               Case: 14-12574       Date Filed: 04/20/2015      Page: 1 of 18


                                                                                 [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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