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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 14-12574; 14-12647
________________________
D.C. Docket Nos. 1:13-cr-00092-WSD-LTW-1; 1:13-cr-00092-WSD-LTW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD R. LAFOND, JR.,
JASON ROBERT WIDDISON,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_______________________
(April 20, 2015)
Before TJOFLAT, WILLIAM PRYOR, and BALDOCK, ∗ Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
These consolidated appeals of Donald R. LaFond, Jr.’s, and Jason Robert
Widdison’s convictions for second degree murder, 18 U.S.C. § 1111, require us to
∗
Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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decide whether the district court abused its discretion in four rulings: the admission
of evidence of the defendants’ memberships in gangs; an order that the jurors be
identified anonymously; a refusal to give two requested jury instructions about
self-defense; and an order that Widdison’s hands remain shackled during his
sentencing hearing. Widdison and LaFond, both of whom were inmates in a federal
prison, attacked Kenneth Mills, another inmate, who died a month later from his
injuries. The government presented evidence that Widdison and LaFond were
members of white supremacist gangs who attacked Mills, a white inmate, because
he refused to take any action to have his black cellmate replaced. Widdison and
LaFond responded that they acted in self-defense after Mills drew a knife to attack
LaFond. A jury convicted Widdison and LaFond of second degree murder. Both
Widdison and LaFond raise the issue about the admission of evidence of their gang
memberships, and Widdison raises the other three issues. We conclude that the
district court did not abuse its discretion when it admitted evidence of the
defendants’ memberships in gangs to prove motive or intent, when it ordered that
the jurors be identified anonymously to protect their safety, and when it refused to
give jury instructions about self-defense that were unsupported by the evidence.
We also hold that the constitutional rule against shackling does not apply to a
sentencing hearing before a judge. We affirm.
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I. BACKGROUND
Widdison and LaFond were cellmates in the special housing unit at the
United States Penitentiary in Atlanta, Georgia. Widdison was a member of the
Soldiers of Aryan Culture and LaFond was a member of the Aryan Resistance
Militia. Mills was also an inmate in the special housing unit and had a black
cellmate. When Widdison and LaFond pressured Mills to take actions to have his
cellmate replaced, Mills refused.
On March 1, 2011, Widdison and LaFond were sharing a workout cage, and
the prison guards placed Mills in the same cage. When Mills turned his back to
them, Widdison and LaFond knocked Mills to the ground and repeatedly stomped
and kicked Mills on his head and chest. After Mills died from his injuries, a federal
grand jury indicted Widdison and LaFond for one count of second-degree murder,
18 U.S.C. § 1111.
Before trial, Widdison and LaFond filed motions in limine to prevent the
government from introducing evidence of their gang memberships. Widdison
argued that the evidence would violate Federal Rule of Evidence 404, and LaFond
argued that it would violate Rule 403. The district court denied both motions
because the evidence proved intent, which was “a central issue,” and the probative
value of the evidence was not substantially outweighed by its prejudice.
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At the beginning of voir dire, the district court asked the prospective jurors if
anyone “would have a hard time” “setting aside any personal beliefs or . . . ideas.”
Two jurors responded and asked to talk privately. At sidebar, prospective juror
number nine asked if “the defendants have a list of [the jurors’] names,” and the
district court explained that the lawyers, but not the defendants, had the list. The
prospective juror explained that she was “very uncomfortable,” that she had
“see[n] papers being passed back and forth,” and that she was “shaking like a leaf.”
After the district court excused the juror from sidebar, the district court ruled
that the jurors would be identified by only their numbers. Widdison’s lawyer
objected because the procedure would “give[] the idea that the[] [defendants] are
so desperate that . . . no reasonable juror would be asked to give their name, and . .
. that just puts a really prejudicial twist on this [trial].” The district court overruled
the objection because it did not “know who [the defendants] kn[e]w outside of the
courthouse” and “courts have commonly allowed people to be called by their
numbers and not their names because of safety concerns.”
The district court then continued its sidebar with the attorneys, while the
clerk distributed cards with numbers to the jurors. After the district court
interviewed four other prospective jurors at sidebar, the district court instructed the
prospective jurors to identify themselves by number and explained that this
practice was a standard practice to prevent identity theft:
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[W]e are going to give you a number which we have prepared for you.
This is your juror number as it corresponds to the sheet that we have.
But we are asking you not to use any personal information in your
responses to questions or otherwise volunteer it, and instead you
should refer to your number.
