U.S. v. Brewer
| Citation | 1 F.3d 1430 |
| Decision Date | 16 August 1993 |
| Docket Number | No. 92-5118,92-5118 |
| Parties | 39 Fed. R. Evid. Serv. 468 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Allen BREWER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Douglas James Wood, Roberts & Wood, Riverdale, MD, argued for defendant-appellant.
Flora Amelia Francis, Sp. Asst., U.S. Atty., Alexandria, VA, argued (Richard Cullen, U.S. Atty., on the brief), for plaintiff-appellee.
Before WIDENER, PHILLIPS, and HAMILTON, Circuit Judges.
Appellant Dennis Brewer challenges his convictions on eight counts of possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), pressing a number of claimed errors by the district court for our review. Finding no reversible error, we affirm.
Acting on Arlington County Police Detective Samuel Dale's testimony recounting facts provided by his informants, a federal grand jury in the Eastern District of Virginia indicted Brewer on fourteen counts of possession with intent to distribute fifty or more grams of crack cocaine (21 U.S.C. Sec. 841(a)(1)). Before trial, the government moved to dismiss six counts for improper venue because a witness interview revealed that they occurred in the District of Columbia rather than the Eastern District of Virginia. Brewer immediately sought dismissal of the entire indictment, contending that Dale necessarily had perjured himself to obtain Brewer's indictment on the six counts in question and that this perjury had "infected" the grand jury's decision to indict on the other eight counts. Finding no convincing evidence that Dale perjured himself, the district court granted the government's motion and denied Brewer's.
Another of Brewer's pretrial motions met with more success. In the course of an earlier custodial interrogation concerning another individual, Brewer allegedly had admitted to federal marshals that he was a "drug dealer." The government wanted to use the admission at trial, but the district court granted Brewer's motion to suppress it because the marshals had failed to give him the Miranda warning before questioning.
At trial, the government relied principally on testimony by three members of a drug distribution ring centered in the Washington, DC metropolitan area and known as the "Rodriguez/Polanco organization": Francisco Perez, Romulo DeLeon, and Edwin Rodriguez. 1
Each earlier had pled guilty to charges arising out of his participation in the ring and received a substantial sentence, and they testified against Brewer pursuant to plea agreements obligating the government to seek sentence reductions in exchange for substantial cooperation. Each testified that he had delivered drugs to Brewer during a period beginning "around March or April or so" of 1990 and ending in October of that year. DeLeon provided details of three deliveries, one in the District of Columbia 2 and two in Virginia. Perez gave the specifics of two more in Virginia. Rodriguez said he'd made about ten deliveries to Brewer in the District and Virginia and testified to the details of five of them, four in Virginia and one in the District.
The government also put on Detective Dale, the lead investigator of the "Rodriguez/Polanco organization." His testimony concerned the methods of communication used by the organization--pagers, cellular phones, extensive long distance calls--and what they meant to a narcotics investigator.
The government also called Waquesha Scott, Brewer's fiancee, to testify about a statement she'd allegedly made to Deputy United States Marshal Martin Flynn that Brewer "dealt drugs." On the stand, Scott denied making the statement and volunteered, without being asked, that the marshals had tried to induce her to make such a statement by telling her that Brewer had already admitted as much to them. She then denied that Brewer was a drug dealer or that she'd ever seen him with drugs. Called to rebut Scott's denial of the prior statement, Flynn testified that Scott told him, in the course of another investigation, that Brewer dealt drugs but that she'd only seen Brewer with them once.
Brewer called no witnesses. At the close of his case he moved for a mistrial based on Scott's revelation of the suppressed confession, but the district court denied the motion after noting the absence of contemporaneous objection or motion to strike and offering to provide a curative instruction at Brewer's request.
Brewer also sought a judgment of acquittal on Count Six of the original indictment, which alleged that Brewer possessed crack cocaine with intent to distribute it "on or about February 1990," claiming that no one testified to a transaction at that time. Identifying the indicted transaction as the one Rodriguez conducted in "March or April or so" of 1990, the district court denied Brewer's motion.
The jury found Brewer guilty on all eight counts, and the district court entered judgments of conviction accordingly, sentencing him to 360 months. He appealed.
