           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 30, 2009

                                       No. 07-11234                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

GARY DON ROBINSON

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:07-CR-00029


Before GARWOOD, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Gary Don Robinson appeals his conviction on thirty-
three counts arising from his alleged conspiracy to make, possess, and utter
counterfeit securities; uttering counterfeit securities; and aiding and abetting.
Because the district court erred in shackling Robinson throughout the course of
his trial and the Government has failed to prove beyond a reasonable doubt that
the shackling did not contribute to the verdict, we REVERSE and REMAND for
a new trial.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 07-11234



                               BACKGROUND
      Gary Don Robinson, Deanda Lashae Crayton, and Cynthia Elaine Watts
were charged by indictment with one count of conspiring to make, possess, and
utter counterfeit securities of an organization with the intent to deceive another
person and organization in violation of 18 U.S.C. § 371 (count one) and with 32
counts of uttering counterfeit securities of an organization with the intent to
deceive another person and organization in violation of 18 U.S.C. §§ 513(a) and
2 (counts 2-33).   Counts 2 through 15 alleged that the defendants made,
possessed, and uttered counterfeit checks of Citibank Delaware in the name of
“Eagle Trucking and Transport.”       Counts 16 through 33 alleged that the
defendants made, possessed, and uttered counterfeit checks of Citibank
Delaware in the name of “Engaged Energy.” Crayton and Watts entered into a
plea agreement with the Government and agreed to testify against Robinson.
      Immediately before the parties gave their opening statements to the jury,
Robinson, who represented himself with the assistance of standby counsel, asked
the court if he could approach the bench “for a preliminary matter” to raise an
objection outside the presence of the jury.      The court refused his request.
Robinson then raised the following objection: “I know some of the jurors might
have seen me walk in leg shackles. I object to being . . . brought in before the
presence of the jury in leg shackles.” The court overruled the objection without
explanation and allowed the Government to proceed with its opening statement.
On appeal, Robinson asserts that he was shackled throughout the trial; the
Government has not argued to the contrary.
      The evidence introduced at trial was in sum as follows. The government
offered as exhibits several cashed checks purportedly drawing on accounts of
Engaged Energy and Eagle Trucking & Transport. The checks stated that they
were issued by “CITIBANK DELAWARE” and included Citibank’s routing

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                                 No. 07-11234

number, but with invalid account numbers. A Citibank vice-president testified
that Citibank was a national banking association, a subsidiary of Citigroup,
operating commercial and retail banking operations throughout the United
States and abroad.      He testified that the bank was the largest financial
organization in the United States. He testified that Citibank did not have
accounts in the name of Engaged Energy or Eagle Trucking & Transport.
      Some of the checks were made payable to “G.D. Robinson” and cashed
using Robinson’s driver’s license number. Watts and a handwriting expert
testified that Robinson had endorsed some of these checks. Some of the checks
also had various descriptors written on them that matched Robinson, including
his sex, race, date of birth, license expiration date, and approximate height.
When Robinson was arrested, the police found blank Engaged Energy checks
and Eagle Trucking & Transport checks in his car. Two witnesses testified that
Robinson attempted to cash checks similar to the checks found in his car the day
that he was arrested.
      Some of the counts against Robinson were based on checks cashed by
Crayton, Watts, and another woman named Lula Hunter. Crayton, Watts, and
Hunter testified that they had each cashed checks given to them by Robinson
drawn on bank accounts purporting to belong to Engaged Energy or Eagle
Trucking & Transport. Crayton and Watts were both in romantic relationships
with Robinson and had access to the equipment used to forge the checks,
including a stamp of Robinson’s signature used on some of the forged checks.
Crayton testified that she stole a check giving rise to one of the counts against
Robinson and cashed it herself without his knowledge. Crayton also admitted
that she had given perjured testimony in the past to get a reduced sentence.
      Robinson moved for a judgment of acquittal at the close of the
Government’s case, and the court denied the motion. Robinson did not testify



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on his own behalf. After the defense rested, standby counsel informed the court
that Robinson had asked counsel to “take over the conclusion of his case.”
      On September 25, 2007, the jury found Robinson guilty on all counts. On
October 1, 2007, Robinson, through counsel, filed a renewed motion for a
judgment of acquittal, and the court denied the motion. On October 9, 2007,
Robinson, pro se, filed a motion for new trial dated October 4, 2007, arguing,
among other things, that he was entitled to a new trial because he was shackled
during trial despite the absence of any record of violence or misbehavior. The
court denied the motion for a new trial without comment.
                                  DISCUSSION
I.    Sufficient Evidence Supports the Jury’s Guilty Verdict.
      We first address whether there was sufficient evidence to support the
jury’s verdict. Our review of the sufficiency of the evidence is “‘highly deferential
to the verdict.’” United States v. Elashyi, 554 F.3d 480, 491 (5th Cir. 2008)
(quoting United States v. Gulley, 526 F.3d 809, 816 (5th Cir.), cert. denied, ___
U.S. ___, 129 S.Ct. 159 (2008). We will reverse for insufficient evidence only
when the evidence, when reviewed in the light most favorable to the
government, would not allow a rational fact finder to find every element of the
offense beyond a reasonable doubt. Id. at 492.
      To prove an offense under § 513(a), the Government must prove that a
defendant: 1) made, uttered, or possessed 2) a counterfeit or forged security 3)
of an organization 4) with intent to deceive another person, organization, or
government. United States v. Chappell, 6 F.3d 1095, 1098 (5th Cir. 1993).
Section 513(a)(4) defines “organization” to include “a legal entity, other than a
government, established or organized for any purpose . . . which operates in or
the activities of which affect interstate or foreign commerce.” § 513(c)(4). In the




