Opinion handed down on March 25, 2015[1]
Fred Robinson opened a non-profit charter school in St. Louis in 2006.[2] In addition to opening the charter school, Robinson had been employed by the Parking Division of St. Louis Treasurer’s Office (“Parking Division”) to inspect parking meters since 1990.[3] Following suspicious employment records, the Federal Bureau of Investigation conducted an investigation into his employment in late 2009.[4] The FBI’s investigation, which consisted of many interviews and GPS tracking, concluded that Robinson did not perform his job for Parking Division.[5] In addition, Robinson was found to have misappropriated the charter school’s funding.[6] Robinson was charged with eight counts of federal charges, including one for wire fraud (related to the misappropriation of funds for the charter school), two for federal program theft related to the charter school, and five for federal program theft related to his employment by Parking Division.[7] Before trial, the district court denied Robinson’s motion to suppress the GPS evidence, Robinsons’ motion to sever counts 1-3 and 4-8, and Robinson’s objection to the jury’s composition under Batson v. Kentucky.[8] At trial, the district court also rejected Robinson’s challenges to certain testimony and parking-related jury instructions.[9] After the jury found Robinson guilty on all counts, Robinson appealed.[10] The United States Court of Appeals for the Eighth Circuit affirmed the district court’s rulings on all issues and charges.[11]
I. Facts and Holding
In 2006, Robinson opened the Paideia Academy, a non-profit charter school in St. Louis.[12] In 2009-2010, Robinson directed $242,533 in funds from the Missouri Department of Elementary and Secondary Education (“DESE”) to develop a pre-kindergarten child care center.[13]
From 1990-2010, the Parking Division of the St. Louis Treasurer’s Office also employed Robinson as a parking meter inspector.[14] Interestingly, Robinson always had forty-hour work weeks on his timesheets, never used vacation or sick days, worked all holidays, and even worked forty-hour work weeks after Parking Division outsourced its parking meter services in 2009.[15] The FBI took note and started an investigation into Robinson’s employment for Parking Division in late 2009.[16] The FBI interviewed several employees from Parking Division, none of whom recognized a picture of Robinson.[17] In December 2009-January 2010, the FBI surveilled Robinson’s car, which was parked at his home, a diner, and the Paideia Academy.[18] Following the two-month surveillance, the FBI started to believe that Robinson did not perform the duties of his employment with Parking Division.[19]
On January 22, 2010, the FBI installed a GPS tracking device without a warrant on Robinson’s car while it was parked on a public street.[20] Using the GPS device, the FBI recorded data until March 17, 2010.[21] At all times the FBI recorded this data, Robinson’s car was in a location in public view.[22] The GPS device confirmed the FBI’s belief that Robinson did not inspect parking meters.[23]
Following the FBI’s investigation, Robinson was charged with: (1) one count of wire fraud related to the Paideia Academy in violation of 18 U.S.C. §§ 1343 and two; (2) two counts of federal program theft related to the Paideia Academy in violation of 18 U.S.C. § 666(a)(1)(A); and (3) five counts of federal program theft related to Robinson’s employment for Parking Division in violation of 18 U.S.C. §§ 666(a)(1)(A) and two.[24]
Before trial, the district court denied Robinson’s motion to suppress the GPS evidence, Robinson’s motion to sever counts 1-3 and 4-8, and Robinson’s objection to the jury’s composition under Batson v. Kentucky.[25] At trial, the district court also rejected Robinson’s challenges to certain testimony and also rejected Robinson’s challenges to the parking-related jury instructions.[26] The jury found Robinson guilty on all counts.[27] The court sentenced Robinson to twenty-four months imprisonment and awarded $419,333 in restitution, including $242,533 to DESE.[28]
On appeal, Robinson challenged: (1) the admission of the GPS evidence; (2) the joinder of counts 1-3 with counts 4-8; (3) the denial of Robinson’s Batson challenge; (4) the jury instruction rulings of the trial court; (5) the evidentiary sufficiency of counts 4-8; (6) the admission of certain testimony by the trial court; (7) the sentence of the trial court; and (8) the restitution award granted to DESE.[29]
Robinson’s challenge of the GPS evidence was premised on the exclusionary rule for illegal searches under the Fourth Amendment.[30] Robinson cited U.S. v. Jones, which states that the “[g]overnment's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a Fourth Amendment ‘search.’”[31] The United States Court of Appeals for the Eighth Circuit noted that an illegal search often triggers the exclusion of the evidence from the illegal search, but also stated the exception to this rule, that “evidence is not excluded ‘when the police conduct a search in objectively reasonable reliance on binding appellate precedent.’”[32] Citing Supreme Court cases, which are “binding precedent in every circuit,” the Eighth Circuit affirmed the district court, holding: “[I]t was objectively reasonable for the agents to conclude their warrantless installation of the device on Robinson's car was constitutional.”[33]
