Petition for Writ of Certiorari — Sterling H. Roberts, Petitioner v. United States

No.

in the

Supreme Court

of the

United States

Term,

STERLING H. ROBERTS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSEPH MEDICI

Federal Public Defender Southern District of Ohio

Kevin M. Schad

Appellate Director

Office of the Federal Public Defender

Southern District of Ohio

250 E. Fifth St. Suite 350

Cincinnati OH 45202

(513) 929-4834

Kevin_schad@fd.org

Counsel for Petitioner

QUESTION PRESENTED

In Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008), this

Court recognized the common law exception to the Confrontation Clause of

“forfeiture by wrongdoing,” which allows prosecutors to introduce statements from

an unavailable declarant when the defendant caused the unavailability “by design.”

The Sixth Circuit determined this “by design” element may include evidence of

“mixed motives” —1.e. that the defendant procured the unavailability of the

declarant for reasons other than their testimony at the instant trial.

When the prosecution seeks to invoke the forfeiture-by-wrongdoing exception and

admit a statement without any protections afforded under the Confrontation

Clause, must they prove that the defendant’s primary purpose for making the

declarant unavailable was to prevent their testimony in the proceeding for which

the statement is being offered?

il

RELATED CASES

Pursuant to Supreme Court Rule 14(1)(b) (iii), Petitioner submits the following cases

which are directly related to this Petition:

none

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED il

RELATED CASES ill

TABLE OF AUTHORITIES V

OPINION BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT 9

To use declarations under the “forfeiture by wrongdoing exception to the

right Confrontation, the party seeking admission must prove that the

other party designed the declarant’s unavailability for purposes of the

trial for which the declaration is being offered

CONCLUSION 16

APPENDIX xX

1V

TABLE OF AUTHORITIES

Cases

Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 1247, 16 L. Ed. 2d 314 (1966)...... 12

Crawford v. Washington, 541 U.S. 36, 61, 1248. Ct. 13854, 13870, 158 L. Ed. 2d 177

(2OOA) veececsecsecsssesesscsecsessesesavsvsucsvsessussvsussusensucevsucsvsavsnsavsusevsusavssacsvsecavsessnsacavsasavsussesecsesevsnseceeen 15

Davis v. Washington, 547 U.S. 8138, 833, 126 S. Ct. 2266, 2280, 165 L. Ed. 2d 224

(LOG) ...ecccsesseccssessesecsecseceesucsesscsscsesecsussesessessusssessassussesevsusessacsesetssavsnssesevsucsesatensavsnceessetaeesesen 12

Guiles v. California, 554 U.S. 358, 366, 128 S. Ct. 2678, 2687, 171 L. Ed. 2d 488

CAO] 0) 9,10

United States v. Gurrola, 898 F.3d 524, 534 (5th Cir. 2018)......cccccccccccccccsceseessesseeseeseees 11

United States v. Houlthan, 92. F.3d 1271 (1st Cir. 1996) ..ecccccccecccccccccescceseeseeeseeeseseeseees 14

United States v. Jackson, 706 F.3d 264 (4th Cir. 2018) .ooceccccccccecccccceccesecesceseeseeseeeseeseees 13

United States v. Martinez, 476 F.3d 961 (D.C. Cir. 2007) .o.cccecceccccccessesseeseeseesseseeteeeseees 13

No.

in the

Supreme Court

of the

United States

Term,

STERLING H. ROBERTS,

Petitioner,

Vs

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Sterling Roberts, respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court of Appeals for the Sixth

Circuit entered in the above-entitled proceeding on October 17, 2023.

OPINION BELOW

The Sixth Circuit’s opinion in this matter is published at 84 F.4t8 659 and is attached

hereto as Appendix 1.

JURISDICTION

The Sixth Circuit denied Petitioner’s appeal on October 17, 2023. This petition is

timely filed. The Court’s jurisdiction in invoked pursuant 28 U.S.C. § 1291 and

Supreme Court Rule 12.

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

Federal Rule of Evidence 804(b)(6) states in relevant part:

(b) The following are not excluded by the rule against hearsay if

the declarant is unavailable as a witness:

(6) Statement Offered Against a Party That Wrongfully Caused

the Declarant's Unavailability. A statement offered against a

party that wrongfully caused--or acquiesced in wrongfully

causing--the declarant's unavailability as a witness, and did so

intending that result.

STATEMENT OF THE CASE

Petitioner Sterling Roberts was dating Tawnney Caldwell (Tawnney) in 2017.

Tawnney was in a custody dispute with her ex-husband, Robert Caldwell (Caldwell).

On August 5, 2017, Caldwell received a text message asking him to come out toa

location to bid on a renovation project. According to Caldwell, when he arrived at

the location, Roberts was there and threatened him. Caldwell left the area and

called the police. He also prepared an affidavit for the ongoing custody dispute case

outlining the August 5 events. On August 15, 2017, Caldwell was shot and killed

after a therapy session relating to the custody case.

