U.S. v. Robinson, 05-1650.

Decision Date11 January 2007
Docket NumberNo. 05-1650.,05-1650.
Citation473 F.3d 387
PartiesUNITED STATES of America, Appellee, v. Tavon ROBINSON, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Ben T. Clements, with whom Ingrid S. Martin and Clements & Clements, LLP, were on brief, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for the United States.

Before LYNCH, Circuit Judge, SILER,* Senior Circuit Judge, and LIPEZ, Circuit Judge.

SILER, Senior Circuit Judge.

Defendant Tavon Robinson was convicted of conspiracy to possess with intent to distribute and to distribute cocaine, 21 U.S.C. § 846; possession with intent to distribute and distribution of cocaine, 21 U.S.C. § 841(a)(1); being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1); and possessing a firearm in furtherance of a drug trafficking offense, 18 U.S.C. § 924(c)(1)(A).

Robinson appeals both firearms convictions and his sentence, alleging prosecutorial misconduct, insufficient evidence, and improper sentencing. We AFFIRM.

I.

In 2004, DEA Special Agent David DiTullio agreed to purchase two ounces of crack cocaine for $2,350 from Adam Ellard as part of an undercover drug investigation. Unable to locate any crack cocaine for the deal, Ellard contacted Willie Hester, whom he had seen packaging crack on a previous occasion with another man, Norman Barnes. Hester agreed to sell Ellard sixty-two grams of crack cocaine, but conditioned the sale on his accompanying Ellard to the deal.

Hester picked up Ellard in a Honda, followed by a Ford1 with New Hampshire plates. The Ford had three occupants: Robinson in the driver's seat, Stephen Tucker in the front passenger seat, and Barnes in the back. The two cars traveled to a parking lot in Dorchester to complete the deal with DiTullio. Ellard exited the Honda and entered the passenger side of DiTullio's vehicle. He told DiTullio that the crack cocaine was in the Ford and requested the $2,350. DiTullio showed Ellard the money, let him count it, but would not give it to him unless he produced the crack cocaine. Ellard returned to the Honda to consult with Hester, who told him to go speak with Barnes in the Ford. Barnes informed Ellard he would not produce the drugs without any money. In an attempt to compromise, Ellard had DiTullio back his vehicle up to the rear of the Ford. DiTullio again refused to give Ellard the money without the drugs.

Frustrated at the stalled deal, Robinson exited the driver's seat of the Ford, walked to the front of the hood for a few moments,2 and then proceeded to DiTullio's vehicle. Speaking with DiTullio through the passenger window, Robinson removed a clear plastic bag3 from his jacket pocket and placed it on the front passenger seat. DiTullio gave Robinson the money, and Robinson began walking back to the Ford. As law enforcement officers moved in for an arrest, Robinson fled briefly before being apprehended. He was arrested and police found $2,350 and a clear plastic bag containing marijuana and crack cocaine in his possession.

After seizure of the Ford, an inspection at a garage revealed two loaded semiautomatic pistols wrapped in a T-shirt and hidden inside a small space in front of the engine compartment near the front of the hood.4

The next day, Officer Conners overheard Robinson and Barnes conversing in their shared holding cell. According to Officer Conners, Robinson remarked to Barnes, "It's not crack anyway. It's only coke. They'll find that out when they do the lab tests." Officer Conners also heard Robinson tell Barnes that "When they came from everywhere, I could have gone boom, boom."

At trial, in his opening statement, Robinson's counsel admitted his client's guilt on the drug charges,5 but argued that he was unaware of the firearms' presence. Robinson was convicted on both firearms charges. The district court denied Robinson's motion for judgment of acquittal and sentenced him to 137 months.6

II.

Claims for prosecutorial misconduct are reviewed under the harmless error standard if the defendant contemporaneously objected to challenged statements. United States v. Auch, 187 F.3d 125, 128-29 (1st Cir.1999). If no objections were made, challenged statements are reviewed for plain error. United States v. Sanchez-Berrios, 424 F.3d 65, 73 (1st Cir.2005). We review de novo whether a challenged statement by the prosecutor during closing argument was improper. Whether the misconduct, if any, warrants a new trial is reviewed for an abuse of discretion. United States v. Nelson-Rodriguez, 319 F.3d 12, 38 (1st Cir.2003).

