United States v. Kimberly Robinson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0448n.06

Case Nos. 15-5419, 15-5493
FILED
UNITED STATES COURT OF APPEALS Aug 03, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
KIMBERLY ROBINSON, ) TENNESSEE
)
Defendant-Appellant. ) OPINION
)
)

BEFORE: SUTTON, GRIFFIN, and DONALD, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge. Defendant Kimberly Robinson (“Robinson”)

was tried and convicted for participating in drug trafficking and money laundering conspiracies.

On appeal, Robinson presents five issues for review: (1) whether the district court committed

reversible error by admitting hearsay statements under the coconspirator hearsay exception,

(2) whether the government presented insufficient evidence for a rational juror to conclude that

Robinson conspired to distribute at least five kilograms of cocaine, (3) whether the government

presented insufficient evidence for a rational juror to conclude Robinson conspired to launder the

proceeds from the drug trafficking conspiracy, (4) whether the district court erred in applying an

obstruction-of-justice sentence enhancement, and (5) whether the district court imposed a

procedurally and substantively unreasonable sentence. None of her arguments are convincing;

therefore, we AFFIRM the district court.
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United States v. Kimberly Robinson

I. FACTS

Demond White (“D. White”) led a cocaine distribution conspiracy in Knoxville,

Tennessee from 2000 to 2013. (Page ID# 1740, 1753.) In 2007, D. White relocated to

Fayetteville, Georgia, to utilize a cocaine supplier in the area. (Page ID# 1750.) Hope White

(“H. White”), D. White’s mother, stored D. White’s drugs and money at her house in Knoxville,

Tennessee. (Page ID# 1827.) Generally, D. White’s distributors picked up cocaine from H.

White and brought the drug sale proceeds back to H. White’s house. (Page ID# 1857–58.) D.

White used this money to purchase more cocaine in Georgia. (Page ID# 1757.)

Shortly after D. White moved to Georgia his long-time friend, Robinson, asked D. White

if she could traffic drugs for him. (Page ID# 1757.) Robinson’s husband had lost his job and the

couple was struggling financially. (Page ID# 1756.) D. White agreed to pay Robinson $1,000

each time she transported cocaine and $500 each time she transported cash. (Page ID# 1759.)

On each trip, Robinson transported between one and six kilograms of cocaine and between

$70,000 and $100,000 in cash. (Page ID# 1761–62.) D. White regularly paid Robinson for her

drug trafficking trips directly from the cash Robinson brought him. (Page ID# 1761.)

In 2012, the Knoxville Police Department began investigating the drug conspiracy. After

receiving judicial authorization to wiretap D. White, H. White, and several other coconspirators’

phones, the police intercepted a telephone conversation between D. White and Robinson that

indicated that Robinson had made a round trip from Fayetteville, Georgia to Knoxville,

Tennessee. (Page ID# 1696–97.) After intercepting this phone call, the police installed a video

camera outside H. White’s home. (Page ID# 1696–97.) On two separate occasions, the police

recorded Robinson visiting H. White’s house in Knoxville, Tennessee. (Page ID# 1697–98.)

During each visit, Robinson entered H. White’s house empty-handed and left H. White’s house,

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less than eight minutes after arriving, with a bag in hand. (Page ID# 1700–02.) On June 11,

2013, the police obtained search warrants for D. White’s home in Fayetteville, Georgia and H.

White’s home in Knoxville, Tennessee. (Page ID# 1710.) While executing the search warrant,

the police intercepted D. White attempting to dispose of one kilogram of cocaine. Additionally,

the police seized over $100,000 in cash from D. White, H. White, and D. White’s coconspirators.

On June 18, 2013, a federal grand jury indicted Robinson for conspiracy to distribute

more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and

conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), (a)(1)(A)(i), and

(B)(i). A jury convicted Robinson as charged, and the district court sentenced her to 292 months

in prison.

II. COCONSPIRATOR STATEMENTS

Several of Robinson’s arguments hinge on the premise that the district court committed

reversible error by improperly admitting hearsay statements under the coconspirator hearsay

exception. See Fed. R. Evid. 801(d)(2)(E). Therefore, we address this argument first.

