726 F.3d 993 (7th Cir. 2013), 12-2743, United States v. Brown

Docket Nº:12-2743
Citation:726 F.3d 993
Opinion Judge:Kanne, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANKLIN BROWN, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Mark E. Schneider, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL. For FRANKLIN BROWN, also known as SKINNY, Defendant - Appellant: Marc W. Martin, Attorney, MARC MARTIN, LTD., Chicago, IL.
Judge Panel:Before MANION, KANNE, and TINDER, Circuit Judges.
Case Date:August 12, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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726 F.3d 993 (7th Cir. 2013)



FRANKLIN BROWN, Defendant-Appellant

No. 12-2743

United States Court of Appeals, Seventh Circuit

August 12, 2013

Argued February 28, 2013.

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09-cr-671 -- James B. Zagel, Judge.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Mark E. Schneider, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.

For FRANKLIN BROWN, also known as SKINNY, Defendant - Appellant: Marc W. Martin, Attorney, MARC MARTIN, LTD., Chicago, IL.

Before MANION, KANNE, and TINDER, Circuit Judges.


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Kanne, Circuit Judge.

For five years, Franklin Brown led a lucrative life in Chicago's cocaine trade. Eventually, however, fate caught up with him. Federal authorities arrested Brown and charged him with conspiracy to distribute cocaine. The jury convicted, and the district court sentenced Brown to nearly twenty-five years in prison. Now, Brown challenges that result. He claims that he was only a customer to his suppliers, as opposed to a co-conspirator. If true, that fact would have prevented a jury from convicting him. Brown also makes a second, related argument: he claims the district court's instructions to the jury provided incorrect guidance on how to distinguish a buyer-seller relationship from a conspiracy. Ultimately, we find both arguments unpersuasive and affirm Brown's conviction.

I. Background

This case traces the relationship between three protagonists: Franklin Brown, Pedro Flores, and Margarito Flores. The Flores brothers (sometimes called " the Twins" ) ran a massive drug trafficking operation in the Chicagoland area. Yet the Floreses did business with only a select few customers--no more than fifteen, in fact. (R. 190 at 38.) Brown (also known as " Skinny" ) counted among them. Indeed, Brown was one of the Floreses' " best customers." ( Id. at 49.) Between 2003 and 2008, Brown bought millions of dollars worth of cocaine from the Twins. No one contests these facts.

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The dispute is whether Brown was more than a " customer." Federal authorities did not charge Brown with a substantive drug trafficking crime; rather, they charged Brown with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § § 841(a)(1) and 846. (R. 1); (R. 105). For this reason, a jury could convict Brown only if they found him a co-conspirator in the Floreses' trafficking operation--a status that requires more involvement than a mere customer.

Thus, characterizing Brown's relationship with the Twins sparked intense debate at Brown's trial. For unknown reasons, those with the clearest information on Brown's involvement--the Floreses--did not testify. This omission is particularly notable due to the Floreses' rigid business practices. The Twins used couriers to handle physical transactions but reserved all power to negotiate for themselves. (R. 195 at 89-90); (R. 190 at 36). Consequently, without the Floreses' own accounts, the government had to rely on second-hand information from couriers to show Brown's role in the organization.

The couriers provided useful testimony, however. By piecing together their accounts, the jury could, for example, grasp the massive extent of Brown's purchases from the Floreses. One courier, Jorge Llamas, stated that, over a two-year period, he met Brown on approximately forty occasions, each time to deliver between twenty and one hundred kilograms of cocaine. (R. 190 at 69.) Another courier, Cesar Perez, testified to making between thirty and forty deliveries, each at least ten kilograms, during a separate three-year period. (R. 195 at 33-34.) At least two other couriers were also responsible for delivering cocaine to Brown. (R. 190 at 59-60.)

According to the couriers, Brown rarely provided full cash payment at the time of delivery. For instance, Brown once provided Perez with only $26,000 for around 57 kilograms of cocaine. (R. 195 at 54-56.) Throughout Brown's entire relationship with the Twins, the price of a kilogram of cocaine in Chicago never dropped below about $16,000. (R. 192 at 111.) Thus, even at that lowest price, 57 kilograms was worth at least $912,000--far more than the $26,000 Brown provided at delivery. Conversely, Llamas testified to several meetings at which Brown dropped off five- to seven-figure payments but did not receive any drugs. (R. 190 at 69.) A third courier, Hector Simental, similarly testified to receiving several payments ranging from $250,000 to $1.3 million from Brown, all without a corresponding delivery of drugs. (R. 191 at 141-43.) Simental also spoke about an accounting ledger in which Brown's financial status with the Twins was tracked. ( Id. at 152-62.)

