U.S. v. Brown, 92-6233

• Decision Date: 04 June 1993
• Docket Number: No. 92-6233,92-6233
• Citation: 995 F.2d 1493
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jermaine BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1493

995 F.2d 1493

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

No. 92-6233.

United States Court of Appeals,

Tenth Circuit.

June 4, 1993.

Jerome Kearney, Asst. Federal Public Defender, Oklahoma City, OK (June E. Tyhurst, Asst. Federal Public Defender, Oklahoma City, OK, on the brief), for defendant-appellant.

Mike Ringer, Asst. U.S. Atty., Oklahoma City, OK (Joe Heaton, U.S. Atty., and M. Jay Farber, Asst. U.S. Atty., Oklahoma City, OK, on the brief), for plaintiff-appellee.

Before LOGAN, HOLLOWAY and MOORE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Jermaine Brown appeals his conviction and sentence for (1) conspiracy to possess cocaine with intent to distribute and to distribute the same in violation of 21 U.S.C. § 846; (2) possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (3) use or carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); and (4) controlling premises and making them available for storing and distributing cocaine base in violation of 21 U.S.C. § 856(a)(2).

Brown contends the district judge misapplied the Sentencing Guidelines by granting the government's request for a two-level enhancement in offense level pursuant to U.S.S.G. § 3B1.1, based on Brown's alleged role in the offense as a "manager" of the conspiracy charged, and by refusing Brown's request for a two-level reduction in offense level pursuant to U.S.S.G. § 3B1.2 for his alleged "minor participant" role. Brown also contends the court erred in denying his motion for a judgment of acquittal, claiming the evidence was insufficient to support his convictions.

I

Viewing the evidence in the light most favorable to the government as we must following a guilty verdict, United States v. Dysart, 705 F.2d 1247, 1248 (10th Cir.1983), cert. denied, 464 U.S. 934, 104 S.Ct. 339, 78 L.Ed.2d 307 (1983), the trial evidence tends to show the following relevant facts.

In the early morning hours of September 23, 1991, Oklahoma City police attempted to execute a search warrant at a suspected crack cocaine house in Oklahoma City, Oklahoma. As the officers broke down the front door, gun shots were fired from the inside of the house toward the door, and one officer was apparently injured and another was struck by flying glass. IV R. 21-23. The officers eventually entered the house and nine people came out and were arrested, including Brown. Id. at 37-38, 94. On the floor of the house, the officers found a loaded TEC-9 9mm semiautomatic gun with a round jammed between the chamber and the bolt. The magazine in the gun contained 28 live rounds of ammunition. In the living and dining rooms of the house, 9mm shell casings were found. Id. at 252; V R. 263-70. In a planter box the officers found a clip containing 36 live rounds. V R. 269, 271. A .22 caliber weapon was also found in the converted garage area, with nine live rounds in its chamber. IV R. 253. Subsequent ballistics tests indicated that projectiles and cartridge casings from the house had been fired from the TEC-9. V R. 304-06. Mr. Robertson, the firearms investigator who runs the Oklahoma City Police Department Ballistics Laboratory, testified that from the position where the rounds were found in the dining room, two rounds might have been fired by someone crouched behind the planter, but as to four or five other rounds, the shooter would have to have been farther out in another area. V R. 309-10. There was testimony that a fingerprint from Brown and a latent fingerprint from the ammunition clip were made by the same person. V R. 320, 336, 339-41.

The government called Sylvester Mays who lived at 1826 Northeast 48th Street in Oklahoma City, where the arrests in this case occurred. IV R. 55. Mays was arrested on September 23, 1991, when the police executed a search warrant at his house. He has an agreement with the government relating to his testimony and cooperation under which the federal government is not going to press charges on these events and the state is going to handle them. Id. at 56-57. Mays said he had been living at the house on 48th Street about six months or a year. He made an agreement with codefendant James Thomas for Thomas to occupy the house. They had sat in Mays' dining room and Thomas gave him some crack cocaine and asked Mays if he could "work at the house" and Mays agreed. Id. at 60. Thomas gave Mays $100 worth of cocaine in order to work in the house, which Mays explained as meaning selling crack cocaine there. Id. at 61. In return for this agreement, Mays was going to get cocaine. Thomas then immediately started selling cocaine out of the house and brought other people with him, including Jermaine Brown and Walter Roberson. Id. at 62. Mays identified Brown in court.