We review claims of insufficient evidence de novo. United States v. Hall, 434 F.3d 42, 49 (1st Cir.2006). A conviction will be affirmed "if, after assaying all the evidence in the light most amiable to the government, and taking all reasonable inferences in its favor, a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United States v. Perez-Gonzalez, 445 F.3d 39, 48 (1st Cir.2006). We also review de novo claims that the district court committed errors of law at sentencing. United States v. Pho, 433 F.3d 53, 60 (1st Cir.2006).

III.

Robinson raises three issues on appeal: prosecutorial misconduct, insufficient evidence, and improper sentencing. We address each issue in turn.

A.

Robinson's first argument is that the prosecution repeatedly engaged in a pattern of misconduct during both cross-examination and closing argument when it systematically portrayed him as a habitual drug user and career drug dealer. He contends that the government's questions about the drug deal with DiTullio and repeated questions and references to his prior history of drug trafficking constitute reversible error because they confused the jury into convicting him on the gun charges based mostly on his prior history of drug trafficking.

Robinson argues that the government improperly elicited prejudicial testimony regarding the drug deal with DiTullio. According to Robinson, such testimony was unnecessary because he never challenged his guilt: defense counsel informed the government prior to trial that he would not deny his role in the drug deal with DiTullio, defense counsel's opening statement conceded his guilt to the drug trafficking charges, at no time during the trial did he otherwise contest his guilt, and on the morning of the third day he entered guilty pleas to both drug charges. Thus, he argues, the government was relieved of its burden to prove that Robinson engaged in drug trafficking as part of its charge that he possessed a firearm in furtherance of a drug trafficking offense. Robinson contends that the sole reason the government focused on this drug deal was to make the jury believe it was to convict him for his drug trafficking activities and not the firearms charges.

This argument is unavailing for several reasons. First, although he conceded his role in the drug deal with DiTullio prior to trial and during his opening statement, Robinson remained free to change his mind whether he would contest both drug trafficking charges at some point in the trial. He did not formally enter guilty pleas to both charges until the morning of the third day of trial, and until that time the government still had the burden to prove his guilt beyond a reasonable doubt. Therefore, it was proper to present evidence that Robinson engaged in drug trafficking.

Robinson claims the government also engaged in misconduct when it repeatedly questioned him about his prior drug use and involvement in drug trafficking during his cross-examination and when it returned to this theme in closing arguments. He argues that these questions and closing statements constitute misconduct and violate FED.R.EVID. 404(b).

On several occasions during Robinson's cross-examination, the government attempted to question him about his history in dealing and using drugs.7 At a sidebar after repeated defense objections, the government told the district court that it was not inquiring about prior bad acts, but rather showing that Robinson knew about the dangers of dealing drugs in order to prove the "in furtherance" element of possessing a firearm in furtherance of a drug trafficking offense. Several times after the sidebar, the government again attempted to ask Robinson about his drug dealing history in an effort to prove why he would bring a gun to a drug deal and how he knew prices of drugs.

Evidence of "a defendant's other bad acts [is proper] only if that evidence meets the requirements of both Rule 404(b) and Rule 403." United States v. Tse, 375 F.3d 148, 155 (1st Cir.2004). Rule 404(b) evidence must be "specially relevant" and cannot "include bad character or propensity as a necessary link in the inferential chain." United States v. Flemmi, 402 F.3d 79, 91 (1st Cir.2005); United States v. Washington, 434 F.3d 7, 12 (1st Cir.2006). Even assuming that the district court properly excluded the government's questions to Robinson about his prior history, Robinson cannot show prejudice from these questions.8

Robinson claims that the mere asking of these questions was prejudicial. See United States v. Meserve, 271 F.3d 314, 326 (1st Cir.2001) ("[T]he question itself may nevertheless prejudice a defendant because of the weight a jury gives to the questions asked by a prosecutor."). However, Robinson never answered many of the questions because the court sustained his objections. Thus, the required showing of prejudice becomes more difficult. See id. (noting that where challenged questions are left unanswered, the harmless error analysis is likely to weigh in favor of the appellee); see also United States v. Innamorati, 996 F.2d 456, 485 (1st Cir. 1993) (prejudicial effect of challenged questions lessened when questions were not...

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