Robinson also argued that the district court erred in its joinder of counts 1-3 and counts 4-8 under Federal Rule of Criminal Procedure 8(a).[34] The Eighth Circuit affirmed the district court’s ruling onthe issue, holding: “The Paideia-and parking-related schemes are similar in character: Both involve fraud upon an employer under § 666.”[35] Robinson also claimed he was prejudiced by the counts remaining together.[36] The Eighth Circuit affirmed the trial court on this issue as well, holding that evidence that Robinson “was at Paideia was admissible to show he was not inspecting parking meters” and that “the district court limited the risk of prejudice by instructing that Robinson was charged ‘with eight different crimes,’ and ‘Keep in mind that each count charges a separate crime. You must consider each count separately and return a separate verdict for each count.’”[37]
Robinson claimed, “[T]he prosecution struck a black panelist in violation of [Batson v. Kentucky].”[38] In Batson, the Supreme Court ruled that the “Fourteenth Amendment ‘forbids the prosecutor to challenge potential jurors solely on account of their race.’”[39] Robinson’s claim was that a black unemployed panelist was struck by one of the government’s peremptory strikes while a white unemployed panelist was not, alleging that the black panelist was stricken based on race.[40] The Eighth Circuit ruled that the district court did not err in denying Robinson’s Batson challenge as Robinson “failed to clarify [white panelist’s] employment status” and thus did not carry Robinson’s burden of “[identifying] one juror who shared . . . the qualit[y] that the government cited as a reason for dismissing.”[41]
Robinson also appealed the district court’s rulings on the parking-related jury instructions.[42] Heargued that if the jury did not find Robinson was an agent of the agency that received the federal funds, then Robinson must be found not guilty.[43] The Eighth Circuit ruled that “[n]othing in the plain language of § 666 requires that the defendant be an agent of the agency that received the funds” and that Robinson was misstating the law.[44] Robinson also proposed that “[f]or an individual to be an agent of the City of St. Louis that individual must be authorized to act on behalf of the City of St. Louis with respect to its funds.”[45] The district court, instead, instructed that “[i]f you find that the City of St. Louis received $10,000 or more in federal assistance [in the charged years], that element of the offense is established whether or not there was proof that the federal funds were affected in any way.”[46] The Eighth Circuit ruled that the district court did not abuse its discretion in formulating this instruction as “[t]he plain language of [§ 666] does not require, as an element to be proved beyond a reasonable doubt, a nexus between the activity that constitutes a violation and federal funds.”[47]
Similarly, on Robinson’s challenge of “the sufficiency of the evidence supporting the parking-related counts,” the Eighth Circuit held that the district court did not err.[48] It held that “the governmental framework of Robinson's employment supports the jury's factual finding that Robinson was an agent of the St. Louis city government that received federal funds,” beyond a reasonable doubt.[49]
Finally,[50] Robinson challenged the restitution award to DESE, arguing that the DESE funds were reimbursements for expenditures DESE itself had approved, like school books. Therefore, he alleged, “restitution ‘enabled a double recovery’ because DESE also ‘receive[d] the educational services obtained with’ its funding.”[51] The Eighth Circuit, however, in holding the district court did not abuse its discretion, reasoned that Robinson’s argument was premised on his innocence, and the jury had already convicted him of misappropriating these funds. “Robinson's argument assumes either he did not misapply Paideia funds, or Paideia had a non-DESE funding source. . . . Robinson presents no evidence that Paideia had a non-DESE funding source.”[52]
II. Legal Background
A. Admission of GPS Evidence
Robinson cited U.S. v. Jones, which states that the “[g]overnment's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a Fourth Amendment ‘search.’”[53] The Fourth Amendment forbids “unreasonable” searches: “[S]earches that are neither authorized by a warrant nor within one of the specific exceptions to the warrant requirement.”[54] If a search violates the Fourth Amendment, evidence obtained in that search will typically be excluded under the “exclusionary rule.”[55] But there is a good-faith exception to this rule: which admits evidence when, among other things,“‘the police conduct a search in objectively reasonable reliance on binding appellate precedent.’”[56]
