                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5119


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTONIO R. HALL, a/k/a Mack,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:10-cr-00744-RDB-1)



Argued:   December 7, 2012                 Decided:   January 24, 2013


Before MOTZ, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Motz and Judge Duncan concurred.


ARGUED: Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC,
Baltimore, Maryland, for Appellant. John Francis Purcell, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

       A    federal    jury    convicted            Defendant       Antonio         R.   Hall       of

several crimes, including the retaliatory murder of a government

witness who had provided information about Defendant’s criminal

activities.         At trial, the district court empaneled an anonymous

jury and, according to Defendant, limited his note-taking during

jury selection.         After his conviction, Defendant was sentenced

to multiple terms of life imprisonment.                          At his sentencing, only

one of Defendant’s two appointed attorneys was present in the

courtroom.          On appeal, Defendant seeks a new trial and a new

sentencing        hearing,    arguing         that        the    anonymous      jury,         note-

related      order,    and    failure         to    have    both     lawyers        present         at

sentencing all constituted error.                     For the following reasons, we

disagree and affirm the district court’s rulings.



                                               I.

       In early 2008, federal agents conducted an investigation

into       drug   trafficking       and       related       firearm      violence            in    the

Westport      neighborhood         of   Baltimore,          Maryland.          Kareem             Guest

agreed       to   cooperate     in      the     Westport         investigation.                Guest

provided      information      to       the    Federal          Bureau   of    Investigation

(“FBI”),      and    that    information            was    memorialized         in       a   report

called      the   “Guest     FBI     302.”          The    Guest     FBI      302    identified



                                                2
several individuals as being involved in drug activities and

implicated Defendant as being involved in several murders.

        With Guest’s help, the Westport investigation resulted in

the indictment of eight individuals.                     Defendant, however, was

not among them.

        Though   the    attorneys      for    the    eight     indicted   individuals

agreed in a written discovery agreement not to distribute the

Guest FBI 302 to their clients, one of the attorneys violated

the agreement and gave his client a copy of the report on May

20,   2009.       The       Guest   FBI     302   then   wound    up    being    widely

distributed in Westport and even hung on a community telephone

pole.

      On   September         20,    2009,    Defendant    saw    Guest    walking      in

Westport and told Kevin Duckett that he intended to kill Guest

for mentioning his name in the Guest FBI 302.                          Defendant then

followed Guest on foot and shot him several times, killing him.

      Although a number of people saw Defendant shoot Guest, no

witnesses initially came forward.                    In fact, several witnesses

falsely testified before the grand jury that they did not see

the   murder.          At    subsequent      grand    jury     appearances      and    at

Defendant’s      trial,      the    witnesses       admitted    that   they     had,   in

fact, seen Defendant kill Guest.                  One witness explained that she

had initially been untruthful to protect her family.                            Another

witness stated that he had initially been untruthful because he

                                             3
feared     Defendant.           Witnesses   also          testified     that   Defendant

questioned them after their grand jury appearances.                            Following

their cooperation in this case, the government relocated several

witnesses due to safety concerns.

        Defendant    was   charged     in       a   superseding        indictment     with

conspiracy to traffic in crack cocaine in violation of 21 U.S.C.

§ 846 (Count I); conspiracy to use and carry firearms during and

in   relation   to    a    drug    trafficking           crime   in    violation    of   18

U.S.C. § 924(o) (Count II); retaliation against a witness by the

willful and deliberate murder of Guest in violation of 18 U.S.C.

§ 1513(a)(1)(B) (Count III); using, carrying, and discharging a

firearm    during    and    in     relation         to    a    crime   of   violence     in

violation of 18 U.S.C. § 924(c) (Count IV); and possession of

ammunition by a felon in violation of 18 U.S.C. § 922(g)(1)

(Count V).      Because Count III as charged in the indictment is a

capital    offense,       the    district       court      appointed      Defendant      two

attorneys as required by 18 U.S.C. § 3005.                             The government,

however, elected not to seek the death penalty.

      Jury selection for Defendant’s trial began on August 1,

2011.      Just before the venire members were brought into the

courtroom for voir dire, defense counsel told the court that the

clerk    had   inadvertently        given   him          the   attorney     worksheet    on

which to take notes, but not the panel selection report that the

government had had in its possession for approximately thirty

                                            4
minutes.    The panel selection report contained juror information

including juror number, name, age, occupation, employer, spouse

occupation, and home and work addresses.