We actually have a standard rule in our court that no personal
identifying information in any trial or any proceeding is allowed to be
publicly disclosed, and so this is consistent with our policy.
And the origin of the policy, interestingly enough, is identity theft.
Although the jurors were identified by number throughout the remainder of voir
dire, the lawyers for each party had a list with the name and number of each
prospective juror. The district court later excused prospective juror number nine.
Five witnesses called by the government testified about the defendants’ gang
memberships, and Widdison admitted that he was a member of a gang. The district
court instructed the jury that the evidence was “admitted for the limited purpose of
determining the defendants’ intent and motive in their altercation with Mr. Mills,
and you may use it only for that purpose.” The district court repeated this
instruction when it charged the jury.
Widdison testified that they acted in self-defense after Mills attacked them
with a knife. Widdison testified that, the first time Widdison and LaFond met
Mills, Mills told them that he was “trying to catch a new case” because, if he was
released, he would be sent to Florida to serve a sentence and “would much rather
stay in [federal prison].” In a later conversation, Mills told them that he wanted to
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“look at the autopsy pictures of the body [he] caught on the streets.” This comment
“really creeped [Widdison] out.” In another conversation, Mills told Widdison and
LaFond that he was “just going to kill [his] first cellie” at his next prison.
Widdison testified that LaFond responded “Oh, come on, [Mills]. You know the
only thing you ever killed was a hard on.” Mills “was red in the face” after this
comment and “walked off.”
Widdison testified that, on the day of the fight, he and LaFond were in a
cage on the exercise yard and Mills requested to be put in their cage. Widdison’s
“heart just started pounding,” but neither Widdison nor LaFond objected because
other prisoners would have retaliated. After Mills entered the cage, he left them
alone. But when Widdison and LaFond finished their workout, they feared that
Mills would attack them when they put on handcuffs to leave the cage. Widdison
testified that LaFond approached Mills, told Mills that he “was just clowning
around” the other day, and asked Mills for his “word that [he] [was]n’t going to
smash [them] when [they] cuff up.” Mills “responded aggressively” and “came . . .
towards LaFond with a knife in his hand.” Widdison “acted” because he “was
terrified”: “I knew I had to act now. I mean, there is nowhere to go in a rec cage. If
you turn around to run[,] . . . you are going to get . . . stabbed in the back.” But as
Widdison admitted, no one ever found the knife.
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Widdison requested two jury instructions. First, Widdison requested the
following instruction on no duty to retreat:
One who is not the aggressor is not required to retreat before being
justified in using such force as is necessary for personal defense or in
using force that is likely to cause death or great bodily harm if one
reasonably believes such force is necessary to prevent death or great
bodily injury to oneself or a third person or to prevent the commission
of a forcible felony.
Suggested Pattern Jury Instructions, Criminal Cases, Fourth Ed., Council of
Superior Court Judges of Georgia, 3.10.13. Second, Widdison requested the
following instruction on threats and menaces causing reasonable beliefs of danger:
Threats accompanied by menaces, though the menaces do not amount
to an actual assault, may in some instances be sufficient to arouse a
reasonable belief that one’s life is in imminent danger or that one is in
imminent danger of great bodily injury or that a forcible felony is
about to be committed upon one’s person.
Suggested Pattern Jury Instructions, 3.16.10. The district court rejected both
instructions as unsupported by the evidence.
After the jury convicted Widdison and LaFond, the district court held
Widdison’s sentencing hearing. Widdison’s attorney objected to the shackles on
Widdison’s wrists because Widdison had never misbehaved in the courtroom and
the restraints “offend[ed] the dignity of th[e] public courtroom.” The district court
overruled the objection. It explained that, because there was no longer a jury, it
was not concerned about prejudice to Widdison because the restraints would “have
no impact at all on [its] sentencing decision.” The district court also explained that
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Widdison was “within five feet” of other people and “the two implements of death
that [Widdison] used were his hands and his feet.” But because of Widdison’s
difficulty in writing notes—Widdison had to “lean[] forward with his rear end out
of the seat,” and it took “him probably twenty seconds to write two words”—the
district court ruled that it would “give him additional time [to write,] . . . and if he
need[ed] to tell [his attorney] something, [it] w[ould] [allow] that.” The district
court sentenced Widdison to 380 months in prison and five years of supervised
release, and it sentenced LaFond to life in prison.
