104 F.3d 1267 (11th Cir. 1997), 94-5309, United States v. Brenson

Docket Nº:94-5309.
Citation:104 F.3d 1267
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald A. BRENSON, Defendant-Appellant.
Case Date:February 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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104 F.3d 1267 (11th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald A. BRENSON, Defendant-Appellant.

No. 94-5309.

United States Court of Appeals, Eleventh Circuit

February 5, 1997

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Appeal from the United States District Court for the Southern District of Florida.

Mark Dienstag, Bret Clark, Miami, FL, for Defendant-Appellant.

Robert Bondi, Linda Collins Hertz, Harriet Galvin, Asst. U.S. Atty., Miami, FL, for Plaintiff-Appellee.

Before TJOFLAT and COX, Circuit Judges, and HANCOCK [*], Senior District Judge.

HANCOCK, Senior District Judge:

Ronald A. Brenson was convicted of obstructing justice in violation of 18 U.S.C. § 1503 by corruptly endeavoring to influence, obstruct or impede the due administration of justice in the United States District Court for the Southern District of Florida. Brenson also was convicted of conspiring with one or more persons to violate 18 U.S.C. § 1503 by corruptly influencing, obstructing or impeding the due administration of justice in the United States District Court for the Southern District of Florida in violation of 18 U.S.C. § 371. Following his conviction, the district court sentenced Brenson to 120 months imprisonment, followed by two years of supervised release. Brenson now appeals his conviction on both counts and the sentence imposed. We find no reversible error as to his conviction on either count nor any error in the sentence imposed and accordingly affirm.

I. BACKGROUND

The evidence at the trial of this case provided the following factual information: The United States District Court for the Southern District of Florida summoned Brenson to jury duty where he was selected and served as a member of a federal grand jury empaneled on February 16, 1993 that met once a week for approximately ten months. (R10-61-62, 69, 70.) All grand jurors, including Brenson, were given instructions by a United States district judge, viewed a videotape, and received a booklet concerning their duty to maintain secrecy as to the information disclosed during the grand jury proceeding and the importance of this confidentiality. (R10-62 to 68, 91-92.) The grand jury on which Brenson served was conducting an investigation of Armando "Mandy" Fernandez in connection with evidence of drug smuggling and money laundering. (R10-95, 120-21; R11-32.)

The grand jury of which Brenson was a member had been in session on November 4, 1993, but was not scheduled to convene again until November 18, 1993. (R10-98.) Some time between November 8 and 10, 1993, Brenson attempted to call Joseph DeMaria, who he knew to be an associate of Fernandez. (R10-126, 14.) Brenson called DeMaria at a car dealership known as The Collection on the pretense of wanting to purchase a Ferrari. (R10-126.) DeMaria instructed Brenson to come to The Collection and talk to him about the car. (R10-126.) Brenson took a bus and went in person to The Collection to meet with DeMaria. (R10-126-27.) Brenson told DeMaria that The Collection was under investigation and was going to be seized. (R10-127.) DeMaria responded in disbelief stating that The Collection had previously been seized and that it "was beyond the statute of limitations." (R10-127.) Brenson then explained to DeMaria, "I should not be here, but I am a member of a Grand Jury that is investigating The Collection now and it is going to be seized." (R10-127.) Brenson provided DeMaria with additional information concerning the grand jury proceedings, including the dates it had met as well as identifying witnesses and information on assets presented as part of the investigation of Fernandez. (R10-128.)

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DeMaria requested that Brenson "wait here." (R10-128.) Then DeMaria added "let me get somebody." (R11-23.) DeMaria proceeded up some stairs to the executive offices. (R10-128.) DeMaria returned with Fernandez, the target of the grand jury investigation and introduced him as "Mandy, the owner of The Collection." (R10-129.) DeMaria instructed Brenson to "tell him what you just told me." (R10-129.) Brenson then repeated to Fernandez the information he had learned as a grand jury member, including the names of individuals to be indicted, charges that would be filed, the names of witnesses who testified and properties that may be subject to forfeiture. (R10-129-33; R11-24 to 26.) In response to questions by DeMaria, Brenson confirmed the names of the prosecutors conducting the Fernandez investigation. (R10-132.) Brenson told DeMaria and Fernandez that the indictment against Fernandez and others would be returned on November 18, 1993. (R10-133.) As Brenson was leaving DeMaria stated the following: "We have to stay in touch with you. How can we get a hold of you?" In response, Brenson provided DeMaria with his beeper number. (R10-133.)

