United States v. Fred Robinson

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 13-3253
___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Fred W. Robinson

lllllllllllllllllllll Defendant - Appellant

------------------------------

American Civil Liberties Union; American Civil Liberties Union of Missouri

Amici on Behalf of Appellant
____________

Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________

Submitted: December 11, 2014
Filed: March 25, 2015
____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
____________

BENTON, Circuit Judge.
 A jury convicted Fred W. Robinson of wire fraud and federal program theft.
The district court1 sentenced him to 24 months’ imprisonment. Robinson appeals.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In 2006, Robinson opened Paideia Academy, a non-profit charter school in St.
Louis. The chair of Paideia’s board, Robinson was often on-site, overseeing
operations. State and federal education monies—disbursed through the Missouri
Department of Elementary and Secondary Education (DESE)—exclusively funded
the school. The funds were restricted to operating kindergarten through eighth grade.
In 2009 and 2010, Robinson directed $242,533 from Paideia to develop a
pre-kindergarten child care center.

Robinson was also employed, beginning in 1990, in the Parking Division of the
St. Louis Treasurer’s Office. He purported to inspect parking meters. On his weekly
timesheets, he always recorded 40 hours, regardless of holidays, and even after
parking meter services were outsourced in June 2009. He never took vacation or sick
days. In late 2009, the FBI investigated his “employment.” Agents interviewed four
former Parking Division employees, including one who did not recognize a picture
of Robinson and another who never saw Robinson working. In December 2009 and
January 2010, agents conducted periodic surveillance on Robinson’s car, which they
observed at his home, a diner, and Paideia. At that time, the agents reasonably
suspected that Robinson did not inspect parking meters. On January 22, 2010, agents
installed, without a warrant, a GPS device on his car while parked on a public street.
The device recorded data until agents removed it on March 17. At all times, the car

1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.

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was in a location open to public view. The tracking confirmed that Robinson did not
inspect parking meters.

In a single indictment, the government charged Robinson with one
Paideia-related count of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (count
1); two Paideia-related counts of federal program theft, in violation of 18 U.S.C. §
666(a)(1)(A) (counts 2 and 3); and five parking-related counts of federal program
theft, in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2 (counts 4-8). Before trial, the
district court denied Robinson’s motion to suppress the GPS evidence, motion to
sever counts 1-3 from counts 4-8, and objection to the jury’s composition under
Batson v. Kentucky, 476 U.S. 79 (1986). At trial, the court rejected his challenges to
certain testimony and parking-related jury instructions. The jury found him guilty on
all counts. The court sentenced him to 24 months’ imprisonment and awarded
$419,333 in restitution, including $242,533 to DESE.

On appeal, Robinson challenges the: (A) admission of GPS evidence, (B)
joinder of counts 1-3 with counts 4-8, (C) Batson denial, (D) jury instruction rulings,
(E) evidentiary sufficiency of counts 4-8, (F) admission of certain testimony, (G)
sentence, and (H) restitution award to DESE.

II.

A.

Robinson moved to suppress the GPS evidence, invoking the Supreme Court’s
2012 decision that the “Government’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.” United States v. Jones, 132 S. Ct. 945, 949, 954
(2012) (internal quotation marks omitted) (noting Court had “no occasion” to
consider whether search would be lawful based on reasonable suspicion). The district

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court denied the motion. This court reviews factual findings for clear error and legal
conclusions de novo. United States v. Anderson, 688 F.3d 339, 343 (8th Cir. 2012).
This court affirms the denial “unless it is unsupported by substantial evidence, based
on an erroneous interpretation of applicable law, or, based on the entire record, it is
clear a mistake was made.” United States v. Goodale, 738 F.3d 917, 921 (8th Cir.
2013). This court may affirm the denial “on any ground the record supports.”
Anderson, 688 F.3d at 343.

