United States v. Robinson

903 F.Supp.2d 766

UNITED STATES of America, Plaintiff,

v.Fred W. ROBINSON, Defendant.

Case No. S2–4:11CR00361AGF(DDN).

United States District Court,

E.D. Missouri,

Eastern Division.

Oct. 15, 2012.

Hal Goldsmith, Richard E. Finneran, Office of U.S. Attorney, St. Louis, MO, for Plaintiff.

Diane Dragan, Felicia A. Jones, Federal Public Defender, St. Louis, MO, for Defendant.

Catherine N. Crump, American Civil Liberties Union Foundation, New York, NY, Grant R. Doty, Anthony E. Rothert, American Civil Liberties Union of Eastern Missouri, St. Louis, MO, for American Civil Liberties Union Foundation.

Nancy R. Kistler, St. Louis City Counselor, St. Louis, MO, for Francis G. Slay.

ORDER

AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on the pretrial motions of Defendant Fred W. Robinson. Defendant has filed motions to dismiss the indictment, to sever counts for separate trial, to suppress GPS evidence, and for a change of venue. Pretrial matters were referred to Magistrate Judge David D. Noce. The Magistrate Judge recommended in his Second Pretrial Order and Recommendation (“Second R & R”; Doc. No. 83), that these motions should be denied. Defendant filed objections to the Second R & R.

I have conducted a de novo review of the motions, including careful review of the evidence before the Magistrate Judge and the arguments of the parties. The facts, for the most part, are not in dispute, and I agree entirely with the factual findings of the Magistrate Judge, and independently reach the same credibility determinations. In summary, I conclude that Judge Noce's extensive report correctly sets out the facts and the law applicable to the case. I agree with and accept his conclusions with respect to Defendant's motions to dismiss, to sever, and for a change of venue and agree that Defendant's motions should be denied. I find that the current indictment properly states offenses under the federal law, that the statute is constitutional, and that the Court has jurisdiction of the offenses. Joinder of the offenses is also proper, and on the current record, severance is not warranted. Nor is a change of venue warranted based on pretrial publicity.

I find that Defendant's Fourth Amendment rights were not violated by the warrantless installation and operation of a GPS tracker, which activity took place prior to the Supreme Court's decision in United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and that the evidence obtained from the GPS device should not be suppressed. I do differ with the analysis in the Second R & R in one respect, as I do not believe that the Supreme Court's decision in Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), provides a good faith exception to the exclusionary rule in this particular case. That disagreement does not change the result, however, as I agree with Judge Noce's conclusion that because the agents had reasonable suspicion, Eighth Circuit law provides that there is no Fourth Amendment violation.

Procedural Background

The procedural background and evidence are set forth fully in the Second R & R, and will only be summarized here as necessary. On September 8, 2011, the grand jury returned an eight count indictment charging Defendant with one count of wire fraud, in violation of 18 U.S.C. § 1343, and two counts of federal program theft, in violation of 18 U.S.C. § 666, related to an alleged scheme involving the operation and funds of Paideia Academy; and five counts of federal program theft related to Defendant's employment with the St. Louis Treasurer's Office. Counts 4–8 asserted that Defendant was an employee of the Treasurer's Office for the City of St. Louis, which organization received the requisite amount of federal funds through contracts with the United States District Court and the United States Bankruptcy Court, and that Defendant had embezzled, stole, or obtained by fraud, funds under the custody or control of the Treasurer's Office for the City of St. Louis.

Defendant filed motions to dismiss and to sever Count I from the remaining counts. Defendant also filed a motion to suppress the GPS evidence obtained from a tracking device installed on his vehicle, asserting that it constituted a search and seizure in violation of his Fourth Amendment rights. The motions were referred to the Magistrate Judge, and after an evidentiary hearing on December 1, 2011, the Magistrate Judge issued a Report and Recommendation (“R & R”) recommending the denial of the motions.

On January 23, 2012, shortly after the issuance of the R & R, the Supreme Court issued its opinion in Jones, holding that the installation and operation of a GPS tracking device on Jones's car constituted a search within the meaning of the Fourth Amendment. In February 2012, Defendant filed another motion to dismiss, asserting that the Court lacked subject matter jurisdiction over Counts 4–8. The matter was then referred back to the Magistrate Judge for a report and recommended disposition on the newly filed motion to dismiss, and a supplemental report and recommendation regarding the motion to suppress, in light of the Supreme Court's opinion in Jones.