On March 138, 2018, Roberts, Tawnney, and others were named in a six-count

indictment returned in the Southern District of Ohio charging Roberts with: one

count of stalking using the means of interstate commerce, 1n violation of 18 U.S.C. §

2261A(2)(A); one count of possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(¢g); one count of stalking by traveling in interstate commerce, in

violation of 18 U.S.C. § 2261A(1); and one count of use of a firearm to commit a crime

of violence, in violation of 18 U.S.C. § 922G). This indictment was later superseded

on December 12, 2019, to remove the 18 U.S.C. § 9224) count and to clarify that the

Government was not seeking the death penalty as to any defendant.

Trial began on March 9, 2022. Diane Snell, an employee of the Green County

Sheriff's Department, testified that on August 5, 2017, she responded to a 911 call

made by Caldwell, wherein he claimed that he had been ambushed by Roberts in

Jamestown, Ohio. Snell was permitted to play the 911 call, and introduce a

handwritten statement made by Caldwell to law enforcement outlining the events

from August 5. In addition, through Snell’s testimony, copies of texts between

Caldwell and “Debbie Brown” were introduced. The Government alleged that

“Brown” was Sterling Roberts, and that he used the alias Brown to lure Caldwell out

to a remote location (under the guise of providing Caldwell a landscaping job) to kill

him.

Caldwell’s wife, Candice Caldwell, also testified about the Jamestown incident.

Candice Caldwell testified on August 5, 2017, Caldwell called her and told her he

thought that the landscaping job was a setup, and he was scared. Candice was

permitted to inform the jury about a conversation she had with Caldwell after the

incident in which he gave a narrative of events. She was also permitted to testify

about the text messages between Caldwell and “Brown”. Finally, Candice testified

that on August 8, 2017, Caldwell called Roberts and recorded the conversation. She

was permitted to play the conversation to the jury and explain the call content.

The defense objected to each of Caldwell’s out of court statements on

Confrontation Clause grounds. The Government invoked the “forfeiture by

wrongdoing” exception to the Confrontation Clause to admit the statements. The

district court agreed, finding “the government has established by a preponderance of

the evidence that the defendant intentionally caused the Robert -- intentionally

caused Robert Caldwell's unavailability to keep, and to keep Mr. Caldwell from

testifying in a custodial hearing.”

On August 14, 2017, Robert and Tawnney traveled from Ohio to Kentucky to

visit Tawnney’s stepfather James Harmon. During that visit, Roberts discussed the

Jamestown incident with Harmon, and admitted that he confronted Caldwell.

According to Harmon’s testimony, it was Roberts’ intent to “take care of’ Caldwell,

and Roberts “was adamant that he was going to take care of him for the concerns

they had about Bobby supposedly abusing the children.” During that visit, Tawnney

purchased an AK47 from Harmon. Harmon, Tawnney and Roberts traveled together

back up to Centerville Ohio that night. Harmon witnessed Roberts obtain a pistol

from his brother. Harmon assisted in cleaning that weapon for Roberts. Tawnney,

Roberts, and Harmon then drove back down to Kentucky early the morning of the

15th,

On August 15, 2017, Caldwell took his three sons to a counseling appointment

in Riverside, Ohio with psychologist Caprice Ann Stearns Lambert. Coming out of

that session at around 6pm, Caldwell was shot dead. Video surveillance of the

shooting was played for the jury and showed the assailant to be wearing a striped

shirt, shorts, and Air Jordans.

Roberts was arrested in Spartanburg, South Carolina on August 19, 2017.

After his arrest, Roberts volunteered that he was a suspect in a murder in Ohio.

Officers in Spartanburg touched base with investigators in Riverside, and this led to

two more interviews with Roberts in South Carolina, each of which were recorded

and played for the jury. Roberts denied, then admitted, then denied again that he

was in the video shown to him of the shooting. Roberts also admitted that he wanted

to shoot Caldwell in the face. At the time of Roberts arrest, he was in possession of

Air Jordans.

The jury returned a guilty verdict as to all three counts on March 238, 2022. On

July 7, 2022, Roberts appeared for sentencing, and was sentenced to life

imprisonment.

Roberts then appealed his case to the Sixth Circuit Court of Appeals, raising

the following claims:

1. The use of testimonial statements by an unavailable witness denied Roberts

right to Confrontation.

2. Counts one and three charged one ongoing crime, and therefore are

multiplicitous.

3. The Government should not have been permitted to admit images which had

been altered by their expert to identify Roberts.

4. 18 U.S.C. § 2261A in an unconstitutional invasion of the States right to police

crime.

5. The court erred in admitting statements which Roberts provided to an

attorney under attorney-client privilege.

