15‐1893(L) United States v. Robins

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of December, two thousand sixteen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, RICHARD M. BERMAN, District Judge.*

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UNITED STATES OF AMERICA, Appellee,

v. 15‐1893(L) 15‐2530 (Con)

JERRY ROBINS, AKA Jerry Robbins, DBA Finish Line Auto Sales, AKA Finish Line Auto, Defendant‐Appellant. **

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* Judge Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation. ** The Clerk of Court is respectfully instructed to amend the caption as set forth above. FOR APPELLEE: MONICA J. RICHARDS, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

FOR DEFENDANT‐APPELLANT: BRUCE R. BRYAN, Syracuse, New York.

Appeal from the United States District Court for the Western District of

New York (McAvoy, J.1).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN

PART and REVERSED IN PART, and the case is REMANDED.

Defendant‐appellant Jerry Robins appeals a June 2, 2015 judgment of the

district court, convicting him, after a jury trial, of three counts of money laundering,

three counts of willfully violating a transaction‐reporting law, and one count of doing

so while violating another law of the United States. The district court sentenced Robins

principally to 63 monthsʹ imprisonment and entered a final order of forfeiture of $70,275

and specified real property. On appeal, Robins argues: (1) the evidence was insufficient

to sustain his convictions; (2) the jury was erroneously instructed; and (3) he was denied

his Sixth Amendment right to counsel. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

1 Judge Thomas J. McAvoy, United States District Judge for the Northern District of New York, sitting by designation in the Western District of New York.

‐ 2 ‐ 1. Sufficiency of the Evidence

Robins contends that the evidence was insufficient to convict him of

money laundering and transaction‐reporting violations.

In an appeal challenging the sufficiency of the evidence, we review the

evidence in ʺthe light most favorable to the government and credit every inference that

the jury might have drawn in the governmentʹs favor.ʺ United States v. Salameh,

(2d Cir. 1998) (per curiam). ʺA verdict of guilty may be based entirely on

circumstantial evidence as long as the inferences of culpability drawn from the

circumstances are reasonable.ʺ United States v. MacPherson,

(2d Cir.

2005). ʺNonetheless, a conviction based on speculation and surmise alone cannot

stand.ʺ United States v. DʹAmato,

(2d Cir. 1994) (citations omitted).

a. Money Laundering

To convict a defendant of money laundering, the government must prove:

(1) that the defendant conducted a financial transaction; (2) that the transaction in fact involved the proceeds of specified unlawful activity . . .; (3) that the defendant knew that the property involved in the financial transaction represented the proceeds of some form of unlawful activity; and (4) that the defendant knew [the] transaction was designed in whole or in part [either] to conceal or disguise the source . . . of those proceeds [or to avoid transaction‐reporting requirements].

United States v. Maher,

, 1527‐28 (2d Cir. 1997); see

(a)(1)(B)(ii). Robins argues that the evidence was insufficient to prove that certain

‐ 3 ‐ customers used drug conspiracy proceeds to purchase cars from his dealership in

Buffalo, New York (ʺFinish Lineʺ), or that he knew such money was the proceeds of

unlawful activity. We conclude that the evidence was sufficient to convict on Counts 3

and 8 of the indictment, but not on Count 7. We discuss each count, in turn.

Count 3 concerned a February 27, 2006 sale of a 2001 GMC Yukon to

Robert DeWitt Stevenson for $25,000 in cash. Robins argues that evidence that he knew

Stevenson paid with proceeds of illegal activity was lacking. The argument fails.

Stevenson testified that the money came from his drug distribution business. Although

Stevenson also testified that he never spoke to Robins about drugs, the government

presented evidence that Robins (1) failed to report the all cash sale to the Financial

Crime Enforcement Network (ʺFinCENʺ), see

(a) (requiring such

reporting), (2) registered the vehicle to Stevensonʹs stepfather, and (3) placed a lien on

the Yukon despite receiving full payment. A reasonable jury could have concluded

from this evidence that Robins knew that the money came from illegal sources and

sought to conceal its origin. Accordingly, the evidence was sufficient to convict Robins

of money laundering on Count 3.

Count 8 concerned a June 9, 2007 sale of a 2004 Infiniti to Henry Lloyd and

Tyrone Pennick for $34,455. Robins again argues that evidence that he knew they paid

with proceeds of illegal activity was lacking. Lloyd testified, however, that Lloyd and

Pennick purchased the vehicle with proceeds of their cocaine wholesaling business,

‐ 4 ‐ Lloyd had told Robins that he sold drugs, and Pennick told him that they ʺgot to go get

cashier checks and money orders because [Robins] wouldnʹt take [$35,000] cash.ʺ App.

at 401. When asked if he knew why Robins would not take the cash, Lloyd testified:

ʺBecause it was over 10,000, I guessʺ ‐‐ the amount that triggers federal reporting

requirements. App. at 402. The jury reasonably could have drawn this same inference.

