United States v. Roberson

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 11, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 04-60368
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCUS ROBERSON, a/k/a “LOCO”,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Mississippi
(02-CR-76)
Before DAVIS, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant Marcus Roberson, a/k/a “Loco,” was convicted of
felony possession of a firearm that had been transported in
interstate commerce in contravention of 18 U.S.C. § 922(g)(1).
Roberson appeals his conviction on several grounds, including his
assertion that the district court reversibly erred by permitting
the Government to use Roberson’s nickname at trial. For the

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reasons set forth below, we AFFIRM Roberson’s conviction.
BACKGROUND & PROCEDURAL HISTORY
On June 12, 2002, Marcus Roberson was indicted under 18 U.S.C.
§ 922(g)(1) on one count of being a felon, i.e., a person who had
previously been convicted of a crime punishable by a term of
imprisonment exceeding one year, in possession of a firearm that
had been transported in interstate commerce. On July 25, 2002, a
Superceding Indictment issued, this time charging Marcus Roberson
a/k/a “Loco” with two counts of being a felon in possession of a
firearm that had previously been transported in interstate
commerce. Count One specifically referred to possession of a
Jennings .380 caliber semi-automatic pistol on July 1, 1999, while
Count Two related to Roberson’s alleged possession of a 9mm pistol
on or about December 24, 1999.
Roberson entered a plea of not guilty, and the case was set
for trial in Greenville, Mississippi on March 31, 2003. The
commencement of trial was held over four times on account of
Roberson’s filing of four motions for continuance. The trial was
ultimately rescheduled to begin on December 1, 2003, in Oxford,
Mississippi. Roberson did not object to the new venue ordered by
the district court. Before and during trial, Roberson filed
several motions seeking various forms of relief. On November 26,
2003, Roberson filed a motion seeking to admit into evidence
residual hearsay in the form of a statement from an alleged witness

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2 Roberson successfully filed two other motions in limine, which
excluded any mention of the details of his prior felonies and
excluded any reference to instances of firearms possession on any
occasion other than December 24, 1999.
3
to the underlying incident, who allegedly could not be found to be
served with a subpoena. The district court denied the motion,
finding that the witness’s submitted affidavit did not contain the
circumstantial guarantees of trustworthiness sufficient to satisfy
the relevant hearsay exceptions. Then, on the first day of trial,
Roberson filed a motion in limine in which he requested the
district court to exclude any mention or reference to the nickname
“Loco” in identifying or referring to Roberson. The district court
again denied the motion.2
On December 5, 2003, having considered the evidence presented
before it, the jury returned a verdict finding Roberson guilty of
Count Two of the Superseding Indictment. On April 16, 2004,
Roberson was sentenced to 120 months’ imprisonment followed by a
term of three years’ supervised release and a special assessment of
$100. Roberson timely filed the instant appeal.
DISCUSSION
I. Whether the district court abused its discretion by permitting
use of Roberson’s nickname “Loco” at trial.
On appeal, Roberson argues that the use of his nickname,
“Loco,” at trial was highly prejudicial and not probative of any
material or relevant fact. In response, the Government maintains
that reference to Roberson’s nickname was necessary to connect him

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with the offense charged because the witnesses to the underlying
crime knew Roberson by his nickname, Roberson referred to himself
as “Loco,” and because the nickname itself was not suggestive of a
criminal disposition.
We review the district court’s determination that use of a
defendant’s alias at trial is more probative than prejudicial for
an abuse of discretion. United States v. Stowell, 947 F.2d 1251,
1255 (5th Cir. 1991).
In United States v. Dean, 59 F.3d 1479 (5th Cir. 1995), this
Court explored the propriety of using a defendant’s nickname at
trial. In Dean, several witnesses testified at trial using the
defendant’s nickname, “Crazy K,” to identify him. Id. at 1491-92.
In addition, the prosecution attorneys and the attorney for a co-
defendant referred to the defendant’s nickname during the course of
the trial. Id. This Court determined that such use is appropriate
if it can be established that the witnesses knew the defendant by
that name. Id. at 1492. The witnesses in Dean knew the defendant
by his nickname, and the attorneys’ use of the defendant’s nickname
was done primarily to distinguish between the two co-defendants who
shared the same first name. Id. The Court also found persuasive
the Government’s argument that “the nickname ‘Crazy K’ is not
necessarily suggestive of a criminal disposition.” Id. at 1492.
Here, several witnesses called by the Government made
references identifying Roberson as “Loco.” For instance, the owner
of a car wash located next door to the hotel where the underlying