Applying the exclusionary rule and its exception, “even if a warrantless GPS search is unconstitutional, the evidence is admissible if the agents acted in objectively reasonable reliance on binding appellate precedent.”[57] The last Eighth Circuit decision regarding electronic tracking devices was in 1983, inU.S. v. Bentley.[58] Around this time, the U.S. Supreme Court considered similar cases, in U.S. v. Knotts and U.S. v. Karo.[59] In Knotts, “the Court found no Fourth Amendment violation in monitoring a car with a tracking beeper when the ‘surveillance conducted by means of the beeper ... amounted principally to’ following the car on public streets” and that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”[60] In Karo, “the Court upheld the installation of a beeper inside a can transferred to the target.”[61]
B. Joinder of Counts 1-3 with Counts 4-8
Federal Rule of Criminal Procedure 8(a) states that:
The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged--whether felonies or misdemeanors or both--are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.[62]
Federal Rule of Criminal Procedure 14(a) states that: “If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.”[63] “Reviewing for abuse of discretion, ‘[a court] will reverse only when that abuse of discretion results in severe or clear prejudice.’”[64] Severe prejudice “occurs when a defendant is deprived of an appreciable chance for an acquittal.”[65] There is a strong presumption against severing joined claims and the burden of establishing severe prejudice is on the defendant.[66]
C. Batson v. Kentucky
“The Fourteenth Amendment ‘forbids the prosecutor to challenge potential jurors solely on account of their race.’”[67] The Batson analysis is explained as:
The trial court first determines whether the defendant has made a prima facie showing that a prosecutor's peremptory strike was based on race. If the defendant satisfies the first step, the burden then shifts to the prosecutor to present a race-neutral explanation for striking the juror. The prosecutor's stated reason need not be persuasive, or even plausible[,] as long as it is not inherently discriminatory. The burden then shifts back to the defendant at the third step to shoulder his ultimate burden of establishing purposeful discrimination. The final step involves evaluating the persuasiveness of the justification proffered by the prosecutor.[68]
“‘Striking a black panelist for reasons that apply ‘just as well to an otherwise-similar nonblack who is permitted to serve’ is evidence tending to prove purposeful discrimination.’”[69] However, the Eighth Circuit has “upheld the use of ‘very fine’ distinctions between jurors.”[70]
D. Parking-Related Jury Instructions
One of the elements of 18 U.S.C. § 666(a)-(b), titled “Theft or bribery concerning programs receiving Federal funds” is that the person charged was an “agent” of the organization or agency from which they stole or embezzled. The statute defines agent as “a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.”[71]
E. Sufficiency of the Evidence Supporting Parking-Related Counts (4-8)
Robinson was found to be an agent of the St. Louis city government that received federal funds. Although the Treasurer’s Office is not an office of the city of St. Louis, the jury still deemed Robinson as an agent of the city. “The Constitution of Missouri recognizes the ‘city of St. Louis ... both as a city and as a county.’ The Constitution authorizes the voters of the City of St. Louis to control any ‘county’ office (except for the office of the circuit attorney).”[72] Under Section 17.62.230 of the St. Louis City Revised Code, the treasurer is required to “establish a Parking Meter Division,” and supervises the City’s parking meters.[73] “The salaries of the treasurer's deputies, assistants, and clerks ‘may be fixed by [city] ordinance,’ and ‘shall be paid out of the city treasury,’ § 82.520 RSMo. St. Louis City Ordinance 69196 establishes position classifications and pay grades for Parking Division employees of the Treasurer's Office.”[74]
F. Restitution Award to DESE
The Mandatory Victims Restitution Act requires a court to “order a defendant convicted of ‘an offense against property under this title’ to ‘make restitution to the victim of the offense.’”[75] “[T]he government must prove ‘the amount of the loss sustained by [the] victim’ as a result of the offense by a preponderance of the evidence.”[76]
III. Instant Decision
A. Admission of GPS Evidence
The Eighth Circuit cited Supreme Court cases Knotts and Karo in ruling that it was reasonable that FBI agents relied on these cases because the GPS tracking device tracked Robinson’s vehicle when Robinson had a diminished expectation of privacy on public streets.[77] Thus, the elements to the exception to the exclusionary rule, that “police conduct a search in objectively reasonable reliance on binding appellate precedent,” were met in this case.[78] Although Knotts and Karo are not Eighth Circuit cases, “Supreme Court decisions are binding precedent in every circuit.”[79]
B. Joinder of Counts 1-3 with Counts 4-8