II. STANDARDS OF REVIEW
Two standards of review govern these appeals. We review for an abuse of
discretion an evidentiary ruling, United States v. Baker, 432 F.3d 1189, 1202 (11th
Cir. 2005), a decision to empanel an anonymous jury, United States v. Ochoa-
Vasquez, 428 F.3d 1015, 1034–35 (11th Cir. 2005), and a decision to shackle a
defendant, Baker, 432 F.3d at 1245. We review de novo the sufficiency of the
evidence to sustain a requested jury instruction. United States v. Calderon, 127
F.3d 1314, 1329 (11th Cir. 1997).
III. DISCUSSION
We divide our discussion in four parts. First, we explain that the district
court did not abuse its discretion when it admitted evidence of gang memberships
to prove Widdison and LaFond’s intent and motive. Second, we explain that the
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district court did not abuse its discretion when it ordered that the jurors be
identified anonymously to protect their safety. Third, we explain that Widdison did
not submit sufficient evidence to support his two requested jury instructions.
Fourth, we explain that the Constitution does not prohibit the shackling of a
defendant during a sentencing hearing before a district judge.
A. The District Court Did Not Abuse Its Discretion when It Admitted Evidence
about Widdison’s and LaFond’s Gang Memberships.
Widdison and LaFond argue that the district court abused its discretion when
it admitted evidence of their gang memberships. Widdison argues that the
admission of this evidence violated Federal Rule of Evidence 404, and LaFond
argues that it violated Rule 403. Neither argument is persuasive.
Rule 404(b) provides that evidence of an “act is not admissible to prove a
person’s character in order to show that . . . the person acted in accordance with the
character,” but “[t]his evidence may be admissible for another purpose, such as
proving motive, opportunity, [or] intent.” Fed. R. Evid. 404(b)(1), (2). To
determine whether evidence should be admitted under Rule 404(b), a court applies
the following three-part test, which includes an analysis under Rule 403: “(1) the
evidence must be relevant to an issue other than the defendant’s character; (2) the
probative value must not be substantially outweighed by its undue prejudice; [and]
(3) the government must offer sufficient proof so that the jury could find that the
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defendant committed the act.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th
Cir. 2008) (internal quotation marks and citation omitted).
The district court did not abuse its discretion when it admitted evidence of
Widdison’s and LaFond’s gang memberships, which was relevant to prove their
intent and motive. When the defendants pleaded not guilty, the government had the
“substantial burden” to prove their intent to commit second-degree murder, United
States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007) (internal quotation marks
and citation omitted), which required proof that they acted “with malice
aforethought.” Witnesses for the government testified that the members of
Widdison’s and LaFond’s gangs believed that they had “to enforce their political
ideology on other white inmates” and that, because Mills had a black cellmate, he
had “violat[ed] [the] code . . . [of] racist gangs.” This evidence also established
Widdison and LaFond’s motive. The members of their gangs believed that a white
inmate should not share a cell with a black inmate, and this belief “help[s] explain”
why Widdison and LaFond attacked Mills, United States v. Bradberry, 466 F.3d
1249, 1254 (11th Cir. 2006).
The probative value of the evidence was not substantially outweighed by its
undue prejudice. “In evaluating [a] district court’s ruling under Rule 403, we view
the evidence in the light most favorable to admission, maximizing its probative
value and minimizing its undue prejudicial impact.” Id. at 1253 (citation omitted).
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The evidence of gang memberships had significant probative value because it
established intent and motive. Although the evidence was prejudicial because
“membership in [a gang] is likely to provoke strong antipathy,” United States v.
Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003), the district court lessened the
prejudicial impact when it repeatedly instructed the jury to consider the evidence
for only the limited purpose of proving intent and motive. See United States v.
Carrodeguas, 747 F.2d 1390, 1395 (11th Cir. 1984) (stating that we presume that
jurors follow the instructions of the district court). Because of the significant
probative value and the limiting instruction, the prejudice did not substantially
outweigh the probative value of the evidence.
The government also offered ample proof of Widdison’s and LaFond’s gang
memberships. Five witnesses testified that the defendants either admitted their
gang memberships or questioned why a white inmate would have a black cellmate.
And Widdison admitted that he was a member of a white supremacist gang.
B. The District Court Did Not Abuse Its Discretion when It Ordered that the Jurors
Be Identified Anonymously.
Widdison argues that the district court abused its discretion when it ordered
that the jurors be identified anonymously because the government made “no
showing . . . as for the need of having an anonymous jury” and the district court
did not weigh the factors identified by our precedent. Widdison also argues that the
district court abused its discretion because the “instruction [it gave the jury] was
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not a ‘plausible and nonprejudical reason’ when viewed in the context in which it
was given.” Widdison’s arguments fail.