       The district court recognized the oversight and sua sponte

ordered    the   empanelment   of   an       anonymous   jury,    directing    the

clerk to strike the juror names from the panel selection report

and provide both parties with a redacted copy.                     The district

court instructed that the panel selection report “never leaves

the courthouse” and that Defendant “takes no notes in this trial

off of that trial table and goes back anywhere with them.”                    J.A.

193.

       Defendant objected to the redaction of names from the panel

selection report.       The district court overruled the objection,

explaining that “given the fact that this defendant in this case

is charged with murdering a government witness, anonymity of the

jury . . . is perfectly appropriate . . . .”                 J.A. 195.        With

respect    to    the   government    possessing      the    unredacted     panel

selection report for approximately thirty minutes, the district

court stated that there was no prejudice to Defendant because

the government did not have time to look at the list and would

not have any recollection of the jurors’ names.

       Defendant, in turn, filed a Motion for Mistrial based on

the    court’s   empaneling    an   anonymous      jury.     In    the   motion,

Defendant also objected to the district court’s order regarding

                                         5
Defendant’s       notes       during     the    jury     selection     process.        The

district court denied Defendant’s motion.

       On August 11, 2011, the jury found Defendant guilty on all

counts. *        At     his    sentencing       hearing,    Defendant       objected    to

proceeding because one of his two appointed attorneys was not

present.          The    district       court        overruled   the   objection       and

sentenced Defendant to four terms of life imprisonment.



                                               II.

       On appeal, Defendant contends that the district court erred

by (1) empaneling an anonymous jury sua sponte; (2) ordering

that    Defendant       take      no   notes    during    jury   selection;     and    (3)

sentencing Defendant with only one of his two attorneys present.

We address each issue in turn.



                                               A.

       With      his    first      argument,         Defendant   contends     that     the

district court erred when it sua sponte empaneled an anonymous

jury.       We   review       a   district      court’s    decision    to    empanel    an

anonymous jury for an abuse of discretion.                           United States v.

Dinkins, 691 F.3d 358, 371 (4th Cir. 2012).




       *
           The government dismissed Count II.



                                                6
       A federal district court may empanel an anonymous jury in

any    non-capital     case    in    which       “‘the    interests   of   justice       so

require.’”       Id. at 372 (quoting 28 U.S.C. § 1863(b)(7)).                          In a

capital       case,   however,      the   district         court    may    empanel       an

anonymous jury only after determining “by a preponderance of the

evidence      that    providing     the   list      may    jeopardize     the    life    or

safety of any person.”            18 U.S.C. § 3432; see also Dinkins, 691

F.3d    at    372.     The    district    court        must,   therefore,       base    its

decision to empanel an anonymous jury in a capital case on the

evidence in the record and may not rely solely on the indictment

to support its decision.            Dinkins, 691 F.3d at 373.

       This Circuit has not yet addressed whether a case loses its

capital nature for Section 3432 purposes if the government does

not seek the death penalty.               In interpreting similar statutes,

we have indicated that, regardless of whether the government

actually seeks the death penalty, an offense is capital if the

death penalty may be imposed under the enabling statute.                               See,

e.g., United States v. Ealy, 363 F.3d 292, 297 n.2 (4th Cir.

2004); United States v. Boone, 245 F.3d 352, 358-59 (4th Cir.

2001).       Yet, in other cases, we have suggested that a defendant

may    lose    the    benefits      afforded       a   capital     defendant     if     the

government does not in fact seek the death penalty.                         See, e.g.,

United States v. Robinson, 275 F.3d 371, 384 (4th Cir. 2001);

United States v. Cowan, Nos. 95–5508, 95–5509, 1996 WL 521049,

                                             7
at *10 n.4 (4th Cir. Sept. 16, 1996) (unpublished) (per curiam).

We   need    not        resolve       this      issue     here,       however,         because   even

assuming      that       this        is    a    capital     case      to    which       the    higher

standard applies, we hold that the district court did not err by

empaneling an anonymous jury.

      The decision to empanel an anonymous jury is “an unusual

measure      which        must       be    plainly        warranted        by    the     particular

situation presented.”                     Dinkins, 691 F.3d at 372 (citations and

quotation        marks        omitted).           A    district       court      may     empanel      an

anonymous jury only in rare circumstances when two conditions

are met: “(1) there is strong reason to conclude that the jury

needs     protection           from        interference          or    harm,       or     that       the

integrity        of     the    jury’s          function    will       be   compromised         absent

anonymity; and (2) reasonable safeguards have been adopted to

minimize         the    risk        that    the       rights     of   the       accused       will    be

infringed.”            Id. (citations omitted).

