U.S. v. Robbins

• Decision Date: 19 November 1999
• Docket Number: Nos. 98-1515,98-1657,s. 98-1515
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR E. ROBBINS, SR., a/k/a GENE, ROY G. ROBBINS, a/k/a GORDON, and JAMES HERRIMAN, Defendants-Appellants. & 98-2663
• Court: U.S. Court of Appeals — Seventh Circuit

Page 829

197 F.3d 829 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR E. ROBBINS, SR., a/k/a GENE, ROY G. ROBBINS, a/k/a GORDON, and JAMES HERRIMAN, Defendants-Appellants.

Nos. 98-1515, 98-1657 & 98-2663

In the United States Court of Appeals For the Seventh Circuit

Argued June 7, 1999

Decided November 19, 1999

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 97 CR 59--David F. Hamilton, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Winfield D. Ong (argued), John Earl Dowd, Office of U.S. Attorney, Idianapolis, IN, for Plaintiff-Appellee in No. 98-1515.

Winfield D. Ong (argued), Judith A. Stewart, Office of U.S. Attorney, Indianapolis, IN, for Plaintiff-Appellee in Nos. 98-1657, 98-2663.

Tonya J. McMath (argued), Phoenix, AZ, for defendant-appellant Victor Robbins.

Thomas M. Dawson, David V. Ayres (argued), Leavenwoth, KS, for defendant-appellant Roy Robbins.

Kevin Scionti (argued), Kenneth T. Roberts, Roberts & Bishop, Indianapolis, IN, for defendant-appellant James Herriman.

Before RIPPLE, MANION and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

The appellants, Victor Eugene Robbins, Sr. ("Gene"), Roy Gordon Robbins ("Gordon") and James Herriman, were charged in a three-count indictment with various offenses arising out of a large-scale marijuana operation. Count I charged the defendants with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. sec.sec. 841(a)(1) and 846. Count II charged Mr. Herriman with possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2. Count III charged Gene Robbins and Gordon Robbins with money laundering in violation of 18 U.S.C. sec. 1956(a)(1)(A)(I).¹

After a 7-day trial, the jury returned verdicts of guilty as charged as to each defendant. Gene Robbins was sentenced to 264 months imprisonment, 5 years supervised release, and fined $25,000. Gordon Robbins was sentenced to 236 months imprisonment, 5 years supervised release, and fined $25,000. Mr. Herriman was sentenced to 180 months imprisonment, 5 years supervised release, and fined $5,000. Each defendant now appeals his conviction and sentence. For the reasons set forth in the following opinion, we affirm the judgments of the district court.

I BACKGROUND

In approximately January 1996, Gene Robbins asked an acquaintance, Owen Osborne ("Osborne"), to rent a truck and to drive that truck to Indianapolis. Gene Robbins gave Osborne the telephone number of Mr. Herriman and told him to call that number when he arrived in Indianapolis. As instructed, Osborne drove from Arizona to Indianapolis, then called Mr. Herriman. Osborne and Mr. Herriman then unloaded several boxes from a truck into a storage unit. Mr. Herriman told Osborne that the boxes contained marijuana. The two also rented other storage units in the same storage area and used them to store both marijuana and other equipment necessary for a marijuana operation. When Osborne returned to Phoenix, Gene Robbins confirmed that the shipment had, indeed, been marijuana and paid Osborne approximately $5,000 as well as his travel expenses. Gene Robbins further agreed that he would pay Osborne $10,000 for future shipments of marijuana and told him that, in the future, he should rent a truck in Las Vegas. He also gave Osborne about $1,500 to obtain used furniture to put in the truck to mask the real nature of the shipment.

A week later, Gene Robbins instructed Osborne to transport another load of marijuana. As previously agreed, Osborne then rented a truck in Las Vegas, returned to Phoenix and was directed by Gene Robbins to leave the truck in a particular location. After Osborne learned that the truck had been loaded, he loaded the used furniture in the truck and drove to Indianapolis. Upon arrival, he contacted Mr. Herriman and at Mr. Herriman's instruction he left the truck at a designated location and flew back to Phoenix. Gene Robbins told Osborne that he had been transporting about $400,000 when he was stopped by an Illinois state trooper on Interstate 70.

Gene Robbins consented to a search of the vehicle and the trooper found 31 bundles of currency, totaling $400,770, in the spare tire. Mr. Herriman, who also knew about the incident, later related this story to his fianc e, Myrna Roberts, and at the same time told her that he and Gordon Robbins were selling marijuana together. Later, in March 1996, Osborne again rented a truck in Las Vegas. The truck was loaded with 8 or 10 boxes of marijuana and he again traveled to Indianapolis and met Mr. Herriman. They unloaded the truck at the storage unit. Osborne also met Gordon Robbins.

