U.S. v. Robinson

• Decision Date: 01 December 2010
• Docket Number: No. 09-4276,09-4276
• Citation: 627 F.3d 941
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Angelo ROBINSON, a/k/a Bone, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

627 F.3d 941

UNITED STATES of America, Plaintiff-Appellee,

v.Kevin Angelo ROBINSON, a/k/a Bone, Defendant-Appellant.

No. 09-4276.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 24, 2010.

Decided: Dec. 1, 2010.

ARGUED: Nicole Nicolette Mace, The Mace Firm, Myrtle Beach, South Carolina, for Appellant. Stanley Duane Ragsdale, Office Of The United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: Kevin F. McDonald, Acting United States Attorney, Columbia, South Carolina, for Appellee.

Before WILKINSON, AGEE, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge AGEE and Judge DAVIS joined.

OPINION

WILKINSON, Circuit Judge:

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 traffickingand firearms charges and sentenced to fifty years in prison. Robinson seeks a retrial because some of the officers investigating him engaged in unrelated misconduct. Like the district court we condemn their actions, but for the reasons stated herein, we do not believe the trial court abused its discretion in denying Robinson a new trial.

Robinson also seeks to benefit from the lack of doctrinal clarity surrounding 18 U.S.C. § 924(c), which prohibits using or carrying a firearm during and in relation to a drug trafficking offense or possessing a firearm in furtherance of one. Though his jury was, in hindsight, erroneously instructed that his drugs-for-firearms trades satisfied the first prong of § 924(c), Robinson's amply proven conduct nonetheless falls squarely within the second. Accordingly, we affirm the judgment.

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 Sheriff's 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 Sheriff's Office to conduct a controlled buy from Robinson's house, which it did. Though both are part of the Aiken County Sheriff's 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 13, 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 cellmateinformed Special Agent Baldwin of the December 2005 search, and federal prosecutors added charges stemming from that investigation in a third superseding indictment.

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 of 21 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 of 18 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 of 18 U.S.C. § 924( o) (Count 2);

• Possessing firearms as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Counts 4, 13 and 26);

• Distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts 18, 19, and 23); and

• Possessing crack cocaine with intent to distribute, in violation of 21 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 Sheriff's 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 Owenby 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 Owenby joining them later. Crowell, Owenby, 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 Owenby's 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, Owenby, 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...