946 F.2d 1191 (6th Cir. 1991), 90-5845, United States v. Brown

Docket Nº:90-5845.
Citation:946 F.2d 1191
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Keith Scott BROWN, Defendant-Appellant.
Case Date:October 10, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1191

946 F.2d 1191 (6th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Keith Scott BROWN, Defendant-Appellant.

No. 90-5845.

United States Court of Appeals, Sixth Circuit

October 10, 1991

Argued March 29, 1991.

Rehearing Denied Nov. 13, 1991.

Page 1192

John M. Compton, Asst. U.S. Atty., Lexington, Ky., Laura L. Klein, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Covington, Ky., for plaintiff-appellee.

Thomas E. Clay, Louisville, Ky. (argued and briefed), for defendant-appellant.

Before JONES and SUHRHEINRICH, Circuit Judges, and FEIKENS, Senior District Judge. [*]

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellant Keith Scott Brown appeals his jury convictions and sentences for distribution of cocaine and for possession with intent to distribute. For the following reasons, we affirm the convictions, but reverse the two-level enhancement pursuant to § 2D1.1(b)(1) of the United States Sentencing Guidelines.

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I.

During the course of an on-going drug trafficking investigation, Kentucky State Police were assisted by Yvonne Gabbard and Ben Stokes, confidential informants. Both informants had prior drug histories. During this investigation, however, there were no drug charges pending against Gabbard or Stokes and thus they were not posing as informants in order to gain immunity.

On November 13, 1989, Gabbard went to an automobile repair service known as South 127 Auto Mart. Gabbard was wired in order to record the conversation. This property was owned by Gordon Woodard and leased to appellant Brown. When Gabbard arrived, she spoke to Brown's co-defendant, Ron Simpson, about some problems she was having with her car. Simpson advised Gabbard to return the next day when the parts to repair her car would be available.

On November 14, 1989, Gabbard returned to the Auto Mart. On this occasion, however, she was not wired. While Simpson was working on her car, Gabbard asked him for some cocaine. Simpson told her that she could get the cocaine from Brown. Brown had a gun when he entered the Auto Mart. Gabbard told him that Simpson said that she could get some cocaine from him. Brown reacted by pulling off Gabbard's coat in search of a wire, accusing Gabbard of being a cop, and demanding that she ingest a line of cocaine to prove that she was not a cop. Gabbard ingested the cocaine. Gabbard then left the Auto Mart, but returned several times the same day attempting to purchase cocaine. No cocaine was sold to her.

On November 14, 1989, government informant Stokes was given $1,400.00 to make a cocaine purchase. Stokes drove to Auto Mart accompanied by Officer Valerie Slaughter. Stokes knew both Brown and Simpson. Stokes went inside alone seeking to purchase cocaine from Gordon Woodard. Woodard was not in so Stokes told Brown and Simpson that he needed to buy some cocaine. After conversing, Brown left to go and obtain some. Brown returned with cocaine which he then gave to Simpson. Stokes paid Simpson $1,350.00 who then gave the money to Brown. Stokes and Simpson entered an automobile and drove off with Slaughter following. After driving for a distance, Simpson gave Stokes the cocaine. Stokes then rejoined Slaughter. No gun was involved in this transaction.

On November 23, 1989, Stokes again contacted Brown by phone and requested cocaine. An arrangement was made between Stokes and Brown for Simpson to contact Stokes. The latter contacted Stokes on November 24, 1989, and arrangements were made to meet at the Auto Mart. Upon arriving at the Auto Mart alone, Stokes was wearing an audiotape recorder. Simpson instructed him to return to the previous transaction location where they would rendezvous. They did, whereupon, in exchange for $1,340.00, Simpson gave Stokes an ounce of cocaine.

Brown and co-defendant Ronald Simpson were indicted on January 17, 1990, by a federal grand jury on four counts. Count one charged Brown and Simpson with aiding and abetting one another in the distribution of cocaine and of possession with the intent to distribute cocaine on November 14, 1989, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count two charged Brown and Simpson with the use of a firearm in connection with the cocaine offense in count one, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. Simpson was later dismissed from count two. Count three charged Brown and Simpson with aiding and abetting one another in the distribution of and possession of cocaine, on November 14, 1989, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. Finally, count four charged Brown and Simpson with aiding and abetting one another in the distribution of and possession of cocaine, on November 24, 1989, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2.

On January 26, 1990, both Brown and Simpson were arraigned in the United States District Court for the Eastern District of Kentucky and entered pleas of not guilty. Approximately two weeks prior to trial a magistrate conducted a preliminary

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examination and detention hearing upon charges that Brown had attempted to obstruct justice by threatening and intimidating a government witness, Yvonne Gabbard. There were allegations that he attempted to influence her testimony at the upcoming trial. The magistrate concluded that there was clear and convincing evidence that Brown posed a danger to Gabbard and granted the government's pre-trial motion for Brown's detention.

The trial commenced on March 27, 1990. On March 29, 1990, the jury rendered a verdict, finding Brown not guilty on counts one and two but guilty on counts three and four. The jury found Simpson not guilty on count one but guilty on counts three and four. Brown's base offense level was calculated to be sixteen and was increased two levels for obstruction of justice, two levels for possession of a weapon, and two levels for acting as an organizer, leader, manager or supervisor. Brown was denied a two level decrease for acceptance of responsibility. The court sentenced Brown to fifty-one months on each count to be served concurrently, with supervised release of three years. This appeal followed.

The issues raised on appeal are: (1) whether the trial court erred in failing to give an addict-informant jury instruction; (2) whether the trial court erred in partially limiting the cross-examination of a key government witness; (3) whether the evidence was sufficient to support the convictions; and (4) whether the sentencing court erred in imposing a fifty-one month sentence.

II.

Brown challenges the trial court's failure to give an "addict-informant" charge to the jury. "The standard on appeal for a court's charge to the jury is whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury." United States v. Martin, 740 F.2d 1352, 1361 (6th Cir.1984), aff'd after remand, 757 F.2d 770 (6th Cir.), cert. denied, 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985).

Ben Stokes was the government's key witness at trial. Stokes was also an admitted drug addict. Brown requested an addict-informant instruction below but it was rejected by the trial court. Instead, the court gave the following general witness credibility instruction:

Now, I have said that you must consider all of the evidence. That does not mean, however, that you must accept all of the evidence as true or accurate.

Because you are the sole judges of the credibility or the believability of each witness and the weight to be given to his testimony. In weighing the testimony of a witness you should consider his relationship to the Government or to the defendant; his interest, if any, in the outcome of the case; his manner of testifying; his opportunity to observe or acquire knowledge concerning the facts about which he testified; his candor, fairness and intelligence; and the extent to which he has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part.

Further, the court stated in its impeachment charge:

A witness may be impeached or discredited by contradictory evidence, or by showing that he testified falsely concerning a material matter, or by evidence that at some other time, some other place, the witness has said or done something, or has failed...

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