      In Dinkins, we identified five factors, hailing from United

States      v.    Ross,        33    F.3d       1507,     1520    (11th         Cir.    1994),       and

referred to as the Ross factors, for determining whether “strong

reasons support[] the empaneling of an anonymous jury”:

      (1) the defendant’s involvement in organized crime,
      (2) the defendant’s participation in a group with the
      capacity to harm jurors, (3) the defendant’s past
      attempts to interfere with the judicial process, (4)
      the potential that, if convicted, the defendant will
      suffer   a  lengthy   incarceration  and   substantial
      monetary penalties, and (5) extensive publicity that

                                                      8
      could enhance the possibility that jurors’ names would
      become public and expose them to intimidation or
      harassment.

Dinkins, 691 F.3d at 373 (citations omitted).                     The list of Ross

factors is not exhaustive, nor does the presence of any one

factor or set of factors automatically compel a court to empanel

an anonymous jury.         Id.      Rather, a district court must engage in

a context-specific inquiry based on the facts of the particular

case.    Id.

      Applying      the    standards     outlined        in     Dinkins,     we   first

consider whether the district court abused its discretion by

determining that disclosure of the venire members’ names could

have jeopardized their lives or safety.

      We begin by addressing the first and third Ross factors:

whether     the     record     shows     that     Defendant       participated      in

organized      criminal    activity     and     interfered      with   the    judicial

process in the past.             At the time the district court ruled on

the     anonymous       jury   issue,     the     record      contained       evidence

supporting        the    conclusion     that      Defendant       participated      in

organized criminal activity as a drug trafficker and that he had

previously      attempted      to   interfere     with    the    judicial     process.

The indictment alleged that Defendant conspired with others to

obtain and distribute cocaine in Westport and that he killed

Guest for providing information to law enforcement officers.                        In

its response to Defendant’s pretrial motions and at the motions

                                          9
hearing on July 22, 2011, the prosecution proffered that several

witnesses       would     testify         that      “they       bought     [drugs]      from

[Defendant] for years[,]” that one witness referred to Defendant

as “King Kong” because he “ran” Westport, that Defendant told

Duckett he was going to kill Guest for naming him in “those

papers[,]” and that Defendant shot people in the past because of

“a    drug     beef”    and    because       they    provided        information        about

Defendant to the police.              J.A. 123, 157-58.             The government also

provided the district court with witness statements to the same

effect.      Accordingly, the preponderance of the evidence before

the   district     court       at   the   time      of    its   decision     showed     that

Defendant participated in organized criminal activity as a drug

trafficker       and    that    he     had    previously         interfered      with    the

judicial process by murdering Guest and shooting at least one

other person for assisting authorities.

      Next, we examine the fourth Ross factor: whether Defendant

faced the possibility of severe punishment if convicted.                                Here,

Defendant’s      potential          punishment      of     multiple       life   sentences

lends support to the conclusion that he “had an incentive to

resort    to    extreme       measures       in   any      effort    to    influence     the

outcome of [his] trial.”             Id. at 376 (quotation omitted).

      Because     the    record       does    not        indicate    whether     Defendant

participated in a group with the capacity to harm jurors or

whether the case garnered extensive publicity, we do not address

                                             10
the second or fifth Ross factors.                           Nevertheless, based on the

applicable      Ross      factors,          we   conclude         that    when       the   district

court rendered its decision to empanel an anonymous jury, the

record established by a preponderance of the evidence that the

lives or safety of the venire members may have been jeopardized,

had their names been provided to the parties.

      We     next     consider             whether     the      district         court     adopted

reasonable      safeguards            to    minimize        the    risk    that       Defendant’s

constitutional          rights        would      be     infringed         by     empaneling       an

anonymous jury.           Id. at 378.              Further, we examine Defendant’s

challenge       of    the        district        court’s       decision        to     empanel     an

anonymous jury sua sponte.

      This      Court     has      held       that     the     decision        to     empanel     an

anonymous jury may affect a defendant’s constitutional right to

a presumption of innocence by suggesting to the jurors that “the

defendant is a dangerous person from whom the jurors must be

protected.”          Id. at 372 (quotation marks omitted).                             Further, a

court’s    decision         to    withhold        certain      biographical           information

from the parties may affect a defendant’s constitutional right

to   trial    by     an   impartial           jury     by     hindering        the    defendant’s

ability    to    conduct         an   informed         voir    dire      examination        and   to

challenge effectively the seating of individual jurors.                                    Id.

      In     this     case,        the       district         court      adopted       reasonable

safeguards to minimize the risk that Defendant’s constitutional

                                                  11
rights would be infringed.                   First, the venire members were not

informed     that    their      names        were     withheld       from      the    parties.