Accordingly, the evidence was sufficient to convict Robins of money laundering on

Count 8.

Count 7 concerned an April 27, 2007 purchase of a 2002 Chevrolet

Suburban by Jerome Davis for $10,820. Robins contends that the evidence was

insufficient to prove that those funds were ʺin fact . . . the proceeds ofʺ a drug

distribution conspiracy.

(a)(1) (emphasis added);

(c)(7)(A); § 1961(1);

. Drawing all reasonable inferences in favor of

the government, the evidence established that: (1) Davis pled guilty to possession of

four grams of a controlled substance in 2004 and served a year and a half in jail; (2) in

2007, Davis accompanied Robins to an auction where Robins bid on the Suburban and

Davis paid Robins for it in cash; (3) the Suburban was registered to Davisʹs fiancé,

Tameca Love; (4) dealership receipts listed inconsistent prices for the Suburban, one

greater than $10,000 and the other less; (5) Robins did not report the transaction to

FinCEN; and (6) Davis and Love testified that they did not deal drugs and paid with

legitimate money.

‐ 5 ‐ In denying Robinsʹs motion for judgment of acquittal, the district court

reasoned that one could infer that drug proceeds were involved because Davis was

ʺconnected to drugsʺ and other circumstances suggested an effort to avoid reporting. S.

App. at 10. We disagree that a rational jury could infer on this evidence that the 2002

Suburban was purchased in 2007 with drug proceeds.

Davisʹ testimony that, in 2004, he pled guilty to possession of four grams of

a controlled substance is the only evidence that he was ʺconnected to drugs.ʺ

.

The record is devoid of evidence of other salient facts, even which substance he was

convicted of possessing. Our cases are clear that a personʹs mere possession of a small

quantity of drugs, without more, does not support an inference that the person is

dealing drugs. See, e.g., United States v. Boissoneault,

(2d Cir. 1991)

(evidence insufficient to sustain conviction for possession with intent to distribute

where ʺthe quantity of cocaine at issue, 5.31 grams (.19 oz.), was not inconsistent with

personal useʺ and defendant possessed no other instrumentalities of the drug trade);

United States v. Wallace,

(2d Cir. 2008) (ʺ[A] defendant who holds

narcotics solely for personal use is in possession; one who delivers or transfers narcotics

to another ‐‐ for consideration or gratis ‐‐ is distributing.ʺ). The same logic applies here.

No rational juror could infer that Davis dealt drugs in 2007 solely because he was

convicted of possessing four grams of an unspecified controlled substance in 2004.

‐ 6 ‐ Nor, in the absence of evidence tying the $10,820 to narcotics activity,

could a rational juror have found that Davis purchased the Suburban with proceeds of

such activity. Cf. DʹAmato,

(ʺ[T]he government must do more than

introduce evidence at least as consistent with innocence as with guilt.ʺ); United States v.

Martinez,

(2d Cir. 1995) (Calabresi, J., concurring) (ʺ[T]he aggregation

of many small pieces of data . . . every one [of which] is in equipoise . . . can never

establish proof beyond a reasonable doubt [because] [t]he adding of zeros to zeros, no

matter how many, cannot amount to more than zero.ʺ). Accordingly, the judgment of

conviction on Count 7 is reversed.

b. Transaction Reporting

Section 5331 of Title 31 of the United States Code required Robins to file a

report with FinCEN whenever ʺin the course of [his] . . . business, [he] receive[d] more

than $10,000 in coin or currency in 1 transaction (or 2 or more related transactions).ʺ

. 2 A willful failure to do so is a crime.

. ʺTo establish that

a defendant ʹwillfully violatedʹ [a transaction‐reporting requirement], the Government

must prove that the defendant acted with knowledge that his conduct was unlawful.ʺ

Ratzlaf v. United States,

(1994). Therefore, to convict Robins under

§ 5322(a) here, the government had to prove beyond a reasonable doubt that (1) in the

2 Currency is defined to include ʺany monetary instrument (whether or not in bearer form) with a face amount of not more than $10,000,ʺ including money orders and cashierʹs checks.

(d)(1)(B).

‐ 7 ‐ course of his business (2) he knowingly received ʺmore than $10,000 in cash or currency

in 1 transaction (or 2 or more related transactions)ʺ and (3) he failed to report such

transaction to FinCEN (4) with knowledge that it was unlawful to do so. See

(a);

§ 5331; Ratzlaf, 510 U.S. at 136‐37. To convict Robins under § 5322(b) the

government must have proven further that Robins willfully violated § 5331 either while

violating another federal law or as part of a pattern of illegal activity involving more

than $100,000.

(b).

