United States v. Corey T. Robinson and Michael Scott, Jr.
Docket: 95-3254, 95-3361
Court: Court of Appeals for the Seventh Circuit; September 13, 1996; Federal Appellate Court
Corey T. Robinson and Michael Scott, Jr. were indicted on two counts: conspiracy to possess with intent to distribute crack cocaine and using/carrying a firearm in relation to a drug trafficking offense. Scott pleaded guilty and testified against Robinson, who was convicted on both counts. Robinson appeals his firearm conviction, the denial of a 'mere presence' jury instruction, and the drug quantity calculation at sentencing. The court reverses Robinson's firearm conviction but upholds the rejection of the mere presence instruction and drug calculation. Scott's appeal is dismissed, and his counsel's motion to withdraw is granted.
During the summer of 1993, Scott and his brother Andre Monroe established a crack cocaine distribution operation in Murphysboro, Illinois, frequently returning to East St. Louis to procure drugs. After Monroe left due to an incident, Robinson joined Scott in the drug trade, selling crack from a residence operated by Jeri Branch. Witnesses, including Timothy Robinson, testified to their collaborative drug sales, describing the operation as highly active, with Robinson estimated to have sold about five ounces of crack over a five-week period.
Martin Alexander testified to witnessing Corey Robinson and Michael Scott selling drugs together, noting he purchased cocaine from Robinson multiple times. He described an incident where he picked up Robinson and Scott, observing bags of crack in the back seat, with Timothy Robinson having one bag. Terrell Kempfer stated he bought crack from Robinson two or three times. Charlene Branch, a federal witness protection participant, reported seeing Robinson and Scott sell crack over 50 times from her sister's home and purchasing crack from them up to 50 times herself, often with one or both men present.
The government provided significant evidence of firearm possession and use by Robinson and Scott. Scott admitted to owning two guns for protection and testified he saw Robinson with firearms during drug sales. Timothy Robinson corroborated this by stating he saw Scott with a Ruger and an AK-47 while selling drugs and noted Corey Robinson had a Glock. Dee Ann Hudson recounted seeing various firearms at Scott's shared home, including a revolver and an assault rifle. She described an instance where Scott, fearing police presence, asked her to hold a gun for him.
Witnesses provided accounts of firearms being used in debt collection. Kempfer testified that he saw Robinson threaten a man over a $40 debt with a gun. FBI Special Agent Issac Bratcher recounted Robinson's admission of using guns while collecting a debt in Carbondale, where he and Scott displayed firearms to disrupt a dice game and took money when the crowd dispersed. The government argued that the conspiracy involving Scott and Robinson ended with Robinson's arrest for armed robbery in August 1994.
Robinson was tried on June 12-13, 1995, and was quickly convicted of conspiracy to distribute cocaine base and using a firearm in relation to drug trafficking. He received a sentence of 151 months for the conspiracy charge, an additional 60 months for the firearms charge, and five years of supervised release, along with a $3,000 fine and a $100 special assessment.
Robinson appeals his conviction under 18 U.S.C. 924(c)(1) for using or carrying a firearm in connection with a drug trafficking crime. The statute mandates a five-year imprisonment in addition to other penalties for such offenses. Robinson contests the evidence sufficiency based on the Supreme Court's ruling in *Bailey v. United States*, which clarified that a conviction for "use" of a firearm requires active employment of the firearm, not merely possession. The trial court's jury instructions defined "uses or carries a firearm" too broadly, stating that having a firearm available to assist in committing a drug crime sufficed. This interpretation is inconsistent with *Bailey*, which specifies that "use" must involve actions like brandishing or firing the firearm. Consequently, the jury instructions were improper. The court notes that while Robinson's appeal focuses on evidence sufficiency, the flawed jury instructions must also be considered in determining whether to affirm, reverse, or remand the conviction based on the presented evidence.
Robinson and his co-conspirator Scott were implicated in a drug trafficking conspiracy that involved the use and possession of firearms. While the government provided substantial evidence of their active use of firearms in connection to drug activities, there was also considerable evidence indicating mere possession of firearms unrelated to drug dealings. Testimonies, including Scott's claim of owning guns for protection and observations of firearms in their home, suggested they possessed guns outside of drug transactions. The jury could have potentially based its guilty verdict on this mere possession evidence, which the Supreme Court has since deemed insufficient for conviction. Consequently, the court reversed and remanded Robinson’s conviction under 924(c), emphasizing the justice system's commitment to ensuring lawful convictions and allowing the government the opportunity to retry the case with proper jury instructions.
