U.S. v. Brown

• Decision Date: 12 April 1995
• Docket Number: No. 1264,D,1264
• Citation: 52 F.3d 415
• Parties: UNITED STATES of America, Appellee, v. James BROWN, Defendant-Appellant. ocket 93-1557.
• Court: U.S. Court of Appeals — Second Circuit

Page 415

52 F.3d 415

UNITED STATES of America, Appellee, v. James BROWN, Defendant-Appellant.

No. 1264, Docket 93-1557.

United States Court of Appeals, Second Circuit.

Argued March 4, 1994.

Decided April 12, 1995.

William B. Darrow, Asst. U.S. Atty., Burlington, VT (Charles R. Tetzlaff, U.S. Atty. for the D. of VT, David V. Kirby, Burlington, VT, on the brief), for appellee.

Mark B. Gombiner, New York City (The Legal Aid Soc., Federal Defender Division, New York City, on the brief), for defendant-appellant.

Before: KEARSE and LEVAL, Circuit Judges, and GLASSER, District Judge. ^*

GLASSER, District Judge:

James Brown appeals from a judgment of conviction entered on July 26, 1993 following a jury trial in the United States District Court for the Eastern District of Vermont (Billings, J.). He was convicted of one count of conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. Secs. 841(a)(1) and 846; two counts of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1); one count of possession of heroin with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1); one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1); one count of possession of a firearm by a felon in violation of 18 U.S.C. Secs. 922(g) and 924(e); one count of possession of a firearm with an obliterated serial number in violation of 18 U.S.C. Sec. 922(k) and one count of possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). He was sentenced to a total term of imprisonment of 322 months consisting of concurrent terms of 262 months on the first seven counts and a consecutive term of 60 months on count eight (possessing a firearm during a drug trafficking offense). In addition, he was sentenced to a six year term of supervised release and was directed to pay a mandatory special assessment of $400.

Brown contends that the district court erred in denying his pretrial motion to suppress evidence seized from his apartment in violation of 18 U.S.C. Sec. 3109 (the "knock and announce" statute) and the Fourth Amendment to the United States Constitution and in failing to suppress statements obtained which, he contends, were the fruits of the unlawful search. Brown also contends that he was improperly sentenced as an armed career criminal for the reason that the government failed to prove he was a thrice-convicted felon as a basis for invoking Sec. 4B1.4 of the United States Sentencing Guidelines, and that the district court erred in considering him a career offender pursuant to U.S.S.G. Sec. 4B1.1 based upon a finding that he violated 21 U.S.C. Sec. 860(a) (distribution of a controlled substance within 100 feet of a school).

Background

On March 18, 1992, a confidential informant ("CI") reported to detective John C. Lewis of the Burlington, Vermont Police Department that co-defendant Timothy Ellison who lived at 11 Cedar Street in Burlington had sold crack and heroin from his apartment, both of which the CI had seen there. Living in that apartment with Ellison were his cousin "Jimmy" (the defendant Brown) and co-defendant Patricia Miles who was Ellison's girlfriend, both of whom were also involved in drug trafficking. Detective Lewis also learned from the CI that Ellison and Brown were associated with a person named Mike who sold heroin from a nearby apartment. The CI had purchased cocaine from Mike in the past and was once visited by Mike, Ellison and another who came with a pump-action shotgun to collect for a drug related debt the CI owed Mike. Over the course of the next few weeks, the CI attempted to make several controlled purchases of drugs at the Cedar Street apartment. On April 2, 1992, for example, the CI, wearing a body-wire, attempted to purchase cocaine at the Cedar Street apartment. He was surveilled on that occasion by Detective Lewis, by Joseph Harrington, an agent of the Bureau of Alcohol, Tobacco and Firearms ("BATF"), and another detective. Patricia Miles was in the apartment. Ellison and Brown were not. Miles showed four bundles of heroin to the CI and told him that Brown was at a laundromat nearby. The CI located Brown and purchased cocaine from him at a point across the street from an elementary school. The CI, on subsequent days, also made controlled purchases of heroin and cocaine from Ellison and his associates. On two of those occasions he was in the apartment, secretly recording conversations with the occupants by means of a body-wire he was wearing.

In the course of his investigation, Detective Lewis ascertained that Ellison had a criminal record in New York reflecting arrests for possession of firearms, robberies, assaults, possession of stolen property and drugs. The CI also related to Detective Lewis his belief that Brown possessed a gun.