“The Fourth Amendment protects against unreasonable searches, that is,
searches that are neither authorized by a warrant nor within one of the specific
exceptions to the warrant requirement.” United States v. Barraza-Maldonado, 732
F.3d 865, 867 (8th Cir. 2013). A Fourth Amendment violation “usually triggers
exclusion of evidence ‘obtained by way of’ the violation.” Id., quoting Davis v.
United States, 131 S. Ct. 2419, 2423 (2011). But evidence is not excluded “when the
police conduct a search in objectively reasonable reliance on binding appellate
precedent.” Davis, 131 S. Ct. at 2426, 2429, 2434 (explaining “sole purpose” of
exclusionary rule “is to deter future Fourth Amendment violations” and “[a]bout all
that exclusion would deter in [such a] case is conscientious police work”). Thus,
even if a warrantless GPS search is unconstitutional, the evidence is admissible if the
agents acted in objectively reasonable reliance on binding appellate precedent.

As of March 2010, this court’s last word on electronic tracking devices was in
1983. See United States v. Bentley, 706 F.2d 1498, 1505 (8th Cir. 1983) (probable
cause existed for attaching electronic tracking device to a machine bought by
defendant). See also United States v. Frazier, 538 F.2d 1322, 1324 (8th Cir. 1976)
(holding attachment of tracking device to target’s car was “actual trespass” but
reversing suppression of evidence obtained from device because search was justified
by probable cause). The Supreme Court allowed such devices in United States v.
Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984). In
Knotts, the Court found no Fourth Amendment violation in monitoring a car with a

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tracking beeper when the “surveillance conducted by means of the beeper . . .
amounted principally to” following the car on public streets. Knotts, 460 U.S. at 281,
285 (“A person traveling in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to another.”). In Karo, the
Court upheld the installation of a beeper inside a can transferred to the target. Karo,
468 U.S. at 712, 713 (“The mere transfer to Karo of a can containing an unmonitored
beeper infringed no privacy interest. . . . To be sure, it created a potential for an
invasion of privacy, but we have never held that potential, as opposed to actual,
invasions of privacy constitute searches for purposes of the Fourth Amendment.”).
But, when the can entered a private residence, monitoring “violate[d] the Fourth
Amendment rights of those who have a justifiable interest in the privacy of the
residence,” as it is “not open to visual surveillance.” Id. at 714.

The agents “could reasonably rely” on Knotts and Karo as “binding appellate
precedent.”2 See United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (applying
Knotts and Karo in absence of circuit law), cert. denied, 135 S. Ct. 400 (2014). See
also United States v. Katzin, 769 F.3d 163, 173 (3d Cir. 2014) (en banc) (same), cert.
denied, 2015 WL 732186 (2015). Robinson and amicus, the American Civil Liberties
Union, argue that law enforcement must rely on binding circuit precedent. But “it is
self-evident that Supreme Court decisions are binding precedent in every circuit.”
Katzin, 769 F.3d at 173. See also United States v. Mosley, 505 F.3d 804, 811 (8th
Cir. 2007) (“The decisions of the Supreme Court ‘remain binding precedent until [the

2
This court first applied the tracking portions of Knotts and Karo in May
2010—after the installation and monitoring here. See United States v. Marquez, 605
F.3d 604, 610 (8th Cir. 2010) (holding that “when police have reasonable suspicion
that a particular vehicle is transporting drugs, a warrant is not required when, while
the vehicle is parked in a public place, they install a non-invasive GPS tracking
device on it for a reasonable period of time”).

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Court] see[s] fit to reconsider them . . . .’” (alterations in original)), quoting Hohn v.
United States, 524 U.S. 236, 252-53 (1998).3

The GPS evidence was properly admitted under Knotts and Karo. Under Karo,
it was objectively reasonable for the agents to conclude their warrantless installation
of the device on Robinson’s car was constitutional. See Karo, 468 U.S. at 713
(finding constitutional the installation of beeper inside can transferred to target). See
also Katzin, 769 F.3d at 175 (“The magnetic attachment of an unmonitored GPS unit
onto the exterior of [defendant’s] vehicle, like the mere transfer of a can containing
an unmonitored beeper, did not convey any information.”); Aguiar, 737 F.3d at 261
(“[L]aw enforcement could reasonably conclude placing a GPS device on the exterior
of Aguiar’s vehicles did not violate the Fourth Amendment.”).

