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United States v. Adkinson

United States Court of Appeals, Seventh Circuit

February 14, 2019

United States of America, Plaintiff-Appellee,
Lawrence D. Adkinson, Defendant-Appellant.

          Argued January 23, 2019

          Appeal 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.

          Before Wood, Chief Judge, and Kanne, and St. Eve, Circuit Judges.

          PER CURIAM.

         Lawrence 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 separate order.

         I. Background

         Adkinson 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.

         T-Mobile 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.

         T-Mobile's privacy policy allowed T-Mobile to disclose information about 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 data.

         The 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.

         The 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.

         A jury 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.

         II. Discussion

         A. Motion ...

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