United States v. Robinson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0438n.06
Filed: July 23, 2008
No. 05-1558
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiff-Appellee, ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
v. )
) OPINION
OLEE WONZO ROBINSON, )
)
Defendant-Appellant. )
BEFORE: BATCHELDER, MOORE, and COLE, Circuit Judges.
PER CURIAM. Defendant-Appellant Olee Wonzo Robinson appeals the district court’s
denial of his motion for a new trial, alleging that: (1) he did not knowingly and intelligently waive
his trial attorney’s conflict of interest; (2) the Government withheld material and exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18 U.S.C. §
3500(b); (3) the Government used false testimony to obtain his drug-related convictions; and (4) he
is entitled to an evidentiary hearing on his motion. For the following reasons, we AFFIRM.
I. BACKGROUND
On November 5, 1993, a grand jury in the Eastern District of Michigan returned a fourteen-
count superseding indictment, charging Robinson with multiple offenses, including conspiracy to
distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846;
drug-related homicide and aiding and abetting in drug-related homicide, in violation of 21 U.S.C.
No. 05-1558
United States v. Robinson
§ 848(e)(1)(A) and 18 U.S.C. § 2; making false statements to a federally insured institution, in
violation of 18 U.S.C. § 1014; laundering of monetary instruments and aiding and abetting in the
same, in violation of 18 U.S.C. §§ 1956 and 2; engaging in a continuing criminal enterprise, in
violation of 21 U.S.C. § 848; being a felon in possession of firearms, in violation of 18 U.S.C. §
922(g)(1); structuring financial transactions to evade reporting requirements and aiding and abetting
in the same, in violation of 31 U.S.C. § 5324(3) and 18 U.S.C. § 2; and the distribution of cocaine
and aiding abetting in the same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. After trial,
which began on November 8 and ended on December 22, 1993, a jury returned a guilty verdict on
all counts.
The district court sentenced Robinson to life imprisonment on the continuing criminal
enterprise and drug-related homicide convictions, and imposed lesser sentences for the other
convictions, all to be served concurrently. In 1995, Robinson filed a direct appeal, and a prior panel
of this Court affirmed his convictions and sentence in all respects. United States v. Robinson, 96
F.3d 1449, 1996 WL 506498 (6th Cir. Sept. 5, 1996) (table). While his direct appeal was pending,
on May 8, 1995, Robinson filed a motion for a new trial on the grounds that the Government had
failed to provide Robinson with material exculpatory evidence. The district court issued a brief order
denying the motion without prejudice, and Robinson appealed that order.
While the denial of the first motion for a new trial was on appeal, Robinson filed a second
motion for a new trial, which raised two additional claims: (1) the Government knowingly used false
testimony against him; and (2) Robinson’s trial attorney failed to disclose a conflict of interest. The
district court dismissed this motion as moot because the appeal of the first order was still pending.
-2-
No. 05-1558
United States v. Robinson
On November 30, 1995, and again on May 3, 1996, Robinson filed a third and fourth motion for a
new trial, which raised similar grounds for relief as his prior two motions. The district court denied
the third and fourth motions for a new trial because Robinson’s direct appeal had not yet been
disposed of by this Court.
After we affirmed Robinson’s conviction and sentence, id., we issued a subsequent decision
vacating the district court’s order denying Robinson’s motion for a new trial, and remanding the case
to the district court for ruling on the merits of the motion, United States v. Robinson, 125 F.3d 856,
1997 WL 615764 (6th Cir. Oct. 3, 1997). On October 29, 1997, Robinson, acting pro se, filed a fifth
motion for a new trial, consolidating many of the same arguments as the previous four motions,
though not raising the claim that his trial attorney had a conflict of interest.
On April 22, 1998, the parties reached a stipulation that Robinson’s newly appointed counsel,
Margaret Raben, would incorporate all of Robinson’s previous motions in a consolidated motion.
According to Robinson, however, Raben failed to file that pleading.
