasis added).] The court then denied Robertson’s motion to
strike JMD, remarking “I think [JMD] has a right to be here. He said he could be
fair and impartial. And I don’t think [Robertson’s proffered reason i]s a basis to
knock him out of this jury.” [Id. at 342.]
Robertson is correct that one’s race is unrelated to his or her fitness as a jury
member. See Batson, 476 U.S. at 87, 106 S. Ct. at 1718 (“Competence to serve as
a juror ultimately depends on an assessment of individual qualifications and ability
impartially to consider evidence presented at a trial.”) Even if the government
expressed its own improper motive to empanel black jurors on the basis of their
race, which was mixed with its proper motive of protecting JMD’s constitutional
right to serve as a juror, the court’s ruling in the government’s favor does not mean
13 Here, the government alluded to Robertson’s failure to strike several jurors who shared JMD’s objectionable connection to, and presumed sympathy for, law enforcement officers. Robertson declined to strike: a juror whose brother was a retired law enforcement officer; a juror whose brother was a corrections officer; another juror whose family member worked as a prison guard; a juror employed as a security guard; and a juror who formerly served as a deputy sheriff. 23 Case: 12-10046 Date Filed: 11/12/2013 Page: 24 of 29
that the court embraced the government’s improper motive. There is no evidence
that the district court improperly denied Robertson’s motion to strike because the
court was attempting to ensure that the jury included blacks. The record reflects
only the court’s unobjectionable remarks that JMD had a right to serve as a juror,
and that JMD assured the court that he could be impartial. Robertson has not
shown that the district court “acquiesced” to anything improper.
In summary, we conclude that the district court did not clearly err in
sustaining the government’s Batson challenge to Robertson’s motion to strike
JMD.
C. Robertson’s motion for judgment of acquittal
Robertson argues that the government presented no credible evidence that he
participated in the two murders for the purpose of maintaining or increasing his
status as a member of Tampa Blood and Honour. Robertson first asserts that the
government could not prove his participation in the murders without the
testimonies of Hulse, Hoover, and Marovskis, who all testified against him in order
to avoid the death penalty or life imprisonment. Robertson claims that their
credibility is further weakened by their intoxication at the time of the killings and
the inconsistencies among their stories. The jury was given the opportunity to
consider the weight of these same arguments, and we “resolve all . . . credibility
24 Case: 12-10046 Date Filed: 11/12/2013 Page: 25 of 29
evaluations in favor of the jury’s verdict[s].” United States v. Siegelman, 640 F.3d
1159, 1179 (11th Cir. 2011) (internal quotation marks omitted). Hence,
Robertson’s criticism of the government’s witnesses is unavailing.
Robertson also contends that the government failed to prove that his
participation in the murders was for the purpose of maintaining or increasing his
position within Tampa Blood and Honour. The VICAR statute under which
Robertson was convicted on both counts provides that
[w]hoever, . . . for the purpose of . . . maintaining or increasing position in an enterprise engaged in racketeering activity, murders . . . any individual in violation of the laws of any State or the United States, . . . shall be punished . . . by death or life imprisonment.
18 U.S.C. § 1959(a)(1). The statute does not define “for the purpose of . . .
maintaining or increasing position in an enterprise.” To interpret this language, the
court in United States v. Concepcion, 983 F.2d 369 (2d Cir. 1992), relied upon
legislative history indicating that Congress intended to criminalize violent acts
committed “as an integral aspect of membership” in a racketeering enterprise. Id.
at 381 (emphasis added) (quoting S. REP. NO. 225, at 304 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, at 3483). Other courts have construed the VICAR statute the
same way. See, e.g., United States v. Tse, 135 F.3d 200, 206 (1st Cir. 1998);
United States v. Fiel, 35 F.3d 997, 1004 (4th Cir. 1994). Therefore, “[t]he motive
element” of each VICAR murder charge “is satisfied if the jury could properly 25 Case: 12-10046 Date Filed: 11/12/2013 Page: 26 of 29
infer that [Robertson] committed [murder] because he knew it was expected of him
by reason of his membership in [Tampa Blood and Honour] or that he committed
[murder] in furtherance of that membership.” United States v. Whitten, 610 F.3d
168, 178–79 (2d Cir. 2010) (alterations and internal quotation marks omitted).
At trial, the government established that Tampa Blood and Honour existed
to fight for and promote white supremacy and that the group had a goal of
eliminating “inferior” people—in their view, blacks and the homeless, among
others. Testimony further established that violence was a part of the group’s
culture, and that the group expected its members to demonstrate loyalty by
engaging in violent acts.14 Specifically, the day after committing the murders,
Robertson, Hoover, Hulse, and Marovskis reported what they had done to
Harrigan, their leader, in order “to brag to him” and to “prove” themselves to him.