In August 1996, after driving another load of marijuana from Phoenix to Indianapolis at Gene Robbins' instruction, Osborne was instructed further by Gordon Robbins to drive 400 lbs. of marijuana to Ann Arbor, Michigan. Osborne loaded the marijuana and delivered it to Ann Arbor. He then returned to Phoenix with $400,000 for Gene Robbins. In September 1996, Osborne made another trip to Indianapolis on Gene Robbins' instructions. After arrival in Indianapolis, he then delivered about 400 lbs. of marijuana to Atlanta at Gordon Robbins' direction and repeated the trip at Gene Robbins' instruction. Later, in November, Gene Robbins directed Osborne to transport marijuana to Indianapolis. Upon arriving in Indianapolis, he was instructed by Gordon Robbins to take 700 lbs. of marijuana to Long Island, New York. He later received instructions to deliver 200 lbs. of marijuana to Ann Arbor. He then returned to New York to pick up the load he had previously delivered because it had been rejected as inferior in quality.

Osborne's trips between Phoenix and Indianapolis continued into the early months of 1997. He would deliver the marijuana to the Midwest and return to Phoenix with the money. These runs came to an abrupt end when Osborne, traveling with 1,200 lbs. of marijuana, was stopped and arrested on Interstate 70 near Alton, Illinois by an Illinois state trooper. The officer found the marijuana surrounded by some old furniture. He also seized documents with Mr. Herriman's pager and home phone numbers and Gordon Robbins' pager, cell and home phone numbers written in code. Osborne agreed to cooperate with law enforcement authorities and to make the planned delivery in Indianapolis.²

After Osborne agreed to cooperate, a tape recording was made of a telephone conversation between Osborne and Mr. Herriman during which the men arranged for the delivery of the marijuana. Osborne met Mr. Herriman as planned and a videotape was made of the delivery. Osborne wore a transmitting device to record his conversations with Mr. Herriman. In the course of the delivery, Mr. Herriman explained that they had to wait for "the Mexicans" to pick up the truck (Gene Robbins had told Osborne to deal with several Mexicans in Indianapolis). Mr. Herriman also told Osborne that Gene Robbins had called to see if he had arrived. Law enforcement officers followed the truck after its pick up by Amezquita, one of the Mexicans. The officers observed several people carry the marijuana into a mobile home. The officers obtained Amezquita's consent to search the mobile home, and they found a variety of implements used in the marijuana trade and over $9,000 in cash. Amezquita and two other confederates were later arrested. Amezquita, an illegal alien, had

met Gordon Robbins in Indianapolis and had arranged to package marijuana into smaller bundles in return for money and living expenses. Mr. Herriman was arrested by the DEA after the truck was picked up by Amezquita.

II DISCUSSION

A. Mr. Herriman's Request for Mistrial

Mr. Herriman claims that the district court erred in not granting him a mistrial. During his testimony the arresting officer, DEA Agent Baker, related the circumstances surrounding Mr. Herriman's apprehension. He testified that another officer had read Mr. Herriman his rights; then, Baker continued, "He [Mr. Herriman] didn't wish to speak with us." Tr. at 232. Mr. Herriman moved for mistrial on the ground that this testimony, by pointing out that he did not want to speak with the officers, constituted an impermissible violation of his Fifth Amendment right against self-incrimination. He contends that the officer's reference suggested that he was unwilling to explain his part in the Robbins operation and his relationship with Osborne. The district court denied the motion for mistrial but gave a curative instruction.

In United States v. Benitez, 92 F.3d 528 (7th Cir. 1996), we said that a "prosecutor violates a defendant's Fifth Amendment right not to testify at trial by directly and adversely commenting on the defendant's failure to testify on his own behalf." Id. at 535 (citing United States v. Butler, 71 F.3d 243, 254 (7th Cir. 1995)). We added, however, that improper references to a defendant's decision not to testify "occur when the defendant is able to establish that the prosecutor 'manifestly intended' to refer to the defendant's silence, or when the statement was of such a character that the jury could only interpret it to be a comment on the defendant's silence." Id. In this case, the evidence of record does not establish that the prosecutor "manifestly intended" to refer to the defendant's silence. However, the remark can be construed as an indirect comment on the defendant's failure to testify on his own behalf, or, at the very least, as a statement that the jury could only interpret as a comment on the defendant's silence. We shall assume, therefore, that the admission of the agent's testimony was in fact erroneous. However, to succeed on his claim, Mr. Herriman must establish that the testimony "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v....