On February 23, 2012, a superseding indictment was returned, in which Defendant was again charged with one count of wire fraud (Count 1), and two counts of federal program theft (Counts 2 and 3) related to the funds of Paideia Academy. Counts 4–8 again charged Defendant with federal program theft, but asserted that Defendant was an “agent” of the City of St. Louis, as an employee of the Treasurer's Office, which organization received the requisite federal funds through grants from the United States Department of Housing and Urban Development.

The Magistrate Judge allowed Defendant time to determine whether to file additional pretrial motions. Defendant thereafter filed a motion to dismiss counts 4–8 of the superseding indictment for lack of subject matter jurisdiction, a motion to suppress the government's use of GPS evidence in light of Jones, and a motion to change venue or transfer the case. Defendant subsequently filed a motion to sever, this time asserting that Counts 1–3 (related to Paideia Academy) should be severed for separate trial from Counts 4–8 (related to the St. Louis Treasurer's Office). The Magistrate Judge also granted the motion of the United States to present additional evidence on the issue of reasonable suspicion, and a supplemental evidentiary hearing was held on April 12, 2012. The Magistrate Judge thereafter filed the Second R & R (Doc. No. 83), recommending the denial of all motions, which replaced in its entirety the R & R.

Defendant filed objections to the Second R & R objecting to each of the legal conclusions asserted therein. Two days later, the American Civil Liberties Union Foundation and the ACLU of Eastern Missouri (jointly, the “ACLU”) filed a motion for leave to file an amici curiae brief regarding Defendant's motion to suppress evidence, and specifically arguing in favor of location privacy. The United States took no position with respect to the request, and I granted the motion and permitted the United States to respond. After thorough briefing by all parties and by the ACLU, I granted Defendant's motion for oral argument and held oral argument on Defendant's motions and objections to the Second R & R.

Most recently, on October 3, 2012, a second superseding indictment was filed. Count 1 was changed to allege a slightly earlier ending date for the scheme to defraud, and the amount of Paideia funds disbursed for allegedly improper purposes were slightly increased. Counts 4–8, which previously alleged that Defendant was an agent of “an organization” (namely the City of St. Louis as an employee of the Treasurer's Office), was changed to allege that Defendant was an agent of “a local government” (again, the City of St. Louis as an employee of the Treasurer's Office). After the second superseding indictment was filed, Defendant advised the Court that he did not need additional time to evaluate whether to file additional motions directed to the amended indictment. Defendant orally reasserted his previously filed motions, and confirmed that he did not wish to amend or supplement his motions as a result of the superseding indictment. As such, the motions and objections are now ripe for determination.

Discussion

When a party objects to a report and recommendation concerning a dispositive matter or a motion to suppress in a criminal case, the Court is required to “ ‘make a de novo review determination of those portions of the record or specified proposed findings to which objection is made.’ ” United States v. Lothridge, 324 F.3d 599, 600 (8th Cir.2003) (quoting 28 U.S.C. § 636(b)(1)). When a party objects to orders on nondispositive matters, “[t]he district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous.” Rule 59(a), Fed. R. Cr. P. I have conducted such a de novo review, including a review of the hearings and transcripts and the arguments of the parties.

A. The Indictment

In Counts 1–3, the current indictment charges that Defendant was the Chairman of the Board of Trustees of the Paideia Academy (“Paideia”), a tuition-free Missouri Charter School for grades K–8, sponsored by the Missouri University of Science and Technology, until its charter was cancelled in 2010. Paideia was a wholly-owned subsidiary of the Paideia Corporation, a nonprofit corporation. Paideia was funded by substantial Federal education funds and Missouri education funds intended for legitimate school operations. Defendant maintained an office at Paideia's administrative office and was involved in the day-to-day operations.

Separate from Paideia, Defendant and a friend organized and incorporated Paige C. Investments, LLC, for the purpose of operating a day care center to be called The Little People's Academy. Defendant...