Accordingly,      their    anonymity          created        neither     an    inference       of

danger nor an adverse effect on the presumption of innocence.

See id. at 378.

      Second,     the     district       court’s         decision       to     withhold       the

venire   members’       names     did    not        affect     Defendant’s          ability    to

conduct an informed voir dire examination.                             Notably, only the

prospective     jurors’      names      were        withheld.          Both    parties      were

provided     with    all     other      juror        information,          including      juror

number, age, occupation, employer, spouse occupation, and home

and   work   addresses.           See        id.    at   379    (concluding          that     the

defendants’       right    to     an     impartial         jury      was      not    infringed

because, although the names and addresses of the venire members

and their spouses were withheld, other information, such as the

zip codes, county, and neighborhoods of the prospective jurors,

was provided).

      Finally,      the    fact      that     the     district       court     empaneled       an

anonymous jury sua sponte does not change our analysis.                                Because

the purpose of an anonymous jury is to protect the jury and the

integrity    of     the    justice       system,         and    an   anonymous        jury     is

permissible     so    long      as     the    district         court    takes       reasonable

precautions to safeguard the defendant’s rights, “no principle

would distinguish an order to empanel an anonymous jury made sua

                                               12
sponte from one based on a party’s motion.”                         United States v.

Shryock, 342 F.3d 948, 971 (9th Cir. 2003).

     In sum, the evidence in the record supports the district

court’s decision to empanel an anonymous jury, and the district

court     took   reasonable       precautions         to    safeguard          Defendant’s

rights.      Accordingly,        the       district   court       did    not    abuse   its

discretion by empaneling an anonymous jury.



                                             B.

     Defendant      next     contends         the     district      court       erred   by

ordering    that   he     take   no    notes      during    jury    selection.          The

government argues that Defendant mischaracterizes the district

court’s order.      According to the government, the district court

ordered that Defendant could not take any notes about the jurors

out of the courtroom.

     “[T]he district court has broad discretion in the conduct

of   voir   dire    and    will       be    reversed       only    for    an    abuse    of

discretion.”       United States v. ReBrook, 58 F.3d 961, 969 (4th

Cir. 1995) (citation omitted).               Here, we discern none.

     After deciding to strike the jurors’ names from the panel

selection sheets, the district court gave the following order:

     THE COURT: . . . This sheet [attorney worksheet] never
     leaves the courthouse.    And there are no notations
     made of any kind at all.    [Defendant] takes no notes
     in this trial off of that trial table and goes back
     anywhere with them. . . .

                                             13
       [DEFENSE COUNSEL]: No notes?

       THE COURT: He’s not taking any notes of any kind.

       [DEFENSE COUNSEL]: Of the jury selection.

       THE COURT: Of jury selection and taking them back and
       taking them anywhere.

J.A. 193-94.      As part of his motion for mistrial, Defendant

objected to the order, characterizing it as forbidding him from

taking notes during jury selection.

       While the district court’s order was not as clear as it

ideally should have been, we understand it to have prohibited

Defendant from removing any notes from the courtroom and not

from   taking   any    notes.    Notably,   Defendant    never   asked    the

district court for a clarification of its ruling, nor did he ask

the district court for additional attorney-client consultation

time during voir dire because he understood that he was not to

take notes.     Further, even assuming that the district court had

indeed ruled that Defendant was not allowed to take notes during

jury selection, Defendant does not cite, nor did we find, any

authority to support his argument that his constitutional right

to be present during jury selection includes a right to take

notes.     In   sum,   we   cannot   conclude   that   the   district   court

abused its discretion with its jury selection notes order.




                                      14
                                            C.

       With      his    last     argument       on    appeal,      Defendant    briefly

contends      that     the     district    court      erred   by    ordering     him   to

proceed     to      sentencing    without       one   of   his   attorneys      present.

Specifically, Defendant’s other counsel indicated that he could

not attend the sentencing hearing due to a scheduling conflict.

Defendant, however, does not allege any prejudice resulting from

the absence of one of his appointed attorneys.                          Additionally,

Defendant faced a mandatory minimum term of life imprisonment

without release for Count I.                See 21 U.S.C. §§ 841(b)(1)(A) and

851.    Under these unique facts, we conclude that the absence of

one    of     his    attorneys     at     his    sentencing      did   not     prejudice

Defendant.



                                           III.

       In sum, we conclude that the district court did not err in

its various rulings and, accordingly, we affirm.

                                                                                AFFIRMED




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