97 F.3d 835 (6th Cir. 1996), 95-5213, United States v. Branham

Docket Nº:Bobby Gene BRANHAM (95-5213), Jerry Lee Allen (95-5241),
Citation:97 F.3d 835
Party Name:UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant (95-5357), v.
Case Date:October 04, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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97 F.3d 835 (6th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant (95-5357),


Bobby Gene BRANHAM (95-5213), Jerry Lee Allen (95-5241),

Robert Jackson Reynolds (95-5490), Defendants-Appellants,

Jerry Lee Allen, Defendant-Appellant/Cross-Appellee (95-5357).

Nos. 95-5213, 95-5241, 95-5357 and 95-5490.

United States Court of Appeals, Sixth Circuit

October 4, 1996

Argued April 9, 1996.

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James E. Arehart, Asst. U.S. Attorney (argued), Mark A. Wohlander, Asst. U.S. Attorney (briefed), Office of the U.S. Attorney, Lexington, KY, for U.S. in Nos. 95-5213, 95-5241, 95-5357 and 95-5490.

Matthew W. Breetz (argued and briefed), McBrayer, McGinnis, Leslie & Kirkland, Lexington, KY, for Bobby Gene Branham in No. 95-5213.

Charles Stanford West (argued and briefed), Williamson, WV, for Jerry Lee Allen in Nos. 95-5241, 95-5357.

Stephen G. Amato (argued and briefed), Miller, Griffin & Marks, Lexington, KY, for Robert Jackson Reynolds, III, in No. 95-5490.

Before: SUHRHEINRICH and SILER, Circuit Judges; ALDRICH, Senior District Judge. [*]

ANN ALDRICH, Senior District Judge.

Bobby Branham, Jerry Lee Allen, and Robert Jackson Reynolds were convicted of conspiring to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, and of aiding and abetting each other in attempting to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, and 18 U.S.C. § 2. Pursuant to 21 U.S.C. § 853, the defendants were also required to forfeit $68,799 in United States currency that was seized from them at the time of their arrests, by reason of the violation of § 846. On appeal, the defendants raise various challenges to their convictions and sentences. The government cross-appeals Allen's sentence, challenging the district court's application of amendment 506 to the United States Sentencing Guidelines (U.S.S.G.) section 4B1.1, in connection with Allen's sentencing as a "career offender." For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion.


In November of 1993, the Lexington Drug Enforcement Administration (DEA) Task Force began investigating Branham for alleged drug trafficking. Chuck Cordle, a confidential government informant, first approached Branham at his used car dealership in Mount Sterling, Kentucky. Soon after the two became acquainted, their conversations turned to drugs. In February of 1994, Cordle introduced Branham to Detective Van Spencer, acting as a businessman from Georgia who imported large quantities of marijuana from Mexico. Thereafter, Spencer contacted Branham several times regarding Branham's interest in purchasing marijuana. Spencer informed Branham that he dealt exclusively in amounts of marijuana between 100 and 500 pounds, at between $650 and $1,000 per pound. After further contacts, Branham agreed to meet Spencer at a restaurant in Winchester, Kentucky on July 6, 1994 to examine a quantity of marijuana.

On the day of the meeting, Branham arrived at the restaurant with defendant Reynolds. Branham advised Spencer that there was now a third party involved in the negotiations who did not want to meet with Spencer but did want a sample of the marijuana. When Spencer questioned Reynold's presence,

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Branham assured Spencer that Reynolds was "all right, he's representing the other guy."

Thereafter, Spencer led Branham and Reynolds to a nearby parking lot where a Ryder rental truck was being guarded by two undercover police officers, DEA agent Stephen Koerner and Ron Compton of the Lexington Police Department. Branham climbed into the back of the truck, opened one of the boxes with a razor blade and commented that the marijuana "smelled good." Branham then called to Reynolds, who joined Branham in the back of the truck. Branham removed a sample of marijuana, handed it to Reynolds who then put the marijuana in his back pocket. At the conclusion of the meeting, Branham told Spencer to contact him the next morning, after Branham and Reynolds would have had an opportunity to sample the marijuana.

Spencer called Branham the next morning at 7:00 a.m. Branham informed Spencer that the chief financial backer liked the marijuana. The parties met again that evening at approximately 6:30 p.m. at Jerry's Restaurant in Lexington, Kentucky. Branham informed Spencer that they would have to take the marijuana to a location near Boonesboro State Park where the financial backer was waiting to inspect the marijuana. Spencer refused, and Branham and Reynolds left, indicating that they would be back in thirty to forty minutes. Branham later admitted that he and Reynolds drove to John Rayburn's residence where they met with defendant Allen.

