U.S.A v. Brazil, 09-1566
| Decision Date | 30 August 2010 |
| Docket Number | No. 09-1566,09-1566 |
| Parties | UNITED STATES OF AMERICA Plaintiff-Appellee. v. STANLEY THOMAS BRAZIL, JR. Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
BEFORE: COLE and McKEAGUE, Circuit Judges; MAYS, District Judge.*
Following investigations in 2005 and 2007 of drug trafficking by the Sunnyside Gang in Saginaw, Michigan, prosecutors obtained guilty pleas from and convictions against numerous gang members. Stanley Brazil, Jr., one of the gang leaders, who was convicted and sentenced to serve two concurrent 380-month terms, now appeals both his conviction and his sentence. We affirm.
Over the course of several years the Sunnyside Gang sold crack cocaine on the South Side (or "Sunnyside" area) of Saginaw, Michigan. In 2005, the government arrested, indicted, and convicted several gang members, and in 2007 launched a second wave of investigations. This second wave ultimately resulted in the November 14, 2007, indictment of ten individuals, including Brazil. The superceding indictment charged Brazil with: (1) conspiracy to distribute and possesswith intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); (2) together with Willie Floyd Jackson distributing and aiding and abetting in the distribution of fifty grams or more of cocaine base on September 13, 2007, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2 (Count 19); (3) together with Kevin Stephens distributing and aiding and abetting in the distribution of fifty grams or more of cocaine base on October 1, 2007, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2 (Count 21). On September 15, 2008, the day before trial, the government moved to dismiss Count 1 of the superceding indictment, the charge of conspiracy, in order to "narrow the issues presented at trial and conserve judicial resources."
Brazil's trial began on September 16, 2008. The prosecution's first witness, called on September 17, was Detective Sergeant Scott L. Woodard of the Michigan State Police. Woodard testified that as of September 13, 2007, he had been assigned to the Bay Area Narcotics Enforcement Team (BAYANET) to investigate drug conspiracy crimes in Saginaw, Michigan. Along with Michigan State Trooper Neal Bryant Sommers and ATF Agents Tom Bowden and Paul Wade, he had worked to set up "controlled purchases" of narcotics from Brazil by the government's confidential informant, Thomas Dancey. Woodard testified that on September 13, 2007, the date of the first controlled purchase, he first searched Dancey to make sure that Dancey was not carrying money, weapons, or narcotics, and then gave Dancey a digital audio recorder and $2,500 to buy drugs from Brazil. Woodard and his team kept Dancey under surveillance while Dancey walked back to his house; Dancey then met up with his brother, who was unaware of Dancey's participation in the controlled purchase, and Dancey's brother drove Dancey to meet Brazil. Following thismeeting, Woodard retrieved the recording device from and again searched Dancey. Five hours later, as Woodard watched with a video camera, Brazil drove to Dancey's apartment in a pickup truck and Willie Jackson emerged from the passenger seat. Jackson and Dancey then walked up the stairs into Dancey's apartment, where they remained for five minutes. Once Jackson left, Woodard and his team searched Dancey, and retrieved a baggie of crack cocaine.
Over the course of several days near the end of September 2007, at the encouragement of the investigators, Dancey repeatedly called Brazil to try to set up another drug purchase. According to Woodard, Dancey left a message indicating: (Trial Tr. I:39.) Over a defense objection, the district court then permitted Woodard to testify that Dancey (Id. at 40-41.) The following day, the district court announced that it had concluded that this testimony was inadmissible, and the court issued a limiting instruction to the jury stating that they should not consider it.
Woodard testified that the October 1, 2007, controlled purchase proceeded in roughly the same fashion as had the September 13 purchase: the ATF agents searched Dancey and then gave Dancey $3,000. Woodard then conducted surveillance of the store in Saginaw where Brazil had directed Dancey to meet him. Woodard took several pictures of Brazil's truck driving into the store parking lot. After ten minutes, Dancey and his brother drove away from the parking lot, and Woodard met up with Dancey to again search him. Woodard found that Dancey was not carryingany drugs, and no longer had the money. Woodard then testified that he continued to monitor the situation by police radio as Dancey met with Brazil again, and that the two ATF agents picked Dancey up following the meeting. (Other prosecution witnesses, including Bowden and Wade, testified regarding the drug delivery portion of the October 1 controlled purchase.)
