USCA11 Case: 19-14843 Date Filed: 01/31/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14843
____________________
UNITED STATES OF AMERICA,
Defendant-Appellee,
versus
BENJAMIN GREEN ROBINSON,
Plaintiff-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cr-00132-GKS-LRH-1
____________________
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2 Opinion of the Court 19-14843
Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.
PER CURIAM:
Benjamin Robinson was convicted of conspiring to distrib-
ute and possess with intent to distribute over 500 grams of cocaine.
See 28 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. He received a 110-
month sentence. Robinson raises four issues on appeal. After care-
ful review and with the benefit of oral argument, we find no merit
to any of them.
First, Robinson argues that the trial court erroneously de-
nied his motion to suppress a package of cocaine intercepted at the
post office and introduced against him at trial. He also complains
that the district court should have held an evidentiary hearing on
his motion. Both arguments fail. Robinson needed to establish a
reasonable expectation of privacy in the package before he chal-
lenged the search as unreasonable under the Fourth Amendment.
United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir. 2000). If a
defendant fails to plead sufficient facts to show a reasonable expec-
tation of privacy, “a trial court may refuse a defendant’s request for
a suppression hearing” and deny his motion to suppress. United
States v. Richardson, 764 F.2d 1514, 1526–27 (11th Cir. 1985) (quot-
ing United States v. Sneed, 732 F.2d 886 (11th Cir. 1984)).
The package was sent from “David Cortez” and addressed
to “Brian Stein.” In his motion, Robinson never alleged either of
these names was an alias of his. Nor did he claim a connection to
either of the addresses listed on the package. He likewise failed to
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19-14843 Opinion of the Court 3
assert any other basis for having a reasonable expectation of pri-
vacy in the package. Because Robinson’s motion to suppress “was
wholly lacking in sufficient factual allegations to establish standing,
the district court did not abuse its discretion in refusing to hold an
evidentiary hearing.” Cooper, 203 F.3d at 1285; see United States
v. Smith, 39 F.3d 1143, 1145 (11th Cir. 1994) (affirming district
court’s denial of motion to suppress letter where defendant gave
“equivocal testimony regarding his ownership interest in the let-
ter,” and the evidence showed he was “neither the sender nor the
addressee of the letter”).
Second, Robinson challenges the admission of his prior co-
caine-trafficking conviction under Rules 404(b) and 403 of the Fed-
eral Rules of Evidence. Because Robinson failed to object to this
evidence at trial, we review for plain error. United States v. Brown,
665 F.3d 1239, 1247 (11th Cir. 2011). We apply a three-part test to
evaluate whether evidence is admissible under Rules 404(b) and
does not violate Rule 403: (1) “the evidence must be relevant to an
issue other than the defendant’s character”; (2) “the evidence must
be sufficient to support a finding that the defendant actually com-
mitted the extrinsic act”; and (3) “the probative value of the evi-
dence must not be substantially outweighed by unfair prejudice.”
United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993)
(citations omitted). In his response to the government’s pretrial
motion, Robinson conceded that the first two prongs of this test
were satisfied. That leaves only the third one—that the value of
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4 Opinion of the Court 19-14843
the evidence was substantially outweighed by the danger of unfair
prejudice. See Fed. R. Evid. 403.
We have upheld the admissibility of evidence of prior drug
offenses in controlled-substance conspiracy cases when the prior
offenses have involved different drugs and when they have oc-
curred more than ten years before the charged offense. See Diaz-
Lizaraza, 981 F.2d at 1224 (prior marijuana offense admitted to
show “intent to conspire to possess and distribute cocaine”); United
States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (evidence of
small marijuana deals from fifteen years prior admissible to prove
intent to distribute large amounts of cocaine). Robinson’s prior
conviction was for cocaine trafficking (which was the charged sub-
stance here) and occurred less than six years before the charged
conduct here. Robinson shows no plain error in the court’s admis-
sion of his prior conviction here.
Third, Robinson argues insufficient evidence supports his
conviction. We review challenges to the sufficiency of the evi-
dence de novo, asking “whether, under the totality of the circum-
stances, there is sufficient evidence to support a jury verdict when
the facts are viewed in the light most favorable to the govern-
ment.” United States v. Guevara, 894 F.3d 1301, 1307 (11th Cir.
2018) (quotation marks omitted). The elements of conspiracy to
possess with intent to distribute a controlled substance, in violation
of 21 U.S.C. § 846 including the following: (1) an agreement to
violate § 841(a)(1) existed between at least two people; “(2) the de-
fendant knew about the agreement; and (3) the defendant
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19-14843 Opinion of the Court 5
voluntarily joined the agreement.” United States v. Colston, 4
F.4th 1179, 1187 (11th Cir. 2021) (citation omitted).
Robinson asserts that sufficient evidence was lacking here
because he intended to sell marijuana, not cocaine. But we have
explained that “proof of the type of drug involved in the conspiracy
is separate and distinct from proof of mens rea as to the type of
drug.” United States v. Achey, 943 F.3d 909, 913 (11th Cir. 2019).
So Robinson’s defense that he intended to distribute marijuana was
not a defense at all. See United States v. Sanders, 668 F.3d 1298,
1310 (11th Cir. 2012) (knowledge of the particular type of con-
trolled substance is not an element of 28 U.S.C. § 841(b)).1 Taking
the evidence in the light most favorable to the government, we
conclude that sufficient evidence supports the verdict, and Robin-
son’s motion for a directed verdict was properly denied.
Fourth, Robinson contends the government violated his
rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to
turn over an interview between the lead case agent and Robinson’s
codefendant in which the codefendant allegedly confirmed that
1 Robinson argues that an exception to this general rule applies for cases where
the indictment charges knowledge of the substance as an element of the of-
fense. See United States v. Narog, 372 F.3d 1243, 1257 (11th Cir. 2004). But
Robinson’s indictment is materially indistinguishable from the indictment in
Sanders, where we concluded that the indictment did not make knowledge of
the specific controlled substance an element of the offense. See Sanders, 668
F.3d at 1311. Not only that, but we have explained that the Narog exception
is no longer good law. See Colston, 4 F.4th at 1187; United States v. Nunez, 1
F.4th 976, 990–91 (11th Cir. 2021).
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6 Opinion of the Court 19-14843
Robinson was a marijuana dealer. 2 Robinson’s Brady claim is una-
vailing because the undisclosed interview was not favorable, and at
best, it was cumulative. As we’ve explained, proof that Robinson
intended to deal marijuana was not a legal defense here. Plus, the
agent conceded on cross-examination that Robinson was a mariju-
ana dealer. So even assuming that the evidence was somehow fa-
vorable, it “would have constituted, at best, cumulative evidence.”
Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1361 (11th Cir.
2004) (citation omitted). As a result, we cannot find that a timely
disclosure would have created a “reasonable probability” of a dif-
ferent result here. Bagley, 473 U.S. at 682.
For these reasons, we affirm.
AFFIRMED.
2 To establish a Brady violation, a defendant must show the following: “(1) the
prosecution suppressed evidence; (2) the evidence was favorable to him; and
(3) the evidence was material to the establishment of his guilt or innocence.”
United States v. Jeri, 869 F.3d 1247, 1260 (11th Cir. 2017) (quotation marks
omitted). Evidence is material “only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).