Yet Brown's involvement with the Floreses did not end there. Brown received far more than drugs from the Twins. The Floreses frequently had couriers provide prepaid cell phones to their business associates to facilitate communication with the Twins. ( Id. at 110-11.) Llamas delivered such phones to Brown. (R. 190 at 71.) The Twins also had Llamas give Brown a Chevrolet HHR specially outfitted with a secret compartment for concealing drugs or money. ( Id. at 72-74.) The government never presented evidence that Brown used the HHR for subsequent drug trafficking, but it did introduce records showing that Brown had taken out insurance on the vehicle. (R. 192 at 41-42.) Finally, an investigator recovered title documents for a Jeep Grand Cherokee with a similar secret compartment from Brown's garbage. ( Id. at 34-38); (R. 190 at 86). Another courier for the Twins--although not one who delivered cocaine to Brown--was known to drive this Jeep. (R. 190 at 59-60, 85-88.)

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When Brown's trial came to a close, the district court instructed the jury on the difference between a conspiracy and a buyer-seller relationship. Earlier in the proceedings, the wording of this instruction had raised significant disagreement between Brown and the government. When the district court instructed the jury, it decided to combine the two proposed approaches (more details on the specific wording later).

After deliberating, the jury found Brown guilty of conspiracy. (R. 114.) Brown moved for a judgment of acquittal and argued that the government failed to provide sufficient evidence. (R. 117.) Brown also moved for a new trial based upon several other errors purportedly made by the district court. (R. 130.) The district court denied both motions, (R. 138), and sentenced Brown to 292 months in prison, followed by 120 months of supervised release, (R. 152). Brown subsequently appealed. (R. at 153.)

II. Analysis

Brown presents two arguments on appeal. First, he claims that the government did not present sufficient evidence to convict him of conspiracy. Second, he argues that the district court's buyer-seller jury instruction misstated the law and misled the jury. We address each argument below but in reverse order. To determine whether the jury instruction was appropriate, we must discuss the case law on conspiracy. Having that discussion first will later make it easier to determine whether the evidence in this case was sufficient.

A. Buyer-Seller Jury Instruction

Brown and the government cite seemingly disparate cases for the standard of review that governs challenges to jury instructions. Yet neither makes clear that we review instructions in two steps. First, we review de novo whether a particular jury instruction " accurately summarize[s] the law." United States v. Dickerson, 705 F.3d 683, 688 (7th Cir. 2013). If so, then we " examine the district court's particular phrasing of the instruction for abuse of discretion." Id. Under the second step, we reverse " only if it appears both that the jury was misled and that the instructions prejudiced the defendant." Id.

1. Accuracy of law

We begin by assessing whether the district court's buyer-seller instruction accurately summarized the law--a difficult proposition. Our case law on buyer-seller relationships has many dissonant voices. To determine the accuracy of the district court's work, however, we will attempt to harmonize those voices into a well-blended choir.

a. Case law on buyer-seller relationships

In October 2012, our circuit released a revised set of pattern jury instructions for use in criminal cases. Committee on Federal Criminal Jury Instructions for the Seventh Circuit, Pattern Criminal Jury Instructions of the Seventh Circuit (2012), available at http://www.ca7.uscourts.gov/Pattern_Jury_Instr/ 7th_criminal_jury_instr.pdf. One notable revision was to Instruction 5.10(A), which distinguishes buyer-seller relationships from conspiracies. Id. at 73-74. This distinction may seem difficult to grasp at first. It stems, however, from an important tenet of criminal law: conspiracy is a separate offense from the underlying crime. See, e.g., 21 U.S.C. § 846; 18 U.S.C. § 43(a); 18 U.S.C. § 32(a)(8).

Conspiracy is the extra act of agreeing to commit a crime. United States v. Jimenez Recio, 537 U.S. 270, 274, 123 S.Ct. 819, 154 L.Ed.2d 744 (2003); Smith v. United States, 133 S.Ct. 714, 719, 184 L.Ed.2d 570 (2013). " That agreement is a 'distinct evil,'" Jimenez

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Recio, 537 U.S. at 274, because a group of criminals often pose a greater danger than an individual, United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991). By working together, criminals capitalize on economies of scale, which facilitate planning and executing crimes--thus making it more likely that a group will complete its unlawful aim. Id.; see also Jimenez Recio, 537 U.S. at 275. For this...

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