January 23, 2019
from the United States District Court for the Southern
District of Indiana, New Albany Division. No. 4:14-cr-00025-2
- Tanya Walton Pratt, Judge.
Wood, Chief Judge, and Kanne, and St. Eve, Circuit Judges.
Adkinson, Jeffrey Kemp, Paul Grissom, and Justin Martin (all
of whom are appellants in this consolidated appeal) were
prosecuted for robbing T-Mobile and other cellphone stores.
Adkinson, who is African-American, challenges two of the
district court's pretrial rulings. The first ruling
denied his motion to transfer the case to a venue where he
potentially would have had more African-American jurors on
the venire. The second ruling denied his motion to suppress
information that T-Mobile gave to law enforcement about the
approximate location of his cellphone during the robberies.
Because the district court did not abuse its discretion in
denying Adkinson's motion to transfer venue, nor violate
his Fourth Amendment rights by admitting certain cell-site
location information, we affirm the judgment against
Adkinson. We address the other defendants' appeals in a
and others, in July 2015, robbed a T-Mobile phone store in
Clarksville, Indiana, and then a Verizon store in Kentucky
the next day. With handguns drawn, they stole approximately
100 cell phones and other items. They later robbed nine
additional stores, including three more T-Mobile stores.
investigated the first robberies. As part of its
investigation, T-Mobile conducted "tower dumps": it
pulled data from cell sites near the first two victim stores
to identify which phones had connected to them-and thus were
close to the crimes. From these dumps, T-Mobile determined
that only one T-Mobile phone was near both robberies and that
Adkinson was an authorized user on that phone's account.
Each time a phone connects to any cell site, it also
generates a time-stamped record known as cell-site location
information. From its records, T-Mobile determined where
Adkinson's phone traveled. It went from Chicago to the
Indiana-Kentucky border, approached the Verizon store the day
it was robbed, and returned to Chicago that evening. T-Mobile
voluntarily gave this data to the FBI. The record does not
reflect whether T-Mo-bile did so on its own or at the
FBI's request. T-Mobile delivered similar data after two
more of its stores were robbed.
its phones' users. It may do so "[t]o satisfy any
applicable ... legal process or enforceable governmental
request" or "[t]o protect [its] rights or
interests, property or safety or that of others." Law
enforcement used the information from T-Mobile to obtain a
court order under the Stored Communications Act, 18 U.S.C.
§ 2703, granting the FBI access to additional cell-site
government charged Adkinson in the Southern District of
Indiana, New Albany Division (which encompasses Clarksville).
Before his trial, Adkinson brought two motions relevant to
this appeal. First, he moved to suppress "any and all
evidence obtained through cellphone records and/or
triangulation of cellphone numbers" because, he argued,
the government obtained it without a warrant, in violation of
the Fourth Amendment. The district court denied the motion.
It ruled that T-Mobile was not the government's agent
when it transmitted Adkinson's location data, and
Adkinson had consented to T-Mobile's cooperation with the
government, so no Fourth Amendment violation had occurred.
second motion concerned venue. The district court set a
pretrial motion deadline to file change of venue motions.
Adkinson did not timely file such a motion. Instead, on the
morning of trial, after observing that only one
African-American prospective juror was on the jury venire,
Adkinson moved during voir dire to transfer the case to a
venue with "a better pool of African Americans,"
like Indianapolis. See Fed. R. Crim. P.
12(b)(3)(A)(i), 21. Although the court was sympathetic to the
basis for the motion, the court observed that Adkinson's
morning-of-trial motion was "extremely untimely"
(it was due a month earlier), and denied it. The court
further noted that Adkinson could have obtained the racial
composition of the judicial division-about one percent
African American-well in advance of trial. The government
added that the population in the Indianapolis Division of the
Southern District of Indiana was only four-percent African
American, and the court agreed, adding that many of the
counties in that division had "very sparse"
African-American populations. Indeed, Adkinson acknowledged
during oral argument that there "is not a significantly
larger minority population" in the Indianapolis Division
than there is in the New Albany Division.
convicted Adkinson of conspiracy to commit robbery, 18 U.S.C.
§ 1951(a), conspiracy to brandish a firearm to further a
crime of violence, id. § 924(o), robbery,
id. § 1951(a), and brandishing a firearm to
further a crime of violence, id. § 924(c). The
district court sentenced him to 346 months in prison.