U.S. v. Robinson

• Decision Date: 14 April 2004
• Docket Number: No. 02-10717.,02-10717.
• Citation: 367 F.3d 278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julius Omar ROBINSON, Also Known as Face, Also Known as Scar, Also Known as Scarface, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

367 F.3d 278

UNITED STATES of America, Plaintiff-Appellee, v. Julius Omar ROBINSON, Also Known as Face, Also Known as Scar, Also Known as Scarface, Defendant-Appellant.

No. 02-10717.

United States Court of Appeals, Fifth Circuit.

April 14, 2004.

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Susan B. Cowger (argued), Dallas, TX, for Plaintiff-Appellee.

Wessley Thompson Ball (argued), Ball & Hase, Arlington, TX, Jack V. Strickland, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Julius Robinson challenges his conviction and death sentence on several grounds, the most salient of which is that he was deprived of the Fifth Amendment right to stand trial only on crimes set forth in an indictment issued by a grand jury. The government concedes that the indictment is constitutionally deficient inasmuch as it fails specifically to charge the aggravating factors that render Robinson eligible for the death penalty. The government contends, however, that the error is harmless.

Robinson also avers that the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq., is facially unconstitutional in three respects, that the district court abused its discretion in admitting evidence under the co-conspirator exception to the hearsay rule, and that his death sentence is predicated on improper aggravating factors. Agreeing with the government that the error in the indictment is susceptible to harmless error review, that on the facts of this case the error is harmless, and that none of Robinson's other claims has merit, we affirm.

I.

A.

Proving true to his Hollywood namesake, Robinson, also known by names such as "Scarface," entangled himself in a sadistic world of narcotics and violence in which he personally committed at least two senseless murders. In December 1998, Robinson — a wholesale drug dealer then operating in five states — killed a man he mistakenly believed responsible for an armed hijacking that cost him $30,000. In May 1999, angered by a fraudulent drug transaction in which he paid $17,000 for a block of wood covered in sheetrock, Robinson retaliated by killing a man whose only connection to the fraud was that he was the brother-in-law of the fraudulent seller.

For these murders and his complicity in an ongoing criminal enterprise resulting in the murder of a third man, Robinson was convicted and sentenced to death on three separate counts, to life imprisonment on two others, and to a consecutive 300-month sentence on another. With one limited exception, Robinson challenges neither the sufficiency nor the admissibility of the evidence.

B.

The murder of Johnny Lee Shelton is a case of mistaken identity. Shelton was similar in appearance to a man named "Big Friday," whom Robinson blamed for a hijacking in a McDonald's restaurant parking lot several months before. On the night he was murdered, Shelton and a friend, Jerell Gardner, spent the evening at a Dallas night club, where they were spotted by two of Robinson's associates who mistook Shelton for Big Friday and called Robinson to tell him what they had seen.

Robinson quickly arrived at the club, whereupon he and two other men sat in a nearby parking lot, waiting for the man they thought was Big Friday to leave. They spotted Shelton and Gardner leaving the club in a car similar to the one Big Friday drove, and followed them onto a local highway. As they caught up to the car, Robinson yelled "that's him," leaned out the window, and opened fire with an AK-47 assault rifle. One of Robinson's companions, L.J. Britt, also known as "Capone," did the same. Although most of the bullets missed their mark, Shelton was struck in the stomach and later died.¹

C.

Juan Reyes was shot to death at close range on the driveway in front of his home. He and two companions, Isaac Rodriguez and Nicholas Marques, arrived there on the day of the murder, not suspecting that in a car parked across the street were three men — including Robinson and Angelo Harris — who were upset that they had been sold a $17,000 block of wood instead of narcotics. Robinson and Harris approached Reyes carrying automatic weapons, said something to him — the record is unclear whether it was a demand for money — then shot him in the foot. Rodriguez, who had been standing nearby, turned to flee and was shot three times, in the back and leg.

