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                                                                                 [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT


                                        No. 12-12255


                     D.C. Docket No. 1:10-cr-00053-CAP-ECS-2

UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                            versus

RONN DARNELL STERLING,
CORNELL DESMOND BRUMFIELD,
a.k.a. Carnell D. Brumfield,

                                                           Defendants - Appellants.


                     Appeals from the United States District Court
                         for the Northern District of Georgia


                                   (November 21, 2013)


Before PRYOR and ANDERSON, Circuit Judges, and RESTANI, * Judge.



*
 Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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RESTANI, Judge:

      Defendants-Appellants Ronn Sterling (“Sterling”) and Cornell Brumfield

(“Brumfield”) appeal their convictions for armed bank robbery, use of a firearm

during and in relation to a crime of violence, and possession of a firearm by a

convicted felon. Sterling argues that his right to be present at trial under Federal

Rule of Criminal Procedure 43 was violated, and both defendants argue that

evidence of their prior convictions was inadmissible. Additionally, Brumfield

argues that there was insufficient evidence to find him guilty on the gun charge.

The district court found that Sterling waived his right to be present at trial, that the

evidence of prior convictions was admissible as to both defendants under Federal

Rule of Evidence 404(b), and that there was sufficient evidence to sustain the

convictions. For the reasons set forth below, we affirm.

                                 I.    BACKGROUND

      On January 14, 2010, a masked man vaulted over the teller counter of a

Regions Bank in Smyrna, GA, and robbed the bank using a silver handgun. After

emptying the tellers’ drawers, the man exited the bank and ran behind a shopping

center located behind the bank, removing his mask as he ran. He then disappeared

from the view of witnesses, who next saw another man remove a piece of paper

covering the license tag of a vehicle while leaning over the trunk. Based on an

eyewitness’s tip, police officers located a vehicle matching the description of the


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getaway car. The car was owned and driven by Defendant Brumfield. Although

Brumfield’s daughter was in the car, the alleged bank robber was not found.

Police officers attempted to open the trunk of the vehicle, but they were unable to

access it either from the outside or the back seat, even though there was evidence

that the trunk previously had functioned well. Brumfield’s vehicle was then towed

to the impound lot of the Smyrna Police Department by a private wrecker truck.

Upon arriving at the lot, the truck driver began the process of unhooking the

vehicle when he saw an individual matching the bank robber’s description lying on

the side of the flatbed, next to the open backseat door of the car. The suspect

walked away without being apprehended. In the trunk of the car, police officers

eventually found a bag with clothing matching the description of the bank robber’s

clothing as well as a silver firearm. The bag of clothing had both Brumfield’s and

Sterling’s fingerprints, and Sterling was a major contributor of the DNA found

inside the gloves.

      Defendants were charged in a three-count indictment in connection with the

bank robbery. The charges included armed bank robbery, 18 U.S.C. § 2113(a), (d),

use of a firearm during and in relation to a crime of violence, id. § 924(c)(1)(A),

(c)(1)(C)(i), and possession of a firearm by a convicted felon, id. §§ 922(g)(i),

924(a)(2). In a pretrial hearing, the court decided, over an objection, to admit

evidence under Federal Rule of Evidence 404(b) of Sterling’s and Brumfield’s


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prior convictions for bank robbery. The convictions stemmed from a bank robbery

in Oklahoma in 1995 and involved Brumfield, Sterling, and a third person. During

that robbery, the criminals brandished a silver firearm, vaulted the counter of the

bank, wore masks, and used a getaway driver. At the pretrial hearing, the

government sought to admit evidence of the convictions for a litany of purposes,

including to show motive, intent, preparation, plan, knowledge, etc. The court

granted the government’s request, ostensibly allowing the evidence for the purpose

of proving motive, identity, preparation, and plan.

      Sterling actively participated in the pretrial hearing. His jury trial began on

January 17, 2012. When the court called the case and addressed preliminary

matters, the judge was informed by Sterling’s counsel and the U.S. marshal that

Sterling did not want to have anything to do with the trial. Sterling, however, did

agree to speak with the court in an interview room. The judge, court reporter,

government counsel, and Sterling’s attorney obliged and moved proceedings there.