The Court denied this appeal on October 17, 20238. As to Robert’s Confrontation

Clause claim, the Sixth Circuit determined:

Roberts sought to make Mr. Caldwell unavailable to keep

him from testifying about the Jamestown incident—the

conduct underlying Roberts’ first count in this case.

Roberts knew that Mr. Caldwell had identified him from

the Jamestown incident, had reported Roberts to the

police, and had cooperated with the resulting law

enforcement investigation. Based on this, it was also

reasonably foreseeable to him that the criminal

investigation would lead to charges.

Roberts’ attitude hardened after the Jamestown incident

to ensure Mr. Caldwell’s unavailability. Before that

encounter, Roberts stated that he “wouldn’t kill [Mr.

Caldwell] in front of his kids. ’m not that big of a

monster.” Trial Tr., R. 488, PageID 5169. But Roberts

became that monster when he decided to stalk and kill Mr.

Caldwell in front of his children after learning of Mr.

Caldwell’s willingness to cooperate with an investigation

into the Jamestown affair. Moreover, Mr. Caldwell was

killed within days of the Jamestown incident.

This circumstantial evidence demonstrates by a

preponderance of the evidence that Roberts killed Mr.

Caldwell, at least in part, to prevent Mr. Caldwell from

testifying against him. True, Roberts may have had other

reasons for his odious conduct. But even if Roberts had

multiple motives to make Mr. Caldwell unavailable,

Roberts’ desire, at least in part, to prevent Mr. Caldwell

from testifying about the Jamestown incident 1s enough for

the exception to apply and to admit the decedent’s

statements. See, e.g., United States v. Jackson, 706 F.3d

264, 269-70 (4th Cir. 2013); United States v. Martinez,

476 F.3d 961, 966-67 (D.C. Cir. 2007); United States v.

Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996).

Whether a mixed motive allows for the application of the

forfeiture-by-wrongdoing exception is a matter of first

impression for our court in this case. That said, no circuit

has held that having multiple motives for preventing

someone from testifying precludes application of the

forfeiture-by-wrongdoing exception. And for good reason.

As the Court explained in Giles, the foundational principle

of the exception 1s that “no one should be permitted to take

advantage of his wrong.” Giles, 554 U.S. at 366 (citing

Reynolds v. United States, 98 U.S. 145, 159 (1879)). And

that sentiment aligns with the Court’s statement in

Crawford v. Washington, 541 U.S. 36 (2004), that “the rule

of forfeiture by wrongdoing... extinguishes confrontation

claims on essentially equitable grounds.” Id. at 62.

Allowing defendants to avoid this exception because of

multiple evil motives would undercut the equitable nature

of the exception in the first place. As the Fourth Circuit

noted, “federal courts have broadly construed the elements

of the forfeiture-by-wrongdoing exception” to “prevent

‘abhorrent behavior which strikes at the heart of the

system of justice itself.” United States v. Dinkins, 691

F.3d 358, 383 (4th Cir. 2012) (quoting Fed. R. Evid.

804(b)(6) advisory committee’s note). And here, we

construe Roberts’ intent to include the prevention of Mr.

Caldwell’s testimony, even if Roberts had other motives,

because doing so precludes Roberts from “takling]

advantage of his wrongls].” Giles, 554 U.S. at 365.

(Appendix 1, pp.8-10)

REASONS FOR GRANTING THE WRIT

In Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008),

this Court recognized two common law exceptions to the Confrontation Clause right:

declarations made on the brink of death; and declarations of a “witness who was

‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.” 554 U.S. at

359. The second of these exceptions is commonly referred to as “forfeiture by

wrongdoing.” At issue in this appeal is whether the Government must prove, to

introduce a statement under the forfeiture by wrongdoing doctrine, that the party

primarily intended to silence the declarant in the case where the declaration is

sought.

1. To use declarations under the “forfeiture by wrongdoing exception to the

right Confrontation, the party seeking admission must prove that the other

party designed the declarant’s unavailability for purposes of the trial for

which the declaration is being offered

In Petitioner Sterling Roberts’ federal trial for interstate stalking and felon in

possession of a weapon, the Government sought to introduce three out of court

statements from declarant Robert Caldwell: an affidavit prepared for a civil case

relating to child custody; statements he made to police after an assault; and

statements Caldwell made to third persons shortly after the assault. The

Government alleged that Roberts procured Caldwell’s absence from trial by causing

his death. Roberts argued to the district court that, even if he did kill Caldwell, it

10

was not to prevent Caldwell’s testimony at his federal stalking trial, but to wrest

custody of Caldwell’s children from him. Roberts was at the time dating the

children’s mother, who was in a custody battle with Caldwell. The district court

agreed that Roberts acted to prevent Caldwell from testifying at the custody hearing,

but found that this was sufficient to allow invocation of the forfeiture by wrongdoing

exception for the federal trial. On appeal, the Sixth Circuit determined that while

there were likely other reasons for Roberts attack on Caldwell, that a “mixed motive”

for causing Caldwell’s unavailability was sufficient to overcome the Confrontation

Clause requirement. There was no evidence presented that Roberts sought to

prevent Caldwell’s testimony at a federal trial.

