United States v. Rashod Robinson , 583 F. App'x 86 ( 2014 )


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  •                                UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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 6
    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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