United States v. Robinson

• Decision Date: 29 September 2017
• Docket Number: Nos. 15-4098/4100/4124.,s. 15-4098/4100/4124.
• Citation: 872 F.3d 760
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl L. ROBINSON (15-4098); Christopher D. Martin (15-4100); Shane K. Floyd (15-4124), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

872 F.3d 760

UNITED STATES of America, Plaintiff-Appellee,

v.Carl L. ROBINSON (15-4098); Christopher D. Martin (15-4100); Shane K. Floyd (15-4124), Defendants-Appellants.

Nos. 15-4098/4100/4124.

United States Court of Appeals, Sixth Circuit.

Argued: June 14, 2017

Decided and Filed: September 29, 2017

Rehearing En Banc Denied December 5, 2017

ARGUED: Yekaterina Reyzis, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant in 15-4098. Michaela Pickus, UNIVERSITY OF VIRGINIA LAW SCHOOL, Charlottesville, Virginia, for Appellant in 15-4100. Sandra J. Finucane, Gahanna, Ohio, for Appellant in 15-4124. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee. ON BRIEF: Yekaterina Reyzis, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant in 15-4098. Michaela Pickus, Stephen L. Braga, Alyson Sandler, UNIVERSITY OF VIRGINIA LAW SCHOOL, Charlottesville, Virginia, for Appellant in 15-4100. Derek A. Farmer, Gahanna, Ohio, for Appellant in 15-4124. Kimberly Robinson, UNITED STATES ATTORNEY'S OFFICE, Columbus, Ohio, for Appellee.

Before: GIBBONS, ROGERS, and DONALD, Circuit Judges.

ROGERS, J., delivered the opinion of the court in which GIBBONS, J., joined, and DONALD, J., joined in part. DONALD, J. (pp. 781–90), delivered a separate opinion concurring in part and dissenting in part.

OPINION

ROGERS, Circuit Judge.

Defendants appeal their criminal convictions arising out of a kickback scheme at a now-defunct community school in Dayton, Ohio. Defendant Shane Floyd was superintendent at the school and defendant Christopher Martin was the chair of the school's board of directors. Both used their positions to ensure that the school paid over $400,000 in consulting fees to Global Educational Consultants ("Global"), a company owned by defendant Carl Robinson. Robinson, in turn, funneled money from Global's payments back to Floyd and Martin, such that Global continued to receive payments regardless of whether it provided poor-quality services or no services at all. All three defendants were tried by jury, convicted, and now appeal on several grounds. In light of the Supreme Court's recent decision in Pena-Rodriguez v. Colorado, ––– U.S. ––––, 137 S.Ct. 855, 197 L.Ed.2d 107 (2017) , defendants challenge the district court's failure to grant a new trial, or conduct an evidentiary hearing, on the basis of the jury foreperson's racially insensitive remarks to two African-American jurors during jury deliberations. Although Pena-Rodriguez permitted, in very limited circumstances, inquiry into a jury's deliberations, this case does not fit into these limited circumstances. The defendants' other challenges are also without merit.

I.

Arise! Academy ("Arise") was a community school—Ohio's name for a charter school—in Dayton, Ohio. Arise sought to provide a flexible, nontraditional curriculum to better serve students who were deemed at risk of dropping out of school. By the summer of 2008, Arise faced declining enrollment, financial troubles, and scandal after its treasurer was indicted for embezzlement. Accordingly, the school's sponsor under Ohio law sought a radical change in administration. The sponsor elevated Arise's former principal, defendant Dr. Shane Floyd, to the role of superintendent, removed all existing board members, and appointed Floyd's recommended candidates to take over the new board. The hope was that Floyd and the new board could turn the school around.

Instead, Floyd used his position at Arise to set up a kickback scheme. According to the Government, soon after Floyd was appointed as superintendent, he approached two former business partners, defendant Dr. Carl Robinson and Mike Ward, with a plan. Under this plan, Robinson would incorporate and be the owner of a new company, Global Educational Consultants, which would ostensibly provide management and education services to Arise. Ward, a former police officer, would be the "silent partner" in Global, and his role in the company would be concealed by Global's ownership structure. Floyd would then use his position as superintendent to ensure that Arise signed a contract with Global for educational and management services. The three men would split the proceeds of this contract: Ward and Robinson would each pay themselves up to $100,000 from the contract's proceeds per year—the amount Floyd was making in salary as superintendent of Arise—and all three men would split the remaining proceeds evenly.