Robinson concedes that she failed to timely object to the testimony in dispute. Therefore,

we review the district court’s evidentiary rulings for plain error. Fed. R. Crim. P. 52(b); see

United States v. Wilson, 168 F.3d 916, 920 (6th Cir. 1999) (“If an evidentiary objection is not

made at the time of the testimony, this court reviews the admission of the evidence for plain

error.”).

There are four parts to plain-error review. United States v. Soto, 794 F.3d 635, 655 (6th

Cir. 2015), reh’g denied (Sept. 18, 2015), cert. denied sub nom. Santana v. United States, 136 S.

Ct. 2007 (2016). First, there must be an error or defect that has not been affirmatively waived by

the defendant. Id. Second, the legal error must be clear or obvious, rather than subject to

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reasonable dispute. Id. Third, the error must have affected the appellant’s substantial rights. Id.

Fourth, if the first three prongs are satisfied, we may remedy the error; however, we exercise this

discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

As an initial matter, the government contends that this issue is unreviewable on appeal

because Robinson stipulated to the admissibility of these hearsay statements, which waived her

right to bring the issue of admissibility on appeal. A defendant affirmatively waives a claim

when he or she intentionally relinquishes or abandons a known right. United States v. Ruiz, 777

F.3d 315, 320 (6th Cir. 2015); see also United States v. Aparco-Centeno, 280 F.3d 1084, 1088

(6th Cir. 2002) (“[A]n attorney cannot agree in open court with a judge’s proposed course of

conduct and then charge the court with error in following that course.”). Although Robinson

stipulated to the admissibility of the telephone and text message conversations obtained by the

police, Robinson did not stipulate that all prior statements of her alleged coconspirators were

admissible. (Page ID# 1728–29, 1871.) Thus, while we agree with the government that

Robinson waived her claim regarding the admissibility of the telephone and text message

conversations, we disagree that her stipulation encapsulated every prior statement made by her

alleged coconspirators. Thus, we review the challenged statements not encompassed by the

stipulation for plain error.

Under a plain error review, the defendant must establish that the legal error is clear or

obvious rather than subject to reasonable dispute. Soto, 794 F.3d at 655. A coconspirator’s out-

of-court statement offered against a defendant made during and in furtherance of a conspiracy is

not hearsay. See Fed. R. Evid. 801(d)(2)(E). Under United States v. Enright, 579 F.2d 980 (6th

Cir. 1978), the government must establish three factors by a preponderance of the evidence

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before a district court may admit statements under Rule 801(d)(2)(E): (1) the conspiracy existed,

(2) the defendant was a member of the conspiracy, and (3) the coconspirator’s statements were

made in furtherance of the conspiracy. Wilson, 168 F.3d at 920. The district court may consider

the hearsay statements when inquiring into the existence of a conspiracy, but it must also

consider the circumstances surrounding the statement, such as the identity of the speaker and the

context in which the statement was made. Id. at 921 (quoting Fed. R. Evid. 801 (advisory

committee note)).

In her brief, Robinson concedes that the government provided sufficient evidence to

establish the existence of a conspiracy. Robinson argues for the first time on appeal that the

government failed to prove (1) that she was a member of the conspiracy and (2) that the

coconspirators made the disputed statements in furtherance of the conspiracy.

Robinson contends that the government failed to prove her participation in the conspiracy

by a preponderance of the evidence. She claims that her coconspirators’ testimony was the only

evidence the government presented regarding her participation in the conspiracy. Robinson

stresses the significance of the alleged coconspirators’ bias and motive to testify against her in

order to receive lowered sentences. To clarify, Robinson does not argue that the district court

assigned undue weight to the out-of-court statements at issue when making its Enright findings.

