United States v. RobinsonUnited States v. Robinson
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge AGEE and Judge DAVIS joined.
OPINION
Kevin Robinson led a crack cocaine distribution network in which he and his associates repeatedly sold crack cocaine for money, sex, and stolen firearms. He was convicted on numerous drug trafficking
Robinson also seeks to benefit from the lack of doctrinal clarity surrounding
I.
We begin by briefly summarizing the investigations that led to Robinson’s trial and convictions. Because his retrial request centers on subsequently discovered police misconduct, we shall recount the alleged misconduct and the involved officers’ roles in Robinson’s investigation and trial with some care.
A.
In the fall of 2005, the Criminal Investigation Division (“CID”) of the Aiken County Sheriffs Office in South Carolina began investigating a string of residential firearm burglaries. The investigation soon turned up several suspects, who were arrested in early 2006. Investigator Stacey Prince of CID then learned that some of the stolen firearms had been taken out of state, so she contacted Special Agent Lee Baldwin of the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) for assistance. Interviews with the suspected burglars and others revealed that they had traded some of the stolen firearms to Robinson in exchange for drugs. Special Agent Baldwin then asked the Narcotics Division of the Aiken County Sheriffs Office to conduct a controlled buy from Robinson’s house, which it did. Though both are part of the Aiken County Sheriffs Office, the Narcotics Division is separate from CID, and CID does not have access to Narcotics Division files.
Based in part on this purchase and on Special Agent Baldwin’s interviews with the burglars and others, the ATF obtained and executed a federal search warrant, with some Narcotics Division assistance, in August 2006. Special Agent Baldwin asked the Narcotics Division to help with another controlled buy in September 2006, and this controlled buy, along with information gleaned from interviews and from the August 2006 buy and search, supported another federal search warrant conducted with Narcotics Division help in September 2006. From these searches and interviews, investigators gathered substantial evidence that Robinson led a crack cocaine distribution ring, that he often traded drugs for stolen firearms, and that he illegally possessed firearms. Robinson and two co-defendants were indicted for various drug trafficking and firearms charges on September 18, 2006.
Though CID and ATF investigators did not know it at the time, Robinson’s house at 188 Easy Street had already attracted the Narcotics Division’s independent attention. In December 2005 the Narcotics Division had conducted its own controlled buy and executed a state search warrant, finding and seizing drug evidence and firearms. Robinson faced pending state charges from this incident, but Special Agent Baldwin and the CID did not learn of them until a month prior to Robinson’s federal trial. Robinson’s former cellmate
Robinson and his co-defendants received a five-day jury trial. The government introduced the testimony of law enforcement officers from CID, ATF, and the Narcotics Division, the testimony of nineteen cooperating witnesses or codefendants, and the evidence obtained in the three buys and searches. He was convicted on twelve counts:
• Conspiring to possess with intent to distribute, and to distribute, fifty or more grams of crack cocaine, in violation of21 U.S.C. §§ 841(a)(1) , 841(b)(1)(A), and 846 (Count 1);
• Using and carrying firearms during and in relation to, and possessing firearms in furtherance of, drug trafficking offenses on three occasions, in violation of18 U.S.C. § 924(c) (Counts 3, 9 and 25);
• Conspiring to use and carry and possess firearms as prohibited by§ 924(c) , in violation of18 U.S.C. § 924(o) (Count 2);
• Possessing firearms as a convicted felon, in violation of18 U.S.C. § 922(g)(1) (Counts 4,13 and 26);
• Distributing crack cocaine, in violation of21 U.S.C. § 841(a)(1) (Counts 18,19, and 23); and
• Possessing crack cocaine with intent to distribute, in violation of21 U.S.C. § 841(a)(1) (Count 24).
B.
The week after Robinson’s trial, Investigator Crowell of the Narcotics Division informed Special Agent Baldwin that he and several other Narcotics Division officers who worked Robinson’s case had committed -misconduct. With Special Agent Baldwin’s encouragement, Crowell reported these incidents to the Aiken County Sheriffs Office, beginning an investigation that ultimately led to the termination or resignation of four officers on Robinson’s case: Crowell, Owenby, Roberts, and Owens. 1 Prior to these incidents, none of the officers’ personnel files contained evidence of misconduct. The South Carolina Law Enforcement Division investigated and produced a report detailing four instances of misconduct:
• On May 3, 2007, Crowell and Owenby used “buy money” — county funds used to purchase illegal drugs in undercover operations — to gain entrance to and buy alcoholic drinks at a club. The officers repaid the funds prior to monthly budget reconciliation. Crowell admitted this conduct, but Owen-by retained counsel and declined to be interviewed.