      The judge explained to Sterling his right to be present at trial and during the

jury selection process. The judge also explained that Sterling’s repeated

interruptions would cause him to be labeled a disruptive defendant and removed

from court. Based on Sterling’s communications with his attorney and Sterling’s

active participation in the pretrial hearing, the judge believed that Sterling had a

full understanding of what was transpiring, despite his repeated utterance of, “I do


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not understand what’s going on. I do not accept no offers of the court.”

       The judge told Sterling that if he did not respond to the court’s questions and

if he continued to interrupt the court, these actions would be deemed a waiver of

his right to be present at trial. The judge reiterated these warnings several times,

but Sterling responded by repeating the same nonsensical phrases. The judge

noted that Sterling likely was refusing to come to the courtroom to avoid

identification by a witness, a concern that Sterling had expressed at the pretrial

hearing. 1 Finally, the judge said, “I find that you’re a disruptive defendant, that

you understand what I’m trying to tell you, and that you’ve waived your presence

in the courtroom.” When the court reconvened in the courtroom, the judge stated

that Sterling had waived his right to be present and Sterling’s attorney conceded,

“in his refusal to come up here . . . he was in fact waiving his right to be up here.”

The trial then continued without Sterling’s presence, although he was provided a

live video feed of the proceedings, and his counsel was permitted to meet with him

during breaks in the trial.

       During the trial, the judge asked a marshal and Sterling’s counsel to ensure

1
 The phrases Sterling repeated are often used by so-called “sovereign citizens,” who believe they
are not subject to the jurisdiction of the courts and who frequently deny that they are the
defendants in the action, instead referring to themselves as third-party intervenors, as Sterling
does here. Courts have been confronted repeatedly by their attempts to delay judicial
proceedings and have summarily rejected their legal theories as frivolous. See, e.g., United
States v. Benabe, 654 F.3d 753, 761–67 (7th Cir. 2011) (describing the conduct of another
“sovereign citizen” and collecting cases rejecting the group’s claims as frivolous); United States
v. Perkins, No. 1:10-cr-97-1-JEC-LTW, 2013 WL 3820716 (N.D. Ga. July 23, 2013). Sterling
does not press such theories here.
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Sterling could view the proceedings and to remind him that he could come watch

the trial in person at any time. The marshal reported back that the equipment was

working properly so that Sterling could hear and view the proceedings but that he

was trying to avoid watching it. After the government rested, the judge visited

Sterling again. The judge advised Sterling of his right to testify and present

evidence, but Sterling remained non-responsive. The court continued the trial

without Sterling.

      At the close of trial, the judge instructed the jury regarding the limited bases

for which it could consider the evidence of prior convictions, borrowing largely

from the instruction proposed by Sterling:

      Now, during the trial you’ve heard evidence of acts done by the
      defendants on other occasions, that is, armed bank robbery. It may be
      similar to acts the defendants are currently charged with. You must
      not consider any of this evidence to decide whether the defendants
      committed the acts charged here in this indictment now, but you may
      consider this evidence for other very limited purposes. If other
      evidence leads you to decide beyond a reasonable doubt that the
      defendants committed the acts charged, then you may consider
      evidence of similar acts done on other occasions to decide whether the
      defendants had the state of mind and intent necessary for the crime
      charged and acted accordingly [sic] to a plan or to prepare to commit
      a crime, or whether they committed the charged acts by accident or
      mistake.

      The jury found both defendants guilty on all three counts. Before he was

sentenced, Sterling filed a motion for a new trial, arguing that he did not waive his

right to be present at the commencement of trial. The court denied Sterling’s


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motion, finding that Sterling voluntarily waived his right to be present at trial.

Sterling was sentenced to 562 months imprisonment, and Brumfield was sentenced

to 363 months. Both defendants filed timely appeals.