Robins was convicted on Counts 17, 19, and 25 for willfully failing to file

reports with FinCEN in connection with certain vehicle sales. He was convicted on

Count 24 for willfully failing to file such a report while laundering drug conspiracy

proceeds. Robins concedes that he did not file reports with FinCEN for any of the

transactions underlying these charges. Instead, he contends that evidence was

insufficient to prove that the transactions triggered § 5331 reporting requirements and

that he knew that he was required to file such reports.

First, Robinsʹs argument that he had no obligation to report the relevant

transactions is unavailing. As to Count 17, Stevenson testified that he purchased the

Yukon for $25,000 in cash, which plainly triggers § 5331. As to Count 19, although

Robins avers that no report was required because he received an exempt $12,000

‐ 8 ‐ cashierʹs check,3 a trade in of a 2000 Cadillac worth $7,000, and other money in

exchange for a $23,000 Mercedes, the jury could have inferred from Finish Lineʹs

inventory log that the ʺtrade inʺ of the Cadillac concealed a $11,000 cash payment. As to

Count 24, even accepting Robinsʹs argument that some of the tender for the Infiniti was

exempt from reporting, Lloyd testified to paying at least $16,000 in non‐exempt

currency which Robins was required to report to FinCEN. Finally, as to Count 25,

concerning a sale of a 2006 Range Rover for $48,937.50, even accepting that Robins

received an exempt $30,000 cashierʹs check, the sale agreement and dealership

inventory log permitted the jury to infer that Robins received at least $18,000 in non‐

exempt currency for the car, triggering § 5331 reporting. Accordingly, we conclude that

the evidence was sufficient for the jury to find that each transaction should have been

reported to FinCEN.

Second, Robinsʹs contention that there was no evidence that he knew of

his obligation to file reports with FinCEN is plainly contradicted by the record. His

wife, LaToya Gibson‐Robins, testified that, as early as 2005, she and Robins learned

from another car dealer that federal law required Finish Line to report to FinCEN when

it received more than $10,000 in cash or currency in connection with a vehicle sale.

3 A cashierʹs check for an amount greater than $10,000 is exempt from reporting. See

(d)(1)(B) (defining ʺcurrencyʺ to include ʺany monetary instrument . . . with a face amount of not more than $10,000ʺ);

(c)(1)(ii) (clarifying that under § 5331(d)(1)(b) ʺcurrency means . . . [a] cashierʹs check (by whatever name called, including ʹtreasurerʹs checkʹ and ʹbank checkʹ), bank draft, travelerʹs check, or money order having a face amount of not more than $10,000ʺ).

‐ 9 ‐ Therefore, there was evidence that Robins knew that failing to file such reports was

unlawful when he sold the relevant vehicles in 2006 and 2007.

Accordingly, we conclude that there was sufficient evidence to convict

Robins on Counts 17, 19, and 25 under

(a) and on Count 24 under

(b).

2. Jury Instructions

Robins contends that the district court erred in instructing the jury on the

mens rea elements of the money laundering and transaction reporting statutes.

Where a defendant has timely objected, as Robins did below to the money

laundering charges, we review ʺthe district courtʹs jury charge de novo and will vacate a

conviction for an erroneous charge unless the error was harmless.ʺ United States v.

Nouri,

(2d Cir. 2013). By contrast, where ʺa defendant fails to make a

timely objectionʺ ‐‐ as Robins failed here to object to the transaction reporting charges ‐‐

ʺwe review the instruction for plain error.ʺ

ʺA jury instruction is erroneous if it

misleads the jury as to the correct legal standard or does not adequately inform the jury

of the law.ʺ United States v. Prado,

(2d Cir. 2016).

We have reviewed the challenged portions of the jury instructions, the

verdict sheet, and the district courtʹs response to the juryʹs inquiry about the same and

conclude they are without error. The district court adequately informed the jury of the

‐ 10 ‐ law on the money laundering and transaction‐reporting offenses and correctly stated

the relevant legal standards.

Robins also argues that the district court constructively amended the

indictment in violation of the Fifth Amendment by instructing the jury on both

(a) and

(b) when the indictment charged only the latter.

ʺA constructive amendment [of the indictment] occursʺ when the evidence

presented at trial and ʺthe district courtʹs jury instructions combine to ʹmodify essential

elements of the offense charged to the point that there is a substantial likelihood that the

defendant may have been convicted of an offense other than one charged by the grand

jury.ʹʺ United States v. Vebeliunas,

(2d Cir. 1996) (quoting United States

v. Clemente,

(2d Cir. 1994)). Such amendments ʺare per se violations of

the fifth amendment that require reversal even without a showing of prejudice to the

defendant.ʺ

Under Federal Rule of Criminal Procedure 31(c)(1), however, a ʺdefendant

may be found guilty of . . . an offense necessarily included in the offense charged.ʺ ʺWe

have made clear that an ʹindictment need not charge the defendant with the lesser

[included] offense in order for the trial court to submit that offense to the jury.ʹʺ United

States v. Taylor,

(2d Cir. 2016 (quoting United States v. Dhinsa,

(2d Cir. 2001)). To determine if one offense is a lesser included of another

under Rule 31(c)(1), we ask whether ʺthe elements of the lesser offense are a subset of

‐ 11 ‐ the elements of the charged offense.ʺ Schmuck v. United States,

, 716‐17

(1989).

