United States v. Robinson

87 F.4th 658

UNITED STATES of America, Plaintiff—Appellee, v. Sterling ROBINSON, Defendant—Appellant.

No. 22-30442

United States Court of Appeals, Fifth Circuit

FILED December 4, 2023

Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:20-CR-120-1, Eldon E. Fallon, U.S. District Judge

Kevin G. Boitmann (argued), Diane Hollenshead Copes, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff—Appellee.

Samantha Jean Kuhn (argued), Assistant Federal Public Defender, Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant—Appellant.

Before Smith, Southwick, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Defendant-Appellant Sterling Robinson was convicted by a jury of one count of possessing a firearm or ammunition as a convicted felon and one count of attempted obstruction of a federal proceeding. He appeals his convictions, raising sufficiency challenges to both convictions, as well as errors relating to the evidence admitted at trial, the trial court's jury instructions, and the prosecutor's remarks in opening and closing arguments. He also appeals his sentence on the basis that the district court misapprehended its authority to order that his sentence run concurrently with another federal sentence. We AFFIRM Robinson's convictions but VACATE his term of imprisonment and REMAND for a narrow resentencing as set forth below.

I.

A.

On March 13, 2020, Candace Anderson arrived at her apartment in New Orleans, with her nine-year-old son in the car. When she pulled into her parking spot, someone emerged from behind a nearby gate and began shooting at her car. Anderson drove to a nearby gas station, where she called 911.

She told the 911 operator that her ex-boyfriend Sterling Robinson had just shot at her car. Anderson told the operator that she had locked herself and her son in a gas-station bathroom and that she believed Robinson had followed them to the gas station. She described Robinson as "black, . . . brown[ ]-skinned," and about 5'2" in height. She said he was last wearing a red and white shirt with black jeans. She guessed that the weapon he fired was a "forty caliber."

About ten to fifteen minutes later, New Orleans Police Department ("NOPD") Officer Kevin Penn arrived on the scene, where his body camera captured his conversation with Anderson. Anderson told Officer Penn that when she arrived home, her ex-boyfriend was standing on the other side of a wooden gate, and when she parked her car, he came from behind the gate and began shooting at her car. She reiterated that she fled to the gas station and said that, when she exited her car, Robinson was there. Anderson explained that they lived together, but that she had broken up with him and "put him out" about three days earlier.

Continuing the interview in the parking lot, Anderson gave more details about the shooting, explaining that Robinson shot first at her tires and then, when she backed up to leave and drive off, he continued shooting at the car. Anderson also asked Officer Penn if "the place that [she] need[s] to get a restraining order from" would be open tomorrow and if he could give her the address. While they were talking, Anderson received a call on her cell phone from Robinson. Officer Penn told her not to answer it, and she declined the call.

When Anderson saw the bullet holes in the back of her car, Anderson said, "Dang, that could've went straight through," and "I can't believe that." She explained that she had a big speaker in the trunk of the car and speculated that it may have stopped the bullets. Anderson took pictures of the holes in the back of the car and sent them to Robinson with the message, "U trying to kill me." Robinson responded: "Man I'm crying my heart out it to[o] much im about to just kill myself f[or ]r[eal]."

In another segment of body-camera footage from the gas station, Anderson can be heard (but not seen) talking on the phone. She says, "[Y]ou could've killed me, son. If that speaker wasn't back there, . . . I'd be dead, son, and that's what you want." She then raises her voice and says, "You trying to kill me!" In response to something Robinson said, Anderson threatened to kill Robinson and his children and stated that if Robinson killed her parents, she would receive money.

Officer Penn then drove to Anderson's apartment where she reenacted the shooting, demonstrating how Robinson emerged and shot at her car. A crime-scene investigation ultimately documented five nine-millimeter caliber casings on the ground, deemed to have been fired from the same weapon. Robinson was subsequently arrested.

On March 17, 2020, four days after the shooting, Robinson called Anderson from the Orleans Parish Prison. He told Anderson she needed to come to the prison early the next morning, stating, "It ain't nothing but domestic violence and . . . domestic violence aggravated assault with a firearm." Robinson told Anderson that she needed to visit the DA's Office, so that he can get a "cheap" bond and so that the other charges would be "throw[n] . . . out."