On cross-examination, Woodard testified that Dancey had approached the police with the idea of targeting Brazil, and that he knew that Dancey had bad feelings against Brazil. Woodard conceded that he had not searched Dancey's brother on September 13, nor had he searched a neighbor with whom Dancey spoke briefly before meeting Jackson and Brazil at his apartment. Woodard also admitted that he suspected that Dancey was selling drugs on the side even while working with the police, and that he confronted Dancey in May of 2007, but ultimately decided to pay Dancey more money for each controlled purchase so that Dancey could afford to live. Dancey was ultimately paid between $50 and $300 for each purchase.
The prosecution's second witness was Sommers, the state trooper who, along with Woodard, was also assigned to BAYANET at the time of these controlled purchases. Sommers testified that he had helped keep Dancey under surveillance during the September 13 controlled purchase, and that he had watched Dancey, driven by Dancey's brother (the "unwitting party"), go to meet Brazil at Brazil's house ("3200 Flamingo"). On cross-examination, Sommers clarified that on September 13 he had seen Willie Jackson get out of the passenger side of a pickup truck and go into Dancey's apartment. Sommers then saw Dancey leave his residence and briefly meet with his neighbor before bicycling off to meet Woodard.
The prosecution's third witness was Bowden, the ATF agent leading the team investigating the Sunnyside Gang. Bowden testified that as part of this investigation he had worked closely with Dancey, who had made a total of 40 controlled purchases from April 3, 2007, through October 3, 2007. Bowden explained that on the morning of September 13, 2007, he had identified a car belonging to a girlfriend of Brazil's outside of3200 Flamingo. He then told Woodard and Sommers to contact Dancey and set up a controlled purchase from Brazil. Bowden testified that, as it was a long distance from Dancey's residence ("1623 Hess") to 3200 Flamingo, which was in a suburb of Saginaw, the investigators agreed that (to avoid raising suspicions) it would be best to have an "unwitting individual" (Dancey's brother) drive Dancey. Also to avoid arousing Brazil's suspicions, Bowden explained, the investigators had been putting out a story that Dancey had received $35,000 as a legal settlement after bringing a lawsuit based on being harmed while working with asbestos.
Bowden confirmed that on September 13, 2007, the investigators met with and searched Dancey, gave Dancey the money, and then tracked Dancey as Dancey and his brother drove to Brazil's house. Dancey spent approximately nine minutes in Brazil's house, and then Dancey and his brother drove to a gas station. Bowden and Sommers set up surveillance at Dancey's house to wait for the drug delivery. While waiting, Bowden had Dancey call Brazil four times to check to see that the delivery was going to take place; those calls were taped, and were introduced at trial. Bowden testified that he saw Brazil and Jackson drive up, and Dancey come outside and meet with Jackson. Once Brazil and Jackson left, Bowden added, he saw Dancey leave the house, talk to two nearby individuals, and then get on his bike to meet with Woodard. Bowden testified that he was able to keep visual contact with Dancey "one hundred percent from the time he exited the apartmentto the time he met up with us at the road commission." (Id. at 101.) According to Bowden, Dancey came no closer than 3-4 feet from the first individual he spoke with after leaving his house; Bowden saw the second individual hand Dancey a slip of paper. When Bowden and the others searched Dancey, they retrieved a bag containing approximately two and a half ounces of cocaine base.
Bowden also testified at length regarding the October 1 controlled purchase. That morning, Dancey met with law enforcement and was searched and provided with an audio recorder and $3,000 of buy money. Dancey then again received a ride from his brother, who was still an unwitting participant, to meet with Brazil. Following the meeting, Dancey returned home to 1623 Hess, where Bowden again searched him. At this point, Dancey received a call from Brazil, and learned that he was supposed to pick the drugs up at "the Dub," which was the nickname for 3275 South Washington. For this delivery, Dancey wore an audio-visual recorder; the resulting recording was also shown to the jury. The video shows Brazil wiping off a plastic baggie with his shirt, and insisting that the bag...
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