The Eighth Circuit ruled that “Paideia-and parking-related schemes are similar in character: Both involve fraud upon an employer under § 666.”[80] It noted that the “evidence overlapped, as Robinson's day-to-day involvement at Paideia was admissible to show he was not inspecting parking meters. And counts 1–3 charged conduct occurring at the same time as counts 7 and 8.”[81] The Eighth Circuit, in finding that the trial court’s denial of Robinson’s motion to sever did not prejudice Robinson, found that Robinson “cannot show prejudice when evidence of the joined offense would be properly admissible in a separate trial for the other crime.”[82] Further, the district court limited prejudice by explaining that each count was for a separate crime, and that each count has its own verdict.[83]
C. Batson v. Kentucky
The Eighth Circuit found that the district court did not abuse its discretion when it found that there was a fine difference between the black unemployed panelist and the white unemployed panelist.[84] The Eighth Circuit determined that Robinson did not directly question the white unemployed panelist about his employment history, while the government did directly question the black unemployed panelist about her unemployment history.[85] In short, Robinson “failed to ‘shoulder his ultimate burden of establishing purposeful discrimination.’”[86]
D. Parking-Related Jury Instructions
The Eighth Circuit found that “[n]othing in the plain language of § 666 requires that the defendant be an agent of the agency that received the funds” and that Section 666 “contains no requirement that the government prove some connection between the offense conduct and federal funds beyond the express statutory requirement found in § 666(b) which requires proof that the [agency] received benefits under a federal program in excess of $10,000 in any one-year period.”[87]
E. Sufficiency of the Evidence Supporting Parking-Related Counts (4-8)
Reading through the complexity of St. Louis’ city government, the Eighth Circuit found that it was reasonable that the jury found Robinson to be an agent of St. Louis city government.[88] Robinson was paid by the City’s main clearing account (which is the same fund where the federal funds were deposited), the City processes the Treasurer’s Office checks, the City Board Alderman approved the compensation for the Parking Division, and the Treasurer’s Office employees participate in the City employee’s compensation plan.[89]
F. Restitution Award to DESE
Robinson argued that DESE would get a double recovery from the restitution award.[90] The court found that “Robinson's argument assumes either he did not misapply Paideia funds, or Paideia had a non-DESE funding source.”[91] The jury found him guilty of misapplying Paideia funds and the evidence did not show that Paideia had a non-DESE funding source.[92] Therefore, the district court did not err.[93]
IV. Comment
Both the district court and the Eighth Circuit correctly applied the law. First, a 1L could likely tell you that Supreme Court precedent is binding on all courts. Knotts and Karos are binding cases on all courts. Therefore, if it is reasonable for officers to rely on these opinions in their specific actions, then the evidence procured from an illegal search thereof are surely admissible (in the face of exclusion by the exclusionary rule). Second, although the counts were divided in two categories (one regarding misappropriated funds to the school and the other to Robinson’s false employment), they were sufficiently connected. They both occurred during the same time period, and one category (the school) provided evidence to find Robinson guilty of the second (that Robinson did not inspect parking meters). Robinson could not be inspecting parking meters and accumulating forty-hour work weeks if he is at the school during the same time period.
Third, and perhaps the weakest argument, Robinson’s Batson challenge did not establish a prima facie showing that a prosecutor's peremptory strike was based on race. Robinson’s attorney failed to ask the white unemployed panelist about his employment history and thus, the Eighth Circuit ruled there was a fine difference between the white/black unemployed panelists. This seems to indicate that the moving party should interview each panelist regarding the trait or status that the other party indicates is a reason that the panelist should be removed from the jury pool. If the moving party does not, the party risks not being able to successfully bring a Batson challenge afterwards.
St. Louis city/county government is sufficiently complex and intertwined. However, the evidence that the courts relied on indicated that Robinson was surely an employee of the city when the Parking Division employed him. Finally, Robinson’s arguments regarding the restitution award seemed to be very weak.
[1] 781 F.3d 453 (8th Cir. 2015).
[2] Id. at 457.
[3] Id.
[4] Id.
[5] Id. at 457-58.
[6] Id. at 457.
[7] Id. at 458.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 467.
[12] Id. at 457.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id. at 458.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id. 476 U.S. 79 (1986).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id. (quoting U.S. v. Jones, 132 S.Ct. 945, 949, 954 (2012)).