During the two months of monitoring, Robinson’s car was always in public
view, and “[a] person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.” See
Knotts, 460 U.S. at 281. The technology “allows law enforcement to conduct the
same sort of surveillance it could conduct visually, but in a more efficient and
cost-effective manner.” Aguiar, 737 F.3d at 262 (rejecting argument that GPS
surveillance “continued over a period of months”). See also United States v. Brown,
744 F.3d 474, 477 (7th Cir.) (“Knotts and Karo jointly show that tracking a car’s
location by GPS is not a search no matter how long tracking lasts.”), cert. denied, 135
S. Ct. 378 (2014).

3
In Barraza-Maldonado, this court found constitutional the pre-Jones
attachment of a GPS device to a vehicle in Arizona. Barraza-Maldonado, 732 F.3d
at 867, 868, 869. This court applied the Ninth Circuit’s pre-Jones, post-Knotts/Karo
precedent. See id. at 867-68, citing United States v. McIver, 186 F.3d 1119 (9th Cir.
1999). This court’s required application of another circuit’s law has no relevance
here.

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 This court’s resolution parallels how the other circuits have resolved the issue.
See cases listed in the appendix. Robinson and the ACLU stress factual differences
about this case. But those differences do not affect the result. See Katzin, 769 F.3d
at 176 (“While the underlying facts of the cases are obviously relevant to determining
whether reliance is objectively reasonable, the question is not answered simply by
mechanically comparing the facts of cases and tallying their similarities and
differences. Rather, Davis’ inquiry involves a holistic examination of whether a
reasonable officer would believe in good faith that binding appellate precedent
authorized certain conduct . . . .”).

B.

Robinson argues that counts 1-3 and counts 4-8 were misjoined under Federal
Rule of Criminal Procedure 8(a). This court reviews joinder de novo. United States
v. Scott, 732 F.3d 910, 915 (8th Cir. 2013). “The rules are to be liberally construed
in favor of joinder.” United States v. Garrett, 648 F.3d 618, 625 (8th Cir. 2011).
“Two offenses may be charged and tried together if they are of the ‘same or similar
character.’” United States v. Tyndall, 263 F.3d 848, 849 (8th Cir. 2001), quoting
Fed. R. Crim. P. 8(a). “[W]here the offenses are similar in character and occurred
over a relatively short period of time and the evidence overlaps, joinder is ordinarily
appropriate.” Id.

The court properly joined counts 1-3 and counts 4-8. The Paideia- and
parking-related schemes are similar in character: Both involve fraud upon an
employer under § 666. See, e.g., Scott, 732 F.3d at 915 (affirming joinder of counts
related to three bank robberies, each prosecuted under 18 U.S.C. §§ 2113(a) and (d)).
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

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conduct occurring at the same time as counts 7 and 8.4 Cf. United States v. Rodgers,
732 F.2d 625, 629 (8th Cir. 1984) (joining counts for cocaine possession and cocaine
possession with intent to distribute despite 20-month gap). But see United States v.
Mann, 701 F.3d 274, 289, 290 (8th Cir. 2012) (finding improper—under Rule 8(b)
analysis—joinder of grenade and machinegun possession with bombing when
grenades were not used in bombing and no connection was alleged between
machineguns and bombing).

Robinson also appeals the denial of his Rule 14(a) motion to sever. “If the
joinder of offenses . . . appears to prejudice a defendant . . . the court may order
separate trials . . . .” Fed. R. Crim. P. 14(a). Reviewing for abuse of discretion, “we
will reverse only when that abuse of discretion results in severe or clear prejudice.”
United States v. Reynolds, 720 F.3d 665, 669 (8th Cir. 2013). “Severe prejudice
occurs when a defendant is deprived of an appreciable chance for an acquittal.”
Garrett, 648 F.3d at 625-26. “There is a strong presumption against severing
properly joined counts.” Id. at 626. “The defendant bears the burden of establishing
prejudice.” Id.

Robinson “cannot show prejudice when evidence of the joined offense would
be properly admissible in a separate trial for the other crime.” See Reynolds, 720
F.3d at 670. Evidence that Robinson was at Paideia was admissible to show he was
not inspecting parking meters. And 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.” See Hiser v. XTO Energy,

4
Count 1 charged wire fraud for a Paideia-related transfer on or about
September 15, 2009. Count 2 charged Paideia-related conduct between May 1, 2009,
and April 30, 2010. Count 3 charged Paideia-related conduct between May 1, 2010,
and April 30, 2011. Count 7 charged parking-related conduct in 2009. Count 8
charged parking-related conduct in 2010.

