U.S. v. Roberts

919 F.3d 980

UNITED STATES of America, Plaintiff-Appellee,

v.John ROBERTS, Defendant-Appellant.

No. 17-6512

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2018

Decided and Filed: March 28, 2019

ARGUED: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, PC, Nashville, Tennessee, for Appellant. Thomas J. Jaworski, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee. ON BRIEF: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, PC, Nashville, Tennessee, for Appellant. Thomas J. Jaworski, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: MOORE, GIBBONS, and COOK, Circuit Judges.

COOK, Circuit Judge.

John Roberts challenges several of the district court's decisions at trial and sentencing: an evidentiary ruling, the district court's refusal to authorize Criminal Justice Act (CJA) funds for a forensic accountant, its reliance on judge-found facts to calculate the appropriate Guidelines range, the application of six sentencing enhancements, and the substantive reasonableness of his sentence. We affirm in part and remand some issues for further proceedings.

I.

The facts of this case are not complicated. John Roberts and seven coconspirators worked together to steal millions of dollars' worth of sensitive military equipment from a local army base and sell it on eBay. Although Roberts took the stand and denied that he knowingly trafficked stolen goods, the jury convicted him on all thirteen counts in the indictment: one count of conspiracy to steal government property valued at over $1,000 ( 18 U.S.C. § 371 ); ten counts of wire fraud ( 18 U.S.C. § 1343 ); and two counts of unauthorized export of prohibited military equipment ( 22 U.S.C. § 2778(b)(2) ). The district court applied six enhancements to Roberts's sentence: eighteen offense levels for stealing more than $3.5 million of military equipment under USSG § 2B1.1(b)(1)(J), two levels for mass-marketing under USSG § 2B1.1(b)(2)(A)(ii), two levels as a "person in the business of receiving and selling stolen property" under USSG § 2B1.1(b)(4), two levels for committing a crime involving sophisticated means under USSG § 2B1.1(b)(10)(C), four levels for organizing or otherwise leading the criminal conspiracy under USSG § 3B1.1(a), and two levels for willfully obstructing justice under USSG § 3C1.1. Ultimately, the court sentenced Roberts to 180 months' imprisonment, varying downward from the 210- to 262-month range suggested by the Guidelines.

Roberts appeals, contesting several of the district court's decisions at trial and sentencing.

II.

A. Evidentiary ruling

Before trial, Roberts notified the government that he intended to introduce into evidence other, current eBay listings by different sellers to prove that he accidentally—rather than knowingly—committed a crime. These listings offered similar types of sensitive military equipment as those in the indictment: combat helmets, night vision goggles, body armor vests, and communication headsets. Roberts expected to tell the jury that he saw posts on eBay before he began selling on the internet, presumed that these military products freely circulated in the market, and concluded that he could have lawfully bought and sold them. He ended up selling stolen goods, he would have argued, but that doesn't mean that he did so knowingly. After reviewing the parties' motions in limine and discussing the issue during two bench conferences, the district court excluded the evidence.

Roberts argues that the district court abused its discretion in excluding evidence that would have critically undercut the government's case. The government, on the other hand, contends that it did not ask the jury to infer mens rea from the nature of the equipment Roberts sold on eBay. Instead, the government called three of Roberts's coconspirators to testify that he knew that he sold stolen goods. And it introduced several text messages between the coconspirators further substantiating that testimony. Thus, the government argues, the eBay listings had limited probative value, if any, and could have confused the jury into reasoning that Roberts ought not be convicted for a crime that others freely continue to commit. The government has the better of the argument.

An appellate court must be mindful of its limitations when reviewing evidentiary determinations. Unlike a district court, we rely on a record devoid of a trial's "nuances, dynamics, and atmosphere." United States v. Chambers , 441 F.3d 438, 456 (6th Cir. 2006). Thus, we review a district court's evidentiary rulings for abuse of discretion, deferring to the court's decision to admit or exclude evidence "unless we are left with the definite and firm conviction" that it clearly erred in weighing the relevant factors. United States v. Wagner , 382 F.3d 598, 616 (6th Cir. 2004) ; see also United States v. Weaver , 610 F. App'x 539, 543 (6th Cir. 2015).

