U.S. v. Brett

• Decision Date: 24 April 1989
• Docket Number: 88-1900,Nos. 88-1899,s. 88-1899
• Citation: 872 F.2d 1365
• Parties: UNITED STATES of America, Appellee, v. Noel S. BRETT, a/k/a Michael Wilson, Appellant. UNITED STATES of America, Appellee, v. Hilroy Anthony GREY, a/k/a: Holroy Anthony Gray, James R. Monroe, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1365

872 F.2d 1365

UNITED STATES of America, Appellee, v. Noel S. BRETT, a/k/a Michael Wilson, Appellant.

UNITED STATES of America, Appellee, v. Hilroy Anthony GREY, a/k/a: Holroy Anthony Gray, James R.

Monroe, Appellant.

Nos. 88-1899, 88-1900.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 16, 1988.

Decided April 24, 1989.

David F. Oliver, Kansas City, Mo., for appellant Noel S. Brett.

Joseph M. Chiarelli, Kansas City, Mo., for appellant Hilroy Anthony Grey.

Linda L. Sybrant, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before LAY, Chief Judge, FAGG, Circuit Judge, and REASONER, ^* District Judge.

LAY, Chief Judge.

Hilroy Anthony Gray, Noel S. Brett and Carl A. Williams ¹ were arrested at a crack cocaine house in Kansas City, Missouri, on November 4, 1987. They were each indicted on three counts: conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(C) (Count I); possession, with intent to distribute, of five grams or more of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B) (Count II); and use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c) (Count III). After jury trial Gray and Brett were convicted of all three counts; they were sentenced to 171 months and 157 months, respectively, under the Federal Sentencing Guidelines (Guidelines). 18 U.S.C. Sec. 3551, et seq. Both defendants appeal and attack the sufficiency of the government's evidence. In addition, Gray alleges the district court ² erred in refusing to grant his motion in limine and in the application of the Guidelines. We affirm the conviction and sentence of both defendants Brett and Gray.

In November, 1987, the Kansas City, Missouri, Police Department was investigating suspected drug house activities. On November 2, 1987, Detective Rosilyn Morrison, while working in an undercover capacity, went to a house at 4039 Park Avenue and purchased crack cocaine from two unknown black males. On the basis of this purchase Detective Morrison obtained a search warrant for 4039 Park Avenue on November 4, 1987. The search warrant was executed at approximately 6:00 p.m. that same day.

As point man of the Tactical Response Unit which was to conduct the search, Officer Inman was first to reach the back door of the house. As he got to the back door he saw a black male run out and head north. Inman then entered the house and arrested two other black males, Carl Williams and Noel Brett. After securing Williams and Brett, Inman went outside to look for the individual who had fled. Two houses north of 4039 Park Avenue, Hilroy Gray was found hiding under a porch. Also found under the porch next to Gray was $300 in currency. Inman then arrested Gray.

A search of 4039 Park Avenue revealed the existence of a fortified drug house. While the utilities were on, the house did not appear to be lived in. It had no refrigerator, no stove, no food, no telephone, and there was no clothing present. The windows were covered and the doors were reinforced. The back door was reinforced with plywood and had two locks on it as well as a chain lock at the top. The front door had metal brackets on either side of the frame which were fitted with a two-by-four board across the door.

When the search of the house was completed, Williams, Brett and Gray were personally searched. Williams had in his possession a 9 millimeter pistol with thirteen rounds of ammunition in the magazine and one round in the chamber. Also recovered from Williams was $1,465 in cash and a large plastic bag, later determined to contain 82 small ziplock bags of crack cocaine totalling 46.66 grams in weight. Seized from Brett was $1,300 in currency. Finally, in addition to the $300 found under the porch, $3,746 in additional currency was seized from Gray along with a key. When asked whether the key fit the front door to the house at 4039 Park Avenue, Gray denied that it did. The detectives at the scene tested the key, however, and determined that it did in fact fit the lock on the front door.

Detective Samuel Burroughs formally placed all three defendants under arrest and gave each his Miranda warnings. Brett thereafter admitted to Burroughs that 4039 Park Avenue was a drug house and that his job was to hold the gun and act as a lookout. Brett told Detective Dave Starbuck that he sold cocaine at this house and had used the pistol, seized earlier from Williams, in providing security during drug transactions. Brett also told Starbuck that Williams had arrived with the bag of crack cocaine about one hour before the police appeared with the search warrant and that he, Brett, had sold some of the cocaine before the police arrived. Finally, Brett advised officers that Williams had also delivered cocaine on the previous day, November 3.