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3 The Government attorney stated during closing arguments that
Roberson may have lived up to his nickname when he possessed the
firearm that was eventually used to shoot the victim. However,
Roberson did not object to the Government’s closing argument nor
did he seek a limiting instruction on the matter. Nevertheless,
the statement cannot be read as suggesting that Roberson was a
criminal or guilty of the offense charged simply because he went by
or “lived up to” the nickname “Loco.”
5
incident occurred, testified that Shada Young, an eyewitness to the
crime, ran up to the car wash and proclaimed that “Loco just shot
Frank.” In addition, the first police officer to arrive at the
scene testified at trial that Young immediately told him that “Loco
shot him, man.” There were two additional Government witnesses who
testified that they referred to Roberson as “Loco.” The Government
attorney also referenced Roberson’s nickname during closing
arguments.3 In addition, the Government introduced handwritten
letters by Roberson to establish that the handwriting found on
evidence at the crime scene was that of Roberson’s. The letters,
written by Roberson to his girlfriend, were both signed “Loco.”
Because the Government witnesses who testified at trial knew
Roberson as “Loco,” because Roberson referred to himself by his
nickname, and because we conclude the nickname “Loco” is not
suggestive of a criminal disposition, we hold the district court
did not abuse its discretion when it denied Roberson’s motion
seeking to exclude any reference to his nickname at trial.
II. Whether the district court reversibly erred by not admitting
into evidence residual hearsay offered by Roberson.
Roberson filed a pre-trial motion with the district court

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4 Federal Rule of Evidence 807 provides, in pertinent part,:
A statement not specifically covered by Rule 803 or 804 but
having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the
court determines that (A) the statement is offered as evidence
of a material fact; (B) the statement is more probative on the
point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts; and (C)
the general purposes of these rules and the interests of
justice will best be served by admission of the statement into
evidence.
FED. R. EVID. 807.
6
seeking to admit into evidence residual hearsay in the form of an
affidavit from an individual who was an alleged witness to the
underlying crime. The district court denied the motion, finding
that the affidavit did not contain the circumstantial guarantees of
trustworthiness necessary to be admitted under the catch-all
hearsay exception found in Federal Rule of Evidence 807.4
We apply a highly deferential standard of review in evaluating
a district court’s determination regarding the admission of
statements under the residual hearsay exception. Rock v. Huffco
Gas & Oil Co., Inc., 922 F.2d 272, 281 (5th Cir. 1991). “We will
not reverse the district court’s finding ‘absent a definite and
firm conviction that the court made a clear error of judgment in
the conclusion it reached based upon a weighing of the relevant
factors.’” Id. (citing Page v. Barko Hydraulics, 673 F.2d 134, 140
(5th Cir. 1982)).
The hearsay in question is the affidavit of an unavailable

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witness, Daryl Metcalf, who gave statements to both a prosecution
investigator and one of Roberson’s former attorneys. In the
affidavit, Metcalf claims to have witnessed the underlying crime,
but states that another individual, not Roberson, was the person
who possessed the firearm used to commit the offense.
Because Metcalf could not be found to be served a subpoena,
his affidavit could only have been admitted under Rule 807. This
Court has previously announced that the exception found in Rule 807
is to be used rarely, in only truly exceptional cases. United
States v. Phillips, 219 F.3d 404, 419 n.23 (5th Cir. 2000).
Roberson also bears a heavy burden to come forward with indicia of
trustworthiness and probative force. Id.
The district court concluded that Roberson did not carry this
heavy burden, noting numerous credibility issues with the proffered
affidavit. For instance, the district court observed that the
affidavit itself was three years old, was submitted by an
individual who had been convicted of five prior felonies, and
contained a notarization that was suspect in that the identity of
the notary was not known and the signature line for the notary
contained an illegible signature. In addition, the district court
found it particularly relevant that Metcalf could not be located,
even through the diligent efforts on the part of investigators and
police officers, and thus could not be cross-examined.
We conclude that, based on the foregoing reasons, the district
court properly determined that the residual hearsay offered by