To invoke the “forfeiture by wrongdoing” exception to the Confrontation

Clause, the prosecution must prove that the defendant was acting to prevent

testimony at the trial for which the declaration is being sought. The forfeiture by

wrongdoing doctrine is a limited exception to the Confrontation Clause

constitutional right. It cannot be invoked anytime a defendant causes the death of

someone to admit the deceased statements. As this Court has noted, “American

courts never—prior to 1985—invoked forfeiture outside the context of deliberate

witness tampering.” Giles, 554 U.S. at 366. Thus, the Court determined that “the

requirement of intent ‘means that the exception applies only if the defendant has in

mind the particular purpose of making the witness unavailable.” Jd. at 367

1]

(emphasis added.) At common law, the exception allowed for admission of this

evidence “when a witness was kept away by the defendant's “means and contrivance.

.... This phrase requires that the defendant have schemed to bring about the

absence from trial that he ‘contrived.” 554 U.S. at 360. The Court later clarified

that in Giles case, the proffered evidence was inadmissible because “Prosecutors do

not appear to have even argued that the judge could admit the unconfronted

statements because the defendant committed the murder for which he was on trial.”

Td. at 362 (emphasis added). As the Fifth Circuit has put it: “In order for the

declarant's statements to be admissible, the wrongdoer must ‘halve] in mind the

particular purpose of making the witness unavailable.” United States v. Gurrola,

898 F.3d 524, 534 (5th Cir. 2018)(emphasis added).

Here, a federal trial on weapons possession and interstate stalking not on

Roberts’ radar or mind at the time of Caldwell’s killing. Rather, the only evidence

presented by the Government was that Roberts killed Caldwell to prevent Caldwell

from taking custody of the children. Indeed, Roberts could not have intended or

foreseen Caldwell’s testimony at a subsequent federal trial. The lack of evidence

tying Roberts’ motive to the federal trial precludes application of the doctrine.

If this Court allows the Sixth Circuit’s belabored “mixed motive” exception to

stand, then the holding of Giles is meaningless. In Giles, this Court overturned the

California evidentiary rule that allowed admission of out of court statements where

12

an “intentional criminal act” made the declarant unavailable. The Court in Giles

focused on the limited nature of the Confrontation Clause exception, and that the

conduct of the party needed to be “designed” to prevent the testimony. But under

the Sixth Circuit rule, the action would not be tied to design on the trial in question;

rather, it need be tied only to “some” purpose. This cannot be sufficient to overcome

the Confrontation Clause.

The circumstances under which Roberts caused Caldwell’s unavailability do

not amount to a waiver of the right to Confrontation — the basis for the exception

itself. “[Flor a waiver lof a constitutional right] to be effective it must be clearly

established that there was ‘an intentional relinquishment or abandonment of a

known right or privilege.” Brookhart v. Janis, 384 U.S. 1, 4, 868. Ct. 1245, 1247, 16

L. Ed. 2d 314 (1966). Here, Roberts’ actions did not amount to intentionally

abandoning his right to Confrontation at a federal criminal trial which he could not

foresee.

Alternatively, Federal Rule of Evidence 804(b)(6) cannot be read to allow

admission of this evidence. This Court has held that the Rule merely codifies the

forfeiture by wrongdoing exception, see Davis v. Washington, 547 U.S. 8138, 833, 126

S. Ct. 2266, 2280, 165 L. Ed. 2d 224 (2006); therefore, the Rule’s reach does not

exceed the bounds of the constitutional exception.

13

The Sixth Circuit’s determination, that the forfeiture by wrongdoing exception

may apply where a defendant has “mixed motives” to cause the declarant’s absence,

is not supported by this Court’s Confrontation jurisprudence. Rather, even where a

defendant has more than one motive, the rule is that the defendant’s primary

purpose must be to prevent the declarant’s testimony at the trial in question.

Because there is no evidence of that in this case, the Sixth Circuit must be reversed.

2. The Sixth Circuit’s decision creates a conflict among the circuits

The Sixth Circuit noted in their decision that they were aligned to other

circuits who have held that a defendant may have a “mixed motive” for eliminating a

witness. However, closer inspection of those decisions reveals that the Sixth

Circuit’s actually created a split among the circuits on this issue. This Court should

resolve this split. Every other circuit to consider this issue has determined that,

even where “mixed motives’ are present, the defendant always had the express

intent to prevent testimony in the upcoming federal criminal trial.