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Inc., 768 F.3d 773, 777 (8th Cir. 2014) (“It is certainly reasonable to believe, absent
evidence to the contrary, that the jury adhered to the judge’s instructions.”).

C.

Robinson claims the prosecution struck a black panelist in violation of Batson.
This court reviews Batson rulings for clear error, “according great deference to the
court’s findings, and keeping in mind that ‘the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from’ the party opposing the
strike.” United States v. Maxwell, 473 F.3d 868, 871 (8th Cir. 2007), quoting
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).

The Fourteenth Amendment “forbids the prosecutor to challenge potential
jurors solely on account of their race.” Batson, 476 U.S. at 89.

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.

Smulls v. Roper, 535 F.3d 853, 859 (8th Cir. 2008) (en banc) (internal quotation
marks and citations omitted).

“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.” Edwards v. Roper, 688 F.3d 449, 454 (8th Cir. 2012),

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quoting Miller-El v. Dretke, 545 U.S. 231, 241 (2005). Yet, this court has upheld the
use of “very fine” distinctions between jurors. United States v. Morrison, 594 F.3d
626, 630, 633 (8th Cir. 2010) (affirming strike of black juror because she had not
been forthcoming about family member’s legal troubles and because her husband had
drinking problem, while white juror served whose son had four DWI offenses), citing
United States v. Davis, 154 F.3d 772, 781 (8th Cir. 1998) (finding sufficient
difference between drug counselor and drug prevention volunteer). But see Snyder
v. Louisiana, 552 U.S. 472, 480, 483 (2009) (“implausibility” of striking black juror
with student-teaching obligations who indicated trial would cause scheduling
conflicts was “reinforced by the prosecutor’s acceptance of white jurors who
disclosed conflicting obligations that appear to have been at least as serious as” black
juror’s).

The government used peremptory strikes on five black panelists, including
Panelist 26, the only black panelist mentioned in Robinson’s appellate briefs. When
Robinson raised a Batson challenge, the district court said: “I’ve got some concerns
about these strikes as well.” The government said it struck Panelist 26 because she
said “she had been unemployed for the past two years.” Robinson noted the jury
information sheet for Panelist 7, a white male selected for service, was blank under
current employment. (The government had not questioned Panelist 7; Robinson had,
but not about employment.) The government replied, “I have that he worked in
construction,” and the defense said, “I’m just saying there’s nothing listed on here.”
The court denied the Batson challenge, finding: “I cannot -- I don’t know one way
or the other what [Panelist 7] is doing, but [Panelist] 26 did identify herself in the voir
dire questioning as being unemployed. I have no idea whether that is the case with
respect to [Panelist 7] or not. And also the Government struck the other unemployed
juror among the alternates . . . .”

The court did not clearly err in denying Robinson’s Batson challenge. Because
Robinson failed to clarify Panelist 7’s employment status, Robinson “has not

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identified one juror who shared . . . the qualit[y] that the government cited as a reason
for dismissing” Panelist 26. See Morrison, 594 F.3d at 633. Robinson failed to
“shoulder his ultimate burden of establishing purposeful discrimination.” See Smulls,
535 F.3d at 859.

The government’s questioning of Panelist 26, but not Panelist 7, does not
demonstrate pretext. Robinson cites the Miller-El case, where the government “was
trying to avoid black jurors” by asking “contrasting voir dire questions . . . to black
and nonblack panel members, on two different subjects.” Miller-El, 545 U.S. at 255.
Here, the government’s explanation for why it did not question Panelist 7—because
his jury information sheet was blank under current employment whereas the entire
employment section of Panelist 26’s was blank—is sufficient.

D.

Robinson appeals rulings about the parking-related jury instructions. “We
review a district court’s rejection of a defendant’s proposed instruction for abuse of
discretion, and we recognize that district courts are entitled to broad discretion in
formulating the jury instructions.” United States v. Picardi, 739 F.3d 1118, 1126 (8th
Cir. 2014).

