United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-20590 FILED March 28, 2025 ____________ Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus Hezron Benjamin Stuart,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CR-495-1 ______________________________ Before Smith, Clement, and Duncan, Circuit Judges. Jerry E. Smith, Circuit Judge:

I. On May 18, 2019, Hezron Stuart robbed a Houston Corner Store gas station; on May 23, he robbed a Citgo gas station. He was armed both times. A grand jury indicted him on two counts of Hobbs Act robbery under 18 U.S.C. § 1951(a) and two counts of using, carrying, possessing, and bran- dishing a firearm during and in relation to a crime of violence under § 924(c)(1)(A). Awaiting trial in 2020, Stuart strangled a female prison officer for four Case: 23-20590 Document: 107-1 Page: 2 Date Filed: 03/28/2025

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minutes during a bathroom trip. Prison staff discovered her unconscious and Stuart with a sharp object in his hand. He said to the rescuing officers, “In the year 2020, you’re going to remember Stuart; I’m going to kill some- body.” A grand jury indicted him for that assault. In February 2023, a month before trial, the case was transferred to Chief Judge Crane of the Southern District of Texas, who consolidated the 2019 indictment for the robberies and gun offenses with the 2020 indictment for assault of the prison officer. The case was again transferred, this time to Judge Rosenthal, and trial began on March 13, 2023. After swearing in the jury, the court gave general instructions. It emphasized that “[s]tatements, arguments, and questions by lawyers are not evidence” and that “[o]pening statements are neither evi- dence nor arguments.” It also instructed the jury about the charges that Stuart was facing, including, as Stuart complains, the 2020 charge for the prison assault. The government delivered its opening statement. Previewing how it had identified Stuart as the robber, it alluded to a May 7, 2019, “occurrence” where Stuart fired the same gun that was used in the charged robberies. It then discussed the 2020 prison-assault charge: “He assaulted a guard. . . . He wrapped a telephone cord around her neck where she thought she was going to die. There was a pair of medical scissors used to cut her neck.” Stuart, proceeding pro se with an attorney on standby, delivered his own opening statement. Among other things, he questioned how the govern- ment had identified him as the May 7 shooter and, thus, the May 18 and 23 armed robber: “[H]ow is it that . . . on May 7th there was a family violence and shots was fired[?] How is it that you find the shell for a bullet casing or shell in an apartment complex parking lot and place it on Mr. Stuart?” The first witness was Prajwal Kayastha, the Citgo store clerk on the

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