In United States v. Jackson, 706 F.3d 264 (4th Cir. 2013), the Fourth Circuit

determined that “the forfeiture-by-wrongdoing exception [applies] even when a

defendant has multiple motivations for harming a witness.” /d. at 269. But there,

the declarant was a cooperating witness, set to testify as to the federal charges for

which Jackson was indicted. Thus, even thought there was more than one reason to

14

eliminate the declarant, prevention of testimony for the case at hand was at issue.

ld.

In United States v. Martinez, 476 F.3d 961 (D.C. Cir. 2007), the defendant

was on trial for federal drug charges. The declarant was a member of the drug

organization who was working as an undercover DEA operative. Then Circuit Judge

Kavanaugh determined that “It is surely reasonable to conclude that anyone who

murders an informant does so intending both to exact revenge and to prevent the

informant from disclosing further information and testifying. Jd. at 966 (emphasis in

original). Thus again, the partial motivation was directly tied to and directed to the

federal charges.

Finally, in United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996), the First

Circuit (in a pre- Crawford decision) determined that the forfeiture by wrongdoing

doctrine applied where a defendant ordered the murder of a co-conspirator prior to

charges being filed. However, in that case, the defendant knew that the coconspirator was cooperating with police, and sought his silence to prevent charges or

testimony on the drug trafficking charges for which he was eventually federally

charged. Jd. at 1279. Thus, his motivation (though mixed with others) was directed

to the federal charges for which the forfeiture exception was being used.

None of the above decisions stand for the proposition that declarations can be

used in a criminal trial unrelated to the basis for which a defendant sought silence.

15

And none of the above decisions allow for use of such declarations where the

defendant was primarily motivated by completely other reasons. Thus, the Sixth

Circuit’s supposition that it was in lockstep with other circuits to have addressed

this issue is incorrect, and creates a split among the circuits which this Court should

resolve.

“Admitting statements deemed reliable by a judge is fundamentally at odds

with the right of confrontation. To be sure, the Clause's ultimate goal 1s to ensure

reliability of evidence, but it 1s a procedural rather than a substantive guarantee. It

commands, not that evidence be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of cross-examination.” Crawford v.

Washington, 541 U.S. 36, 61, 1248S. Ct. 13854, 1870, 158 L. Ed. 2d 177 (2004). That

test is not met when statements are introduced as to any declarant whose death was

caused by a party. This Court should determine that where the Government intends

to invoke the forfeiture by wrongdoing doctrine, it must prove that the primary

motivation of the defendant was to extinguish the declarant’s ability to testify at the

trial for which the declaration is being offered. This Court should grant certiorari,

and reverse the Sixth Circuit.

16

CONCLUSION

Roberts requests this Court grant certiorari, reverse the Sixth Circuit's decision, and

remand for further proceedings.

Respectfully submitted,

JOSEPH MEDICI

Federal Public Defender

a , 4

Kevin M. Scha

Appellate Director

Office of the Federal Public Defender

Southern District of Ohio

Appellate Director

250 E. Fifth St.

Suite 350

Cincinnati OH 45202

(513) 929-4834

Kevin_schad@fd.org

Counsel for Petitioner

APPENDIX

1. COURT OF APPEALS ORDER October 17, 2023

Case: 22-3587 Document: 37-2 Filed: 10/17/2023 Page: 1

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit |.0O.P. 32.1(b)

File Name: 23a0230p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

> No. 22-3587

STERLING H. ROBERTS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Ohio at Dayton.

No. 3:18-cr-00032-1—Thomas M. Rose, District Judge.

Argued: July 25, 2023

Decided and Filed: October 17, 2023

Before: MOORE, GIBBONS, and BUSH, Circuit Judges.

COUNSEL

ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio,

for Appellant. Kevin Koller, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for

Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE,

Cincinnati, Ohio, for Appellant. Kevin Koller, UNITED STATES ATTORNEY’S OFFICE,

Cincinnati, Ohio, for Appellee.

OPINION

JOHN K. BUSH, Circuit Judge. Sterling Roberts appeals his conviction for federal

crimes relating to the death of Robert “Bob” Caldwell. Mr. Caldwell was in a child-custody

dispute with his ex-wife, Tawnney Caldwell, who was Roberts’ girlfriend. Roberts tried to kill,

or at least seriously harm, Mr. Caldwell by luring him through false guise to a remote location.

Case: 22-3587 Document: 37-2 Filed: 10/17/2023 Page: 2

No. 22-3587 United States v. Roberts Page 2

Mr. Caldwell managed to escape. Later, he wasn’t so fortunate. Mr. Caldwell was murdered

after a family-counseling session.

Roberts argues, based on the Confrontation Clause, federal evidentiary rules, and the

attorney-client privilege, that the district court improperly admitted evidence related to the earlier

attack and other incriminating proof. He also raises two constitutional challenges to the

interstate stalking statute under which he was convicted, 18 U.S.C. § 2261A, claiming that it

exceeded congressional power under the Commerce Clause and that the counts of his conviction

are multiplicitous. Because none of Roberts’ arguments have merit, we AFFIRM the district

court’s judgment of conviction.

