Prior armed bank robbery was admissible under Rule 404(b) and disruptive Defendant waived his right to be present at trial

The Defendants in U.S. v Sterling appealed their federal criminal convictions for 1) armed bank robbery, 2) use of a firearm during and in relation to a crime violence, and 3) possession of a firearm by a convicted felon. On appeal the defendant’s challenged the admission of their prior convictions admitted pursuant to Rule 404(b). The facts of the robbery reveal that a masked man vaulted over the teller counter at a bank in Smyrna, Georgia and robbed the bank using a silver handgun. The man exited the band and disappeared from the view of witnesses. Another man was seen removing a piece of paper covering the license tag of a vehicle while leaning over the trunk. Later the police found a car matching the description of the getaway car driven by one of the defendants but the suspected bank robber was found. After the vehicle was towed and impounded by a towing company, the tow truck driver saw a man matching the bank robber’s description lying on the flatbed next to the open backseat door of the car. In the trunk, police found a bag with clothing matching the description of the bank robber’s clothing as well as a silver firearm.

The 404b evidence stemmed from a bank robbery in 1995 where both defendants were convicted of the robbery. The Court applies a 3-part test to determine the admissibility of evidence or 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.
3. The probative value of the evidence must not be substantially outweighed by its undue prejudice.

The jury was told it could consider the evidence for the purpose of intent, plan, preparation, and lack of accident or mistake. The court found the evidence of the prior crime was admissible because it involved both defendants robbing a bank together using a gun in the commission of the felony.

One defendant claimed his right to be present a trial under Federal Rule 43 was violated. This defendant announced that he did not want anything to do with the trial. He did agree to speak with the court in an interview room with attorneys and the court reporter present. The judge advised the defendant that his repeated interruption would result in his being labeled a disruptive defendant and removed from court, and his continued actions would be deemed a waiver of his right to be present at trial. After the district judge found to be a disruptive defendant, the court reconvened in the courtroom and the judge stated that the defendant had waived his right to present. The trial continued without his presence though the judge provided a live video feed of the proceedings and his counsel was permitted to meet with him during the breaks. Rule 43 requires that the defendant voluntarily absent “after the trial has begun.” The defendant argued that the under the trial process had not begun since the judge did not bring him in front of the prospective jury to advise him that the trial was beginning. The Court found that the trial began on the day of jury selection without respect to whether the defendant is present at the time prospective jurors enter the courtroom.