UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4138
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EVERETT FRANCIS ROBINSON, a/k/a Six-Nine,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
02-227)
Argued: January 31, 2006 Decided: June 29, 2006
Before WILKINS, Chief Judge, and MICHAEL and TRAXLER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Patryk Jerry Drescher, ROPES & GRAY, L.L.P., Washington,
D.C., for Appellant. Paul M. Tiao, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Patricia E. Campbell, ROPES &
GRAY, L.L.P., Washington, D.C., for Appellant. Allen F. Loucks,
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Everett Francis Robinson appeals his convictions for
possession of cocaine with the intent to distribute, see 21
U.S.C.A. § 841(a)(1) (West 1999), and conspiracy to distribute
cocaine and cocaine base, see 21 U.S.C.A. § 846 (West 1999). He
asserts that (1) the district court violated his Sixth Amendment
Confrontation Clause rights, (2) there was insufficient evidence to
support his conviction for conspiracy, and (3) the district court
erred in failing to suppress statements he made to agents of the
Drug Enforcement Agency (DEA). We conclude that the district court
correctly decided the issues before it, and accordingly, we affirm.
I.
In July 2001, Detective Phil Joseph of the St. Mary’s County,
Maryland Sheriff’s Department received a telephone call from a
confidential informant who claimed that cocaine belonging to
Robinson was hidden in a hallway ceiling of a local motel. Joseph
searched the ceiling and recovered 260 grams of cocaine and cocaine
base.
Detective Joseph, pretending to be a maintenance man from the
motel named “Bobby,” then called Robinson to discuss the “stuff” he
found “in the motel near room 220.” J.A. 916. Robinson said that
“it might be [his],” id. at 917, and a series of telephone calls
followed between “Bobby” and Robinson relating to these items and
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a plan to meet. Rather than meet with “Bobby” personally, Robinson
arranged for one of his customers, Perry Brown, to act as the
middleman. Based upon the narcotics seized at the motel and the
series of telephone calls between Robinson and “Bobby,” a state
arrest warrant for Robinson was issued. Robinson was arrested and
released pending trial but failed to appear in court. As a result,
a second state arrest warrant was issued.
On April 12, 2002, Scott Morgan, a long-time customer of
Robinson’s who was working as an informant, called Robinson at the
request of state law enforcement to set up a meeting. When
Robinson arrived for the meeting, deputies attempted to arrest him.
Robinson fled in his vehicle, hitting one of the patrol cars as he
sped away, and a chase involving three police cars ensued.
Robinson was eventually captured and arrested on the state
warrant. Police searched the area surrounding Robinson and
recovered 461.5 grams of cocaine and 288 grams of cocaine base.
After being released on bail, Robinson telephoned Detective Joseph
and suggested that they meet the following day to discuss the case
against him. Detective Joseph arrived for the meeting accompanied
by DEA agents, who arrested Robinson on federal narcotics charges.
A jury found Robinson guilty on both counts of the indictment,
and the district court sentenced him to 264 months imprisonment.
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II.
Robinson first claims that his Sixth Amendment Confrontation
Clause rights were violated when the district court refused to
compel the Government to produce unredacted copies of Morgan’s
informant contact sheets and to disclose the identity of the
confidential informant. We conclude that even if the district
court erred in these respects, the errors did not prejudice
Robinson. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)
(holding that a Confrontation Clause violation may be reviewed for
harmlessness).
The Constitution guarantees the right of a criminal defendant
“to be confronted with the witnesses against him.” U.S. Const.
amend. VI. “The main and essential purpose of confrontation is to
secure for the [defendant] the opportunity of cross-examination.”
Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (emphasis & internal
quotation marks omitted). Indeed, “[c]ross-examination is the
principal means by which the believability of a witness and the
truth of his testimony are tested.” Id. at 316. Nevertheless, the
district court retains “wide latitude ... to impose reasonable
limits on ... cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Van Arsdall, 475 U.S. at 679. With these
principles in mind, we review Robinson’s particular claims.
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A.
At trial, Morgan testified that he made controlled narcotics
purchases from Robinson, provided information to law enforcement,
and received compensation for his assistance. Using informant
contact sheets from which certain information had been redacted,
Robinson cross-examined Morgan extensively regarding the latter’s
activities as a confidential informant, including when he began
providing information and the number of times he was paid.
Although the cross-examination was hampered somewhat by Morgan’s
claimed inability to recall particular transactions without knowing
the name of the target--information that had been redacted from the
contact sheets--the redacted contact sheets did not prevent
Robinson from obtaining testimony from Morgan about the dates of
his work as an informant. In fact, Robinson demonstrated that
Morgan’s testimony about dates was inconsistent.
The district court refused to order the Government to provide
unredacted contact sheets on the basis that redaction of target
names and transaction locations was necessary to protect the
integrity of ongoing investigations and to ensure the safety of
those involved in them. Even if this ruling was error, the error
was harmless. Morgan accepted the accuracy of the information in
the contact sheets, obviating the need to use the names of the
targets in order to prove that Morgan was repeatedly paid for
information.
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B.
Robinson also argues that the district court erred in allowing
Detective Joseph to testify that he searched the motel hallway
ceiling in response to a tip from a confidential informant.1 He
maintains that the informant’s statement was testimonial, and thus
inadmissible unless the informant was unavailable to testify and
Robinson had a prior opportunity to cross-examine the informant.