The three men then put this scheme into effect. Floyd and the new board took over in July, 2008. According to documents filed with the Ohio Secretary of State, Robinson incorporated a company called Global Educational Consultants on July 28, 2008, disclosing himself as the owner but concealing Floyd's and Ward's involvement. By August 1, 2008, the newly formed Global signed a contract with Arise for various management and educational services. The contract was negotiated by Floyd and soon thereafter approved by the board. This contract initially obliged Arise to pay Global $264,000 for one year of consulting and management services, which came out to a payment of $22,000 each month.¹

Each time Global was paid, Ward, Floyd, and Robinson would go to the bank together, where Robinson would deposit the check into Global's account and withdraw cash. The three men would then divide up the cash according to their agreement, sometimes at Floyd's house, and at least once in Floyd's car in the parking lot outside the bank. Floyd was instructed not to deposit the cash into a bank account "because it [could] be traced." Floyd apparently disregarded these instructions, allowing the government to eventually track this exchange of cash between the three men. For example, according to subsequently obtained bank records, on May 11, Robinson deposited a $40,000 check from Arise into Global's bank account. The next day, May 12, Robinson withdrew $5,000 in cash from the Global bank account, all in $20 bills. That same day, Floyd deposited $3,000 into his bank account, all in $20 bills. Similarly, a month later, on June 11, Robinson again deposited a $65,000 check from Arise into Global's bank account. The next day, June 12, Robinson took out a $5,000 cashier's check in Global's name and made the check out to Floyd. That same day, Floyd deposited the same cashier's check into his account. Another month later, on July 15, Robinson deposited a $66,000 check from Arise into Global's bank account. The next day, July 16, Robinson withdrew $6,000 in cash, all in $100 bills. That same day, Floyd deposited $2,200 into his bank account, all in $100 bills.

Global soon found that it had to pay off Arise board members in order to ensure prompt payments under the Global-Arise contract. Though selected by Floyd, Arise Board Chair Brian Moore initially held up payments to Global, questioning why the consulting company was paid so much under the contract. Robinson reportedly told Ward to pay Moore in exchange for his approving payments to Global in a timely manner. Moore initially refused to accept the payments, but changed his mind after Ward offered him an initial $1,000 in cash in a gas station parking lot sometime in January or February of 2009. Global was then back-paid for several months of missed payments and paid monthly from then on. Soon thereafter, Moore quit his position as Board Chair after learning that Global was not providing the training it was supposed to. He was replaced as chair by board member Kristal Screven. Screven reportedly also began receiving the same $1,000-a-month payments that Moore had received. Finally, in July 2009, defendant Christopher Martin replaced Screven as Board Chair. Ward then approached Martin and offered him the same deal Moore and Screven had accepted. Martin accepted this offer and was reportedly paid $1,000 every month until December 2009 or January 2010. As an added bonus, Martin approached Ward in July 2009 and asked for him to finance a trip to Las Vegas for a leadership conference hosted by the fraternity of which both men were members. Ward agreed, accompanied Martin to the conference, and paid for Martin's food, airfare, hotel, and a prostitute at the conference.

Meanwhile, payments to Global increased beyond the initial contractual obligations. The board increased monthly payments from $22,000 to $29,000 without explanation. In June 2009, Global stopped providing services to Arise, but continued to collect tens of thousands of dollars each month from the school for another year. The board was told these payments were necessary under a "buyout clause" in the initial contract, although in fact there was no such "buyout clause." All told, Global received $420,919 from Arise. While Global was receiving these payments, Arise teachers saw their salaries cut by a fifth, and staff members were not consistently paid. Arise eventually ran out of money and closed in 2010.

A few years after Arise closed, the $420,919 in payments to Global attracted the attention of the FBI, which was investigating Ohio community schools on another matter. Eventually, the Government signed a proffer agreement with Mike Ward, the "silent partner" at Global. On the basis of Ward's expected testimony, the Government indicted Arise superintendent Shane Floyd, Arise board members Christopher Martin and Kristal Screven, and Global owner Carl Robinson. Charges included federal programs bribery, conspiracy to commit federal programs bribery, and making material false statements. See 18 U.S.C. § 666(a)(1)(B), (a)(2) ; 18 U.S.C. § 371 ; 18 U.S.C. § 1001(a)(2). Defendant Screven signed a plea agreement, leaving only Robinson, Martin, and Floyd to stand trial.

The jury trial began on Monday, May 18, 2015. The prosecution's case depended heavily on the testimony of the unindicted-conspirator-turned-government-witness Ward, who testified as to the nature of the...