In November 2002, four and a half years after the stipulation and order to file a consolidated
motion, the district court ordered newly retained counsel Bruce Welch to file a “proper” motion for
a new trial, which he did. In February 2005, Magistrate Judge Wallace Capel, Jr. issued a Report
and Recommendation (“Report”) that the motion be denied. The Report concluded that Robinson’s
sixth and final motion for a new trial, filed in 2002, was untimely, and that the district court should
only consider Robinson’s fifth motion for a new trial, which did not raise the conflict-of-interest
issue.
-3-
No. 05-1558
United States v. Robinson
Robinson objected to the Report on the following grounds: that an evidentiary hearing on the
conflict-of-interest issue was necessary; that an evidentiary hearing was necessary to determine
whether Anthony Bowling and Edward Osborne, two co-conspirators and key witnesses against
Robinson, had committed perjury; and that Robinson had not had not received all pertinent discovery
pertaining to Osborne and Bowling. Robinson also stated: “As for the other issues, Petitioner relies
on the pleadings previously filed that the information is newly discovered and that he is entitled to
an evidentiary hearing.” (Joint Appendix (“JA”) 2563.)
In April 2005, the district court denied Robinson’s objections and adopted the Report.
United States v. Robinson, 366 F. Supp. 2d 498 (E.D. Mich. 2005). The court first found that an
evidentiary hearing on his trial attorney’s conflict of interest was unnecessary because Robinson
“clearly waived the conflict of interest issue in writing and at a hearing” before trial began. Id. at
506. With respect to the Brady and false testimony issues, the court concluded that “the Government
did disclose the plea agreements to [Robinson], and the transcripts of the various proceedings could
have been ordered by defense counsel.” Id. And even assuming that the prosecution did withhold
material exculpatory evidence, or used false testimony at trial, Robinson had not shown “that the
new evidence ‘would likely produce an acquittal if the case was retried.’” Id. at 506-07 (citing
United States v. Turns, 198 F.3d 584, 586 (6th Cir. 2000)). Robinson timely appealed.
II. ANALYSIS
We review the denial of a motion for a new trial based on newly discovered evidence for an
abuse of discretion. United States v. Gaitan-Acevedo, 148 F.3d 577, 589 (6th Cir. 1998). For the
discovery of new evidence to warrant a new trial, a defendant must show the following: “‘(1) the
-4-
No. 05-1558
United States v. Robinson
new evidence was discovered after the trial; (2) the evidence could not have reasonably been
discovered earlier with due diligence; (3) the evidence is material and not merely cumulative or
impeaching; and (4) the evidence would likely produce acquittal.’” Id. (quoting United States v.
Davis, 15 F.3d 526, 531 (6th Cir. 1994)).
A. Conflict-of-Interest Claim
1.
We first address whether Robinson waived the conflict-of-interest claim by failing to
properly object to the Report. In United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981), we
established this circuit’s rule that a party’s failure to object to a magistrate judge’s report, within the
time provided for filing objections, operates as a waiver of that party’s right to appeal. See also
Thomas v. Arn, 474 U.S. 140, 142 (1985) (affirming the constitutionality of Walters waiver rule).
Because the Report concluded that Robinson’s most recent motion for a new trial, filed in 2002, was
untimely, it only considered the earlier motion for a new trial filed in 1997, which did not explicitly
mention the conflict-of-interest issue. According to the Government, Robinson waived any appeal
of this issue because he did not object to the untimeliness finding.
While the procedural history of this case is complex, we ultimately conclude that Robinson’s
substantive claims for relief are without merit, and therefore find it unnecessary to address the
various procedural arguments advanced by the Government. See Thomas, 474 U.S. at 142 (noting
that Walters rule is procedural and not jurisdictional).
2.
-5-
No. 05-1558
United States v. Robinson
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST . amend. XI. This right
to counsel includes a “correlative right to representation that is free from conflicts of interest.” Wood
v. Georgia, 450 U.S. 261, 271 (1981); see also Cuyler v. Sullivan, 446 U.S. 335, 345 (1980). The
district court’s legal conclusions that no conflict of interest existed and that Robinson’s waiver was
constitutionally valid are reviewed de novo, but the underlying factual bases upon which the district
court’s conclusions rest are reviewed for clear error. United States v. Osborne, 402 F.3d 626, 630
(6th Cir. 2005).
