U.S. v. Alston, No. 88-8802

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore HATCHETT and CLARK, Circuit Judges, and HILL; HILL; HATCHETT
Citation895 F.2d 1362
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Thurnell ALSTON, Ervin Brennon, Defendants-Appellants.
Docket NumberNo. 88-8802
Decision Date08 March 1990

Page 1362

895 F.2d 1362
UNITED STATES of America, Plaintiff-Appellee,
v.
Thurnell ALSTON, Ervin Brennon, Defendants-Appellants.
No. 88-8802.
United States Court of Appeals,
Eleventh Circuit.
March 8, 1990.

Page 1364

Donald F. Samuel, The Garland Firm, P.C., Atlanta, Ga., for Thurnell Alston.

Richard D. Phillips, Ludowici, Ga., for Ervin Brennon.

Hinton R. Pierce, U.S. Atty., William H. McAbee, II, Asst. U.S. Atty., Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before HATCHETT and CLARK, Circuit Judges, and HILL, Senior Circuit Judge.

HILL, Senior Circuit Judge:

I. INTRODUCTION

A. Procedural History and Issues Presented.

In this case, appellant Thurnell Alston was convicted after a jury trial of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846; use of a telephone to facilitate the distribution of cocaine, in violation of 21 U.S.C. Sec. 843; and accepting a bribe as a public officer under the Hobbs Act, in violation of 18 U.S.C. Sec. 1951. The jury found Alston not guilty of possessing a small amount of cocaine with intent to distribute it on two separate dates.

Appellant Ervin Brennon was charged with the same cocaine-related offenses as Alston but reached a plea agreement with the government, pursuant to which Brennon entered a guilty plea on a single count of possession with intent to distribute several ounces of cocaine.

Appellant Alston claims that the district court erred by (1) failing to find that the prosecutor intentionally excluded black persons from the jury; (2) refusing to instruct the jury on entrapment; (3) failing to find that Alston was a minor or minimal participant in the cocaine scheme under the United States Sentencing Guidelines; and (4) finding that the cocaine conspiracy involved three kilograms of cocaine instead of either six ounces or, at most, one kilogram. These allegations of error focus on factual determinations by the district court and are subject to the clearly erroneous standard. After a careful review of the record, we find no error.

Appellant Brennon raises only two issues that warrant discussion. He claims that the district court incorrectly determined his base offense level for the single charge to which he pled guilty when it considered his involvement with a quantity of cocaine not covered by the count of conviction. Brennon also claims that even if the sentencing court could take into account his involvement with a quantity of drugs not covered by the count of conviction, that court cannot consider such conduct unless it is proven beyond a reasonable doubt. These claims are without merit. A straightforward reading of the Sentencing Guidelines reveals that a sentencing judge can and should consider the defendant's involvement with a quantity of drugs not covered by the count(s) of conviction when such conduct was undertaken in the "same course of conduct or common scheme or plan as the offense of conviction." United States Sentencing Guidelines Sec. 1B1.3(a)(2). 1 Second, as was the case before enactment of the Sentencing Guidelines, sentencing judges are free to consider such conduct when proven by a preponderance of the evidence.

B. The Facts.

Georgia Bureau of Investigation Agent Billy Carter met Alston for the first time on November 3, 1987, after the two were introduced by a government informant. Agent Carter 2 projected the image of a

Page 1365

drug dealer who was interested in opening a nightclub and/or teen center in McIntosh County, Georgia, where appellant Alston served as a county commissioner. At their initial meeting, Agent Carter solicited Alston's assistance in securing a liquor license and the necessary approval for his proposed "club." A tape of the conversation revealed that Alston agreed to accept $1200 every two weeks from Agent Carter for his help in securing approval for the proposed "club." After Carter indicated that he desired to use the "club" as a location from which to sell cocaine, Alston suggested that he could keep Carter informed about law enforcement investigations into the drug trade in McIntosh County.

Two days later, on November 5, 1987, County Commissioner Alston attended a meeting previously arranged by the Chairman of the McIntosh County Commission to address the drug problem in McIntosh County. This meeting was arranged as a private discussion between McIntosh County Investigator Jimmy Amerson and an agent of the Federal Drug Enforcement Administration. Alston had not been authorized to attend the meeting, but was informed by Investigator Amerson that federal authorities were contemplating an investigation into drug activity in McIntosh County. Alston brought with him Appellant Brennon, his brother-in-law, whom Alston presented as someone who could be an informer in a federal drug investigation and would be in a position to provide vital information for planning and organizing such an investigation.