Additionally, Robinson challenged the district court's refusal to provide a 'mere presence' jury instruction, which would clarify that mere presence at a crime scene does not equate to guilt. The government argued that no evidence supported this theory, and the court agreed, noting that Robinson's defense did not present evidence to warrant such an instruction. Robinson failed to object to the court’s decision, which limited the review to plain error. The court concluded that the mere presence theory was not presented during the trial, as evidenced by defense counsel's closing arguments, which did not support the theory of mere presence but rather questioned the conspiracy itself.
Robinson could not be convicted of conspiracy solely based on his presence at the crime scene; the jury was instructed that a conviction required proof of his knowing and intentional membership in the conspiracy. The court clarified that joining the conspiracy did not necessitate being part of it from the start or knowing all other members. Additionally, the jury was informed that a conviction could not stem from mere presence during drug transactions. The court found no error in refusing a specific proposed instruction related to this standard.
Robinson contested the district court's determination of the cocaine base quantity attributed to him in relation to the conspiracy charges under 21 U.S.C. 841(a) and 846. The district court established his base offense level at 34 based on evidence indicating his involvement with 150 to 500 grams of cocaine base. At sentencing, the court reviewed trial testimonies, a presentence investigation report, and a summary chart from F.B.I. Special Agent Gregory Holston, who interviewed witnesses regarding drug quantities. Robinson argued the witnesses were unreliable, lacking detailed accounts of transactions. Nevertheless, the court found the jury's quick verdict suggested credibility in the witnesses' accounts, which the court also deemed credible. Consequently, the court concluded that the evidence justifiably placed Robinson's responsibility for at least 150 grams of cocaine base, affirming that its calculation was not clearly erroneous.
Separately, Michael Scott pled guilty to conspiracy to possess with intent to distribute cocaine base and firearm-related charges, receiving a combined sentence of 121 months for the conspiracy and an additional 60 months for the firearm offense, along with conditions of supervised release, a fine, and a special assessment. His counsel filed a notice of appeal in a timely manner.
On appeal, Scott's counsel submitted an Anders brief indicating no non-frivolous issues for appeal and requested to withdraw from representation. Scott was informed of these actions and his right to respond but did not file any response. At sentencing, Scott accepted the cocaine base amount attributed to him (150-500 grams, base offense level 34) but challenged the constitutionality of the Sentencing Guideline's drug quantity tables compared to other drugs. This constitutional argument had previously been rejected by the court, and the appeal on this issue was deemed groundless. However, the court expressed doubt regarding the compliance of Scott's guilty plea for the 924(c) conviction with Rule 11. The government's evidence consisted solely of Scott possessing firearms in connection with the conspiracy, which may not meet the necessary factual basis established by precedent (Bailey) for a 924(c) conviction. Therefore, the court found it non-frivolous to argue the validity of Scott's plea and granted counsel's motion to withdraw while appointing new appellate counsel to address this specific issue.
Corey Robinson's conviction under 18 U.S.C. § 924(c)(1) is reversed and remanded, while his convictions under 21 U.S.C. §§ 841(a)(1) and 846, and the district court's cocaine base quantity calculation, are affirmed. Michael Scott's appeal regarding the constitutionality of guideline drug quantity tables is dismissed, and new counsel is appointed for his plea challenge under § 924(c). Andre Monroe, also known as Andre Scott, is Michael Scott's brother but is not involved in this appeal. Scott, after pleading guilty to the indictment counts, testified against Robinson under a compulsion order and received immunity for his testimony. Timothy Robinson, not related to Corey Robinson, testified during his plea agreement while incarcerated for crack cocaine distribution. Martin Alexander, also incarcerated, had pled guilty to conspiring to distribute crack cocaine. Kempfer, with a prior conviction for marijuana possession, was in custody for residential burglary during the trial. The government’s firearms expert identified two guns tied to the case: a 9mm semi-automatic Ruger Tec-9 and a .40 caliber Glock. Following a police pursuit, Robinson and Scott abandoned their vehicle; police recovered the Glock from the car and the Ruger was found where Robinson hid it. The jury was instructed that if a co-conspirator (Scott) used or carried a firearm in furtherance of their drug conspiracy, Robinson could be convicted for the firearm count. The document references legal precedents allowing for drug quantity calculations based on reliable hearsay evidence, highlighting the importance of witness testimonies from Timothy Robinson and Alexander regarding the conspiracy's operations.