Before Robinson’s trial, the Government notified his attorney, Christopher Andreoff, of a
potential conflict of interest because Andreoff’s former clients in other cases, Bowling and Osborne,
two co-conspirators on the drug and money-laundering charges, would be central witnesses against
Robinson. After Andreoff entered his appearance for Robinson, the Government once again
expressed a concern that a conflict of interest existed, this time because Andreoff had previously
represented both Bowling and Osborne in related charges. On June 14, 1993, Andreoff filed a brief
and affidavit stating that Bowling and Osborne had not implicated Robinson during the course of
his representation of them.
The district court then held a hearing to resolve the conflict-of-interest issue, at which time
Andreoff repeated that “Osborn[e] never provided any information to me, nor did he cooperate with
the Federal Government relative to anything relating to Mr. Robinson during the course of my
representation.” (JA 2575.) After informing Robinson of the risks of waiving his attorney’s conflict
of interest, the court approved a waiver, conditioned upon the execution of similar waivers by
-6-
No. 05-1558
United States v. Robinson
Osborne and Bowling. All the parties stipulated that during Robinson’s trial, another attorney, Brian
Legghio, would act as co-counsel for Robinson and cross-examine Bowling and Osborne.
“A defendant may make a knowing, intelligent, and voluntary waiver of [his] right to
conflict-free counsel, and a defendant has a Sixth-Amendment right to counsel of [his] choice.”
United States v. Straughter, 950 F.2d 1223, 1234 (6th Cir. 1991). Such a waiver “must not only be
voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a
known right or privilege, a matter which depends in each case ‘upon the particular facts and
circumstances surrounding that case, including the background, experience, and conduct of the
accused.’” Edwards v. Arizona, 451 U.S. 477, 482 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)). Robinson contends that his waiver was not knowing, voluntary, and intelligent, because
Andreoff allegedly knew, all along, that Bowling or Osborne planned to implicate Robinson. We
disagree.
The district court took great lengths to advise Robinson of the potential consequences of a
waiver. At one point, the court told Robinson that he may “learn of information that Mr. Osborn[e]
or Mr. Bo[w]ling has that . . . could be significantly damaging to you in the trial of your case.” (JA
2589-90.) And if such information did arise, the court explained that it “is against your interest for
Mr. Andreoff to represent you because he will be restricted in the manner in which he cross
examines.” (JA 2590.) To which, Robinson responded: “I understand. I talked with him in great
length. . . . And I trust him. And also I got 10, 11 years Detroit Police. And I’ve, you know, been
in, you know, cases and everything before. So I understand, you know, the situation.” (JA 2590-91.)
The court then asked, “Okay. What if you’re wrong?” Robinson then answered:
-7-
No. 05-1558
United States v. Robinson
Well if I am wrong, I’m willing to sign and take the risk. . . .
Whatever the risk and the consequences may be, I’m well aware of it.
. . . We went over it all of ten times. . . . I’m total[ly] aware of my
business, the people that making the statement where everything of
that, what they may or may not say, it will not interfere with anything.
And if it did, I’ve decided that we’ll go forward with the case.
(JA 2591-92.)
After the district court went over the explicit terms of the waiver, the court, once again,
explained to Robinson that he should not “rely on [Andreoff’s] knowledge that there will never be
anything or there never has been anything that he’s been told by either Osborn[e] or Bo[w]ling that
could be admitted in this case.” (JA 2595-96.) Robinson repeatedly said that he understood the
risks.