Around 7:30 p.m., Branham and Reynolds returned to the restaurant parking lot. Branham came over to the vehicle where Spencer was waiting and told Spencer that he had his $20,000. A short time later, Allen arrived in a separate vehicle and parked several parking spaces away from where Branham and Spencer were standing. Spencer and Branham returned to Branham's vehicle. Branham then reached into the console and retrieved $20,000. During this time, Reynolds remained in the passenger seat of Branham's vehicle. Branham and Spencer then walked over to Allen's truck. Allen held up a plastic bag containing a bundle of U.S. currency. When Spencer questioned whether they had enough money to purchase fifty pounds, Branham replied, "We've got enough." While Spencer was with Branham and Allen, officer Koerner remained with Reynolds. Koerner asked Reynolds if they had the money, to which Reynolds responded that that was what the others were discussing.

Shortly after the negotiations concluded, the defendants were arrested. The officers then proceeded to search the defendants and their vehicles. The officers recovered $26,000 from the plastic bag, $18,300 from a pistol case on the seat of Allen's truck, $20,000 from the console in Branham's vehicle, and $4,258 from Reynolds for a total of $68,799.

On July 21, 1994, a federal grand jury returned a two count indictment against the defendants for violating 21 U.S.C. §§ 846 and 853, and 18 U.S.C. § 2. On July 29, 1994, all three defendants entered pleas of not guilty to both counts. Trial was then scheduled for September 26, 1994. The district court denied Allen's and Reynolds' motions to dismiss the indictment alleging that the indictment was insufficient on its face. On September 1, 1994, a superseding indictment was returned against all defendants. That indictment added an additional count charging the defendants with conspiracy to possess with the intent to distribute marijuana in violation of 21 U.S.C. § 846. The indictment not only added the conspiracy count, but also cured the claimed defects alleged in the motions to dismiss. A new trial date was set for November 7, 1994. The district court denied all three defendants' motions to dismiss the indictment which alleged prosecutorial vindictiveness.

After a two-day trial, the jury convicted the defendants and rendered a special judgment of forfeiture. The defendants' motion for a new trial based upon allegations of juror misconduct was denied on December 29, 1994 after an evidentiary hearing.

In Reynold's motion for a new trial, he also raised for the first time his mental capacity to stand trial. Reynolds claimed that as the result of an earlier motorcycle accident

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he was unable to effectively assist his counsel at trial. On December 27, 1994, the court committed Reynolds to the custody of the Attorney General for study and observation. After the study was concluded, the court conducted an evidentiary hearing, and found, by a preponderance of the evidence, that Reynolds had the required mental capacity to assist his counsel at trial.

Branham was sentenced to forty-one months imprisonment; Allen to sixty months imprisonment; and Reynolds to thirty-three months imprisonment. The defendants' timely appeal and the United States' cross-appeal followed.


These consolidated appeals, together with the government's cross appeal, present two questions of first impression in this circuit: (1) whether double jeopardy protections are implicated in an administrative forfeiture after denial of a petition for remission or mitigation has been filed; and (2) whether the Sentencing Commission exceeded its statutory authority in its amendment to note 2 of the United States Sentencing Guidelines (U.S.S.G.) § 4B.1, the Career Offender Guideline. The defendants also raise nine other arguments concerning their convictions and sentencing.


Allen argues that the forfeiture of $44,541 in U.S. currency and a 1987 GMC Pick-Up truck separate from his criminal prosecution constitutes double jeopardy as proscribed by the fifth amendment to the United States Constitution. On August 1, 1994, Allen received two "notices of seizure" from the DEA, one for the currency, and a separate one for the vehicle. The DEA explained that these items were seized pursuant to 21 U.S.C. § 881 because they were used or acquired as a result of the drug-related offense. Allen submitted timely petitions for remission or mitigation for both items. On November 18, 1994, Allen received a letter from the DEA stating that his petition in regard to the currency had been denied "because it did not satisfactorily meet the requirements for remission or mitigation." On November 24, 1991, he received a similar rejection letter for the vehicle. Because Allen failed to file a timely claim and cost bond, the property was administratively forfeited. 19 U.S.C. §...

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