U.S. v. Robinson

• Decision Date: 13 May 1997
• Docket Number: No. 96-1731,96-1731
• Parties: UNITED STATES of America, Appellee, v. Clarence ROBINSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1320

110 F.3d 1320

UNITED STATES of America, Appellee, v. Clarence ROBINSON, Appellant.

No. 96-1731.

United States Court of Appeals,Eighth Circuit.

Submitted Oct. 25, 1996.

Decided April 4, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied May 13, 1997.

Donald Fiedler, argued, Omaha, NE, for appellant.

Maria R. Moran, argued, Omaha, NE (Thomas J. Monaghan, U.S. Attorney, on the brief), for appellee.

Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

A jury found Clarence Robinson guilty of conspiring to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994). The District Court ¹ sentenced Robinson to life in prison. Robinson appeals both his conviction and his sentence. We affirm.

I.

The following statement of facts is based on the evidence presented at Robinson's trial, viewed as it must be in the light most favorable to the verdict. From approximately August 1, 1993 through January 31, 1994, a number of individuals, including Robinson, conspired to transport cocaine base from Bakersfield, California, to Omaha for distribution. The drug conspiracy was uncovered by Omaha police during the investigation of an apparent double homicide. While searching the car in which the two bodies were discovered, police located a telephone number that was eventually traced to an Omaha apartment. When officers arrived at that residence, two individuals, one of them Darrell Duke, who was later charged as a coconspirator with Robinson, were inside. The officers, after observing marijuana in the apartment, procured a search warrant for the premises and eventually recovered more than $11,000 in currency. Through subsequent investigation, the police discovered that one of the homicide victims was associated with a group of individuals who transported cocaine base from Bakersfield and distributed the drugs in Omaha.

The participants in this conspiracy purchased powder cocaine in the Bakersfield area, "rocking up" the powder into cocaine base before transporting it to Omaha for distribution. The amount of cocaine base transported into Omaha increased with each shipment as the conspirators reinvested their drug proceeds into the purchase of ever greater amounts of powder cocaine. The conspirators arranged a total of ten cocaine base shipments into Omaha, culminating in the final eighty-three ounce shipment in which Robinson was personally involved. The drugs were moved into Omaha by private vehicle or by couriers who used public transportation. All couriers were met at Omaha terminals and driven to "safe" houses by conspirators who had traveled to Omaha by separate carrier or who were temporarily living in Omaha.

Once the cocaine base reached Omaha, it was distributed to local dealers and eventually resold by these local dealers in Omaha. Proceeds collected from local dealers were bundled and transported back to Bakersfield. On at least one occasion, the conspirators chemically treated the drug proceeds to avoid canine detection during the transportation of the funds by public carrier.

During the course of the conspiracy, Brian Duke was primarily responsible for purchasing the powder cocaine, Wamai Smith was primarily responsible for making transportation arrangements, and Thomas Cotton was primarily responsible for distributing the cocaine base once it reached Omaha. Robinson's involvement in the conspiracy began when Duke approached him about joining the enterprise. Duke had become suspicious of Cotton because Cotton had launched his own drug distribution enterprise in Omaha while continuing his involvement with Duke's enterprise. Duke testified that he intended for Robinson to oversee Cotton's activities in Omaha and to report any disloyalty. Eventually, Duke testified, Robinson was to take over Cotton's distribution duties in Omaha. Robinson was thereafter introduced to all facets of the conspiracy, from processing the powder cocaine in Bakersfield, through transporting and distributing the drugs, to packaging and delivering the drug proceeds back to Bakersfield.

Robinson personally assisted in "rocking up" and packaging the final eighty-three ounce shipment of cocaine base destined for delivery in Omaha. He traveled to Omaha to observe Cotton's activities and, while in Omaha, observed the packaging and chemical treatment of the drug proceeds for shipment back to Bakersfield. Smith testified that he paid Robinson $1,000 for accompanying Cotton to Omaha and for packaging a portion of the cocaine base. Cotton testified that Robinson held some of the drug proceeds to avoid a total loss of profits if Cotton were apprehended.