See Crawford v. Washington, 541 U.S. 36, 59 (2004). Because
Robinson did not object to Detective Joseph’s testimony regarding
the tip, we review for plain error.2 See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993). To establish
plain error, Robinson must show that an error occurred, that the
error was plain, and that the error affected his substantial
rights. See Olano, 507 U.S. at 732. Even if Robinson makes this
three-part showing, correction of the error remains within our
discretion, which we should exercise only if the error “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks & alteration omitted).
1
Robinson does not challenge the validity of the search
itself.
2
Indeed, in his opening statement defense counsel told the
jury that a confidential informant had relayed to Detective Joseph
that “Mr. Robinson is staying at the Super 8 Motel and has hidden
drugs in the ceiling.” J.A. 135. Defense counsel further
highlighted this information about Robinson in his cross-
examination of Detective Joseph. J.A. 212-13.
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Assuming, without deciding, that the district court plainly
erred in allowing Detective Joseph to testify about the informant’s
tip, Robinson cannot demonstrate that the error affected his
substantial rights because other substantial evidence connected
Robinson to the narcotics at the motel, including the series of
telephone calls between Robinson and “Bobby” and Brown’s testimony.
III.
Robinson next challenges the sufficiency of the evidence to
support his conspiracy conviction. He argues that no conspiracy
existed or could be proven beyond a reasonable doubt because both
Brown and Morgan were government informants. See United States v.
Chase, 372 F.2d 453, 459 (4th Cir. 1967) (“[I]t is ... well-
established that one who acts as a government agent and enters into
a purported conspiracy in the secret role of an informer cannot be
a co-conspirator.”). We must sustain Robinson’s conviction if
there is substantial evidence to support it when the evidence and
all reasonable inferences from it are viewed in the light most
favorable to the Government. See United States v. Burgos, 94 F.3d
849, 862-63 (4th Cir. 1996) (en banc).
The evidence at trial demonstrated that neither Brown nor
Morgan entered into a conspiracy with Robinson in the role of a
government informer. Morgan testified that he began purchasing
cocaine from Robinson during the summer of 2001. He began
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assisting law enforcement in early 2002 but did not sign a formal
cooperation agreement until that summer. Brown testified
similarly, stating that he and his girlfriend purchased cocaine
from Robinson from 2000 until the middle of 2001. Brown also
stated that he provided information to police on an informal basis
in 1998 but did not provide any other assistance until 2001. This
evidence, when viewed in the light most favorable to the
Government, was sufficient to allow a reasonable factfinder to
conclude that Robinson participated in a conspiracy to sell
narcotics.
IV.
Finally, Robinson argues that the district court erred in
failing to suppress inculpatory statements he made while in the
custody of DEA agents. Robinson argues that these statements
(1) were inadmissible because he had not been properly advised of
his constitutional rights pursuant to Miranda v. Arizona, 384 U.S.
436, 478-79 (1966), and (2) were involuntary because he had been
denied access to an attorney, see id. at 474-75. In reviewing the
denial of a motion to suppress, we defer to the factual findings of
the district court unless they are clearly erroneous but consider
its legal conclusions de novo. See United States v. Holmes, 376
F.3d 270, 273 (4th Cir. 2004).
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A.
In Miranda, the Supreme Court held that in order to protect a
criminal suspect’s Fifth Amendment privilege against compelled
self-incrimination, he must be advised before a custodial
interrogation that, inter alia, he has the right to the presence of
an attorney during questioning. See Miranda, 384 U.S. at 478-79.
If the suspect requests counsel, “the interrogation must cease
until an attorney is present.” Id. at 474. The Supreme Court
later “reconfirm[ed]” the Miranda principles regarding the right to
counsel during custodial interrogation and held that once a suspect
invokes that right, police may not interrogate the suspect further
“until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or
conversations with the police.” Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). Any statements obtained by police in violation of
Miranda and Edwards--including statements that would otherwise be
considered voluntary--are presumed involuntary and are inadmissible
in the Government’s case-in-chief at trial. See Oregon v. Elstad,
470 U.S. 298, 307 (1985); see also McNeil v. Wisconsin, 501 U.S.
171, 177 (1991).
At the suppression hearing, the arresting DEA agent testified
that Robinson, in the presence of another agent, was properly
advised of his rights and afterward was willing to cooperate during
questioning. The record also reveals that Robinson, after agreeing
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to cooperate with agents, was interviewed in a comfortable setting
in the presence of several agents, that he was not handcuffed, that
none of the agents were armed, and that no one made verbal or
physical threats against him or offered him promises in exchange
for his cooperation.
After hearing the testimony, the district court found that
Robinson had been properly advised of his rights. Because this
finding was not clearly erroneous, we affirm the resulting denial
of the motion to suppress.
B.
Although the district court determined at the suppression
hearing that Robinson’s statements were voluntary, Robinson--who
did not testify at the suppression hearing--testified at trial that
his statements were not voluntary because he was not allowed to
call his attorney and because the officers threatened that he had
“better tell them something or [he was] never going home.” J.A.
738.
Robinson was entitled to present evidence at trial that bore
upon the reliability and credibility of his statements even after
the district court ruled that his confession was voluntary. See
Crane v. Kentucky, 476 U.S. 683, 691 (1986); United States v.
Martin, 369 F.3d 1046, 1059 (8th Cir. 2004) (holding that
voluntariness and reliability of a confession are questions of fact
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for the jury). Robinson’s testimony concerning voluntariness was,
however, challenged by the Government through cross-examination and
the testimony of rebuttal witnesses. Based upon the entirety of
the evidence presented, a rational jury could conclude that
Robinson’s statements were voluntary.
V.
For the reasons set forth above, we affirm Robinson’s
convictions.
AFFIRMED
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