On November 18, 1993 the members of the grand jury, including Brenson, met to vote on the indictment of Fernandez and returned an indictment with Brenson voting in favor of the indictment. (R10-99, 108.) There was no evidence that Brenson attempted to get any member of the grand jury to change his or her vote as to the indictment. (R10-107.) After Fernandez was indicted and arrested, Special Agent Richard Kapouch of the Internal Revenue Service ("IRS") interviewed Fernandez and executed an affidavit for a complaint against and arrest warrant for Brenson based on his discussions with Fernandez. (R10-121.)

Brenson was arrested on January 20, 1994. (R10-122.) During the arrest, Agent Kapouch of the IRS and Agent James Gregorius of the Drug Enforcement Administration advised Brenson of his rights. (R10-123.) Then Brenson voluntarily agreed to waive his rights and speak to the agents. (R10-123.) Brenson admitted to disclosing secret grand jury information to both Fernandez and DeMaria. (R10-127 to 133.) According to Brenson, his motivation for disclosing the grand jury information was an attempt to get a date with DeMaria's daughter. (R11-6.) On January 27, 1994, a grand jury indicted Brenson on one count of conspiracy to obstruct the due administration of justice based on charges that Brenson conspired with DeMaria and Fernandez in violation of 18 U.S.C. § 371 and one count of endeavoring to obstruct the due administration of justice in violation of 18 U.S.C. § 1503. (R1-12.)

When the agents asked Brenson if he wanted to cooperate in an investigation of DeMaria, Brenson responded affirmatively. (R10-134-35; R11-33.) The agents instructed Brenson that he should not alert anyone that he was in trouble, had been arrested or that he was cooperating. 1 (R10-137; R11-34.) The next day Brenson admitted to Agent Gregorius that he had alerted his friend, Mario Palacio, that he was in trouble and asked Palacio to "get word" to DeMaria that Brenson had been arrested, that he had been asked by federal agents to cooperate against DeMaria, and that DeMaria was now a target of an investigation. (R11-38, 39.)

Immediately before Brenson's trial was to begin, Brenson stated to the court that he wanted to change his plea to guilty on both counts. (R8-3.) Once the district court began the plea colloquy to establish that Brenson acknowledged his guilt as to the offenses charged, Brenson refused to admit that he acted "corruptly" when disclosing grand jury information to Fernandez and others. The district court would not accept Brenson's plea and there was a discussion between the district court, counsel for the parties and the defendant concerning the meaning of the term "corruptly." (R8-10 to 22.)

The case proceeded to a four day trial before a jury with the government presenting evidence concerning the required secrecy of grand jury information as well as evidence of the statements made by Brenson to government

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agents admitting that he had in fact revealed such secrets. Brenson presented three witnesses. Two attorneys, Howard Sohn and Yale Galanter, testified that they had spoken with Brenson on the evening of his arrest. (R11-109 to 111.) The third witness, David Lawrence, was a friend of Brenson who testified that Brenson came to his home on January 20, 1994, appearing "scared and confused" and Lawrence suggested that Brenson contact Lawrence's lawyer, Mr. Sohn. (R11-110, 118-19.)

Brenson moved for acquittal at the close of the government's case and at the close of the evidence, with both motions being denied by the district court. (R11-107 to 109, 121-122.) On August 26, 1994, counsel for both parties had a conference with the district court on the jury charges to be given by the court. (R11-122.) Both parties submitted proposed jury instructions on the substantive offense. (R-1-48; R-1-49; R10-15.) The court agreed to use the government's proposed instructions along with specific language from the United States v. Thomas decision, 916 F.2d 647 (11th Cir.1990), in order to describe the obstruction of justice charge, 18 U.S.C. § 1503. (R11-131 to 134; R3-16 to 20.)

The court rejected the defendant's request for instructions requiring the government to prove that the defendant endeavored to influence, obstruct or impede the Grand Jury proceeding itself, rather than simply stating that defendant endeavored to influence, obstruct or impede the due administration of justice. (R11-134 to 135; R3-13, 14, 19.) Defendant objected to the proposed jury instruction without the requested language, but the district court overruled the objection based on the court's reading of the Thomas decision. (R3-19.)

On August 29, 1994, Brenson was convicted of conspiring to obstruct justice and of obstructing justice, as charged in the indictment. (R1-56-1.) Brenson filed motions for...

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