• On September 13-14, 2007, Crowell, Owenby, and Roberts again used Crowell’s buy money to purchase drinks, as well as pay dancers, at a club. Crowell and Roberts left the club with a woman to go to her house, with Owen-by joining them later. Crowell, Owen-by, Roberts, and the woman then left, and the officers used buy money to purchase a hotel room for the night. Scared at the sight of a badge, the woman asked to be taken home. Again, the funds were repaid prior to reconciliation. Crowell admitted the conduct, but the others involved declined interviews.
• In late 2005 or early 2006 Crowell improperly disposed of cocaine purchased by an informant after failing to log it. Crowell confessed and Owens knew about the incident, but both officers passed polygraphs indicating they committed no other misconduct related to this evidence.
• Crowell, Owens, Owenby, and Roberts allegedly drank alcohol purchased in underage alcohol buys. Crowell admitted that he took such evidence home on several occasions, and Owens admitted taking some home with Owenbjfs permission. Crowell indicated that all of the officers occasionally drank on the job, possibly even drinking some of this evidence. Crowell did not properly record his underage buys, but others did.
Although none of this misconduct related to Robinson’s case, the dismissed officers were involved, in varying degrees, with each of the buys and associated searches:
December 2005 buy and search: The Narcotics Division wired Marty Baggott for an informant purchase. Owenby searched Baggott before the purchase, drove Baggott to Robinson’s house, and collected the drugs. Investigator Myers, who did not take part in the misconduct, supervised the buy and monitored the recording equipment with Crowell. Based on the buy, Myers and other Narcotics officers received and executed a search warrant for Robinson’s home. Owens took photos, and he seized and bagged 4.03 grams of crack and 0.07 grams of powder cocaine. Crowell served as evidence custodian and collected drug paraphernalia after Owens photographed it. Owenby seized a revolver and ammunition. Federal officials played no role in either the buy or the search.
At trial, the government played the recording of the buy and introduced the 0.18 grams of crack purchased in it. Myers, Owenby, and Baggott testified to their involvement in the buy, and Crowell, Owen-by, and Owens testified to their roles in the search. Myers later stated he saw no improprieties during the search or during his time in the Narcotics Division. The evidence gained in this buy and search formed the basis for Counts 23 through 26.
August 2006 buy and search: At Baldwin’s direction, the Narcotics Division conducted a controlled buy from Robinson using informant Theresa Kelly. Roberts led the operation, searched the undercover car before and after the buy, took the 0.459 grams of crack purchased, and checked the recording. Crowell helped with surveillance, searched Kelly before and after, and wired her. Owens and Owenby monitored the officer who drove Kelly to Robinson’s house. Based in part on this buy and on statements from the robbers, Baldwin obtained a federal search warrant for Robinson’s house. All of the dismissed officers helped execute this warrant, though Special Agent Baldwin was solely responsible for identifying, seizing, and processing evidence. Moreover, Special Agent Baldwin later stated that Narcotics Division officers would have been paired with ATF agents. The . search turned up a .22 rifle in Robinson’s closet, ammunition, and drug paraphernalia such as digital scales, baggies, and video monitoring equipment.
Count 18 stemmed from this buy. The government played the tape of the buy at trial, and Crowell and Roberts testified to their involvement. The government also introduced the evidence seized during the search and had Baldwin testify about it.
September 2006 buy and search:
Again at Baldwin’s direction, Kelly made a controlled purchase of crack from Robinson
At trial, the government played the tape of the buy. The drugs purchased formed the basis for Count 19. Owens testified to the buy and his role in it, but Baldwin testified about the search and its results.
After learning of the dismissed officers’ misconduct, Robinson moved for a new trial on all counts under
II.
Robinson contends that because of the police misconduct evidence he deserves a new trial on all counts under
(a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.
United States v. Custis,
A.