                           II.    STANDARD OF REVIEW

      Our review of the district court’s trial of Sterling in absentia is a multistep

process. First, we review the district court’s interpretation of the relevant

procedural rule de novo. See United States v. Curbelo, 726 F.3d 1260, 1276 (11th

Cir. 2013). Next, we examine whether the district court properly exercised its

discretion to allow the trial to go forward after finding that the defendant

voluntarily waived his or her right to be present. United States v. Bradford, 237

F.3d 1306, 1311 (11th Cir. 2001). Under this prong, we adopt the district court’s

factual findings as to whether the defendant’s absence was voluntary unless they

are clearly erroneous. See id. If the district court properly found that the

defendant waived his right to be present, “we consider whether the district court

abused its discretion in concluding that there was on balance a controlling public

interest to continue the trial in the defendant’s absence.” Id. Lastly, if the district

court erred in continuing the trial in absentia, we determine whether the error was

harmless. Id.

      We review a district court’s admission of evidence under Federal Rule of

Evidence 404(b) for a “clear abuse of discretion.” United States v. McNair, 605


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F.3d 1152, 1203 n.69 (11th Cir. 2010) (internal quotation marks omitted). Finally,

“[w]e review the ‘sufficiency of the evidence de novo, viewing all the evidence in

the light most favorable to the government and drawing all reasonable inferences

and credibility choices in favor of the jury’s verdict.’” United States v. Boffil-

Rivera, 607 F.3d 736, 740 (11th Cir. 2010) (quoting United States v. Taylor, 480

F.3d 1025, 1026 (11th Cir. 2007)).

                                  III.   DISCUSSION

   A. Federal Rule of Criminal Procedure 43

      Rule 43 specifies when the presence of a defendant is required for trial and

related proceedings and when the right to be present may be waived. Rule 43(a)

requires the defendant be present at: “(1) the initial appearance, the initial

arraignment, and the plea; (2) every trial stage, including jury impanelment and the

return of the verdict; and (3) sentencing.” Rule 43(c)(1) allows a “defendant who

was initially present at trial” to waive the right to be present:

      (A) when the defendant is voluntarily absent after the trial has begun,
      regardless of whether the court informed the defendant of an
      obligation to remain during trial; (B) in a noncapital case, when the
      defendant is voluntarily absent during sentencing; or (C) when the
      court warns the defendant that it will remove the defendant from the
      courtroom for disruptive behavior, but the defendant persists in
      conduct that justifies removal from the courtroom.

Fed. R. Crim. P. 43(c) (emphasis added).

      In Crosby v. United States, 506 U.S. 255 (1993), the Supreme Court held


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that Rule 43 means what it says, “marking the point at which the costs of delay are

likely to outweigh the interests of the defendant and society in having the

defendant present.” Id. at 261. In Crosby, the defendant attended pretrial hearings

but absconded prior to trial. Id. at 256. He was tried in absentia and convicted. Id.

at 257. The Court held that the trial court erred in finding a waiver when the

defendant clearly was not present at the start of trial. Id. at 261. It stated,

however, that Rule 43 allows a trial to proceed if the defendant was initially

present at trial and constructively waived his right to be present by voluntary

absence, recognizing that at that point “the costs of delay are likely to outweigh the

interests of the defendant and society in having the defendant present.” Id. at 261–

62. In United States v. Arias, we held that even if the defendant’s absence is

voluntary, the trial may not commence in his absence when he clearly was not

present at its beginning, an obvious application of Crosby. 984 F.2d 1139, 1141–

42 (11th Cir. 1993).

      In Bradford, we rejected the argument that a trial had not commenced until

the precise moment that the jury was sworn. See 237 F.3d at 1309–10. In that

case, the defendant was present during jury selection, but refused to leave her cell

on the date trial before the jury was to commence. Id. at 1308. On appeal, we held

that “for purposes of Rule 43(b)(1), a trial has commenced when the jury selection

process has begun.” Id. at 1310 (internal quotation marks omitted). We did not


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have reason to consider, however, whether the trial might have begun even before

that point in the proceedings. We based our ruling in Bradford on the language of

Rule 43(a), which mentions “jury impanelment” as one stage of trial. Id. We also

noted that our holding would “prevent a defendant from obstructing the

proceedings by voluntarily absenting himself after the trial has begun in his

presence.” Id. (citing Taylor v. United States, 414 U.S. 17, 19–20 (1973)).