Although the Federal Rules of Evidence favor admission, a trial court may exclude relevant evidence if the danger of unfair prejudice resulting from admitting it substantially outweighs its probative value. Fed. R. Evid. 403. We reject the trial court's balancing only when we are firmly convinced that the district court erred, and, even then, only if that error resulted in substantial injustice. United States v. Dixon , 413 F.3d 540, 544 (6th Cir. 2005) ; Kovacevich v. Kent State Univ. , 224 F.3d 806, 832 (6th Cir. 2000).

Viewing the evidence in the light most favorable to Roberts by maximizing its probative value and minimizing its prejudicial effect, as we must, United States v. Brady , 595 F.2d 359, 361 (6th Cir. 1979), we are not convinced that the district court abused its discretion. Even taken generously, the eBay evidence does little more than demonstrate that many users illicitly sell stolen goods over the internet. These listings not only postdate the indictment, but they also do not rebut the bevy of other evidence the government offered to prove that Roberts knew the goods were stolen—such as text messages discussing the conspiracy and other witness testimony. The evidence more likely would have confused the issues and convinced the jury to acquit "on [the] improper basis" that other users illicitly sell stolen goods with impunity. See United States v. Rey , 923 F.2d 1217, 1222 (6th Cir. 1991).

Moreover, even if we did conclude that the district court erred, any such error is harmless. The government offered abundant evidence that Roberts knew he trafficked stolen goods. Thus, excluding the eBay listings would not have had a "substantial and injurious effect or influence" on the jury's verdict. Brecht v. Abrahamson , 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

B. Violating CJA by denying funding for a forensic accountant

Under the CJA, attorneys for indigent defendants can petition a court for federal funds to retain an investigator, expert witness, or professional whose services the attorney needs to provide adequate representation. 18 U.S.C. § 3006A(e)(1). To obtain these funds, an indigent defendant must show that "(1) such services are necessary to mount a plausible defense, and (2) without such authorization, the defendant's case would be prejudiced." United States v. Gilmore , 282 F.3d 398, 406 (6th Cir. 2002).

Roberts argues that he did both. Before sentencing, he asked the court for $2,500 in CJA funds to cover the costs of a forensic accountant. He justified the expenditure by explaining that the presentence report did not explain the government's valuation method in calculating loss, and that "many of the items and pieces of equipment were ‘used’ so that full retail value may not be appropriate. Depreciation of the value of the property may or may not have been taken into account by the government when considering the amount of loss." R. 230, PageID 873–74. And the value of the stolen items directly enhanced his sentence. In a text-only order, the visiting judge from the Middle District of Georgia denied the motion. R. 232. Roberts appeals this decision, arguing that the district court abused its discretion.

When a district court gives no explanation of its reasoning in denying such a motion, we find ourselves at a loss. Reviewing for abuse of discretion does not mean that we substitute our judgment for the trial court's, affirming if we come to the same conclusions after reviewing the record. United States v. Mathis-Gardner , 783 F.3d 1286, 1288–89 (D.C. Cir. 2015). On the other hand, we don't require a district court to labor over detailed explanations for every ruling; sometimes, clear and compelling reasons warrant promptly denying relief. Id. at 1289. "[W]hen the reasons for denying a colorable motion are apparent on the record, or when granting relief was clearly appropriate from the face of the record, we can properly review whether the district court appropriately exercised its discretion, even without an explanation." Id. (internal quotations and citations omitted).

At the time the district judge denied Roberts CJA funds, no clear and compelling reason supported that conclusion. But we need not remand for the district court to explain why it denied the motion because sentencing made clear that a forensic accountant could not have helped Roberts's sentencing position.

During oral argument, counsel clarified that two sources of inventory drove the sentencing enhancement: the $4.1 million of items Roberts sold on eBay, and the $1.4 million of items seized in his warehouse. The value of the eBay items had been determined by the market prices they sold for—the only question for the judge was how many items had been stolen and illegally sold outside military channels. In contrast to the eBay inventory, the items seized at the warehouse had not yet been sold. The military valued those items at $1.4 million, but Roberts theorized that with a forensic accountant he could properly challenge that figure.

But challenging it would not have affected Roberts's...