Robinson lays heavy emphasis on the district court’s preliminary conclusion that the police misconduct evidence “[went] to the integrity of the investigation.” He argues that because the dismissed officers controlled the December 2005 buy and search, played active parts in the others, and were partially responsible
If Robinson is contending that his is the rare case in which newly discovered impeachment evidence is enough for a retrial, he is mistaken. Custis’s sketch of this category’s definition indicates its narrow scope:
If the government’s case rested entirely on the uncorroborated testimony of a single witness who was discovered after trial to be utterly unworthy of being believed because he had lied consistently in a string of previous cases, the district judge would have the power to grant a new trial....
Custis,
If Robinson is instead contending that the misconduct evidence serves some purpose other than impeachment, we are at a loss as to what that purpose could be. Unlike the evidence in those few cases in which we have ordered or allowed a retrial, the misconduct evidence does not directly support some alternate theory of the crimes, nor does it provide any legal justification for Robinson’s actions.
See, e.g., Fulcher,
The evidence also throws into stark relief the problems associated with unrelated misconduct evidence in general and retrials based on such evidence in particular. Misconduct evidence like this, which involved witnesses in Robinson’s case but did not relate to those witnesses’ investigation of that case, is likely to push the parties toward miniature credibility trials and to cut into the limits the Rules of Evidence place on information about diversionary and subsidiary issues.
See Custis,
B.
Nor can Robinson demonstrate that the evidence is material. He notes that the district court’s decision to require
Robinson again overstates the impact of the dismissed officers on his trial and undervalues the district court’s ultimate conclusion. As the court found after gathering further information and as the facts above illustrate, the remaining counts stemmed largely from the separate CID/ ATF investigation. As a result, the misconduct evidence says little about Robinson’s guilt or innocence on these counts.
See Custis,
C.
Finally, Robinson cannot demonstrate that the evidence, if introduced at a new trial, would “probably produce an acquittal.”
Custis,
First, it overemphasizes the importance of the officers’ testimony and the likely effect of including evidence of their misconduct. As the district court specifically found and as the discussion above illustrates, CID and ATF did the lion’s share of the work on the remaining convictions. The offending Narcotics Division officers played only minor or subordinate roles. Evidence that some of those officers engaged in wrongful conduct unrelated to Robinson’s case would do little to undermine the largely separate investigation’s results, especially where unaffected officers were paired with the dismissed ones and where Special Agent Baldwin supervised the evidence gathering.
Second, Robinson’s contention ignores the impressive amount of evidence against him from other sources. Even when one eliminates all traces of evidence from the dismissed officers, there remains overwhelming evidence of Robinson’s guilt. Nineteen co-defendants and cooperating witnesses testified that Robinson conspired to traffic drugs. For example, Dorothy Blitchington stated that she and her burglar friends sold numerous guns to Robinson and his associates for crack, testimony echoed by Anthony Clark, Crystal New-some, and Christopher Arthur. Stacey Stevens testified that he had purchased crack from Robinson and for him and that he had observed at least four others selling
So too for Robinson’s other remaining convictions. Robinson’s first
Similarly overwhelming evidence supported Robinson’s second
Robinson cannot demonstrate Custis’s third, fourth, or fifth factors on his remaining convictions. The district court therefore did not err, let alone abuse its discretion, in partially denying him a retrial.
III.
Robinson does not pin his retrial hopes on
A.
Robinson argues that basic
Brady
principles compel the conclusion that the prosecution suppressed the misconduct evidence. First, unlike
Custis
and
Whatever the proper scope of
Brady’s
imputed knowledge doctrine, it cannot be this broad. If it were, every case analyzing retrials for subsequently discovered police misconduct under
Robinson’s view would not only undermine the framework of
We draw no hard and fast lines here about the scope of Brady imputation, and we reiterate that prosecutors have a duty to learn of exculpatory evidence gathered by those acting on the government’s behalf. But on the facts of this case — where the affected officers and the prosecutors worked across state/federal lines, where no one other than the officers themselves had any idea of any impropriety, and where the misconduct evidence was unrelated to Robinson’s own investigation — the principle of imputed knowledge cannot be said to apply-
B.
Even if
Brady
did cover the alleged “suppression” at issue here, Robinson cannot show that there is a “reasonable probability” that he would not have been convicted had the misconduct evidence been introduced.
Strickler v. Greene,
The misconduct evidence here pales in comparison with that suppressed in cases where
Brady’s
materiality requirement was actually met. The dismissed officers were not “the only witness[es] linking [Robinson] with the crime[s].”
