Filed: Sep. 04, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4817 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RASHOD SENTELLE ROBINSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00226-MOC-DSC-1) Submitted: August 28, 2014 Decided: September 4, 2014 Before MOTZ, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven T. Mei
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4817 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RASHOD SENTELLE ROBINSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:10-cr-00226-MOC-DSC-1) Submitted: August 28, 2014 Decided: September 4, 2014 Before MOTZ, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Steven T. Meie..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4817
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RASHOD SENTELLE ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00226-MOC-DSC-1)
Submitted: August 28, 2014 Decided: September 4, 2014
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Amy E.
Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashod Sentelle Robinson was named in a single-count
indictment charging him with transportation and aiding and
abetting the transportation of child pornography, in violation
of 18 U.S.C. § 2252(a)(1) (2012). After a three-day trial, the
jury found Robinson guilty. The district court imposed a below-
Guidelines sentence of 180 months’ imprisonment. Robinson noted
a timely appeal.
Construed in the light most favorable to the
Government, United States v. Black,
707 F.3d 531, 534 (4th Cir.
2013), the relevant evidence established the following.
In 2009, James Zajac, an undercover FBI agent, logged
into GigaTribe, a publicly available website used for sharing
files, such as pictures and movies, from one user’s computer
hard drive to another “friend” on the network. Zajac logged in
as “babydick1725” on a computer at the home where a search
warrant was being executed. While posing as “babydick1725,”
Zajac received a “friend invitation” from another GigaTribe
user, known as rr75727. In January 2010, another undercover FBI
agent, William Gang, took over the investigation from Zajac.
Gang testified that, while logged in as “babydick1725,” he saw
that rr75727 was connected and was sharing one folder. When
Gang looked in the folder, he saw what appeared to be images of
child pornography. Gang then downloaded eighteen images and two
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videos from rr75727. Gang was able to determine that the IP
address used to connect rr75727 to the internet was associated
with a Time Warner subscriber in Charlotte, North Carolina --
Robinson’s mother, Deborah Straite. Based on this evidence, FBI
agents obtained a search warrant for Straite’s home.
During the search, agents seized a Gateway laptop from
Robinson’s bedroom as well as a Toshiba laptop, also belonging
to Robinson. The Toshiba laptop contained numerous pictures and
movies of child pornography, including the eighteen pictures and
two videos that had been downloaded by Agent Gang in January.
The laptop also contained chats in the GigaTribe folder, one of
which was between rr75727 and babydick1725 on January 6. The
Gateway laptop was discovered to contain child pornography as
well.
Prior to trial, Robinson moved to exclude images of
child pornography other than those named in the indictment. The
district court reserved a ruling on Robinson’s objection until
such time that the Government sought to introduce the evidence
at issue. One of the images -- a video -- was one of the two
downloaded by Agent Gang but omitted from the indictment. The
district court ultimately allowed a portion of the video,
concluding that its probative value outweighed its prejudicial
effect on the jury.
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Also during Robinson’s trial, the Government presented
the testimony of Kris Kim, a legal assistant from Yahoo! whose
responsibilities included providing information for third-party
requests, such as subpoenas and search warrants. Kim testified
that a Yahoo! email account with the username of rr75727
(rr75727@yahoo.com) was established in July 2007. According to
Kim, the last log-in date for that email account was May 26,
2010 (the day the search warrant was executed). On cross-
examination, Kim stated it was a colleague, not herself, who had
prepared the document depicting the account management page
associated with Robinson’s account as well as the log-in tracker
record.
The jury found Robinson guilty. Although the
recommended sentencing range was 262-327 months’ imprisonment,
the district court departed downward four levels and imposed a
180-month sentence. Robinson appeals.
Robinson raises two issues on appeal. First, citing
Crawford v. Washington,
541 U.S. 36, 68 (2004), Robinson claims
that the district court committed plain error in allowing Kris
Kim to introduce a document which was prepared for trial by
someone else. Because Robinson did not object at trial, this
claim is reviewed for plain error.