Because of the numerous relevant persons in this opinion that have the same last name

and the various relationships between those persons, we begin with this table listing their names,

how they are referenced herein, and their relationship to the victim:

Name Referenced Name & Relationship to the Victim

Robert

Sterling Roberts oberts

(Alleged Perpetrator)

Robert Caldwell Mr. Caldwell

(Victim/Decedent)

Tawnney Caldwell Ms. Caldwell

(Roberts’ girlfriend & Mr. Caldwell’s ex-wife)

Candice Caldwell Candice Caldwell

(Mr. Caldwell’s wife at the time of the murder)

Cicero

(Mr. Caldwell’s attorney)

Lori Cicero

Harmon

James Harmon (Tawnney Caldwell’s stepfather

and victim’s previous father-in-law)

Case: 22-3587 Document: 37-2 ~~ Filed: 10/17/2023

No. 22-3587 United States v. Roberts Page 3

Surveillance cameras captured the murder of Mr. Caldwell on August 15, 2017. At about

4:00 p.m. that day, he arrived with two of his sons at their therapist’s office for counseling.

Around fifteen minutes later, his then-current wife, Candice Caldwell, dropped off his third son

for the session. About forty-five minutes after that, at around 5:00 p.m., someone who looks like

Roberts entered the camera’s view wearing a hat, a long-sleeved striped shirt, athletic shorts, and

gray shoes with a Nike Jumpman logo on them. A few minutes later, the individual was no

longer visible in the video. But approximately twenty minutes into the footage, a person who

looked like Roberts appeared in the footage. That person sat waiting near the front door of the

therapist’s office building until around 6:00 p.m., when Caldwell and his sons emerged from the

building. At that point the person snuck up from behind Mr. Caldwell and shot him fourteen

times before fleeing the scene.

Following this incident, Roberts was arrested. He admitted in an interview that he had

gone to the therapist’s office building on the day of the shooting. He also identified himself as

the individual initially seen lurking in the beginning of the video. Moreover, Roberts’ counsel

made the same concession during the defense’s closing statement. But at trial, his counsel

claimed that “another man dressed virtually in the same clothing appears” later in the video and

that this other unidentified individual, not Roberts, attacked Mr. Caldwell.

Roberts’ defense, however, had to surmount other evidentiary obstacles. Besides the

surveillance footage, there was cell phone location data that the prosecution introduced as

evidence. This data revealed that a cell phone, bought by Tawnney Caldwell only hours before

the attack, was located near the therapist’s office building at around the time of the attack.

Indeed, only a few minutes before the shooting, that cell phone received a call from another cell

phone owned by Ms. Caldwell. And just after the shooting, there was another call between those

cell phones, this time originating from the one at the murder scene. Soon thereafter, the location

of that cell phone moved away from the therapist’s building, indicating southward travel towards

Cincinnati and northern Kentucky. During this movement, the cell phone linked to the therapy

location was the origin of seven calls to Ms. Caldwell’s other cell phone and ten calls to one of

Roberts’ brothers.

Case: 22-3587 Document: 37-2 Filed: 10/17/2023 Page: 4

No. 22-3587 United States v. Roberts Page 4

After evening fell, Roberts arrived at the home of James Harmon, who was Ms.

Caldwell’s stepfather. Roberts stayed for only around thirty minutes, telling Harmon that he was

in arush. According to Harmon, Roberts left behind a bag of clothing, including a long-sleeved

striped shirt, a pair of shorts or pants, and maybe a hat, which Harmon burned that night.

A few days later, law enforcement caught up with Roberts in Spartanburg, South

Carolina. There, at a gas station, Roberts—in a pair of gray Nike shoes with a Jumpman logo on

them—shot at deputies using an AK-47. Eventually he was subdued and arrested.

This was not Roberts’ first arrest. In April 2017, a few months before Mr. Caldwell’s

death, his attorney Lori Cicero filed an emergency motion to transfer primary custody of the

Caldwells’ children from Ms. Caldwell to Mr. Caldwell. That emergency motion was filed

because Roberts had been arrested for illegally possessing a firearm and Mr. Caldwell knew

Roberts was often around the kids, in violation of standing court orders. After a hearing in June,

Mr. Caldwell received primary custody. The court also issued a preliminary order restricting

Roberts, who then lived with Ms. Caldwell, from having contact with her three children.

Relevant to this appeal, Roberts was incarcerated before the custody hearing, and he talked about

the impending hearing with his girlfriend on a recorded line. As part of those conversations,

Roberts mentioned at least twice the possibility of helping Ms. Caldwell by killing her exhusband.