Section 666 (“Theft or bribery concerning programs receiving Federal funds”)
provides:

(a) Whoever, if the circumstance described in subsection (b) of this
section exists—
(1) being an agent of an organization, or of a State, local,
or Indian tribal government, or any agency thereof—
(A) embezzles, steals, obtains by fraud, or
otherwise without authority knowingly
converts to the use of any person other than

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 the rightful owner or intentionally misapplies,
property that—
(i) is valued at $5,000 or more,
and
(ii) is owned by, or is under the
care, custody, or control of such
organization, government, or
agency . . .
shall be . . . imprisoned not more than 10 years . . . .

(b) . . . the organization, government, or agency receives, in any one year
period, [more than] $10,000 under a Federal program . . . .

18 U.S.C. § 666(a), (b). 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.” Id. § 666(d)(1).

The indictment charged Robinson as an agent of the City of St. Louis, a local
government receiving more than $10,000 in federal funds each year charged. (The
City’s Department of Human Services received the funds.) Robinson proposed
instructing that the jury must find he (1) was an agent of the agency that received the
federal funds, and (2) had authority over those funds.

First, he proposed to instruct the jury: “If you find that Robinson was not an
agent of the agency that received the federal funds, you must find him not guilty.”
This instruction misstates the law. Nothing in the plain language of § 666 requires
that the defendant be an agent of the agency that received the funds. 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 relevant organization, government, or agency
received benefits under a federal program in excess of $10,000 in any one-year

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period.” United States v. Sabri, 326 F.3d 937, 940 (8th Cir. 2003), aff’d, 541 U.S.
600, 606 (2004) (“Liquidity is not a financial term for nothing; money can be drained
off here because a federal grant is pouring in there. . . . It is certainly enough that the
statutes condition the offense on a threshold amount of federal dollars defining the
federal interest . . . .”). See also Salinas v. United States, 522 U.S. 52, 57 (1997)
(“[T]he broad definition of the ‘circumstances’ to which the statute applies provides
no textual basis for limiting [its] reach . . . . The statute applies to all cases in which
an ‘organization, government, or agency’ receives the statutory amount of benefits
under a federal program.”).5

Second, Robinson proposed: “For 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.” Instead, the district court instructed: “If 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.” The district court did not abuse its
discretion by formulating this instruction. “[T]he plain language of [§ 666] does not

5
Relatedly, Robinson argues that § 666(a)(1)(A) violates the Tenth Amendment
as applied to him. The Supreme Court’s reasoning in Sabri, in which the Court
rejected a facial challenge to § 666(a)(2), forecloses that argument:

Congress has authority under the Spending Clause to appropriate federal
moneys to promote the general welfare, Art. I, § 8, cl. 1, and it has
corresponding authority under the Necessary and Proper Clause, Art. I,
§ 8, cl. 18, to see to it that taxpayer dollars appropriated under that
power are in fact spent for the general welfare, and not frittered away in
graft or on projects undermined when funds are siphoned off or corrupt
public officers are derelict about demanding value for dollars.

Sabri, 541 U.S. at 605. “The power to keep a watchful eye on expenditures and on
the reliability of those who use public money is bound up with congressional
authority to spend in the first place.” Id. at 608.

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require, as an element to be proved beyond a reasonable doubt, a nexus between the
activity that constitutes a violation and federal funds.” United States v. Hines, 541
F.3d 833, 836 (8th Cir. 2008) (adding that “Congress’s attempt to preserve the
integrity of federal funds by lessening the burden of federal prosecutors to prove what
may be an impossible-to-trace, but very real, impact of local corruption on federal
funds . . . would be undermined if defendants . . . could require the government to
establish such a nexus”), cert. denied, 555 U.S. 1200 (2009).