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Roberson did not contain the circumstantial guarantees of
trustworthiness necessary to be admitted under Rule 807.
III. Whether the district court reversibly erred by transferring
the case to a division different from that where the offense
allegedly occurred.
Roberson maintains he was denied a jury consisting of a fair
and random cross-section of the applicable jury division when the
district court transferred the trial from Greenville, Mississippi,
located in the Northern District of Mississippi, to Oxford,
Mississippi, also located in the Northern District. The Government
responds that there is no right to have a case tried within any
particular jury division, and that Roberson nevertheless failed to
object to the transfer until the jury had already been impaneled
and the Government had rested its case-in-chief.
Because a district court has broad discretion in deciding
whether to transfer venue, we review such decisions for an abuse of
discretion. United States v. Harris, 25 F.3d 1275, 1277-78 (5th
Cir. 1994). “Reversal of an intradistrict transfer is proper only
if a party demonstrates a ‘substantial ground for overturning the
district court’s decision.’” United States v. Lipscomb, 299 F.3d
303, 339 (5th Cir. 2002) (citing United States v. Dickie, 775 F.2d
607, 609 (5th Cir. 1985)).
Whether a transfer to another division is appropriate is
generally governed by Federal Rule of Criminal Procedure 18, which
provides:

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5The security concerns in Harris involved issues relating to
possible gang-related violence.
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Unless a statute or these rules permit otherwise, the
government must prosecute an offense in a district where
the offense was committed. The court must set the place
of trial within the district with due regard for the
convenience of the defendant and the witnesses, and the
prompt administration of justice.
FED. R. CRIM. P. 18. This Court has determined that factors such as
security may also be considered by a district court when deciding
whether to transfer a case. For instance, in Lipscomb, the Court
recognized that the amount of jail space for defendants and
witnesses is a factor that falls under the “prompt administration
of justice” prong of Rule 18. 299 F.3d at 343 (citing United
States v. McKinney, 53 F.3d 664, 673 (5th Cir. 1995)).
This Court was previously presented with an almost identical
scenario in Harris, where the district court moved the trial from
Greenville to Oxford, citing concerns over security problems and
noting that the facilities in Oxford were better equipped to handle
such situations.5 25 F.3d at 1278. The district court
specifically observed that Oxford was the headquarters of the
United States Marshals Service and explained that moving criminal
trials there was the normal procedure in cases that required more
than ordinary security. Id. The district court also cited
scheduling issues that made Oxford the more convenient venue to
expeditiously handle the cases before it. Id. On appeal, this
Court concluded that the district court’s assessment of the

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6 Like the case in Harris, the underlying incident here involved
a gang-related dispute. The offense occurred in Clarksdale,
Mississippi, located approximately 60 miles from Oxford and 70
miles from Greenville.
10
security risks and the state of the court’s docket was sufficient
to warrant a transfer. Id.
Likewise, in the instant case, the district court specifically
made reference to security considerations, noting that the
facilities in Greenville were inadequate to accommodate witnesses,
two of whom were incarcerated at the time.6 The district court
also observed that the detention center in Oxford provided both
ample physical facilities to conduct the trial as well as access to
more federal marshals for general security purposes. It was also
revealed that the witnesses to the charged offense resided closer
to Oxford than Greenville, Roberson’s attorney resided and worked
in Oxford, and Roberson himself, along with two other witnesses,
were in custody at the time.
Based on the foregoing reasons and because Roberson has failed
to come forward with any substantive evidence demonstrating that he
or the witnesses were inconvenienced by the transfer, we conclude
that the district court did not abuse its discretion when it
transferred the trial from Greenville to Oxford.
CONCLUSION
Having carefully reviewed the entire record of this case and
having fully considered the parties’ respective briefing, we

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conclude that the district court did not abuse its discretion in
permitting the use of Roberson’s nickname at trial nor did it err
in not admitting into evidence Roberson’s residual hearsay
evidence. Moreover, Roberson was not prejudiced when the district
court transferred the trial from Greenville, Mississippi to Oxford,
Mississippi. Accordingly, Roberson’s conviction is AFFIRMED.

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