Rather, she argues that the coconspirators’ testimony, as a whole, fails to establish her

participation in the conspiracy because the witnesses’ credibility is questionable. However,

Robinson fails to show that the district court clearly erred in determining that she was a member

of the conspiracy. Whether the coconspirators’ credibility was questionable was a matter for the

jury to decide. Therefore, this is an issue subject to reasonable dispute and is not clear legal

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error. See Soto, 794 F.3d at 655 (“[T]he legal error must be clear or obvious, rather than subject

to reasonable dispute.”).

Additionally, contrary to Robinson’s assertion, the government presented additional

evidence that corroborated the coconspirators’ testimony. This evidence included video

surveillance of Robinson entering the “stash house” empty-handed and leaving, less than eight

minutes later, with a bag in hand; cell phone records establishing that Robinson made round trips

from Fayetteville, Georgia to Knoxville, Tennessee on days when she frequently contacted D.

White and H. White; and testimony from Robinson’s ex-husband, who saw Robinson give D.

White a bag filled with cocaine. (Page ID# 1696–97, 1700–02.) Thus, contrary to Robinson’s

assertions, the government provided enough evidence for the district court to determine by a

preponderance of the evidence that Robinson participated in the conspiracy.

Second, Robinson claims that the government failed to establish that the coconspirators

made the disputed statements in furtherance of the conspiracy. Initially, we note that Robinson

fails to specify which statements she is contending constitute inadmissible hearsay. It is not

incumbent upon this court to meticulously review the entire record in an effort to identify each

potential hearsay statement elicited at trial. See United States v. Elder, 90 F.3d 1110, 1118 (6th

Cir. 1996) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)) (“[I]t is a ‘settled

appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived.’”). Since Robinson has failed to point us to the

statements for which she takes issue, we decline to address her argument further.

Accordingly, we hold the district court did not clearly err in admitting the coconspirator

statements.

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United States v. Kimberly Robinson

III. INSUFFICIENT EVIDENCE

Robinson argues that the government presented insufficient evidence for a rational juror

to conclude that she conspired to distribute at least five kilograms of cocaine and launder

proceeds from the drug-distribution conspiracy. For the reasons discussed below, we disagree.

A.

When reviewing whether the evidence presented is sufficient to support a jury verdict,

“the relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.

Dockery, 42 F. App’x 799, 800 (6th Cir. 2002) (“Sufficient evidence exists if, after viewing the

evidence in the light most favorable to the prosecution, a rational trier of fact would have found

the essential elements of the crime beyond a reasonable doubt.”).

B.

Robinson argues that the government presented insufficient evidence at trial to support

her conviction of conspiracy to distribute over five kilograms of cocaine, in violation of

21 U.S.C. §§ 846 and 841(a)(1). To establish a defendant’s participation in a drug-distribution

conspiracy under 21 U.S.C. §§ 846 and 841(a)(1), the government must demonstrate that (1) an

agreement to violate drug laws existed, (2) the defendant had knowledge and intent to join the

conspiracy, and (3) the defendant participated in the conspiracy. United States v. Martinez,

430 F.3d 317, 330 (6th Cir. 2005). “Proof of a formal agreement is not necessary,” as the

government must only show that “a tacit or material understanding among the parties” existed.

Id.

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United States v. Kimberly Robinson

Robinson makes a number of meritless arguments. First, Robinson concedes that the

evidence presented at trial established that a cocaine-distribution conspiracy existed, but she

argues that the proof failed to establish her participation in the conspiracy. Specifically,

Robinson contends that the government’s failure to catch her personally in possession of drugs or

drug proceeds establishes the government’s failure to present sufficient evidence to support her

drug conspiracy conviction. However, this type of “smoking gun” evidence is not required to

support a jury conviction for participation in a drug-distribution conspiracy. If the existence of a

conspiracy is proven beyond a reasonable doubt, a defendant’s connection to the conspiracy

“need only be slight.” Id. at 330. The government provided ample evidence for a reasonable

juror to conclude that Robinson was connected to the cocaine-distribution conspiracy. At trial,

the government presented testimony from law enforcement officers who worked on the

conspiracy investigation, three of Robinson’s coconspirators, including D. White and H. White,

and testimony from Robinson’s ex-husband. (Page ID# 781.)

