May 19, 2019

Tenth Circuit: Defendant’s Own Prejudicial Conduct to Jury Member Does Not Warrant Mistrial

The Tenth Circuit Court of Appeals issued its opinion in United States v. Shaw on Friday, July 11, 2014.

Defendant Charles Shaw was convicted in the U.S. District Court for the District of Kansas of robbing a bank and two credit unions, attempting to rob one of the credit unions a second time, and four firearms-related offenses. He was acquitted on a charge of robbing a second bank. During jury selection, Defendant mouthed “call me” to a juror and made a gesture like a phone to his ear with his hand. At trial, testimony was admitted regarding a co-defendant’s confession on the charge of which he was acquitted, and evidence was admitted regarding an uncharged bank robbery. Defendant appealed his convictions to the Tenth Circuit, alleging (1) the jury was not impartial because they learned of the gesture he made to one member of the jury pool, (2) the district court erred by admitting evidence regarding the co-defendant’s confession at a different trial, (3) the district court erred by admitting evidence of the uncharged bank robbery, and (4) the court at sentencing, not the jury, found he had previously been convicted of a firearms offense.

The Tenth Circuit examined the trial transcripts regarding Defendant’s gesture during jury selection. It found no error, because the juror to whom the gesture was directed had been dismissed, and another potentially biased juror was rehabilitated through questioning. The Tenth Circuit also noted that it shared the district court’s concern regarding declaring a mistrial as a result of Defendant’s own conduct.

Next, the Tenth Circuit reviewed Defendant’s motion in limine asserting error for admitting the testimony regarding his co-defendant’s confession. The Tenth Circuit found that the admission of the testimony violated Defendant’s Sixth Amendment Confrontation Clause rights, but the error was harmless beyond a reasonable doubt because Defendant was acquitted on the sole charge related to this testimony.

The Tenth Circuit then turned its attention to the admission of evidence regarding the uncharged bank robbery, and again found error in the district court’s denial of Defendant’s motion in limine. The Tenth Circuit agreed with Defendant that it was impermissible other bad act evidence under FRE 404(b), but decided this error was also harmless because the evidence was tenuous at best and other evidence of Defendant’s guilt was strong.

Finally, the Tenth Circuit reviewed Defendant’s sentencing challenge. Defendant objected to the trial court’s judicially found fact of his prior firearms conviction, and, although he conceded that Tenth Circuit and U.S. Supreme Court precedent do not support his position, he raised the argument on appeal “to preserve Supreme Court Review.” The Tenth Circuit, following its previous precedent, affirmed Defendant’s sentence and convictions.

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