At oral argument, Robinson directed this court’s attention to Bond v. United
States, the Supreme Court’s 2014 decision that a statute criminalizing the possession
and use of a chemical weapon did not reach a wife’s attempt to injure her husband’s
lover. Bond v. United States, 134 S. Ct. 2077, 2093 (2014). “[I]t is incumbent upon
the federal courts to be certain of Congress’ intent before finding that federal law
overrides the usual constitutional balance of federal and state powers.” Id. at 2089
(internal quotation marks and citation omitted). See also United States v. Bass, 404
U.S. 336, 349 (1971) (“[W]e will not be quick to assume that Congress has meant to
effect a significant change in the sensitive relation between federal and state criminal
jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal
balance, the requirement of clear statement assures that the legislature has in fact
faced, and intended to bring into issue, the critical matters involved in the judicial
decision.”). Here, “[i]n enacting § 666, Congress addressed a legitimate federal
concern by licensing federal prosecution in an area historically of state concern.”
Sabri, 541 U.S. at 614 n.*. See also S. Rep. No. 98–225, at 369, reprinted in 1984
U.S.C.C.A.N. 3182, at 3510 (“A recurring problem in this area . . . has been that state
and local prosecutors are often unwilling to commit their limited resources to pursue
such thefts, deeming the United States the principal party aggrieved.”), recognized
as authority by Sabri, 326 F.3d at 943-44. See also United States v. Peery, 977 F.2d
1230, 1232, 1233 (8th Cir. 1992) (affirming § 666 conviction and noting that
“Congress expressly intended that 18 U.S.C. § 666(b) be broadly construed”).

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 E.

Robinson challenges the sufficiency of the evidence supporting the parking-
related counts. “We review de novo sufficiency of the evidence challenges, viewing
the evidence most favorably to the jury verdict, resolving conflicts in favor of the
verdict, and giving it the benefit of all reasonable inferences.” United States v. Lee,
687 F.3d 935, 940 (8th Cir. 2012). “The jury’s verdict must be upheld if there is an
interpretation of the evidence that would allow a reasonable jury to find [Robinson]
guilty beyond a reasonable doubt.” Id.

There was sufficient evidence for a jury to find beyond a reasonable doubt that
Robinson was an agent of the City. Robinson introduced a chart showing the Parking
Division under the Treasurer’s Office under the “Citizens of St. Louis” on a page
titled “Government of the City of St. Louis, Missouri.”6 Robinson was paid from the
City’s main clearing account (where the federal funds were deposited). Richard R.
Frank, the City’s Director of Personnel, testified: the City processes the Treasurer’s
Office’s payroll checks, which read “Treasurer’s Office [above] City of St. Louis”;
the St. Louis City Board of Aldermen reviews and approves Parking Division
employee compensation; Treasurer’s Office employees participate in the City’s
worker’s compensation program; and, it is “fair” to say the Treasurer’s Office was
“really ultimately . . . responsible to the citizens of St. Louis as the voters.” Over
Robinson’s objection, Frank testified that Parking Division employees are
“authorized to act on behalf of the City of St. Louis”; “serve the people of the City
of St. Louis”; and are “public servants in the City of St. Louis.” Frank also testified
that other offices—including the St. Louis Metropolitan Police Department, the
Recorder of Deeds, and the Medical Examiner’s Office—“are similar to the Parking

6
For the reasons discussed below, the chart oversimplifies the nature of
government in the City of St. Louis. Despite its flaws, the jury could find the chart
useful for assessing whether Robinson was an agent of the City of St. Louis.

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Division regarding their employees not necessarily being City of St. Louis employees,
but nonetheless authorized to act on behalf of the City of St. Louis.”

Robinson’s theme on appeal is that the Treasurer’s Office is not an office of the
City of St. Louis. The government of the City of St. Louis is unique. The Treasurer’s
Office is located in City Hall, and the Treasurer’s Office is listed on the City’s Web
site under “City Offices, Agencies, Departments and Divisions,” in accordance with
Missouri law. The Constitution of Missouri recognizes the “city of St. Louis . . . both
as a city and as a county.” Art. VI, § 31, Mo. Const. The Constitution authorizes
the voters of the City of St. Louis to control any “county” office (except for the office
of the circuit attorney). Id. In 1938, the Supreme Court of Missouri held that the
mayor of St. Louis lacked authority to appoint the treasurer of the City of St. Louis
(and removed the appointed treasurer). State v. Dwyer, 124 S.W.2d 1173, 1176 (Mo.
banc 1938). In response, in 1939, the Missouri legislature passed a law providing
that the treasurer of the City of St. Louis “shall be commissioned by the mayor, and
shall serve . . . until his successor is duly elected or appointed and qualified. In the
event of a vacancy in the office of city treasurer, arising from any cause, such vacancy
shall be filled by appointment by the mayor.” § 82.490 RSMo.7 By state statute, the
treasurer of the City of St. Louis “shall perform such duties as are, or may be,
required of him by” city ordinance. § 82.510 RSMo. Section 17.62.230 of the St.
Louis City Revised Code requires the treasurer to establish a Parking Meter Division.
See Rencher v. Jones, 440 S.W.3d 472, 473-74 (Mo. App. 2014). By state statute,
the treasurer is the supervisor of the City’s parking meters. § 82.485.1 RSMo.
Although the treasurer’s salary is set by state statute, it “may be annually increased
by an amount equal to the annual salary adjustment for employees of the city of St.