Robinson attempts to discredit her ex-husband’s and coconspirators’ testimony by

alleging that they were biased and lacked credibility because they were testifying in an effort to

reduce their own sentences. However, it is the jury’s responsibility to resolve conflicts in

testimony, weigh evidence, and to draw reasonable inferences from the evidence presented.

Jackson, 443 U.S. at 319. Accordingly, we decline to reevaluate the credibility of the witnesses

and instead hold that the evidence was sufficient to establish that Robinson participated in the

conspiracy.

Second, Robinson contends that the phone call and text message evidence that indicated

that she made trips from Fayetteville, Georgia to Knoxville, Tennessee and was in frequent

communication with D. White and H. White during those trips was too circumstantial to support

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her conviction. Specifically, Robinson argues that this phone call and text message evidence was

purely circumstantial due to the lack of any direct reference to cocaine trafficking in the

messages and transcripts. This is not a false assertion, as D. White testified that none of the text

message exchanges or phone call recordings directly discuss cocaine trafficking or distribution

because he instructed each coconspirator, including Robinson, to avoid using phrases related to

drug activity. (Page ID #1759–60; 1771–1772.) However, “the existence of a conspiracy may

be inferred from circumstantial evidence that can reasonably be interpreted as participation in the

common plan.” Martinez, 430 F.3d at 330 (citation omitted). A reasonable juror could conclude

that Robinson’s choice not to directly mention cocaine trafficking or distribution in the text

messages or phone calls was an intentional effort to comply with D. White’s instructions in

furtherance of the conspiracy. Accordingly, this argument is meritless.

Finally, Robinson argues that the government’s evidence was primarily comprised of

inadmissible hearsay evidence. As discussed above, the statements elicited from Robinson’s

alleged coconspirators fall within the coconspirator hearsay exception. Thus, the district court

did not err in admitting them.

In conclusion, we hold that the government presented sufficient evidence for a rational

juror to conclude that Robinson conspired to distribute at least five kilograms of cocaine.

C.

Robinson also argues the government presented insufficient evidence for a reasonable

juror to conclude that she participated in a money laundering conspiracy under 18 U.S.C.

§ 1956(h). To establish a money laundering conspiracy, the government must demonstrate (1)

that two or more persons conspired to commit the crime of money laundering and (2) that the

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United States v. Kimberly Robinson

defendant knowingly and voluntarily joined the conspiracy. United States v. Prince, 618 F.3d

551, 553–54 (6th Cir. 2010).

First, Robinson challenges her conviction for participating in a promotional money

laundering conspiracy. Promotional money laundering is “the reinvestment of proceeds of

unlawful activity into the illegal scheme from which the proceeds were derived.” United States

v. Cosgrove, 637 F.3d 646, 654 (6th Cir. 2011). To establish a promotional money laundering

violation the government must demonstrate that the defendant (1) conducted a financial

transaction that involved the proceeds of unlawful activity, (2) knew the property involved was

proceeds of unlawful activity, and (3) intended to promote that unlawful activity. Prince,

618 F.3d at 554.

To contest her money laundering conviction, Robinson reasserts many of the same

arguments she made regarding her drug-distribution conspiracy conviction. First, Robinson

contends that the government’s evidence was primarily comprised of inadmissible hearsay. As

we have previously discussed, the district court did not err in admitting the hearsay evidence.

Second, Robinson argues that law enforcement’s failure to catch her in possession of

drugs or drug proceeds renders the conviction unsupported. However, since catching the

defendant in the act of conspiring to commit money laundering is not an essential element of

§ 1956(h), the lack of this evidence does not support Robinson’s conclusion that the government

provided insufficient evidence to support her money laundering conviction.