In a phone call later that day, Robinson again pressed Anderson to visit the DA's Office and sign an affidavit, which would ensure he was "straight." Within the hour, Robinson called Anderson a third time, insisting she arrive early, so that "[t]hey can hurry up and throw that sh*t out." He added that he needed to get out of prison before the "feds try to . . . pick [it] up too." On a fourth phone call that same night, Robinson said he missed Anderson. When Anderson asked why he did something "like that to jeopardize" it, Robinson responded, "I don't know, son. I f**ked up." Later in the call, Robinson once again referenced an affidavit, stating, "Once you fill that affidavit out, they gone throw that sh*t out right then and there." Anderson never went to the DA's office to sign any affidavit.

While in custody, Robinson was arrested by Jefferson Parish in April 2020 booked for a murder that occurred in neighboring Jefferson Parish on the same night as the shooting of Anderson's car. Robinson remained in continuous physical custody. No evidence of this murder was admitted at Robinson's trial in this case.

Robinson and Anderson continued to speak on the phone over the next several months. On September 22, 2020, Robinson called Anderson not from his own jail account but from the account of another incarcerated person after Anderson told Robinson that their calls were being recorded. The two discussed a meeting Anderson had with the Jefferson Parish District Attorney's Office earlier that day. Anderson relayed that the Jefferson Parish DA's Office knew all about the Orleans Parish shooting and had the 911 call, the police report, their text messages, and recordings of their phone calls. Robinson responded that Anderson needed to tell the DA that "what happened in Orleans, that wasn't him, so . . . That's all you have to tell the people." He continued, "Man, you ain't telling people I had nothing to do with it." Anderson responded: "I can't lie and can't tell the people, them people know everything, I'm telling you they know everything." Later in the call, Robinson asked Anderson again about Orleans Parish. Robinson prompted, "You told them it was me," to which Anderson responded, "Man, them people not stupid."

In another phone call that same evening, Anderson confirmed she told the Jefferson Parish DA's Office that she identified Robinson as the one involved in "what happened in Orleans Parish." When Robinson asked why, she responded, "They already know everything." Later in the conversation, after Anderson told Robinson that "they" have the bullets that were removed from her car, Robinson again said, "all you had to tell the people was, none of that, none of that wasn't him." When Anderson stated that she had already given three statements and cannot change her story now, Robinson disagreed, stating that people take their statements back. In that same call, Robinson criticized Anderson for not picking up when he called her that morning prior to her meeting with the Jefferson Parish DA's Office. Robinson repeatedly told Anderson that she should have told the DA's Office that she had assumed it was Robinson who shot at her because they got into fight earlier, but that she now realized it was not him.

He continued: "It wasn't my old man that did this. Come on man, that's all you have to tell the people son . . . [T]hat's what I was calling this morning to let you know, . . . to school you on, son, to let you know who . . . You see what I'm saying, huh, hello, Candace?" Anderson told Robinson that she did not intend to testify to the grand jury and that she would not turn on him. As the call neared its close, Robinson reiterated what he wanted Anderson to do: "[I]f they was to bring Orleans Parish up in anything, . . . all you have to do, I'm not talking about what's going on out there. I don't know what happened out there."

On November 5, 2020, a grand jury indicted Robinson on one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of attempting to obstruct justice by getting "C.A." to provide false information about his criminal conduct, in violation of 18 U.S.C. § 1512(c)(2).

B.

At trial, the parties stipulated that Robinson had a prior felony conviction. The Government presented—over various objections raised by the defense and overruled by the judge—the evidence summarized above, including the 911 call, the body-camera footage, and the phone calls from prison. The Government also presented testimony from, among others, the NOPD officer who responded to Anderson's 911 call; the NOPD crime lab technician who collected the shell casings at the scene; an expert who confirmed that the casings came from the same firearm; and an ATF agent who gave expert testimony that four of the...