II.

Robinson, Brian Duke, Darrell Duke, Thomas Cotton, Wamai Smith, and other individuals were indicted by a grand jury in Nebraska on drug trafficking charges. Robinson, arrested in California, was transferred to Nebraska to face charges. Each of Robinson's coconspirators pled guilty. Robinson, however, entered a plea of not guilty, was tried by a jury, and was convicted of the charged crime.

In this direct appeal, Robinson argues that the evidence is insufficient to support his conviction; that the District Court abused its discretion by admitting evidence of "other crimes" under Rule 404(b); that plain error occurred when the prosecutor made improper comments during the government's closing argument; and that the District Court erred in computing his sentence.

III.

We turn first to Robinson's argument that the evidence presented at trial was insufficient to support his conviction. The government offered the testimony of two Bakersfield police officers who described Robinson's prior felony drug arrests in order to establish Robinson's motive, knowledge, and intent with respect to the charged conspiracy. The government also offered the testimony of a number of Robinson's coconspirators establishing that Robinson had participated in weighing and packaging cocaine base destined for sale in Omaha; that Robinson traveled to Omaha to monitor and to report on the activities of a fellow conspirator and to become familiar with the distribution activities in Omaha; that he was present while the participants bundled money earned from the sale of cocaine base in Omaha, spraying the money with chemicals to avoid canine detection during delivery of the money to California; and that he concealed a portion of the drug proceeds during travel with a fellow conspirator to prevent a total monetary loss in the event one of them was stopped by police. Robinson claims that the testimony of his coconspirators should have been disregarded as incredible. As always, it is "the sole province of the jury to weigh the credibility of a witness" and we will not disturb such credibility determinations. United States v. Martinez, 958 F.2d 217, 218 (8th Cir.1992). We conclude that the evidence presented at trial was sufficient to support Robinson's conviction.

In a more particularized challenge to the sufficiency of the evidence, Robinson argues that his conviction must be reversed because the government failed to prove the existence of a single conspiracy as charged in the indictment, and instead proved the existence of multiple conspiracies. In support of this argument, Robinson claims that Thomas Cotton abandoned the conspiracy to embark on a separate cocaine distribution operation. Because Robinson raises this issue for the first time on appeal, our standard of review is plain error. Reversal under this standard is warranted only if "(1) the court committed an error; (2) the error is clear under current law; and (3) the error affects [the defendant's] substantial rights." United States v. Turner, 104 F.3d 217, 221 (8th Cir.1997). However, even if there has been plain error affecting the defendant's substantial rights, whether this Court will notice the error is a matter of discretion, and we reverse for plain error only where the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993); United States v. Griggs, 71 F.3d 276, 279 (8th Cir.1995).

Whether a single conspiracy or multiple conspiracies exists is a question of fact for the jury to decide. See United States v. Holt, 969 F.2d 685, 687 (8th Cir.1992). Simply because the participants in a conspiracy change over time does not prove the existence of multiple conspiracies. Rather, "where the remaining conspirators continue to act in furtherance of the conspiracy to distribute drugs, the conspiracy continues." See United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir.1996). The government presented sufficient evidence for a jury to conclude that the conspirators, including Robinson, continued to pursue their joint, primary objective to distribute cocaine base in Omaha despite some change in personnel. Given the weight of the evidence establishing a continuing conspiracy, we find that Robinson has failed to show any error, plain or otherwise.

IV.

Robinson argues that the District Court improperly admitted into evidence the testimony of the two police officers who described Robinson's prior felony drug arrests. The District Court conducted a hearing outside the presence of the jury and determined that this evidence was admissible to show Robinson's knowledge, intent, motive, and lack of mistake. The testimony of the arresting officers confirmed that Robinson had two prior felony drug arrests. They testified that on February 20, 1991 and again on November 28, 1991, Robinson was arrested while in possession of distributable amounts of cocaine base.

Robinson claims that this evidence was inadmissible under Federal Rule of Evidence 404(b). This rule "generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such...