      Sterling argues that the trial process had not yet begun when the district

court found that Sterling had waived his right to be present. At oral argument,

Sterling’s counsel clarified that, under Sterling’s reading of Rule 43, the trial court

was required to forcibly bring Sterling into the courtroom, in the presence of the

prospective jury, and clearly inform him that the trial was beginning. Absent these

actions, Sterling contends that his conviction should be vacated.

      In response, the government argues that Sterling’s reading of “initially

present at trial” is too strict. The government distinguishes Crosby from the

present case and instead relies on our sister circuit’s holding in United States v.

Benabe, 654 F.3d 753, 771–72 (7th Cir. 2011), which held that trial begins the day

of jury selection, but not necessarily at the time that a prospective juror enters the

courtroom.

      In Benabe, the defendants repeatedly disrupted pretrial proceedings. Id. at

761–65. At a hearing the day before jury selection, the district court ordered that


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the defendants be removed from the courtroom for the trial since they were

disruptive and refused to agree to not interrupt jury selection. Id. at 765–66. The

court ensured that the defendants were able to watch the trial proceedings by way

of a live video feed. Id. at 765. The Seventh Circuit directly addressed the

question of what it means to be initially present at trial, and it concluded that the

phrase refers simply to the day of jury selection, given the varied practices in

managing jury selection and the need to move defendants outside the presence of

the jury. Id. at 771–72. In Benabe, the court declined to nullify the trial based on

the failure to bring the defendants into the courtroom on the day of jury selection,

because “[t]he courtroom door remained open to these defendants on the morning

of [jury selection] and every day thereafter.” Id. at 773. The court also noted that

this would simply give defendants an additional opportunity to misbehave in front

of prospective jurors. Id. at 771. Because the waiver was procured the day before

trial, the court found a technical violation of Rule 43, but it held that the error was

harmless. Id. at 774.

      Benabe is in line with an earlier decision of our court that held a defendant

may waive his or her right to be present during jury selection, which is expressly

listed in Rule 43(a) as a stage of trial. See United States v. Crews, 695 F.2d 519

(11th Cir. 1983). Nothing in Bradford or Crosby overruled our decision in Crews.

Reading Bradford and Crews, together with the persuasive reasoning of Benabe,


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we conclude that trial commences no later than on the day of jury selection,

without respect to whether the defendant is present at the time prospective jurors

enter the courtroom. It seems absurd to require the court to bring a combative

defendant into the presence of prospective jurors, only to taint the pool with his

own disruptive behavior and perhaps prejudice a cooperative codefendant.

Additionally, we reject Sterling’s argument that the district court was required to

use a talismanic phrase that the trial was beginning, especially where here it was

obvious that the trial was beginning based on the judge’s explanation of the video

procedures and the calling of the case in open court. Accordingly, trial had

commenced on the day of jury selection when court was held in the interview

room, Sterling was informed of his rights, and the trial proceedings were

explained. At that time, Sterling was permitted under Rule 43 to waive his right to

be present.

      Because we find that Sterling could have waived his right to be present at

trial when court was held in the interview room, we turn now to whether Sterling’s

purported waiver was effective. To be effective, a defendant’s waiver under Rule

43(c) must be voluntary. See Bradford, 237 F.3d at 1311. The court convened

with Sterling’s consent in the room in which he was held, and the district judge

clearly stated that unless Sterling answered otherwise, his presence at trial would

be deemed waived. Based on Sterling’s lucid behavior at the pretrial hearing and


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his assent to proceeding in the interview room, the judge concluded that Sterling

understood what was transpiring. The court advised Sterling of his right to be

present at the trial as well as jury selection. The court also instructed Sterling that

if he refused to attend, he could watch the proceedings through a live feed and his

counsel would be available to him on breaks, but trial would otherwise proceed

without him. Sterling refused to respond to the court, and therefore the district

court properly found that Sterling constructively waived his right to be present at

trial. Cf. Bradford, 237 F.3d at 1311–12 (finding waiver voluntary where the

record demonstrated that the defendant understood possible consequences of

failing to appear and still elected not to appear). The record does not demonstrate

error on the part of the district court, let alone evidence that would leave us with “a

definite and firm conviction that a mistake has been committed.” See United

States v. Augustin, 661 F.3d 1105, 1134 (11th Cir. 2011), cert. denied, 132 S. Ct.

