[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 19-14843

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UNITED STATES OF AMERICA, 

Defendant-Appellee,

versus

BENJAMIN GREEN ROBINSON, 

Plaintiff-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cr-00132-GKS-LRH-1

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2 Opinion of the Court 19-14843

Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.

PER CURIAM:

Benjamin Robinson was convicted of conspiring to distribute and possess with intent to distribute over 500 grams of cocaine. 

See 28 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846. He received a 110-

month sentence. Robinson raises four issues on appeal. After careful review and with the benefit of oral argument, we find no merit 

to any of them. 

First, Robinson argues that the trial court erroneously denied his motion to suppress a package of cocaine intercepted at the 

post office and introduced against him at trial. He also complains 

that the district court should have held an evidentiary hearing on 

his motion. Both arguments fail. Robinson needed to establish a 

reasonable expectation of privacy in the package before he challenged the search as unreasonable under the Fourth Amendment. 

United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir. 2000). If a 

defendant fails to plead sufficient facts to show a reasonable expectation of privacy, “a trial court may refuse a defendant’s request for 

a suppression hearing” and deny his motion to suppress. United 

States v. Richardson, 764 F.2d 1514, 1526–27 (11th Cir. 1985) (quoting United States v. Sneed, 732 F.2d 886 (11th Cir. 1984)). 

The package was sent from “David Cortez” and addressed 

to “Brian Stein.” In his motion, Robinson never alleged either of 

these names was an alias of his. Nor did he claim a connection to 

either of the addresses listed on the package. He likewise failed to 

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19-14843 Opinion of the Court 3

assert any other basis for having a reasonable expectation of privacy in the package. Because Robinson’s motion to suppress “was 

wholly lacking in sufficient factual allegations to establish standing, 

the district court did not abuse its discretion in refusing to hold an 

evidentiary hearing.” Cooper, 203 F.3d at 1285; see United States 

v. Smith, 39 F.3d 1143, 1145 (11th Cir. 1994) (affirming district 

court’s denial of motion to suppress letter where defendant gave 

“equivocal testimony regarding his ownership interest in the letter,” and the evidence showed he was “neither the sender nor the 

addressee of the letter”).

Second, Robinson challenges the admission of his prior cocaine-trafficking conviction under Rules 404(b) and 403 of the Federal Rules of Evidence. Because Robinson failed to object to this 

evidence at trial, we review for plain error. United States v. Brown, 

665 F.3d 1239, 1247 (11th Cir. 2011). We apply a three-part test to 

evaluate whether evidence is admissible under Rules 404(b) and 

does not violate Rule 403: (1) “the evidence must be relevant to an 

issue other than the defendant’s character”; (2) “the evidence must 

be sufficient to support a finding that the defendant actually committed the extrinsic act”; and (3) “the probative value of the evidence must not be substantially outweighed by unfair prejudice.” 

United States v. Diaz-Lizaraza, 981 F.2d 1216, 1224 (11th Cir. 1993) 

(citations omitted). In his response to the government’s pretrial 

motion, Robinson conceded that the first two prongs of this test 

were satisfied. That leaves only the third one—that the value of 

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4 Opinion of the Court 19-14843

the evidence was substantially outweighed by the danger of unfair 

prejudice. See Fed. R. Evid. 403. 

We have upheld the admissibility of evidence of prior drug 

offenses in controlled-substance conspiracy cases when the prior 

offenses have involved different drugs and when they have occurred more than ten years before the charged offense. See DiazLizaraza, 981 F.2d at 1224 (prior marijuana offense admitted to 

show “intent to conspire to possess and distribute cocaine”);United 

States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (evidence of 

small marijuana deals from fifteen years prior admissible to prove 

intent to distribute large amounts of cocaine). Robinson’s prior 

conviction was for cocaine trafficking (which was the charged substance here) and occurred less than six years before the charged 

conduct here. Robinson shows no plain error in the court’s admission of his prior conviction here.

Third, Robinson argues insufficient evidence supports his 

conviction. We review challenges to the sufficiency of the evidence de novo, asking “whether, under the totality of the circumstances, there is sufficient evidence to support a jury verdict when 

the facts are viewed in the light most favorable to the government.” United States v. Guevara, 894 F.3d 1301, 1307 (11th Cir. 

2018) (quotation marks omitted). The elements of conspiracy to 

possess with intent to distribute a controlled substance, in violation 

of 21 U.S.C. § 846 including the following: (1) an agreement to 

violate § 841(a)(1) existed between at least two people; “(2) the defendant knew about the agreement; and (3) the defendant 

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19-14843 Opinion of the Court 5

voluntarily joined the agreement.” United States v. Colston, 4

F.4th 1179, 1187 (11th Cir. 2021) (citation omitted). 

Robinson asserts that sufficient evidence was lacking here 

because he intended to sell marijuana, not cocaine. But we have 

explained that “proof of the type of drug involved in the conspiracy 

is separate and distinct from proof of mens rea as to the type of 

drug.” United States v. Achey, 943 F.3d 909, 913 (11th Cir. 2019). 

So Robinson’s defense that he intended to distribute marijuana was 

not a defense at all. See United States v. Sanders, 668 F.3d 1298, 

1310 (11th Cir. 2012) (knowledge of the particular type of controlled substance is not an element of 28 U.S.C. § 841(b)).1 Taking 

the evidence in the light most favorable to the government, we 

conclude that sufficient evidence supports the verdict, and Robinson’s motion for a directed verdict was properly denied.

Fourth, Robinson contends the government violated his 

rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to 

turn over an interview between the lead case agent and Robinson’s

codefendant in which the codefendant allegedly confirmed that 

1Robinson argues that an exception to this general rule applies for cases where 

the indictment charges knowledge of the substance as an element of the offense. See United States v. Narog, 372 F.3d 1243, 1257 (11th Cir. 2004). But 

Robinson’s indictment is materially indistinguishable from the indictment in 

Sanders, where we concluded that the indictment did not make knowledge of 

the specific controlled substance an element of the offense. See Sanders, 668 

F.3d at 1311. Not only that, but we have explained that the Narog exception 

is no longer good law. See Colston, 4 F.4th at 1187; United States v. Nunez, 1 

F.4th 976, 990–91 (11th Cir. 2021).

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6 Opinion of the Court 19-14843

Robinson was a marijuana dealer.2 Robinson’s Brady claim is unavailing because the undisclosed interview was not favorable, and at 

best, it was cumulative. As we’ve explained, proof that Robinson 

intended to deal marijuana was not a legal defense here. Plus, the 

agent conceded on cross-examination that Robinson was a marijuana dealer. So even assuming that the evidence was somehow favorable, it “would have constituted, at best, cumulative evidence.”

Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1361 (11th Cir. 

2004) (citation omitted). As a result, we cannot find that a timely 

disclosure would have created a “reasonable probability” of a different result here. Bagley, 473 U.S. at 682.

For these reasons, we affirm.

AFFIRMED. 

2To establish a Brady violation, a defendant must show the following: “(1) the 

prosecution suppressed evidence; (2) the evidence was favorable to him; and 

(3) the evidence was material to the establishment of his guilt or innocence.” 

United States v. Jeri, 869 F.3d 1247, 1260 (11th Cir. 2017) (quotation marks 

omitted). Evidence is material “only if there is a reasonable probability that, 

had the evidence been disclosed to the defense, the result of the proceeding 

would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).

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