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
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.
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"),
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. 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.
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
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.
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 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.
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 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.
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
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-foot tire iron or crowbar with prongs on one end.
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 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.
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 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.
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, 179 L.Ed.2d 374 (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).
Robertson claims that he received an oral immunity deal from the government in exchange for his assistance with the murder investigations, and therefore,
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.
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) improperly yielded to the government's purpose of ensuring that the jury panel included a black juror.
Pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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
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 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.
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.
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.
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 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'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 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").
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 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,
[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 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.
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 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
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
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.
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
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.
For the foregoing reasons, we affirm Robertson's convictions.
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.