Immediately after his November 5, 1987, meeting with the DEA agent in connection with the proposed federal investigation, Alston attended a pre-arranged meeting with Carter. At their meeting, Alston again told Carter that he could advise Carter of law enforcement operations in the county through his own inside knowledge of those activities and through investigator Amerson, who Alston claimed would keep him informed. At this second meeting, Alston received the first of eight, $1200 payments.

For the next six months, Alston made various arrangements to assist Agent Carter in gaining approval for his "club." In December of 1987, Alston introduced Agent Carter to Ervin Brennon, a person Alston claimed was trustworthy and could "do business" with Carter. In the early spring of 1988, Agent Carter met with Alston on several occasions to further the arrangements for opening the "club" and to make additional payments to Alston.

Carter also met with both Alston and Brennon at Alston's home on several occasions to discuss plans for a partnership between Carter and Brennon to control the cocaine trade in McIntosh County. While Alston did not actively participate in the discussions, he (1) was present during these meetings at his home, (2) agreed to keep Brennon and Carter apprised of drug-related investigations in the county, (3) passed messages from Carter to Brennon regarding their cocaine transactions, and (4) made sure that Carter and Brennon were not disturbed while making their plans or transacting the sale of six sample ounces of cocaine.

Alston, Brennon, and Carter understood that the relatively small quantity of cocaine sold to Carter was a preclude to a much larger transaction. On various occasions, Brennon and Carter discussed a multi-kilogram cocaine transaction in Alston's presence. Although it was his practice to contact Alston before travelling to McIntosh County, in the latter part of April, 1988, a week after Carter, Brennon and Alston had discussed the per-kilogram price at which Brennon could deliver large quantities of cocaine, Carter paid an unannounced visit to Alston and Brennon. Carter picked up Alston and Brennon and drove them to a nearby hotel, where he displayed $100,000 in cash as evidence that he had the resources to purchase several kilograms of cocaine. 3 The original plan was for Brennon to sell Carter three to five kilograms of

Page 1366

cocaine depending upon the quantity that would be available from Brennon's local supplier.

Later that same day, the three men returned to Alston's home, where Brennon and Carter discussed the specifics of the sale in Alston's presence. When pressed, Brennon stated that while his local supplier had three kilograms of cocaine in his possession at the time, the supplier was only willing to give Brennon one of them. At that point, Alston proposed that he and Brennon should make arrangements to get more kilograms of cocaine from their contacts in Florida. Alston suggested that Brennon should carry the money to Florida and get them himself. The record indicates that the meeting ended with Brennon agreeing to check into getting additional kilograms of cocaine as Alston had suggested and to deliver either a one or three kilogram quantity to Carter within approximately a week.

On April 28, 1988, the investigation was terminated and both appellants were arrested because Agent Carter's true identity was leaked by a grand juror from McIntosh County who told a relative of Brennon's that Carter was really a GBI agent.

II. DISCUSSION

A. Appellant Alston's Batson Challenge.

Four of the government's six mandatory peremptory challenges were exercised against black members of the venire panel. The jury was comprised of eleven white persons and one black. Appellant Alston challenged the government's use of its peremptories in this fashion and the court held a hearing outside of the jury's presence. The court noted that there was a prima facie case of intentional discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), based exclusively upon the fact that the prosecutor had struck four black jurors and that the defendant was black. To establish a prima facie case of intentional discrimination in the exercise of peremptory challenges, the defendant must "raise an inference" that the prosecutor used peremptories to exclude a member of a recognized minority from the petit jury because of his or her race. 4

Once a prima facie case is demonstrated under Batson, the prosecutor must go beyond merely denying that he had a discriminatory motive and must provide "a neutral explanation related to the particular case to be tried." Id. at 98, 106 S.Ct. at 1724 (footnote omitted). The prosecutor's explanation must be a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the peremptory challenges in the contested manner. Id. at 98 n. 20, 106 S.Ct. at 1724 n. 20. "As stated by the Batson court,...

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  • Eagle v. Linahan, No. 98-8166.
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