Mays testified that he had seen Brown at his home about three times between the time when they met and were arrested. He had seen Thomas give Brown a "lump sum" of crack cocaine and Brown would sell out of the home on 48th Street. Id. at 64. He had seen Thomas give Brown a big bag of cocaine and Jermaine was selling it and sold quite a bit that day to people that came to the door. Id. at 64. A typical transaction was that someone would knock at the door, Mays would answer and ask what they wanted, and then would get it from Brown, giving the crack cocaine to the people. The money was then given to Brown. The same thing was done when Thomas was there and Thomas would give Mays the dope and Mays would give Thomas the money. Id. at 65. In the house Mays had seen a 9mm gun and a .22 caliber gun. He saw Jermaine Brown handle a gun one particular day. Mays had also seen Thomas handle the guns. On one occasion, a friend of Mays came in and wanted some crack cocaine. This friend was a little intoxicated and he took a long time to tell Mays what he wanted. Brown pointed the 9mm gun at the man's head and told him to make up his mind or he would have to get out. Id. at 66-67, 105. Mays had also seen Brown handle the gun on other occasions. Id. at 68. Mays had obtained cocaine himself from Brown. Id. at 69.

Mays said that the evening of the arrest he had come back to the house and about three minutes later the police "just busted us." He said that Brown, Thomas and Walter Roberson were in the dining room. Also Regina Riggs had been staying at the house. Mays was asked about the coming and going of different people from the house and was asked if Thomas was gone who was "left in charge with handling the dope and keeping the guns and--and the money?" Mays answered, "Jermaine." Id. at 74. Mays also was asked whether Brown was in the house when people were coming and going and buying crack cocaine and Mays answered that Brown was there. Id. at 75.

On cross-examination Mays admitted that he had told the arresting officers that the drugs belonged to Thomas; he said that Thomas, Regina and "another guy" had sold the drugs. Id. at 89-90. Mays said that he had seen Brown sell drugs at the house and that both Thomas and Brown were giving Mays free dope when Mays would bring them the money from a customer. Id. at 100, 102. Mays testified that the guns had to have been Thomas' guns but that Brown definitely was holding one gun and pointed the gun at a friend of Mays and told him that he had to make a choice on getting some cocaine or getting out. Id. at 105. On cross-examination Mays said that the making of the agreement by him with Thomas about use of his house was a week before the arrests on September 23, 1991. Id. at 106. Mays said that Brown showed up later on the same day that the arrangements were made. Thomas left and he came back and Jermaine Brown was with him. Id. at 108.

During cross-examination Mays said that he saw firearms which Thomas and Jermaine Brown had. Id. at 113. Mays testified he saw Jermaine Brown at his place three times, first on Tuesday or Wednesday before the arrests on Monday, September 23, then on Thursday or Friday of that week, and last on the following Monday on the day of the drug bust. Id. at 114-116. Mays was asked about who was helping in running the show at the home and he replied: "I was--transacted crack cocaine, I would take they [sic] money, and I would give it to James, or I would give it to--I would give it to Jermaine or James." Id. at 126-127.

Bruce Cooks was called by the government to testify about the events at the crack house of Mays. He had been in the county jail since the September 1991 arrests and had an agreement that no federal charges would be filed if he testified truthfully, but state charges for distribution were being prosecuted against him and he had entered a guilty plea to that charge. IV R. 202-03. Cooks had been to Mays' house on 48th Street a couple of times about two weeks before the arrests. He gave money to Kenneth Webb who purchased cocaine there from Thomas. Cooks first saw Jermaine Brown on Friday in the den area of the house. Id. at 208. On Saturday night Cooks was at the house about 7 o'clock and Thomas was upset because his guns were missing but they were relocated about 3 o'clock that Sunday morning. While Cooks was in the house at that time he said it was Regina and James Thomas selling dope and that he did not ever see Brown handle the dope but he did see him handle the guns. Id. at 212. He saw Brown with the firearm during the drug transactions. Id. at 213. Cooks testified that he never directly saw Jermaine Brown selling any drugs. Id. at 214.

However when his testimony before the grand jury was related, Cooks stated that on Friday night Brown did count some drugs out. Id. at 215, 239. Thomas was the one who was running the house and was the main source. Id. at 216. Cooks recalled that Sunday night Jermaine, Walter Roberson and Thomas came back to the house about 6 o'clock. Id. at 216. Then the police came and at that time Brown was sitting in a chair "cater-cornered from the front door,"...