Giglio,
IV.
Robinson also argues that his
At the time, this instruction fully accorded with the law in a majority of our sister circuits,
see Watson v. United States,
A.
Robinson did not object to the jury instructions at the time. His counsel rightly acknowledged at oral argument that this failure means we review those instructions for plain error. Rule 30 requires that defendants object to instructions “before the jury retires to deliberate” or face plain error review under Rule 52(b).
Under the plain error standard, Robinson must establish that the district court erred, that the error was plain, and that it “affect[ed] [his] substantial rights.”
United States v.
Olano,
In light of
Watson,
the district court’s use instruction was plainly erroneous.
See Johnson,
Applying this standard,
Hastings
upheld the defendant’s
But there is a possible wrinkle in applying
Hastings
to Robinson’s case. The circuit courts are divided on whether
We do not think that it does, and so we need not decide how many offenses
In keeping with plain error review’s placement of the burden on the defendant, and in view of
Hastings’s
teaching that the error must have actually resulted in prejudice and not merely possible or speculative prejudice,
see Hastings,
By holding that
The striking uniformity here is no surprise, as this interpretation flows naturally from
Even if Robinson somehow satisfied
Olano’s
third prong, we would not disturb his convictions. Plain error review exists to correct only the most grievous of unnoticed errors.
See United States v. Reid,
Sustaining the convictions here fully accords with Congress’s intent in
B.
Robinson further contends that the government introduced insufficient evidence to support his
When reviewing the sufficiency of the evidence, we ask whether, viewed most favorably to the government, there is substantial evidence supporting the verdict.
See United States v. Smith,
V.
Robinson also takes issue with the
A.
Duplicitous indictments present the risk that a jury divided on two different offenses could nonetheless convict for the improperly fused double count.
See, e.g., United States v. Spencer,
Several courts, however, have held that newly raised duplicity claims that go beyond technicalities to allege that the conviction could have rested on an impermissibly divided jury deserve plain error review.
See, e.g., United States v. Lloyd,
Robinson likely cannot demonstrate prejudice because the jury necessarily credited the drugs-for-firearms evidence in convicting Robinson and because such
We would also reject Robinson’s duplicity claim under Olano’s fourth prong. To overturn Robinson’s conviction because of a good-faith charging mistake — one that might not even have been a mistake— where the evidence demonstrated he traded drugs for firearms and thereby violated the possession prong would place form above substance and lessen public confidence in the criminal justice system.
B.
Robinson also argues that by charging the jury that it could convict Robinson if he violated
either
the use or carry prong
or
the possession prong, the district court constructively amended his indictment. That is, because the indictment charged that he violated both prongs, Robinson argues that the district court’s instructions inappropriately broadened the possible bases for conviction from both prongs to just one or the other. Robinson failed to raise this issue below, but in this circuit constructive amendments are erroneous per se and require reversal regardless of preservation.
See United States v. Foster,
We can easily reject Robinson’s constructive amendment claim. Well-settled precedent supports the district court’s instructions. “[W]hen the Government charges in the conjunctive, and the statute is worded in the disjunctive, the district court can instruct the jury in the disjunctive.”
United States v. Perry,
VI.
Robinson makes a few final contentions. First, he argues that under the Double Jeopardy Clause his
He also argues that his consecutive
Though Robinson raised this claim to preserve it for possible further review, the Supreme Court’s recent decision in
Abbott v. United States,
— U.S. -,
VII.
Robinson calls our attention to a host of categories, tests, and frameworks:
Robinson asks us to discount these facts and focus myopically on particular details — the unrelated misconduct of police officers marginally involved with his remaining convictions and the various technical aspects of the indictment and instructions to which he did not even object. To accept his invitation would contravene Congress’s intent, value form over substance, and elevate doctrinal technicalities over common sense. The judgment below is therefore affirmed.
AFFIRMED.
Notes
. For convenience we will refer to them collectively as the "dismissed officers" even though one of them in fact resigned.
. In full,
Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... be sentenced to a term of imprisonment of not less than 5 years....
. Robinson contends that his indictment duplicitously charged him with multiple offenses in single counts. Whatever duplicity problems result from indictments such as his should be dealt with directly rather than through modifications of plain error doctrine.
. Both of these assumptions are debatable, particularly the second. Regarding error, as mentioned above the number of offenses in