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present case, Citibank is the only potential “organization” as that term is defined
by § 513(c)(4).1
       Robinson asserts that Citibank was not an “organization” under § 513(c)(4)
because the Government failed to demonstrate that Citibank operated in or
affected interstate commerce.           A vice-president of Citibank testified that
Citibank, a national banking association chartered under the law of the United
States and insured by the Federal Deposit Insurance Corporation, transacted
both commercial and retail banking operations throughout the United States
and internationally, and was the largest financial organization in the United
States.    The vice-president’s testimony satisfies the interstate commerce
requirement.
       Robinson also asserts that the forged checks were not securities of
Citibank because they were not drawn on legitimate Citibank accounts. This
court has already held that forged checks are a security of the bank upon which
they purport to be drawn, even when there is no actual account matching the
check. Chappell, 6 F.3d at 1097, 1099 (holding that forged checks that “bore
inaccurate routing and transit numbers” were securities of bank). In the present
case, there was sufficient evidence that forged checks were securities of Citibank
because the checks stated that they were issued by “CITIBANK DELAWARE”
and included Citibank’s routing number. We conclude that the evidence in the
present case was sufficient to support the jury’s verdict.2



       1
          The purported account holders, “Eagle Trucking and Transport” and “Engaged
Energy” are fictitious, and therefore cannot be organizations under § 513(c)(4). See United
States v. Wade, 266 F.3d 574, 581 (6th Cir. 2001).
       2
        Robinson does not challenge the sufficiency of the evidence that he made, uttered, or
possessed the checks giving rise to each count on which he was convicted. We wish to note,
however, that although Crayton testified that she stole one of the forged checks from Robinson
and cashed it without his knowledge, she testified that Robinson made and possessed the
forged check before she stole it.

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                                       No. 07-11234

II.    The District Court Violated the Due Process Clause by Requiring
       Robinson to Appear in Shackles Throughout Trial.
       Robinson asserts on appeal that the district court violated his due process
rights by having him appear in shackles throughout his jury trial. See Deck v.
Missouri, 544 U.S. 622 (2005); United States v. Joseph, 333 F.3d 587, 590-91 (5th
Cir. 2003); United States v. Hope, 102 F.3d 114, 117 (5th Cir. 1996). In Deck, the
Supreme Court held that “the Fifth and Fourteenth Amendments prohibit the
use of physical restraints visible to the jury absent a trial court determination,
in the exercise of its discretion, that they are justified by a state interest specific
to a particular trial.” Id. at 629. The Court explained that visible shackling of
a criminal defendant during trial “undermines the presumption of innocence and
the related fairness of the factfinding process,” “can interfere with a defendant’s
ability to participate in his own defense, say by freely choosing whether to take
the witness stand on his own behalf,” and “‘affront[s]’ the ‘dignity and decorum
of judicial proceedings that the judge is seeking to uphold.’” Id. at 630-31
(alteration in original) (quoting Illinois v. Allen, 397 U.S. 337, 344 (1970)). Even
before Deck was decided by the Supreme Court, this court held that “[s]hackling
is an inherently prejudicial practice, permitted only when justified by an
essential state interest specific to each trial.” Joseph, 333 F.3d at 590-91; see
also Hope, 102 F.3d at 117. Inexplicably, the Government fails to cite Deck,
Joseph, or Hope in its brief to this court.3
       Of course, shackling is not always prohibited. There may be an essential
interest justifying shackling where there is a danger of escape or injury to trial
participants. Joseph, 333 F.3d at 591; Hope, 102 F.3d at 117. But the district
court must state the reasons for which it has chosen to shackle the defendant on



       3
         Attorneys are reminded of their ongoing duty of candor to the court. Misciting cases
and failing to cite controlling precedent while arguing a clearly inapplicable standard are not
consistent with compliance with this duty.