[32] Id. (quoting Davis v. U.S., 131 S.Ct. 2419, 2423, 2429, 2434 (2011)).
[33] Id. at 459-60. (quoting U.S. v. Katzin, 769 F.3d 163, 173 (3d Cir. 2014) (en banc).
[34] Id. at 460.
[35] Id.
[36] Id. at 461.
[37] Id.
[38] Id.
[39] Id. (quoting Batson v. Kentucky, 476 U.S. 79, 89 (1986)).
[40] Id. at 462.
[41] Id. (quoting U.S. v. Morrison, 594 F.3d 626, 633 (8th Cir. 2010)).
[42] Id.
[43] Id.
[44] Id.
[45] Id. at 464.
[46] Id.
[47] Id. (quoting U.S. v. Hines, 541 F.3d 833, 836 (8th Cir. 2008); U.S. v. Sabri, 541 U.S. 600, 614 (2004); U.S. v. Peery, 977 F.2d 1230, 1232, 1233 (8th Cir. 1992)).
[48] Id. at 464-65.
[49] Id.
[50] Robinson also challenged the admission of a witness’s testimony as inadmissible lay opinion, as well as the reasonableness of his sentence, but both appeals were unsuccessful. See id. at 466-67.
[51] Id.
[52] Id.
[53] Id. at 458 (quoting U.S. v. Jones, 132 S.Ct. 945, 949, 954 (2012)).
[54] Id. (quoting U.S. Barraza-Maldonado, 732 F.3d 865, 867 (8th Cir. 2013)).
[55] Id. (quoting Davis v. U.S., 131 S.Ct. 2419, 2423 (2011)).
[56] Id. (quoting Davis v. U.S., 131 S.Ct. 2419, 2429, 2434 (2011)).
[57] Id. at 458-459.
[58] Id. at 459 (citing 706 F.2d 1498, 1505 (8th Cir. 1983)).
[59] Id. (citing 460 U.S. 276 (1983); 468 U.S. 705 (1984)).
[60] Id. (citing 460 U.S. 276, 285 (1983)).
[61] Id. (citing 468 U.S. 705 (1984)).
[62] Fed. R. Crim. P. 8(a).
[63] Fed. R. Crim. P. 14(a).
[64] Robinson, 781 F.3d at 461. (citing U.S. v. Reynolds, 720 F.3d 665, 669 (8th Cir. 2013)).
[65] Id. (citing U.S. v. Garrett, 648 F.3d 618, 625-626 (8th Cir. 2011)).
[66] Id. (citing Garrett, 648 F.3d at 626).
[67] Id. (citing Batson v. Kentucky, 476 U.S. 79, 89 (1986)).
[68] Id. (citing Smulls v. Roper, 535 F.3d 853, 859 (8th Cir. 2008) (en banc)).
[69] Id. at 462 (citing Edwards v. Roper, 688 F.3d 449, 454 (8th Cir. 2012)).
[70] Id. (citing U.S. v. Morrison, 594 F.3d 626, 630, 633 (8th Cir. 2010)).
[71] 18 U.S.C. § 666(d)(1) (2015).
[72] Robinson, 781 F.3d at 465 (quoting Mo. Const. art. VI, § 31).
[73] Id. at 465-466. See also 82.485.1 RSMo.
[74] Id.
[75] Robinson, 781 F.3d at 467 (quoting 18 U.S.C. §§ 3663A(a)(1), (c)(1)).
[76] Id. (quoting U.S. v. Chalupnik, 514 F.3d 748, 754 (8th Cir. 2008)).
[77] Id. at 459 (citing 460 U.S. 276 (1983); 468 U.S. 705 (1984)).
[78] Id. at 458 (quoting Davis v. U.S., 131 S.Ct. 2419, 2429, 2434 (2011)).
[79] Id. at 459 (quoting U.S. v. Katzin, 769 F.3d 163, 173 (3d Cir. 2014) (en banc).
[80] Id. at 460.
[81] Id.
[82] Id. at 461 (citing U.S. v. Reynolds, 720 F.3d 665, 670 (8th Cir. 2013)).
[83] Id.
[84] Id. at 462.
[85] Id.
[86] Id.
[87] Id. at 463 (quoting U.S. v. Sabri, 541 U.S. 600, 614 (2004)).
[88] Id. at 465-466.
[89] Id. at 465.
[90] Id.
[91] Id.
[92] Id.
[93] Id.