Detective Burroughs advised Gray of his rights on two different occasions. In response to questioning Gray stated that his name was James Monroe, that he did not work at the drug house, that he was unemployed, that the total of $4,046 seized from him was not drug money, and that the key found in his pocket did not fit the front door of the drug house. It was not until November 30, 1987, that Hilroy Anthony Gray admitted his true identity to authorities.

I. Sufficiency of the evidence

Both Brett and Gray challenge the sufficiency of the government's evidence and argue it was error for the district court to deny their motions for acquittal.

A. Brett

The evidence presented as to Brett's involvement was unequivocal and certainly more than sufficient to sustain his conviction. By his own admission Brett confessed to being both the "lookout" and the "hired gun" who provided security for the drug transactions at a proven crack cocaine house. Brett also admitted to personally selling cocaine. Furthermore, he admitted having knowledge that Williams was similarly engaged in the possession and sale of cocaine. This being the sole issue raised in his appeal, defendant Brett's conviction and sentence are affirmed.

B. Gray

It is undisputed that the extent of the government's evidence implicating Gray consisted only of the following: (1) he fled from the scene at the time officers initially approached the house; (2) he falsely identified himself at the time of arrest; (3) he had $3,746 in his possession at the time of his arrest and claimed ownership to an additional $300 recovered from the location where he was apprehended; (4) he stated that he was unemployed, but would not explain how he obtained the money which he claimed was his; and (5) he possessed a key to the front door of 4039 Park at the time of arrest and denied that the key fit the front door lock.

Gray's argument concerning Count I, the conspiracy charge, is that the government presented no direct evidence that he participated in or knew of any conspiratorial agreement. This argument, however, overlooks the rule that circumstantial evidence alone can prove the existence of such an agreement. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Townsley, 843 F.2d 1070, 1087 (8th Cir.1988); United States v. Burchinal, 657 F.2d 985, 992 (8th Cir.), cert. denied, 454 U.S. 1086, 102 S.Ct. 646, 70 L.Ed.2d 622 (1981).

We find the government produced a sufficient amount of circumstantial evidence concerning Gray's involvement in the conspiracy. The significant link showing Gray's participation in the conspiracy was his possession of a key to the front door of 4039 Park. This house was a fortified, operational crack house where over 46 grams of cocaine, large amounts of cash, a gun and ammunition were concealed. Gray stresses that each of the above-mentioned pieces of circumstantial evidence standing alone is insufficient to sustain a conspiracy conviction. While it may be that, standing alone, each piece of this evidence would perhaps be insufficient to convict, its cumulative effect cannot be ignored. The jury was aware of all of the facts and it reasonably concluded that Gray was a knowing participant in the conspiracy. The conspiracy conviction in Count I is affirmed.

As to Count II, Gray contends the government did not prove the requisite elements of possession and intent to distribute cocaine. We disagree. Possession of contraband may be actual or constructive. United States v. Jones, 676 F.2d 327, 332 (8th Cir.), cert. denied, 459 U.S. 832, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982). Proof of constructive possession is sufficient to satisfy the element of knowing possession under Sec. 841(a)(1). United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988); United States v. Shurn, 849 F.2d 1090, 1093 (8th Cir.1988). A person has constructive possession of contraband if he has "ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed." Matra, 841 F.2d at 840 (emphasis added). See also Shurn, 849 F.2d at 1093. Finally, constructive possession may be joint among several defendants; it need not be exclusive. United States v. O'Connell, 841 F.2d 1408, 1425 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989); United States v. Caspers, 736 F.2d 1246, 1249 (8th Cir.1984).

Once again the evidence presented was that Gray had the key to the front door of 4039 Park in his pocket. Gray concedes in his reply brief to this court that possession of the key may have permitted him to exercise control over 4039 Park. However, he argues this fact is insignificant in light of the fact that defendants Brett and Williams exercised the same control, as evidenced by their admitted presence at 4039 Park on November 4, 1987, and prior occasions. This argument is unpersuasive and similar arguments have been rejected by this court repeatedly. As this circuit held in O'Connell, 841 F.2d at 1425, and Caspers, 736 F.2d at 1249, constructive possession may be joint among several defendants; it need not...