2447 (2012).

      Finally, the district court appropriately balanced the public’s interest with

Sterling’s right to be present, concluding that there was a controlling public interest

to continue the trial in Sterling’s absence given the presence of a prospective jury

and a co-defendant. In conducting this balancing in Bradford, we looked to factors

including a defendant’s disruptive behavior and any inconvenience to the jury and

witnesses that would result in a delay. Bradford, 237 F.3d at 1313. Sterling


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continually interrupted the court during pretrial proceedings and stated, “I have no

desire to participate in these proceedings.” Similarly, when court convened in the

interview room, Sterling repeatedly interrupted the judge and provided

nonresponsive answers to the court’s questions. As in Bradford, “[g]iven that

[defendant’s] absence was a result of [defendant’s] own decision not to attend

rather than the result of external circumstances . . . there was no reason to believe

that the trial could have soon taken place with [the defendant] present. . . . Under

Rule 43(b)(1), if [a defendant] voluntarily elected not to come once trial

commenced, the court was under no obligation to force [the defendant].”

Bradford, 237 F.3d at 1314. There was a sufficient basis for the district court to

conclude that the public interest in proceeding with trial outweighed any interest in

delay, and it permissibly chose to continue the trial without Sterling.

      We conclude that the district court’s interpretation of Rule 43 was proper

and that the court did not err in proceeding without Sterling once his rights were

explained to him. Accordingly, Sterling voluntarily and permissibly waived his

right to be present at trial, and no error, harmless or otherwise, occurred.

   B. Prior Conviction Under Federal Rule of Evidence 404(b)

      Rule 404(b)(1) generally prohibits the introduction of propensity evidence at

trial. Rule 404(b)(2), however, provides an exception to this general rule for

evidence that is also probative for some other purpose, “such as proving motive,


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opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Here, although the court stated during the pretrial hearing that

the evidence was admitted for the purposes of motive, identity, preparation, and

plan, it instructed the jury that it could consider the evidence for the purposes of

intent, plan, preparation, and lack of accident or mistake. Because we assume that

the jury properly followed the court’s instructions, we need consider only whether

the evidence of prior convictions here was properly admitted for the limited

purposes stated in the jury instructions, not the additional purposes discussed at the

pretrial conference.

      We apply a three-part test to determine admissibility of evidence of prior

crimes under Rule 404(b): 1) the evidence must be relevant to an issue other than

the defendant’s character; 2) sufficient evidence must be presented to allow a jury

to find that the defendant committed the extrinsic act; and, 3) the probative value

of the evidence must not be substantially outweighed by its undue prejudice. See

United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008). “A defendant who

enters a not guilty plea makes intent a material issue which imposes a substantial

burden on the government to prove intent, which it may prove by qualifying Rule

404(b) evidence absent affirmative steps by the defendant to remove intent as an

issue.” United States v. Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007) (quoting

United States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998)). “Thus, where the


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state of mind required for the charged and extrinsic offenses is the same, the first

prong of the Rule 404(b) test is satisfied.” Id.

      “Extrinsic evidence of other crimes, wrongs, or acts is inherently prejudicial

to the defendant,” and may entice the jury to draw the prohibited inference that a

defendant previously convicted of a crime likely committed the same crime again.

United States v. Baker, 432 F.3d 1189, 1205 (11th Cir. 2005). Accordingly, the

third prong of the test calls for “the incremental probity of the evidence . . . to be

balanced against its potential for undue prejudice.” United States v. Beechum, 582

F.2d 898, 914 (5th Cir. 1978). This type of evidence is often disfavored because of

the possibility for its misuse, especially where the government has a strong case.