In July 2017, after Mr. Caldwell was awarded primary custody, Ms. Caldwell bought a

gray Mitsubishi Eclipse convertible, which Roberts drove to Xenia, Ohio to buy a Taurus

handgun. Those purchases are linked to disturbing events that occurred the next month in

Jamestown, Ohio.

To recount, in August, Mr. Caldwell received texts from a “Debbie Brown” (just a couple

of weeks before his murder) asking him to perform construction work. Mr. Caldwell was en

route to the address that “Brown” had provided him in Jamestown, Ohio when “Brown” texted

him a new address for their meeting. Mr. Caldwell became suspicious, so he asked “Brown” to

call him, but “Brown” refused to do so. Mr. Caldwell then went to the second address, where he

parked at the end of the driveway and texted “Brown” to meet him by the mailbox on the street.

Case: 22-3587 Document: 37-2 Filed: 10/17/2023 Page: 5

No. 22-3587 United States v. Roberts Page 5

Instead of “Brown” appearing, however, Roberts drove up in his girlfriend’s new convertible and

said: “What’s up Bobby? You ready to die?” After hearing those taunts and seeing Roberts exit

his car with a gun, Mr. Caldwell fled in his car. Roberts followed in pursuit.

During his escape, Mr. Caldwell called 911 to report that he was being chased by

Roberts. Mr. Caldwell told the operator that he was “a little shooken [sic] up” and that he

planned to call his wife to “get my kids out of my house.” He then called his then-current wife,

Candice Caldwell, who described her husband as “fearful,” “not calm,” and speaking much faster

than normal. Mr. Caldwell also called his attorney, Lori Cicero, to relay what had just happened.

According to Cicero, her client was “scared, frantic,” and “out of breath” during the call. During

trial, Roberts objected to Cicero’s testimony. But the district court overruled the objection,

holding that Mr. Caldwell’s statements were excited utterances.

After speaking with the 911 operator, his wife, and his attorney, Mr. Caldwell arrived at

the police station, where he completed a three-page handwritten statement detailing the events

and identifying Roberts. Several days later, Mr. Caldwell also signed an affidavit attesting that

the investigation into those events was ongoing and that he was cooperating with law

enforcement.

In the federal criminal trial below, the government moved to admit the written statement

and affidavit as evidence of the Jamestown incident. Roberts objected, claiming that their

admission violated the Confrontation Clause. The government responded by arguing that the

forfeiture-by-wrongdoing exception to the Confrontation Clause applied. The government

maintained that Roberts was motivated, at least in part, to kill Mr. Caldwell to keep him from

testifying in the custody dispute, and that Roberts knew Mr. Caldwell was cooperating with the

investigations into the Jamestown incident. The district court agreed, finding by a

preponderance of the evidence that Roberts intentionally caused the decedent’s unavailability.

Other proof against Roberts that the district court admitted in evidence, despite his

objections, included testimony regarding conversations he had with Mr. Caldwell and Cicero.

The day after the encounter in Jamestown, Roberts asked Mr. Caldwell to call him because he

had something important to discuss related to the custody dispute. Mr. Caldwell, who recorded

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No. 22-3587 United States v. Roberts Page 6

the conversation, confronted Roberts about the incident in Jamestown. Roberts responded by

saying he wanted to speak with Mr. Caldwell’s attorney, Cicero, about the custody dispute. Mr.

Caldwell then asked Cicero to call Roberts, and she did.

Cicero understood Roberts to be reaching out with information that might help Mr.

Caldwell. Roberts told Cicero that Ms. Caldwell blamed him for losing custody of her children.

He also admitted that he had threatened Mr. Caldwell in Jamestown but insisted that he had only

planned to fight his girlfriend’s ex, not kill him. According to Cicero, she told Roberts during

this conversation that she represented Mr. Caldwell, not Roberts. Moreover, Roberts led Cicero

to believe that he did not want their conversation to remain confidential; he asked her to record

the call. And Cicero testified that Roberts did not attempt to seek legal advice. When Roberts

asked if he should turn himself in to the police, Cicero “told him to call Henke, his attorney, and

to go to the police” and that she “did not represent him and [] could not help him.”

The statements Roberts made to Cicero came into evidence over Roberts’ objection that

they were protected by attorney-client privilege. The district court determined that, even though

Cicero had been Roberts’ court-appointed counsel for separate criminal charges in 2006 and

2008, those representations were discrete appointments and that no ongoing attorney-client

relationship existed.

Roberts’ defense also was challenged by proof related to incriminating statements he had

made to his relatives. After the Jamestown incident but before the murder, Roberts and Ms.

