Standard of review for ex parte communication with a jury when defendant failed to object after the district court disclosed it; FedRCrimP 51(b) United States v Paul (Unpub 6th Cir); Other acts evidence; FRE 404(b); Jury instructions as to FIP; Sentencing under the Armed Career Criminal Act (ACCA); Crimes committed on different “occasions”; Erlinger v United States; Harmless error

The court held for the first time in a published decision that plain-error review applies to claims of ex parte communications between a district court and the jury when the defendant failed to object after the district court disclosed the communication. It also found that defendant-Robinson was not entitled to relief on his claims as to the admission of other acts evidence, the jury instructions on FIP, and his sentencing under the ACCA. A jury convicted him of FIP. He argued that the district court violated the Sixth Amendment by responding to a jury note without the defense’s input. The court found that he had forfeited his claim by raising it for the first time on appeal. It noted that it has “held that the defendant must alert the court to the claimed error after the fact to preserve it.” Further, the court has previously specifically held in an unpublished decision, Paul, that “plain-error review should apply to claims of ex parte communications between a court and the jury when the defendant failed to object after the court disclosed the communication.” In addition, “many other courts have applied plain-error review to claims that a district court (or court staff) wrongly communicated with jurors outside the presence of the defendant or defense counsel.” The court formally joined them here. And it concluded that this “standard dooms Robinson’s claim because he has not shown an ‘obvious’ Sixth Amendment violation.” The court noted that “the district court would not have committed an ‘obvious’ error by believing that it was providing . . . ‘scheduling information.’” And it concluded “the district court reasonably interpreted the jury’s note—with its limited ‘tonight’ language—to be asking about scheduling rather than about how to proceed if they have reached an unfixable impasse.” As to his other acts evidence argument, “detectives’ generic statements that” a unit existed to investigate shootings did not even mention him, “let alone disclose that he had committed a prior crime or bad act.” Also, the district court properly concluded that the defense had “opened the door” to testimony that a witness had seen Robinson with a gun. The court found no error in the district court’s jury instructions as to the relationship between gun ownership and gun possession. Lastly, Robinson argued that the district court erred by invoking the ACCA where the jury was required to resolve whether his prior offenses were committed on different occasions. While Erlinger confirmed he was right, “a gap of many years separated each of Robinson’s three crimes. The record thus leaves no doubt that he committed those crimes on different occasions and that this error was harmless here.” Affirmed.