7
All other county treasurers in Missouri are “commissioned by the governor.”
§ 54.030 RSMo. See also, e.g., § 49.050 RSMo. (“[T]he governor shall thereupon
commission all such persons as [county] commissioners . . . .”); § 51.020 RSMo.
(clerk of the county commission); § 55.050 RSMo. (county auditors); § 58.020
RSMo. (county coroners).

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Louis as approved by the board of aldermen.” § 82.520 RSMo. The salaries of the
treasurer’s deputies, assistants, and clerks “may be fixed by [city] ordinance,” §
82.530 RSMo., 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. In sum, 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.

F.

Robinson appeals the admission of Frank’s opinion that Robinson was an
“agent” of the City of St. Louis. This court assumes, without deciding, it was an
inadmissible lay opinion. See Fed. R. Evid. 704 advisory committee’s note (“[T]he
question, ‘Did T have capacity to make a will?’ would be excluded, while the
question, ‘Did T have sufficient mental capacity to . . . formulate a rational scheme
of distribution?’ would be allowed.”).

“Even when an evidentiary ruling is improper, we will reverse a conviction on
this basis only when the ruling affected substantial rights or had more than a slight
influence on the verdict.” United States v. Robinson, 639 F.3d 489, 492 (8th Cir.
2011). “An error in admitting testimony may be harmless if the testimony is
corroborated by independent sources, or if it amounts to cumulative evidence on
matters already before the jury.” United States v. Melecio-Rodriguez, 231 F.3d
1091, 1094 (8th Cir. 2000) (per curiam). Frank’s opinion testimony “was cumulative
of and corroborated by other evidence”—for example, the organizational chart and
“City of St. Louis” notation on Robinson’s pay checks—and meshed with the actual
governmental framework of Robinson’s employment. See United States v. Espinoza,
684 F.3d 766, 781 (8th Cir. 2012). Given this independent evidence, Robinson
cannot show that Frank’s opinion testimony “had more than a slight influence on the
verdict.” See Robinson, 639 F.3d at 492.

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 G.

Robinson challenges the substantive reasonableness of his sentence. This court
reviews for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). “A
district court abuses its discretion and imposes an unreasonable sentence when it fails
to consider a relevant and significant factor, gives significant weight to an irrelevant
or improper factor, or considers the appropriate factors but commits a clear error of
judgment in weighing those factors.” United States v. Fronk, 606 F.3d 452, 454 (8th
Cir. 2010). See also 18 U.S.C. § 3553(a) (sentencing factors).

The court sentenced Robinson to 24 months’ imprisonment; the Guidelines
range was 46 to 57 months. Robinson argues the court sentenced him “because he
failed to confess wrongdoing.” Rather, the court reviewed the § 3553(a) factors and
found imprisonment necessary because the court did “not see or hear anything from
[Robinson] that suggests that anything short of prison has even the potential to deter
him from like conduct in the future [and] to protect society from him.” The court did
not abuse its discretion. Robinson’s below-Guidelines sentence is not substantively
unreasonable. See United States v. Black, 670 F.3d 877, 882 (8th Cir. 2012)
(“[W]here a district court has sentenced a defendant below the advisory guidelines
range, it is nearly inconceivable that the court abused its discretion in not varying
downward still further.”).

H.