Third, Robinson sweepingly claims that the government failed to provide sufficient

evidence to establish any of the three elements of promotional money laundering. See id. In

order for a financial transaction under § 1956(a)(1)(A)(i) to occur, there “must be a purchase,

sale, transfer, delivery, etc.—some disposition of funds.” United States v. Reed, 77 F.3d 139,

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143 (6th Cir. 1996) (en banc). All three coconspirators testified regarding Robinson’s drug

trafficking role in the conspiracy, which involved Robinson taking cocaine to Knoxville,

Tennessee for distributors to sell and bringing the cocaine sale proceeds back to D. White in

Fayetteville, Georgia. Specifically, D. White testified that he often paid Robinson directly from

the cash she brought him and that he used the funds Robinson transported to purchase more

cocaine to continue the existence of the conspiracy. (Page ID# 1761.) Additionally, H. White

testified that Robinson collected the drug sale proceeds from her home and delivered them to

Fayetteville, Georgia on several occasions. (Page ID# 1828.) Thus, there was sufficient

evidence to show Robinson was aware that the drug conspiracy existed and aided in its

continuation by completing the financial transaction between D. White and his distributors.

Accordingly, viewing the evidence in the light most favorable to the government, a

reasonable juror could conclude that Robinson knew D. White was conducting an unlawful

cocaine trafficking business and that the proceeds Robinson transported were being used to

further that activity.

In addition to her § 1956(a)(1)(A)(i) challenge, Robinson challenges the sufficiency of

the proof presented regarding her conviction for participating in a concealment money

laundering conspiracy, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). A violation of

§ 1956(a)(1)(B)(i) consists of three elements: (1) use of funds that are proceeds of unlawful

activity; (2) knowledge that the funds are proceeds of unlawful activity; and (3) conduct or

attempt to conduct a financial transaction, knowing that the transaction is designed in whole or in

part to disguise the nature, location, source, ownership or control of the proceeds. United States

v. Prince, 214 F.3d 740, 747 (6th Cir. 2000).

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United States v. Kimberly Robinson

Robinson argues that “merely hiding funds during transportation is not sufficient to

violate the statute, even if substantial efforts have been expended to conceal the money.”

Regalado Cuellar v. United States, 553 U.S. 550, 563 (2008). We agree that the government

failed to establish that Robinson violated § 1956(a)(1)(B)(i). The only evidence the government

offered to prove that Robinson committed concealment money laundering regarded her

transportation of funds in the trunk of her vehicle. Further, the government neglects to address

this argument in its brief. As such, we determine that the government concedes that it presented

insufficient evidence at trial to establish that Robinson conspired to commit concealment money

laundering. See Wright v. Knox Cty. Bd. of Educ., 23 F. App’x 519, 520 (6th Cir. 2001).

Unfortunately, for Robinson, her argument is futile. The language of § 1956(h) plainly

allows a jury to convict a defendant for conspiracy to commit money laundering under

promotional or concealment money laundering, and it does not require the government to prove

that a defendant committed both types of money laundering. See United States v. Prince,

618 F.3d 551 (6th Cir. 2010) (upholding a defendant’s conviction for violation of 18 U.S.C.

§ 1956(a)(1)(A)(i) without an additional 1956(a)(1)(B)(i) charge brought against him). The

statute does not require the government to prove § 1956(a)(1)(B)(i) in order for a jury to convict

the defendant under § 1956(h), but rather, requires that the government prove subsection

§ 1956(a)(1)(A)(i) or § 1956(a)(1)(B)(i).

Therefore, because the government provided sufficient evidence for a reasonable juror to

conclude that Robinson conspired to commit promotional money laundering on the basis of

U.S.C. § 1956(a)(1)(A)(i), we affirm Robinson’s conviction for conspiracy to commit money

laundering under § 1956(h).

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IV. SENTENCING ENHANCEMENT

Robinson alleges that the district court improperly applied an obstruction-of-justice

sentencing enhancement under U.S.S.G. § 3C1.1 because it failed (1) to establish by a

preponderance of the evidence that Robinson perjured herself at trial and (2) to consider the

proof in the light most favorable to Robinson. To apply an obstruction-of-justice sentencing

enhancement, a district court must (1) identify particular portions of the defendant’s testimony

that it considers to be perjurious and (2) make a specific finding for each element of perjury or

make a finding that encompasses all of the factual predicates for a finding of perjury. United

States v. Lawrence, 308 F.3d 623, 632 (6th Cir. 2002). The offense of perjury includes (1) a

false statement under oath (2) concerning a material matter (3) with the willful intent to provide

false testimony. United States v. Watkins, 691 F.3d 841, 851 (6th Cir. 2012).

