U.S. v. Robinson
| Decision Date | 02 December 2004 |
| Docket Number | No. 02-5040.,02-5040. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael A. ROBINSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Herbert S. Moncier, Law Offices of Herbert S. Moncier, Knoxville, Tennessee, for Appellant. David P. Folmar, Jr., Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Herbert S. Moncier, Law Offices of Herbert S. Moncier, Knoxville, Tennessee, for Appellant. David P. Folmar, Jr., Assistant United States Attorney, Cleveland, Ohio, for Appellee.
Before: BOGGS, Chief Judge; RYAN, Circuit Judge; and ROSEN, District Judge.*
Defendant/Appellant Michael A. Robinson was charged in a six-count second superseding indictment with one count of conspiracy to distribute marijuana and cocaine (Count One), two counts of possession with intent to distribute marijuana (Counts Three and Six), two counts of carrying firearms during and in relation to the above-cited drug trafficking offenses (Counts Two and Five), and one count of being a felon in possession of a firearm (Count Four). Co-defendants Kawyn Logan, William Barnes, and Ronald Brady also were named in the Count One conspiracy charge, and Barnes was named in the Count Six marijuana possession charge. Following a six-day trial of Defendant Robinson and Brady in June of 2001,1 the jury returned guilty verdicts against Robinson on Counts One through Five and against Brady on the Count One conspiracy charge.2 The jury further found that Robinson's role in the drug conspiracy offense involved both marijuana and cocaine, including at least five kilograms of cocaine and less than 50 kilograms of marijuana.3
After escaping from jail shortly after trial, Robinson was sentenced in absentia on November 27, 2001 to 292 months' imprisonment as to Count One, 60 months as to the Count Three marijuana possession offense, and 120 months as to the Count Four felon-in-possession offense, to be served concurrently. Robinson was also sentenced to 60 months imprisonment as to each of the "carrying" offenses (Counts Two and Five), to be served concurrently with each other but consecutively to the other portions of his sentence. He now appeals his conviction and sentence, challenging a number of the district court's pretrial determinations and rulings at trial, arguing that the evidence was insufficient to sustain four of the five counts of conviction, and claiming that the district court erred in sentencing him in absentia and in calculating his sentence. We affirm Robinson's conviction but remand for resentencing.
The charges against Defendant/Appellant Michael A. Robinson in this case—and the issues raised by Robinson on appeal—rest in significant part upon evidence uncovered in three searches and/or seizures conducted on May 19, 2000, June 15, 2000, and June 27, 2000. Because Robinson has challenged the district court's denial of his several motions to suppress this evidence, we describe each of these incidents in turn.
On May 19, 2000, Robinson was arrested following a controlled delivery of a package at a Pak Mail facility in Morristown, Tennessee. The facts surrounding this incident derive primarily from the testimony of federal Postal Inspector Sam Romano and Detective Dan Cox and Inspector Randy Noe of the Morristown Police Department. According to Inspector Romano, upon a routine visit to the Knoxville, Tennessee Airport on May 19, 2000 to review incoming mail, he observed a package with a return address of Inglewood, California, that was being shipped to a "Healthy Hair Barber Shop" in Morristown.4 Romano testified that several factors, including the smell of marijuana, a return address from a known drug distribution area, and handwritten labels, made him suspect the package. In addition, a preliminary investigation revealed that the return address was a private residence.
Accordingly, Inspector Romano took the package back to his office, where he contacted the Knox County Sheriff's Department and requested the assistance of a drug-sniffing dog. Romano then placed the package in a line-up with four others, and the drug dog, Blec, positively alerted to the suspect package. After applying for and obtaining a federal search warrant, Romano opened the package and discovered 13 round cabbage-sized balls, weighing almost 14 pounds in total and testing positive for marijuana. Romano then contacted federal Drug Enforcement Agency ("DEA") agents and the Morristown Police Department to begin preparations for a controlled delivery of the package at the Morristown Pak Mail facility.