“‘In general, [a] court should not order the empaneling of an anonymous
jury without (a) concluding that there is a strong reason to believe the jury needs
protection, and (b) taking reasonable precautions to minimize any prejudicial
effects on the defendant to ensure that his fundamental rights are protected.’”
Ochoa-Vasquez, 428 F.3d at 1034 (quoting United States v. Ross, 33 F.3d 1507,
1520 (11th Cir. 1994)). “[A]n anonymous jury may be justified even when the
defendant has not attempted to interfere with the current proceedings, if he belongs
to a group that has a history of interfering with other judicial proceedings.” Id. We
have suggested five factors that a court may consider to determine if the jury needs
protection: (1) whether the defendant is “involve[d] in organized crime,” (2)
whether the defendant “participat[es] in a group with the capacity to harm jurors,”
(3) whether the defendant has ever “attempt[ed] to interfere with the judicial
process,” (4) whether the defendant is facing “a lengthy incarceration [or]
substantial monetary penalties,” and (5) whether “extensive publicity . . . could
enhance the possibility that jurors’ names would become public and expose them
to intimidation and harassment.” Id. (quoting Ross, 33 F.3d at 1520). And if the
district court orders the empanelment of an anonymous jury, it “minimize[s] any
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prejudicial effect[]” if it “‘gives the jurors a plausible and nonprejudicial reason for
hiding their identities.’” Id. at 1034, 1035 (quoting Ross, 33 F.3d at 1520).
Two concerns underlie the limitation on when a district court may empanel
an anonymous jury: “(1) that anonymity will inhibit the meaningful exercise of
preemptory challenges; and (2) that anonymity will diminish the presumption of
innocence by raising the appearance that the defendant is a dangerous person.” Id.
at 1035 (citation omitted). Because the lawyers for each party had a list with the
name and number of each prospective juror, Widdison does not argue that the
anonymous jury affected his exercise of preemptory challenges. Widdison instead
argues that the anonymous jury undermined his presumption of innocence.
At least three factors supported the decision to empanel an anonymous jury.
First, both Widdison and LaFond were members of racist gangs. Second, the
district court was concerned that the defendants might “know [people] outside of
the courthouse” based on their gang affiliations who would have the ability to harm
jurors. Third, Widdison and LaFond were facing potential life sentences. Although
the district court did not mention our precedents, its analysis makes clear that it
“made its decision within the proper . . . framework.” Barber v. Int’l Bhd. of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Dist. Lodge
No. 57, 778 F.2d 750, 755 (11th Cir. 1985). Based on these factors, the district
court did not abuse its discretion when it ruled that “there [was] a strong reason to
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believe the jury need[ed] protection.” Ochoa-Vasquez, 428 F.3d at 1034 (internal
quotation marks and citation omitted). And the district court minimized any
prejudicial effect when it gave the jurors a plausible and nonprejudicial reason for
the use of numbers—that is the district court explained that it was following its
“standard rule.”
The district court also did not abuse its discretion when it explained that it
used the numbers to prevent identity theft. As an initial matter, Widdison never
requested a particular instruction nor objected to the instruction of the district
court, so “he waived any right he had to the instruction and may not be heard to
complain now absent plain error.” United States v. Bowman, 302 F.3d 1228, 1239
(11th Cir. 2002). Widdison argues that the explanation was not “plausible and
nonprejudicial” because the court “abrupt[ly] shift[ed]” to using numbers after
“one juror asked to speak in private,” but the shift occurred after two jurors asked
to speak privately about “personal beliefs” and the district court then had a sidebar
with the lawyers. A plausible inference is that one of the lawyers invoked the
“standard rule.” Because the instruction need be only “plausible,” Ochoa-Vasquez,
428 F.3d at 1034, the district court did not abuse its discretion, much less plainly
err.
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C. The District Court Did Not Abuse Its Discretion when It Rejected Widdison’s
Two Requested Jury Instructions.
Widdison argues that the district court abused its discretion when it rejected
his requested instructions on no duty to retreat and on threats and menaces causing
reasonable beliefs of danger. A defendant has the right to have the jury instructed
on a theory of defense only if “there has been some evidence adduced at trial
relevant to that defense.” United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir.
1995). Because the evidence did not support either instruction, the district court did
not err.