When the six District of Columbia transactions in Brewer's original indictment were dismissed on the government's motion, Brewer unsuccessfully argued for dismissal of the entire indictment as improperly obtained. He renews the contention here, arguing that the district court's refusal to exercise its supervisory authority and dismiss the whole indictment before trial constituted an abuse of discretion. We disagree.
The district court can exercise its supervisory authority to dismiss an indictment for errors in grand jury proceedings only where an irregularity prejudicing the defendant has been shown. Bank of Nova Scotia, 487 U.S. 250, 254, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988). Brewer characterizes the irregularity here as the presentation of perjured testimony to the grand jury, but we concur with the district court's factual finding that no convincing evidence of perjury was adduced. The irregularity in question, then, is presentation to the grand jury of erroneous testimony about venue for the six counts of the indictment ultimately dismissed by the government.
Where, as here, a grand jury irregularity isn't of constitutional dimension, prejudice justifying dismissal of an indictment exists only where (1) the irregularity substantially influences the decision to indict or (2) "there is grave doubt that the decision to indict was free from the substantial influence of such [irregularities]." Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374 (internal quotation marks and citation omitted). Brewer can't demonstrate either of these conditions with respect to the eight counts of his indictment on which he ultimately was convicted. Those counts are legally unrelated to the six charges ultimately dismissed because of Dale's erroneous testimony, and the evidence Dale provided to support indictment on the former is independent of that he provided to secure indictment on the latter. Nothing in the record suggests that his erroneous grand jury testimony pertaining to the six dismissed counts substantially influenced the jury's decision to indict Brewer on the other eight or induces grave doubt that the grand jury's decision to do so was free from improper influence stemming from Dale's erroneous testimony. The district court correctly refused to dismiss the remainder of Brewer's indictment.
Brewer also challenges four of the district court's decisions on evidentiary matters. We review these challenges seriatim.
A
Brewer first contends that the district court erred in admitting the testimony of his fiancee, Waquesha Scott, because she was called solely to provide improper character evidence "for the purpose of proving action in conformity therewith on a particular occasion," evidence generally forbidden 3 by Fed.R.Evid. 404(a). 4 The government argues (1) that Brewer failed to preserve this error and (2) that Scott was called to provide testimony that she'd told federal marshals Brewer was a "drug dealer," which the government claims constituted evidence of "of other crimes, wrongs, or acts" admissible under Rule 404(b) to show Brewer's intent to distribute and knowing possession. Both intent and knowledge are elements of the indicted offense put in issue by Brewer's "not guilty" plea. See United States v. Sparks, 560 F.2d 1173, 1175 (4th Cir.1977).
We agree with the government that Brewer failed to preserve this error. Before Scott took the stand, Brewer's counsel objected to the government's request to treat Scott as a hostile witness. The district court sustained that objection, requiring the government to demonstrate adversity before it could treat Scott as hostile. Immediately thereafter followed this frequently interrupted examination of Scott by the government:
Q. Were you interviewed by United States Marshals about Mr. Brewer?
A. Yes, I was.
Q. And did you tell the marshals--
[Brewer's counsel]: Objection, Your Honor.
[United States]: I'll rephrase the question ...
[District Court]: All right.
Q. Does Dennis Brewer deal drugs?
A. No.
[Brewer's counsel]: Objection.
[District Court]: Overruled.
A. No, he does not. They tried to make me say he did.
Q. Has he ever dealt drugs?
A. No, he has not.
Q. Have you ever seen him with drugs?
Q. Do you remember when you were interviewed by the marshals?
A. ... I remember ...
Q. And isn't it true that you told the marshals at that time that--
[Brewer's counsel]: Objection, Your Honor.
[District Court]: Stand up and tell me what the objection is.
[Brewer's counsel]: It's his witness.
[District Court]: Overruled. You [the United States] may now lead [the witness].
J.A. at 262-63. While the transcript excerpt reveals that Brewer's counsel objected to the question "Does Dennis Brewer deal drugs?" (after Scott had already answered it), he stated no basis for his objection. To preserve an objection to admissibility for appeal, Fed.R.Evid. 103(a) requires such a statement unless...
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