An investigation conducted in advance of the controlled delivery suggested a link between the package and a maroon or dark red Ford Ranger pickup truck. Soon after their arrival at the mail facility, officers noticed a maroon Ford Explorer with two male occupants driving slowly past vehicles in the parking lot, pausing, and apparently looking into the parked cars. Eventually, the driver dropped the passenger off at a group of stores near the Pak Mail facility, and then parked the vehicle, entered the Pak Mail facility, and exited with the package. The package was signed for by "Derrick Palmer," an authorized recipient of packages at Box 115.
After this individual, later identified as Robinson, exited the Pak Mail facility, Inspector Romano approached him and placed him under arrest when he returned to within 30 to 50 feet of his vehicle.5 Romano testified that he then conducted a brief survey of the vehicle for any other people who might have been hiding inside, or for any weapons that could be easily reached. Inside the vehicle, Romano spotted a long, narrow box labeled as containing a shotgun, as well as a black backpack. Upon opening the box, Romano discovered a 12-gauge shotgun with the barrel removed from the receiver.6 A subsequent inventory search of the vehicle at the Morristown Police Department recorded the shotgun, shotgun ammunition, a 9mm semi-automatic pistol and a loaded ammunition clip in the black backpack, and a variety of other items, many of which referenced Robinson's "Derrick Palmer" alias.
Inspector Romano acknowledged at trial that the search warrant he had obtained before opening the package did not explicitly provide authorization to conduct a controlled delivery. He and Detective Cox both testified, however, that the package remained within the constructive custody of Detective Cox at all times. Cox testified that he stayed inside the Pak Mail facility with the package, and was no more than 10-15 yards away from the package at all times prior to its delivery to Robinson.
After Robinson and McGill were arrested, a woman later identified as Dena Carmichael phoned the Pak Mail facility, claiming to be Kelly Banks (in whose name the mailbox was registered), and seeking to determine whether a package had arrived. Upon attempting to retrieve the package later that day, she was told by a clerk at the facility that the package already had been retrieved.
On June 15, 2000, federal and local law enforcement officers carried out a controlled delivery of a UPS overnight package addressed to "J.B. Evans" in Knoxville, Tennessee. The facts surrounding this incident derive primarily from the testimony of DEA Agent Stephen Ribolla, Knoxville Police Officer Kenneth Gilreath, and Allen Steele of UPS. Agent Ribolla received a phone call on June 14, 2000 from a California Highway Patrol officer, and learned that a drug-sniffing dog had alerted to a UPS overnight package being shipped out of the Los Angeles International Airport to Knoxville. Agent Ribolla contacted Allen Steele, a security representative at UPS in Knoxville, and advised him that the box would be arriving at his facility the following morning.
Steele testified that he informed Agent Ribolla, pursuant to UPS policy, that a warrant or subpoena was necessary before the company would relinquish the package. As Ribolla prepared to obtain a warrant, Steele opened the package himself, again in accordance with UPS policy, and discovered what he believed to be marijuana.7 Based on this information, Ribolla took the package, notified the Knoxville police, and began preparations for a controlled delivery at the package's delivery address, a Mailboxes, Etc. store located on Cedar Bluff Road in Knoxville.8
Agent Ribolla, Knoxville Police Officer Gilreath, and other officers traveled to this location on the morning of June 15, 2000 and waited for someone to claim the overnight package. At around 10:00 a.m., a white Toyota Camry with two occupants arrived at the store, and an individual emerged from the passenger side of the car, picked up the package, and returned to the vehicle. As the Camry left the scene, Agent Ribolla, Officer Gilreath, and another Knoxville police officer followed in a police van.
A short time later, following a U-turn, the Camry's driver evidently realized that he was being followed and a high-speed chase ensued, ending when the Camry drove through a residential yard and into a creek embankment. Two men jumped out of the vehicle and ran into the woods. Officer Gilreath was able to catch the car's passenger, who initially identified himself as Paul Bails, but later gave the name of James Evans. Through fingerprints, this individual eventually was identified as Daniel McGill. The vehicle's driver evaded capture.
Upon searching the Camry, Agent Ribolla and the Knoxville police officers found two boxes in the trunk: the package used in the controlled delivery, and another package picked up a short time earlier from a different...
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