This court reviews the “decision to award restitution for an abuse of
discretion.” United States v. Kay, 717 F.3d 659, 666 (8th Cir. 2013). Under the
Mandatory Victims Restitution Act, a court “shall” order a defendant convicted of “an
offense against property under this title” to “make restitution to the victim of the
offense.” 18 U.S.C. §§ 3663A(a)(1), (c)(1). “[T]he government must prove ‘the
amount of the loss sustained by [the] victim’ as a result of the offense by a

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preponderance of the evidence.” United States v. Chalupnik, 514 F.3d 748, 754 (8th
Cir. 2008) (second alteration in original), quoting 18 U.S.C. § 3664(e). Restitution
“is limited to the victim’s provable actual loss.” Id.

Robinson argues that DESE reimbursed Paideia only for DESE-approved
expenditures, like school books. That is, he argues, restitution “enabled a double
recovery” because DESE also “receive[d] the educational services obtained with” its
funding. Robinson’s argument assumes either he did not misapply Paideia funds, or
Paideia had a non-DESE funding source. But, the jury found Robinson guilty of two
Paideia-related counts of federal program theft (which he does not appeal), and
Robinson presents no evidence that Paideia had a non-DESE funding source. The
court’s restitution order was no abuse of discretion.

*******
The judgment is affirmed.
______________________________

Appendix

United States v. Taylor, 2015 WL 162655, at *1 (7th Cir. Jan. 14, 2015) (per curiam)
(“Because the officers used the GPS monitor in objectively reasonable reliance on
binding appellate precedent in effect [in 2011], the suppression motion was properly
denied.”).

United States v. Katzin, 769 F.3d 163, 168, 184 (3d Cir. 2014) (en banc) (holding
exclusionary rule inapplicable to GPS evidence acquired from device attached to
vehicle in December 2010), cert. denied, 2015 WL 732186 (2015).

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United States v. Stephens, 764 F.3d 327, 329, 338 (4th Cir. 2014) (“[W]e believe that
a reasonably well-trained officer in this Circuit could have relied on Knotts as
permitting the type of warrantless GPS usage” in May 2011).

United States v. Fisher, 745 F.3d 200, 201, 206 (6th Cir.) (“At the time the police
placed the tracking device on Fisher’s vehicle [May 2010], the training and guidance
provided to these officers by various police agencies and prosecutors all indicated
that such conduct was consistent with the Constitution; . . . the relevant Supreme
Court case law had indicated such a practice was lawful; and our precedent also
provided binding authority permitting such conduct.”), cert. denied, 135 S. Ct. 676
(2014).

United States v. Smith, 741 F.3d 1211, 1225 (11th Cir. 2013) (where then-binding
circuit law “specifically authorized officers to install an electronic tracking device
once they developed reasonable suspicion, we cannot discern appreciable deterrence
that would justify excluding” evidence seized as a result of GPS tracking) (internal
quotation marks omitted), cert. denied, 135 S. Ct. 704 (2014).

United States v. Aguiar, 737 F.3d 251, 255, 262 (2d Cir. 2013) (finding Knotts and
Karo “sufficient . . . at the time the GPS device was placed [January 2009] for the
officers here to reasonably conclude a warrant was not necessary”), cert. denied, 135
S. Ct. 886 (2014).

United States v. Sparks, 711 F.3d 58, 60, 66, 67 (1st Cir.) (concluding that Knotts
and First Circuit case authorized law enforcement’s 11-day use of GPS device affixed
to car in December 2009), cert. denied, 134 S. Ct. 204 (2013).

United States v. Andres, 703 F.3d 828, 834-35 (5th Cir.) (“In December 2009, it was
objectively reasonable for agents operating within the Fifth Circuit to believe that

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warrantless GPS tracking was permissible under circuit precedent.”), cert. denied,
133 S. Ct. 2814 (2013).

United States v. Pineda-Moreno, 688 F.3d 1087, 1091 (9th Cir. 2012) (“[T]he
agents’ conduct in attaching the tracking devices in public areas and monitoring them
was authorized by then-binding circuit precedent.”), cert. denied, 133 S. Ct. 994
(2013).

Cf. United States v. Davis, 750 F.3d 1186, 1189 n.2 (10th Cir. 2014) (“Applying the
[Davis] good-faith exception . . . several Circuits have held that, before Jones, it was
objectively reasonable for police to believe that warrantless GPS tracking did not
violate the Fourth Amendment. . . . We need not decide the good-faith issue, as
standing is a sufficient ground to affirm the district court’s denial of [defendant’s]
suppression motion.”).

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