The Confrontation Clause of the Sixth Amendment bars
“admission of testimonial statements of a witness who did not
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appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”
Crawford v.
Washington, 541 U.S. at 53-54. “A statement must be
‘testimonial’ to be excludable under the Confrontation Clause.”
United States v. Udeozor,
515 F.3d 260, 268 (4th Cir. 2008).
Routinely kept business records are not testimonial evidence.
Crawford, 541 U.S. at 56. See Melendez–Diaz v. Massachusetts,
557 U.S. 305, 324 (2009) (noting that “[b]usiness and public
records are generally admissible absent confrontation not
because they qualify under an exception to the hearsay rules,
but because -- having been created for the administration of an
entity’s affairs and not for the purpose of establishing or
proving some fact at trial -- they are not testimonial”).
Here, the Yahoo! records were not prepared for the
purpose of “establishing or proving some fact at trial” and,
therefore, are not testimonial. See United States v. Cameron,
699 F.3d 621, 641-42 (1st Cir. 2012) (upholding admission of
similar Yahoo! account management and log-in tracker records
because they were maintained to “serve business functions that
[a]re totally unrelated to any trial or law enforcement purpose:
namely, to provide reliable data about its customer accounts”).
Therefore, the district court did not err -- let alone plainly
err -- in allowing the introduction of the Yahoo! records.
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Second, Robinson argues that the district court erred
in admitting evidence of his possession of images of child
pornography that were not identified in the indictment. This
court reviews a district court’s evidentiary rulings for abuse
of discretion. United States v. Byers,
649 F.3d 197, 206 (4th
Cir. 2011). Rule 404(b) prohibits the use of evidence of an
uncharged act to prove a person’s character in conformity with
such character on a particular occasion, but provides that such
“evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b). Rule 404(b) evidence is admissible only if the
court determines it is necessary, reliable, and relevant to some
issue other than the defendant’s character. United States v.
Hodge,
354 F.3d 305, 312 (4th Cir. 2004). To be relevant, the
evidence must have a tendency to show that any consequential
fact is more probable or less probable than it would be without
the evidence. United States v. Aramony,
88 F.3d 1369, 1377 (4th
Cir. 1996). To be necessary, the evidence need only furnish
part of the context of the crime.
Id.
However, evidence of other bad acts “may be introduced
if it concerns acts intrinsic to the alleged crime because
evidence of such acts does not fall under Rule 404(b)’s
limitations to begin with.” United States v. Otuya,
720 F.3d
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183, 188 (4th Cir. 2013) (internal quotation marks and
alteration omitted), cert. denied, 134 S. Ct. 1279 (2014).
Moreover, we have held that evidence of other bad acts is
intrinsic if “it arose out of the same series of transactions as
the charged offense or if it is necessary to complete the story
of the crime on trial.” United States v. Kennedy,
32 F.3d 876,
885 (4th Cir. 1994) (internal quotation marks and alterations
omitted).
The video introduced by the Government that was not
identified in the indictment was among the images shared by
Robinson and downloaded by Agent Gang. As such, the video was
part of the same series of transactions and criminal episode as
the other images downloaded that day and, therefore, was
“intrinsic” to the crime for which Robinson was charged.
Robinson also challenges the titles of images
identified during the testimony of Victor Grose, an FBI
forensics examiner. Grose testified that one of the images was
named “5YO, spread eagle,” and the other
“12YOblackboysucks&manplays.” According to Grose, the two
videos had recently been viewed on Robinson’s Toshiba laptop,
based on a screen shot of recent documents. The videos
themselves were not admitted and Robinson did not object to the
introduction of the screen shot or to Grose’s identification of
the videos by name. Because this evidence was both relevant and
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necessary to show that Robinson’s laptop had been used recently
to view videos suggestive of child pornography, we find that the
district court did not err in admitting this testimony.
Accordingly, we affirm Robinson’s conviction. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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