Specifically, Robinson argues that the district court should not have relied upon her

coconspirators’ conflicting testimony in deciding to apply the enhancement because “allegedly

false statements should be evaluated in a light most favorable to the defendant.” United States v.

Crousore, 1 F.3d 382, 385 (6th Cir. 1993). However, the sentencing judge is not required to

disregard all evidence that is unfavorable to the defendant. Id. at n.3. “[C]redibility

determinations are for the trial court, not for the court of appeals. Unless the district court's

finding of fact is clearly erroneous, we must accept it.” Id. at 386. When a defendant's

testimony is directly at odds with that of other witnesses, the sentencing judge resolves the

conflict in credibility. Id. at 385–86. Robinson fails to identify any clear error made by the

district court in its sentencing enhancement determination. She instead chooses to reiterate her

previous arguments regarding her coconspirators’ credibility. As we have determined above,

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those arguments are unavailing. Therefore, the district court did not clearly err in its

determination that at least some Robinson’s statements were false.

Additionally, Robinson argues that the district court failed to establish that she perjured

herself at trial by a preponderance of the evidence. Although “it is not enough for a sentencing

judge to recognize conflicting testimony and resolve in his own mind which witness is credible,”

the district court can justify this determination by briefly identifying the perjurious statements

and explaining why the intentional perjury was material. United States v. Spears, 49 F.3d 1136,

1143 (6th Cir. 1995) abrogated on other grounds by United States v. Wells, 519 U.S. 482

(1997)). In this case, the district court described precisely which statements it considered when

making its obstruction-of-justice sentencing enhancement decision, and explained specifically

why each statement was material to Robinson’s case and constituted perjury. (Page ID# 2162.)

Accordingly, we affirm the district court’s application of the obstruction-of-justice

sentencing enhancement.

V. SENTENCING VARIANCE

In addition to her sentencing enhancement argument, Robinson contends that her

sentence was procedurally and substantively unreasonable. We review sentences imposed by the

district court for reasonableness, which includes both a substantive and a procedural component.

United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). To establish a procedurally

reasonable sentence, a sentencing court (1) may not presume that the sentencing guidelines are

reasonable, (2) must make an individualized assessment based on the facts presented, and

(3) must adequately explain the chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing. Gall v. United States, 552 U.S. 38, 50 (2007).

A substantively reasonable sentence “must be proportionate to the seriousness of the

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circumstances of the offense and offender, and sufficient but not greater than necessary, to

comply with the purposes of § 3553(a).” Curry, 536 F.3d at 573. (internal citations and

quotation marks omitted). When a sentencing court adequately explains why it imposed a

particular sentence, we do not require the sentencing court exhaustively explain why it did not

select an alternative sentence. United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006).

In determining Robinson’s sentence, the district court explicitly considered the 18 U.S.C.

§ 3553(a) factors. Specifically, the district court considered (1) the seriousness of Robinson’s

underlying conviction; (2) Robinson’s failure to cooperate with the government, unlike her

coconspirators; and (3) Robinson’s social and medical background. (Page ID# 2167.) Thus, we

find no procedural error in the district court’s sentencing determination.

Regarding the substantive reasonableness of Robinson’s sentence, the district court

adequately explained its decision to impose a higher sentence for Robinson than her

coconspirator, D. White. (Page ID# 2171.) The district court noted D. White’s substantial

assistance with the government’s case against Robinson and his willingness to accept

responsibility for his crime. (Page ID# 2171.) Accordingly, we find that the district court

adequately explained its sentencing determinations and imposed a reasonable sentence.

VI. CONCLUSION

For the foregoing reasons, we AFFIRM both Robinson’s convictions and sentence.

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