Here, the elements of a

(a) offense plainly are a subset of

the elements of a

(b) offense. Compare § 5322(b) (providing criminal

liability for (1) ʺwillfully violating [

et seq.] or a regulationʺ issued

thereunder (2) ʺwhile violating another law of the United States or as part of a pattern of

illegal activity involving more than $100,000ʺ in a year) with § 5322(a) (providing lesser

criminal liability for ʺwillfully violating [

et seq.] or a regulationʺ issued

thereunder). Therefore, because the indictment charged a § 5322(b) offense, the district

court did not constructively amend the indictment by instructing the jury on § 5322(a), a

lesser included offense. See Taylor,

.

3. Sixth Amendment Right to Counsel

Robins argues that he was deprived of his Sixth Amendment right to

counsel of his choice when the district court denied his trial counselʹs motion to

withdraw from representation, filed five days before trial was scheduled to begin, and

refused to grant a lengthy continuance for counsel to prepare for trial. He also claims

that his trial counsel was constitutionally ineffective for failing to make various legal

arguments, raise objections, or cross‐examine witnesses, and for other reasons.

We review the district courtʹs denial of the withdrawal motion and

request for a continuance for abuse of discretion. United States v. Griffiths,

,

‐ 12 ‐ 242 (2d Cir. 2014). ʺWhile a defendant has a right to counsel of his choice under the

Sixth Amendment, it is not an absolute right. Absent a conflict of interest, a defendant

in a criminal case does not have the unfettered right to retain new counsel.ʺ United

States v. Brumer,

(2d Cir. 2008) (ellipsis omitted). Still, ʺwhere a

defendant voices a seemingly substantial complaint about counsel, the court should

inquire into the reasons for dissatisfaction.ʺ McKee v. Harris,

(2d Cir.

1981) (internal quotation marks omitted). ʺ[A]lthough a trial court may not compel a

defendant to proceed with incompetent counsel, it may, in certain circumstances,

require a defendant to proceed to trial with counsel not of defendantʹs choosing.ʺ

Griffiths,

(internal quotation marks and alterations omitted). ʺIn

determining whether to allow a defendant to retain new counsel, the court must

consider the risks and problems associated with the delay, and whether substitutions

would disrupt the proceedings and the administration of justice.ʺ Brumer,

. Furthermore, because a district court has ʺa great deal of latitude in scheduling

trials [it] need not grant a continuance so that a defendant may be represented by

counsel of his choosing, where such a continuance would cause significant delay.ʺ

Griffiths,

.

The district court denied the motion to withdraw after a lengthy

conference with Robins and his trial counsel wherein, after hearing from Robins, the

district court noted its belief that he had manufactured a conflict with his attorneys to

‐ 13 ‐ delay the trial. The district court further discussed with Robins and trial counsel the

payment and communications issues that allegedly had arisen between them. Counsel

stated that he was not demanding full payment before trial and Robins stated that he

would respond to counselʹs inquiries in a timely fashion. Robins and counsel stated

they were prepared to try the case together. The district court therefore denied

counselʹs motion and granted a short continuance, noting its own scheduling

constraints and the fact that the trial had been scheduled 45 days earlier. We conclude

that the district court did not abuse its discretion. United States v. Gonzalez‐Lopez,

(2006) (ʺWe have recognized a trial courtʹs wide latitude in balancing the

right to counsel of choice against the needs of fairness and against the demands of its

calendar.ʺ (citations omitted)).

We decline to review Robinsʹs claim of ineffective assistance of counsel on

the record now before us, but note that Robins may bring this claim in a motion

pursuant to

. See United States v. Morris,

(2d Cir. 2003)

(noting ʺour ʹbaseline aversion to resolving ineffectiveness claims on direct reviewʹ and

the Supreme Courtʹs . . . statement that ʹin most cases a motion brought under § 2255 is

preferable to direct appeal for deciding claims of ineffective assistanceʹʺ (citations

omitted)).

We have reviewed Robinsʹs remaining arguments and conclude they are

without merit. Accordingly, the district courtʹs judgment of conviction on Counts 3, 8,

‐ 14 ‐ 17, 19, 24, and 25 is AFFIRMED, its judgment of conviction on Count 7 is REVERSED,

and the case is REMANDED for resentencing and for reconsideration of the forfeiture

amount in light of the remaining counts of conviction.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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