On April 6, 1992, Detective Lewis made an application to a Vermont state court judge, Matthew I. Katz, for a warrant to search the apartment at 11 Cedar Street and the persons of its occupants, Ellison, Brown and Miles. In a detailed affidavit in support of the application, Detective Lewis set out more fully the facts outlined above. Finding the requisite probable cause, Judge Katz granted the application and authorized the search and seizure between 6:00 A.M. and 10:00 P.M. of illicit drugs, drug paraphernalia, drug money and firearms used to facilitate the drug dealing.

In the early hours of April 7, 1992, Detective Lewis assembled a search team at the Burlington police headquarters made up of one Drug Enforcement Administration Agent; two BATF agents; two federal marshals and three members of the Burlington Police Department. He briefed them on the investigation and assigned them to their respective duties. As part of the briefing, Lewis showed a photograph of Ellison to the team and informed them that Ellison had a criminal record. At approximately 6:00 A.M. the team arrived at the Cedar Street address and positioned themselves outside Ellison's ground floor apartment. Detective Lewis testified that he elected to execute the warrant so early in the morning to assure the presence of the defendants. The testimony relating to the events that followed was not entirely consistent in all respects as the following summary will demonstrate.

I'm going to deny the motion to suppress on the basis of my finding that the officers in this case did knock, and that because of that knocking, they had good reason to believe that the people who were inside the apartment would be aware of the presence of people outside knocking on the door, even though it may well have been that the knock did not wake anybody in the apartment, and from the officers' perspective, they could then and I think would be reasonable in believing that the occupants of the apartment might well be engaged in the destruction of drugs, and I think that they also had every right to believe that they were in potential danger and had to act quickly.

So what you really have here is a compliance with the knock and announce rule ... because the break-in was virtually simultaneous with the announcement, but there were sufficient exigent circumstances, in my view, to justify the collapse of time, that is the short period of knocking and the almost simultaneous announcement and break-in.

Special Agent Thomas Doud of the Drug Enforcement Administration ("DEA") who participated in the execution of the search warrant was designated to interview Brown immediately after the arrests were made. In an automobile outside the Cedar Street apartment, Doud advised Brown that he was under arrest for violating the narcotics laws, informed him of the investigation that had been conducted and the evidence acquired prior to his arrest, discussed the possibility of Brown's cooperation, and gave him the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which Brown stated he was familiar with and understood. When asked to sign a waiver of rights form at that time, however, Brown refused but indicated that he was willing to talk. At the Burlington police station to which the defendants were subsequently taken, Brown was interviewed by James Mercer, a special agent of BATF, and indicated his willingness to speak. Mercer again advised Brown of the Miranda warnings and requested him to sign a waiver of rights form which he did. Brown then made a written statement which he also signed and in which he confessed to his involvement in drug trafficking with Ellison and Miles and to possessing a gun to protect his drug money and himself.

At the conclusion of the suppression hearing, the judge presiding (Parker, J.) found that Brown had been given the necessary Miranda warnings, that Brown understood them and with that understanding, knowingly and voluntarily made the statements he sought to suppress. His motion in that respect was denied and that determination has not been appealed.

Ellison and Miles pleaded guilty to distributing cocaine and to possessing with intent to distribute heroin. Brown was convicted of all counts after a jury trial. The presentence report ("PSR") classified Brown as an armed career criminal pursuant to 18 U.S.C. Sec. 924(e)(1) and U.S.S.G. Sec. 4B1.4. He was also classified as a career offender pursuant to U.S.S.G. Sec. 4B1.1 which was invoked based upon a finding that Brown violated 21 U.S.C. Sec. 860. An offense level of 34 and a criminal history category of VI prescribed by U.S.S.G. Secs. 4B1.1 and 4B1.4(c)(2) was thus arrived at for which a sentencing range of 262-327 months was prescribed. That range was enhanced to 322-387 months by a consecutive term of 60 months mandated by 18 U.S.C. Sec. 924(c)(1).

Brown filed written objections to the PSR. He contended that the armed career criminal enhancement of U.S.S.G. Sec. 4B1.4 was unwarranted because the government failed to prove that Brown's 1970 conviction for attempted robbery in the third degree qualified...