Submitted: December 11, 2014.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For United States of America, Plaintiff - Appellee: Richard E. Finneran, Assistant U.S. Attorney, Hal Goldsmith, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.
For Fred W. Robinson, Defendant - Appellant: Diane Dragan, Assistant Federal Public Defender, Felicia Annette Jones, Assistant Federal Public Defender, Federal Public Defender's Office, Saint Louis, MO.
Fred W. Robinson, Defendant - Appellant, Pro se, Marion, IL.
For American Civil Liberties Union, American Civil Liberties Union of Missouri, Amici on Behalf of Appellant(s): Catherine Crump, Brian Hauss, Nathan Freed Wessler, American Civil Liberties Union Foundation, New York, NY; Grant R. Doty, Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, Saint Louis, MO.
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 court sentenced him to 24 months' imprisonment. Robinson appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
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 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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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.
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, 181 L.Ed.2d 911 (2012) (internal quotation marks omitted) (noting Court had " no occasion" to consider whether search would be lawful based on reasonable suspicion). The district 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, 180 L.Ed.2d 285 (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, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). In Knotts, the Court found no Fourth Amendment violation in monitoring a car with a 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." 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, 190 L.Ed.2d 290 (2014). See also United States v. Katzin, 769 F.3d 163, 173 (3d Cir. 2014) (en banc) (same), cert. denied, 135 S.Ct. 1448, 191 L.Ed.2d 403, 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 Court] ...