Id. “In other words, if the government can do without such evidence, fairness

dictates that it should; but if the evidence is essential to obtain a conviction, it may

come in. This may seem like a heads I win; tails you lose proposition, but it is

presently the law.” United States v. Pollock, 926 F.2d 1044, 1049 (11th Cir.

1991).

      A prior crime need not be factually identical in order for it to be probative.

See United States v. Hernandez, 896 F.2d 513, 522 (11th Cir. 1990) (finding that

past conviction for possession with intent to distribute marijuana was sufficiently

similar to charge of possession with intent to distribute 500 grams of cocaine).

Additionally, the prior crime need not be very recent, especially where a


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substantial portion of the gap in time occurred while the defendant was

incarcerated. See id. at 522–23 (six-year period between crimes); see also United

States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (prior acts from fifteen

years prior).

       Although advanced at oral argument repeatedly by the defendants, the

question before us is not simply whether the prior convictions could be viewed as

propensity evidence. Virtually all evidence admissible under Rule 404(b)(2) could

be used by the jury for such a purpose, contrary to the standard type of jury

instruction used here. Instead, we must examine whether the district court abused

its discretion in failing to conclude that undue prejudice generated by the evidence

of the prior convictions, including the chance that the jury will convict the

defendant for the prior crime and not the one presently charged, substantially

outweighed the probative value of the evidence.2

       Here, the prior crime involved both defendants robbing a bank together,

using a gun. Although the prior conviction occurred fifteen years before the bank

robbery at issue here, both defendants were incarcerated until approximately seven

years before the robbery at issue. With respect to Brumfield, evidence of this prior

armed bank robbery was strong circumstantial evidence that he had knowledge that

2
 Although Sterling also challenges the admissibility of the convictions under the first prong of
the test, his challenge goes only to whether the evidence could be considered for purposes of
identity. Because the jury was not instructed to consider such a purpose, we need not consider
whether the evidence could have been considered for this reason.
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Sterling was armed. The prior crime “directly show[ed] knowledge on

[Brumfield’s] part that [Sterling] would use a gun in the robbery” and distinguishes

Brumfield’s role in the prior robbery from our decision in United States v.

Pendegraph, 791 F.2d 1462, 1466 (11th Cir. 1986), in which we stated that a jury

cannot infer knowledge from evidence that a defendant was “presumably” the

driver of the getaway car and involved in planning an armed robbery.

Accordingly, the jury was permitted to consider the evidence of the prior

conviction of armed bank robbery to decide whether Brumfield knew that Sterling

would be armed.

      The evidence was also relevant as to Sterling’s intent to use the gun during

the commission of the crime, as he had previously used a weapon when robbing

another bank. Assuming arguendo that this particular evidence was overly

prejudicial as to Sterling, despite the limiting instruction given to the jury, we find

it was harmless. There was otherwise overwhelming evidence of guilt to support

Sterling’s conviction, including the physical evidence found in the vehicle, the

eyewitness’s descriptions, and Sterling’s unexplained behavior.

   C. Sufficiency of the Evidence

      Brumfield challenges his conviction on all counts based on a lack of

evidence sufficient to support the charges, although he filed a Rule 29 motion for

judgment of acquittal only with respect to the gun charges. As noted above, it was


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undisputed that a gun was in fact used during the commission of the bank robbery.

Based on the evidence of the prior conviction for armed bank robbery, a reasonable

jury could conclude that Brumfield knew that a gun would be used by Sterling in

committing the crime, especially when combined with other evidence that

Brumfield was involved in planning the crime over a period of months while

Sterling stayed with Brumfield. After a review of the record as a whole, we affirm

Brumfield’s conviction on all counts.

                                 IV.    CONCLUSION

      The district court did not err in concluding that Sterling waived his right to

be present at trial. Additionally, the district court did not err in admitting into

evidence the defendants’ prior convictions, and there was sufficient evidence to

support all counts against Brumfield. For the foregoing reasons, the convictions of

both Sterling and Brumfield are

      AFFIRMED.




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