We do not find any merit in Robinson’s contention that the purported misstatements by
Andreoff rendered his waiver unknowing and involuntary. Robinson points to an ex parte hearing
held to determine whether Andreoff could represent Bowling during Bowling’s sentence. At this
hearing, Andreoff admitted that “Bowling has been cooperating with the Government in a number
of matters” and “has implicated [Robinson].” (JA 2530-31.) But Andreoff also stated that he had
“never been present in any of the debriefings,” that he did “not know the specifics of [Robinson’s
involvement], other than it related to the bank fraud matter at one point,” and that he was “ignorant”
of any other matter outside of the money-laundering charges. (JA 2531.) This is entirely consistent
with Andreoff’s subsequent affidavit, in which he stated that none of the discovery materials
provided during Bowling’s case implicated Robinson.
-8-
No. 05-1558
United States v. Robinson
Nor does a conversation between Bowling and Osborne, recorded by federal authorities,
change our analysis. First, nothing in the conversation shows that Andreoff knew Bowling and
Osborne intended to incriminate Robinson. Second, Robinson was aware of the conversation prior
to waiving Andreoff’s conflict of interest. Andreoff testified, at the hearing, that he “submitted and
sent to Mr. Robinson a copy of a . . . conversation that took place between Mr. [Bowling] and Mr.
Osborn[e]” and “advised him to seek other counsel.” (JA 2581.) Contrary to Robinson’s assertions,
there is simply no evidence that Andreoff actively covered up what he knew about Bowling and
Osborne.1
Robinson was also informed of these potential conflicts in great detail. Mark Jones, the
attorney for the Government, specifically warned that Osborne and Bowling were “critically
important Government witnesses” who would provide important testimony as to Robinson’s drug
and murder charges. (JA 2583.) Robinson had full knowledge of the situation and potential risks,
yet ultimately decided to waive his attorney’s conflict of interest.
We acknowledge that the purpose of the Sixth Amendment “is to guarantee an effective
advocate for each criminal defendant rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159 (1988).
“The District Court must recognize a presumption in favor of petitioner’s counsel of choice, but that
presumption may be overcome not only by a demonstration of actual conflict but by a showing of
1
Robinson also points to the fact that Andreoff represented Bowling at his plea hearing in
April 1992, but this was disclosed to Robinson prior to the waiver of conflict.
-9-
No. 05-1558
United States v. Robinson
a serious potential for conflict.” Id. at 164; see also United States v. Hall, 200 F.3d 962, 965 (6th
Cir. 2000).
The problem is Robinson has not demonstrated either an actual conflict of interest or a
serious potential for conflict. As stipulated by the parties, another attorney, Brian Legghio, cross-
examined both Bowling and Osborne at trial. Robinson did not demonstrate, by way of example,
that his attorney Andreoff was forced to make a choice between two alternative courses of action,
such as eliciting (or failing to elicit) evidence helpful to Robinson but harmful to either Bowling or
Osborne. See Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987) (noting that a defendant must
“point to specific instances in the record to suggest an actual conflict” and “make a factual showing
of inconsistent interests”) (citations omitted).
Finally, Robinson has made no attempt to show that a different attorney would have resulted
in his acquittal, see Gaitan-Acevedo, 148 F.3d at 589, and the record is replete with evidence
corroborating the testimony of Bowling and Osborne.
B. Brady and Jencks Act Claims
1.
Robinson argues that the Government’s failure to disclose certain evidence constitutes a
violation of Brady v. Maryland, 373 U.S. 83 (1963), thereby requiring a new trial. Pursuant to
Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” 373 U.S. at 87. Courts consider undisclosed evidence material
“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result
- 10 -
No. 05-1558
United States v. Robinson
of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id.
Robinson contends that the Government withheld the following material, exculpatory
evidence: (1) the transcript of Bowling’s pre-September 1993 grand jury testimony; (2) Bowling’s
statements to the FBI; (3) Bowling’s polygraph statements; and (4) the transcript of Bowling’s
guilty-plea hearing. None of Robinson’s arguments are compelling.
(a) Transcript of Bowling’s Grand Jury Testimony
Prior to trial, Bowling’s grand jury testimony on February 5, 1993, which implicated
Robinson in drug trafficking, was provided to Robinson’s lawyers. Robinson’s other counsel, Brian
Legghio, even confronted Bowling with its contents on more than one occasion during cross-
examination. Robinson now claims that there is a second grand jury transcript which he was denied,
but cites no evidence that such a transcript exists.