Caldwell traveled from Dayton, Ohio to Nashville, Tennessee. While on this trip they visited

Harmon, Ms. Caldwell’s stepfather, in northern Kentucky. Roberts told Harmon that he had

intended to shoot Mr. Caldwell during the Jamestown incident. After making this admission,

Roberts traveled with Ms. Caldwell and Harmon to Roberts’ brother’s home in Dayton, Ohio,

where Roberts made another shocking statement: he asked for a gun because he intended to

“smoke” Caldwell. And on the morning of August 15, 2017, the day of Mr. Caldwell’s murder,

Roberts and his girlfriend traveled from Harmon’s home in northern Kentucky to Ohio. There,

Ms. Caldwell purchased the cellphone that would be located near the therapist’s building at the

time of the murder later that day.

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No. 22-3587 United States v. Roberts Page 7

Finally, relating back to the video footage that was captured outside of Mr. Caldwell’s

therapist’s office, the government introduced testimony from David Loomis, a forensic audiovideo analyst in the Ohio Attorney General’s Office. Loomis prepared a three-minute timeline

video based on his review of the security camera footage. Additionally, the analyst took seven

still images from the footage and applied minor filters to the images to sharpen and brighten

them before enlarging certain regions in the images by 300%. Loomis testified that these

enhancements had not altered the substance of the images. Roberts objected to the use of the

video timeline and still images, claiming they were not accurate, authentic, or trustworthy. The

district court overruled Roberts’ objection.

A jury convicted Roberts of two counts of interstate stalking and one count of illegal

firearm possession.’ Roberts’ stalking conviction under 18 U.S.C. § 2261A(2) stems from the

Jamestown incident, and his stalking conviction under 18 U.S.C. § 2261A(1) arose from the

murder of Mr. Caldwell. The district court sentenced Roberts to life imprisonment on the

stalking counts and ten years’ imprisonment for illegal firearm possession.

II.

Generally, this court reviews a “district court’s evidentiary decisions for an abuse of

discretion,” but “[t]o the extent the evidentiary decision turned on a ‘conclusion of law,’ we

review it de novo.” United States v. Matthews, 31 F.4th 436, 452 (6th Cir. 2022) (quoting

United States v. Baker, 458 F.3d 513, 516 (6th Cir. 2006)). Because of the variety of evidentiary

challenges, we discuss the applicable standard of review in each of the sections that follow.

As for Roberts’ constitutional challenges regarding 18 U.S.C. §2261A and multiplicitous

counts, he did not raise these objections to the district court. Therefore, we review those issues

only for plain error. United States v. Al-Maliki, 787 F.3d 784, 791 (6th Cir. 2015); United States

v. Ehle, 640 F.3d 689, 694 (6th Cir. 2015).

Roberts does not challenge his firearm possession conviction on appeal.

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No. 22-3587 United States v. Roberts Page 8

Il.

A. Testimonial Statements by the Victim

Alleged violations of the Confrontation Clause are reviewed de novo. United States v.

Robinson, 389 F.3d 582, 592 (6th Cir. 2004); see also United States v. Park, 278 F. App’x 527,

534 (6th Cir. 2008). The Sixth Amendment to the United States Constitution, made applicable to

the states by the Fourteenth Amendment, provides that “[iJn all criminal prosecutions, the

accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const.

amend. VI; Pointer v. Texas, 380 U.S. 400, 403 (1965). That provision “bars ‘admission of

testimonial statements of a witness who did not appear at trial unless he was unavailable to

393

testify, and the defendant had had a prior opportunity for cross-examination.’ Davis v.

Washington, 547 U.S. 813, 821 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54

(2004)). Testimonial statements include a declarant’s out-of-court statements, such as Mr.

Caldwell’s written statement and affidavit. Giles v. California, 554 U.S. 353, 358, 365 (2008).

There are exceptions, however, that allow testimonial statements into evidence. Relevant

here is the forfeiture-by-wrongdoing exception. Fed. R. Evid. 804(b)(6). This exception allows

for admission of “[a] statement offered against a party that wrongfully caused ... the declarant’s

unavailability as a witness, and did so intending that result.” Jd. Mr. Caldwell was the declarant

of the written-witness statement as well as the affidavit, which were to be used against Roberts.

And Roberts intentionally caused Mr. Caldwell’s unavailability as a witness. These facts fit into

the exception, which applies “only when the defendant engaged in conduct designed to prevent

the witness from testifying.” Giles, 554 U.S. at 359.

The government bears the burden of proving by a preponderance of the evidence that

Roberts caused Mr. Caldwell’s unavailability with the purpose to prevent him from testifying.

Beckett v. Ford, 384 F. App’x 435, 448 (6th Cir. 2010) (quoting Steele v. Taylor, 684 F.2d 1193,

1202 (6th Cir. 1982)). Roberts concedes that he wrongfully caused Mr. Caldwell’s unavailability

but claims that there was no proof that he did so to prevent the decedent from testifying. The

government met its burden to prove otherwise. Roberts sought to make Mr. Caldwell

unavailable to keep him from testifying about the Jamestown incident—the conduct underlying

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