Widdison argues that the evidence supported a charge on no duty to retreat
because “the jury could have thought that [Widdison] should have retreated and
wait[ed] for the assistance of the guards,” but we disagree. Widdison presented
only his testimony to prove self-defense, and the only evidence about retreat was
when he explained “I was terrified. I knew I had to act now. I mean, there is
nowhere to go in a rec cage. If you turn around to run[,] . . . you are going to get . .
. stabbed in the back.” The government never suggested that Widdison should have
retreated; it argued instead that Widdison’s story was contradicted by the evidence.
Because neither the government nor the defendants raised the issue of retreat, the
district court did not err when it rejected this instruction.
Widdison also argues that Mills’s “comments while interacting with
[Widdison] prior to the incident, in conjunction with [Mills]’s violent assault,”
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supported a charge on threats and menaces causing reasonable beliefs of danger,
but we again disagree. Widdison testified that he attacked Mills only after Mills
told LaFond “Ain’t nobody going to tell me what to do” and Mills “came . . .
towards LaFond with a knife.” This testimony does not establish that Widdison
responded to a threat or menace from Mills; it establishes that Widdison responded
to an attack on LaFond. The district court did not err when it refused to give this
instruction.
D. The Constitution Does Not Prohibit the Shackling of a Defendant During a
Sentencing Hearing before a District Judge.
Widdison argues that the district court abused its discretion when it ordered
that his hands remain shackled during his sentencing hearing. Widdison argues
that, even though “a jury was not present,” he suffered “an indignity” that “his
conduct did not merit”; that “shackling is ‘inherently prejudicial’”; and that he was
prejudiced because “he was unable to write during the sentencing hearing.”
Widdison’s argument fails.
The rule against shackling “has deep roots in the common law.” Deck v.
Missouri, 544 U.S. 622, 626, 125 S. Ct. 2007, 2010 (2005). The common law
“forb[ade] routine use of visible shackles during the guilt phase,” and “a version of
th[at] rule forms part of the Fifth . . . Amendment[’s] due process guarantee.” Id. at
626–627, 125 S. Ct. at 2010–11 (citing Illinois v. Allen, 397 U.S. 337, 343–44, 90
S. Ct. 1057, 1060–61 (1970)). For that reason, the Supreme Court held in Deck that
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“the Fifth . . . Amendment[] prohibit[s] the use of physical restraints visible to the
jury absent a trial court determination . . . that they are justified by a state interest
specific to a particular trial.” Id. at 629, 125 S. Ct. at 2012.
Widdison’s argument fails because his sentencing hearing occurred before
only a district judge, not when a jury was present. Blackstone, for example,
explained that the common-law rule applied only at trial:
[I]t is laid down in our ancient books that, though under an indictment
of the highest nature, [a defendant] must be brought to the bar without
irons . . . . But . . . a difference was taken between the time of
arraignment and the time of trial; and accordingly the [defendant]
stood at the bar in chains during the time of his arraignment.
4 William Blackstone, Commentaries *321 (footnotes omitted); see also Trial of
Christopher Layer, 16 How. St. Tr. 94, 100–01 (K.B. 1722) (“No doubt when he
comes upon his trial, the authority is that he is not to be ‘in [chains]’ during his
trial . . . . Here he is only called upon to plead by advice of his counsel; . . . when
he comes to be tried, if he makes that complaint, the Court will take care he shall
be in a condition proper to make his defence . . . .”). And the Supreme Court made
clear in Deck that the rule “was meant to protect defendants appearing at trial
before a jury.” 544 U.S. at 626, 125 S. Ct. at 2011 (citing King v. Waite, 1 Leach
28, 36, 168 Eng. Rep. 117, 120 (K.B. 1743)); see also id. at 630, 125 S. Ct. at
2013) (explaining that the rule against shackling arises, in part, from “the
presumption of innocence,” which “[v]isible shackling [would] undermine[]”).
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“American courts have traditionally followed Blackstone’s ‘ancient’ English rule,”
id. at 626–27, 125 S. Ct. at 2011 (collecting cases), and the Second Circuit has held
that the rule does not apply to sentencing proceedings without a jury, United States
v. Zuber, 118 F.3d 101, 102 (2d Cir. 1997) (“[T]he rule that courts may not permit
a party to a jury trial to appeal in court in physical restraints without first
conducting an independent evaluation of the need for these restraints does not
apply in the context of a non-jury sentencing hearing.”). Because the rule against
shackling pertains only to a jury trial, we hold that it does not apply to a sentencing
hearing before a district judge.
IV. CONCLUSION
We AFFIRM Widdison’s and LaFond’s convictions and Widdison’s
sentence.
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