(b) Bowling’s Statements to the FBI
Robinson claims that he was not provided the FBI-302 reports of an interview with Bowling,
but the record shows that these documents were provided to the defense. During the cross
examination of Bowling, moreover, Robinson’s counsel made repeated references to having
reviewed Bowling’s FBI reports and grand jury testimony.
(c) Bowling’s Polygraph
Robinson and his attorneys also had notice that Bowling had taken a polygraph examination.
As Legghio commented during trial, “it’s my understanding that Mr. Bowling took a polygraph
examination . . . . And I just want to make sure that the witness is instructed that he’s at no time
- 11 -
No. 05-1558
United States v. Robinson
supposed to say lie detector or polygraph.” (JA 3076.) The polygraph test in question also had
nothing to do with Robinson; it was administered to determine whether Bowling had any culpability
in the shooting of Ricky Muldrew, a co-defendant in Bowling’s drug case. (Bowling denied any
culpability and passed the examination.) Robinson now claims that the polygraph exonerated him
of the drug violations, but nothing in the record supports this.
(d) Plea Transcript
Robinson asserts that during Bowling’s plea hearing on April 30, 1992, Bowling stated under
oath that there were only two individuals who supplied him with cocaine, which excluded Robinson
as a co-conspirator. Robinson now believes that because he was not provided the plea transcript, he
was denied material impeachment evidence. But Bowling testified that he had “more than one”
supplier, not that he had only two suppliers, which can hardly be considered material impeachment
evidence. In any event, transcripts are kept by the clerk of the court and, unless sealed, are available
to the public upon request. When transcripts do not exist, they can be transcribed into a readable
format by a court reporter. They are not, as Robinson contends, information which the government
possesses and a defendant does not. United States v. Conteh, 234 F. App’x 374, 389 (6th Cir. 2007).
2.
The Jencks Act provides that “[a]fter a witness called by the United States has testified on
direct examination, the court shall, on motion of the defendant, order the United States to produce
any statement . . . of the witness in the possession of the United States which relates to the subject
matter as to which the witness has testified.” 18 U.S.C. § 3500(b). Robinson has pointed to no
statement of a witness that the Government denied him, nor did he file a motion for such disclosure.
- 12 -
No. 05-1558
United States v. Robinson
C. False Testimony Claim
In order to prevail on a claim that a conviction was obtained with the use of evidence that the
Government knew or should have known was false, a defendant “must show (1) that the statements
were actually false; (2) the statements were material . . .; and (3) [the] prosecution knew they were
false.” United States v. O’Dell, 805 F.2d 637, 641 (6th Cir. 1986) (quoting United States v. Chagra,
735 F.2d 870, 874 (5th Cir. 1984)).
Robinson argues that the Government knowingly used false testimony when it allowed
Bowling to testify about Robinson’s involvement in the drug conspiracy. Robinson bases this claim
on the fact that the FBI-302 reports, plea transcript, and polygraph would have undermined
Bowling’s testimony about his drug-related convictions because Bowling only identified Marcel
Mays and Andre Hassan, and not Robinson, as his drug sources. For the same reasons as the Brady
claim, this argument is unpersuasive. For one, as we have already explained, Robinson received the
relevant reports and could have requested the plea transcript. Indeed, his attorney used these very
documents during Bowling’s cross-examination to challenge his credibility. For another, there is
no part of Bowling’s prior statements that exonerate Robinson. The mere fact that Bowling did not
mention Robinson as a source in these documents does not exclude Robinson from the drug
conspiracy.
D. Failure to Grant an Evidentiary Hearing
Finally, Robinson contends that he was entitled to an evidentiary hearing on the conflict-of-
interest and false testimony issues. Because we conclude that district court properly concluded that
none of Robinson’s grounds for a new trial have merit, he is not entitled to an evidentiary hearing.
- 13 -
No. 05-1558
United States v. Robinson
III. CONCLUSION
For the aforementioned reasons, we AFFIRM.
- 14 -