[R. 215 at 89.] Robertson and other group members also got tattoos
commemorating their participation in the killings. These facts are sufficient to
14 For example, Marovskis described getting in fights and inflicting a boot party as “kind of like a right [sic] of passage . . . in a lot of ways.” [R. 215 at 21.] He said that when a member told the group about his experiences fighting, “it was to prove to other people . . . the things that [he]’d done.” [Id. at 25.] When asked what a Blood and Honour member had to do to prove his loyalty to the group, Marovskis answered: “You had to show your loyalty through violence[.]” [Id. at 24.] Likewise, Hulse confirmed that “[t]here was definitely peer pressure to join in [the violence] and some harassment if you did not.” [R. 214 at 130.] Marovskis further testified about their fighting as follows: “[W]e all kind of looked at it as . . . almost like training—you know . . . toughing up . . . training for [a future race or class] war.” [R. 215 at 91.] This and other testimony indicate that Robertson and others participated in violent acts, like the murders, not only as an expression of the group’s ideology, but also in an effort to prove themselves and their commitment to the group and its purposes. 26 Case: 12-10046 Date Filed: 11/12/2013 Page: 27 of 29
prove Robertson’s motive and sustain his convictions under 18 U.S.C.
§ 1959(a)(1). See, e.g., Fiel, 35 F.3d at 1005 (reasoning that a group’s ultimatum
to members to either fight or leave a group supported the rational inference that
defendants’ violent activity was expected of them by reason of their membership in
their group); United States v. Smith, 413 F.3d 1253, 1278 (10th Cir. 2005)
(rejecting a challenge to the sufficiency of the evidence because the government
presented testimony that “acts of violence were a common part of [the defendant’s
gang]’s culture,” that the gang’s “members were expected to retaliate against acts
of violence committed on fellow members,” and that the members “felt pressure to
live up to” their reputations within the group), abrogated on other grounds by
United States v. Hutchinson, 573 F.3d 1011 (10th Cir. 2009).
Robertson also argues that Hoover, Hulse, and Marovskis’s testimonies
contradict the government’s theory that Robertson intended to maintain or advance
his position in Tampa Blood and Honour by committing the murders. He points
out testimony that Harrigan, the group leader, was unimpressed when informed
about the killings, and that the group members dissociated themselves from one
another not long after the murders. The defendant in United States v. Farmer, 583
F.3d 131 (2d Cir. 2009), a gang member, made a similar argument that his gang
did not condone his mistaken killing of an innocent person wearing rival gang
27 Case: 12-10046 Date Filed: 11/12/2013 Page: 28 of 29
colors, and in fact, he had to dissociate himself from his gang after the murder. Id.
at 142. Yet the court rejected that argument, reasoning that “the question is not
whether Farmer’s position in the Bloods was advanced in fact by the murder he
committed, but whether his purpose in committing the murder was to benefit his
position.” Id. (emphasis added). Likewise, it does not matter whether Harrigan
approved of the murders, or whether Tampa Blood and Honour thrived or failed.
What matters is whether the testimony supports the inference that Robertson, at the
time of the murders, was motivated to kill others in order to bolster his credibility
as a member of the group. Indeed, the government’s evidence supports that
inference.
Because the government produced sufficient evidence to support the jury’s
reasonable finding that Robertson murdered Williams and Arseneau “for the
purpose of . . . maintaining or increasing [his] position” in Tampa Blood and
Honour, 18 U.S.C. § 1959(a), we hold that the district court properly denied
Robertson’s motion for judgment of acquittal.
IV.
For the foregoing reasons, we affirm Robertson’s convictions.
AFFIRMED.
28 Case: 12-10046 Date Filed: 11/12/2013 Page: 29 of 29
JORDAN, Circuit Judge, concurring.
Except as to the discussion and resolution of the Batson claim, I join the
majority opinion. As to the Batson claim, I concur in the judgment. Although the
district court initially (and improperly) appeared to use the cause standard when
sustaining the government’s Batson challenge to the defense’s peremptory strike of
JMD, see Trial Transcript [D.E. 207] at 342, it later confirmed, see Trial Transcript
[D.E. 209] at 10, that it did not believe that defense counsel’s proffered reason for
the strike of JMD was genuine. On this record, that finding of pretext was not
clearly erroneous.