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the record outside of the presence of the jury or exceptional circumstances
justifying shackling must be apparent on the record. Joseph, 333 F.3d at 591;
Hope, 102 F.3d at 117-18. In the present case, the district court refused to
provide any reason for shackling Robinson, even after Robinson made a proper
objection. Nor is any reason readily apparent from the record. See Deck, 544
U.S. at 635 (“If there is an exceptional case where the record itself makes clear
that there are indisputably good reasons for shackling, it is not this one.”).
      Although the district court violated Robinson’s due process rights by
having him appear in shackles throughout his jury trial, we must still decide
whether a new trial is warranted. The Government contends that the conviction
should be affirmed because Robinson has failed to offer any evidence of
prejudice, relying on this court’s opinion in United States v. Diecidue, 603 F.2d
535, 549 (5th Cir. 1979). Again, the Government fails to cite the correct cases.
Its reliance on Diecidue is incorrect because that case did not involve “situations
of unusual restraint such as shackling of defendants during trial.” Id. Where
unjustified shackling is imposed by a district court, as in the present case, “the
defendant need not demonstrate actual prejudice to make out a due process
violation.” Deck, 544 U.S. at 635. Rather, “[t]he State must prove ‘beyond a
reasonable doubt that the [shackling] error complained of did not contribute to
the verdict obtained.’” Id. (quoting Chapman v. California, 386 U.S. 18, 24
(1967)).
      The Government makes no attempt to meet its burden in the present case,
and we hold that the record does not establish beyond a reasonable doubt that
the district court’s error did not contribute to the verdict. The district court
overruled Robinson’s objection to being shackled in the view of the jury,
supporting Robinson’s assertion that he was shackled throughout trial.
Tellingly, the Government does not assert otherwise, but instead argues that
there is only one mention of Robinson wearing shackles in the record. This

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argument is unpersuasive because there is no reason to expect that the record
would contain any discussion of Robinson’s shackles after the district court
overruled his objection. As the Supreme Court observed in Deck, “the practice
will often have negative effects, but – like ‘the consequences of compelling a
defendant to wear prison clothing’ or of forcing him to stand trial when
medicated – those effects ‘cannot be shown from a trial transcript.’” Id. at 635
(quoting Riggins v. Nevada, 504 U.S. 127, 137 (1992)).
       Moreover, Robinson asserts on appeal that he decided not to testify on his
own behalf because of the prejudice that would result from drawing the jury’s
attention to his shackles. This concern was identified in Deck as one basis for
holding that the practice is inherently prejudicial. Id. at 631 (“[Shackles] can
interfere with a defendant’s ability to participate in his own defense, say by
freely choosing whether to take the witness stand on his own behalf.”). The
Government makes no attempt to demonstrate that Robinson’s choice not to
testify as a result of the district court’s error was not prejudicial. Because the
Government has not proven beyond a reasonable doubt that the shackling did
not contribute to the verdict, we must reverse and remand for a new trial. See
id. at 635.
III.   Robinson’s Challenges to the Indictment Lack Merit.
       Robinson argues that the indictment was insufficient and should have
been dismissed because it failed to allege an interstate commerce nexus as an
element of § 513(a), the jury charge constructively amended the indictment, and
the Government knowingly introduced perjured testimony before the grand jury
in violation of 18 U.S.C. § 1623. He also asserts that the district court abused
its discretion in denying his motions for an eight-day extension of the time to file
pre-trial motions. Robinson’s challenges to the indictment are without merit.
       This court will not reverse for minor deficiencies in an indictment which
do not prejudice a defendant. United States v. Chappell, 6 F.3d 1095, 1099 (5th

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Cir. 1993). The indictment in the present case alleged that Robinson “did make,
possess, and utter, forged and counterfeited securities of an organization, as that
term is defined in [18 U.S.C.§] 513(c)(4), with the intent to deceive another
person and organization.” The individual counts set out the date of the offense,
the name of the drawer (Eagle Trucking or Engaged Energy), the name of the
financial institution (Citibank Delaware), and the amount of the check. By
alleging that Robinson 1) made, uttered, or possessed 2) forged and counterfeited
securities 3) of an organization 4) with intent to deceive another person and
organization, Robinson’s indictment set forth the essential elements of § 513(a)
and, thus, was not insufficient. See Chappell, 6 F.3d at 1099-1100. Nor has
Robinson shown that the jury charge, which defined an “organization” as a legal
entity “which operates in or the activities of which affect interstate or foreign
commerce,” constructively amended the indictment.           See United States v.
Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1998) (observing that “[a] constructive
amendment occurs when the government changes its theory during trial so as
to urge the jury to convict on a basis broader than that charged in the
indictment, or when the government is allowed to prove an essential element of
the crime on an alternative basis permitted by the statute but not charged in the
indictment”) (internal quotation marks and citation omitted).
      Robinson also argues that the district court should have dismissed the
indictment because the Government knowingly introduced perjured testimony
before the grand jury in violation of 18 U.S.C. § 1623. There is no evidence of
any deliberate attempt to mislead the grand jury. Even if Robinson could show
that a witness knowingly provided false testimony before the grand jury,
Robinson has not shown that the Government sponsored such perjury. United
States v. Strouse, 286 F.3d 767, 768 (5th Cir. 2002).
The other issues Robinson raises on appeal are either moot or are more properly
addressed to the district court on remand.

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                             CONCLUSION
     For the foregoing reasons, we must reverse and remand for a new trial.
     CONVICTION REVERSED, SENTENCE VACATED, AND CASE
REMANDED for a new trial.




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