Reyes fell to the ground and lay there as Robinson and Harris shot him at least nine times. An autopsy revealed fragments of concrete in several of Reyes wounds, suggesting he was shot from a distance of less than five feet, causing the bullets to pass through his body, ricochet off the pavement, and re-enter his back. Before leaving, Robinson and Harris also fired several shots at Marques, who was still seated behind the wheel in the car in which he, Reyes and Rodriguez had just arrived. Marques managed to drive around the corner to safety, but his car was riddled with bullets.²

D.

Robinson also was convicted for involvement in a broad conspiracy that led to the murder of Rudolfo Resendez at the hands of Britt and Hendrick Tunstall. While engaged in this conspiracy, Robinson and other conspirators possessed more than five kilograms of cocaine and various firearms.³ Robinson was further convicted of possessing three firearms in furtherance of a drug trafficking crime: a 9mm UZI pistol, a .357 caliber Smith & Wesson pistol, and an SKS 7.62x39 semi-automatic assault rifle.⁴ Finally, he was convicted on several other drug and weapons charges that the district court treated as lesser included offenses and for which no independent sentence was imposed.

E.

The jury's sentencing recommendation was based in part on (in addition to the aforementioned convictions) Robinson's criminal history. The jury learned of an incident in 1995 in which Robinson fired several shots from a handgun at a woman who had failed to pay him $120 for crack cocaine. This was used to show that Robinson had a violent record before the events charged in the indictment. The jury also was told of an incident, described in more detail in part IV, in which Robinson, acting from his jail cell after his arrest in this case, arranged to have a government informant murdered. This was used to show that Robinson had a propensity to commit future acts of violence.

II.

As we have noted, the government concedes the indictment is constitutionally deficient because it fails to allege the statutory aggravating factors that make Robinson eligible for the death penalty. The government argues, however, that the error is harmless. Robinson responds by pointing to a line of cases that stand for the proposition that a conviction under an indictment constructively amended at trial is per se reversible error.

A.

The conceded error arose only after the Supreme Court announced Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Before Ring, our analysis of the use of sentencing factors in a capital case was controlled by Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), wherein the Court determined that aggravating factors are not independent offenses, but only standards used to help a jury decide between death and life imprisonment.

The FDPA, 18 U.S.C. § 3593(d), imposes its own obligation on prosecutors to submit aggravating factors to the unanimous review of a petit jury but, consistent with Walton, it does not impose a concomitant obligation to have a grand jury first charge those factors in an indictment. Rather, the statute requires only that the government file a notice stating its intention to seek the death penalty and setting forth the aggravating factors on which it proposes to justify the death sentence. 18 U.S.C. § 3593(a). Here, the government filed such a notice setting forth several aggravating factors it had not presented to a grand jury.

Nineteen days after Robinson was sentenced using those factors, Ring was issued, expressly overruling Walton. The Court held that where an aggravating factor renders a defendant eligible for death, it is "the functional equivalent of an element of a greater offense" and therefore must be proven to a jury beyond a reasonable doubt. Ring, 536 U.S. at 609, 122 S.Ct. 2428 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). As a new rule of constitutional criminal procedure, that holding applies to all cases pending on direct review, including Robinson's. Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

Ring's Sixth Amendment holding applies with equal force in the context of a Fifth Amendment Indictment Clause challenge, even though the Supreme Court has yet to hold as much in a capital case.⁵ As a result, the government is required to charge, by indictment, the statutory aggravating factors it intends to prove to render a defendant eligible for the death penalty, and its failure to do so in this case is constitutional error.⁶

B.

We must consider whether Apprendi error — here the failure of an indictment specifically to charge aggravating factors regarded as elements because they increase the maximum available punishment — is susceptible to harmless error review. Cf. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The Supreme Court has not yet decided that question. Robinson points to a pre-Apprendi case, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1967), to argue that the error is per se reversible.

Although Stirone deals with the marginally different problem of constructive amendments to an indictment, it contains strong language that informs our understanding of the gravity of the error in this case. In particular, Stirone specifies the "rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against...