U.S. v. Brown

• Decision Date: 25 February 1998
• Docket Number: 97-2374,Nos. 97-2351,s. 97-2351
• Citation: 136 F.3d 1176
• Parties: 48 Fed. R. Evid. Serv. 1168 UNITED STATES of America, Plaintiff-Appellee, v. Robert BROWN and Lemond Jenkins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1176

136 F.3d 1176

48 Fed. R. Evid. Serv. 1168

UNITED STATES of America, Plaintiff-Appellee, v. Robert BROWN and Lemond Jenkins, Defendants-Appellants.

Nos. 97-2351, 97-2374.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 1997.

Decided Feb. 25, 1998.

Deirdre A. Durborow (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Andrea L. Smith (argued), Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant Brown.

Kevin C. Curran (argued), Federal Public Defender, St. Louis, MO, for Defendant-Appellant Jenkins.

Before BAUER, RIPPLE, and DIANE P. WOOD, Circuit Judges.

BAUER, Circuit Judge.

Robert Brown and Lemond Jenkins appeal a jury verdict finding them guilty of three counts each of food stamp fraud. They argue that the district court erred in admitting into evidence audio tapes and summary exhibits, and erred in calculating the amount of "loss" for sentencing purposes. In addition, defendant Jenkins appeals the district court's refusal to give his requested "good faith" and entrapment instructions to the jury, as well as the court's refusal to reduce his sentence for playing a mitigating role pursuant to United States Sentencing Guideline ("U.S.S.G.") § 3B1.2. Defendant Brown appeals the gambling restriction placed upon him during his period of supervised release. For the reasons set forth below, we affirm.

BACKGROUND

Robert Brown was the owner and operator of two small grocery stores: the Grub Shop, in East St. Louis, Illinois, and the Yellow Store, in Centreville, Illinois. Brown's nephew, Lemond Jenkins, was listed on business In November of 1992, a joint investigation was initiated by the USDA and the Illinois Department of Revenue, Department of Criminal Investigation, based upon the suspicion that the stores were involved in excessive food stamp redemptions. The agent assigned to the case, Stephen Manley, attempted to make controlled food stamp sales for cash to determine if the stores were trafficking in food stamps. Agent Manley first attempted to make a controlled transaction using an undercover deputy sheriff at the Grub Shop, but Jenkins, working at that time, refused to exchange the stamps for cash. Manley then recruited a confidential informant to attempt controlled transactions. The confidential informant, Patches Holmes, succeeded in exchanging stamps for cash on six different occasions at the Grub Shop. ¹ These transactions were recorded on tape and involved food stamp purchases of marked stamps by both Brown and Jenkins. Agent Manley listened to and surveilled each transaction as it occurred and photographed some of the transactions.

documents as the manager of both stores, but worked primarily at the Grub Shop. Both stores were authorized by the United States Department of Agriculture ("USDA") to participate in the Federal Food Stamp program.

On August 21, 1996, Brown and Jenkins were charged by a grand jury with unauthorized acquisition of food stamps and conspiracy to unlawfully redeem food stamps, theft of government money, and bank fraud. They were charged with three counts each of knowingly acquiring food stamps in an unauthorized manner, in violation of 7 U.S.C. § 2024(b)(1), and with conspiracy. ² A jury trial ensued.

At trial, the government introduced the audio tape recordings of the controlled transactions between Patches and both Brown and Jenkins. One tape was introduced for each of the six transactions. For each recording, Patches testified that he listened to the tape, that the tape truly and accurately recorded the conversation that occurred, that it was his initials written on the tape, and that the tape was in the same condition as it was when he last saw it. Patches also identified the speakers on each tape. Defendants objected to the introduction of the tapes based on inadequate chain of custody, but their objection was overruled.

At trial, the government also introduced evidence of the total amount of food stamps redeemed by the defendants for the period of January 1989 through March 1993. The figure was in excess of $600,000 and the corresponding exhibits were admitted with no objection from the defendants.

Evidence of Brown's Illinois sales tax returns for the time period covering January 1989 to December 1992 was also introduced by the government over defendants' objections. These returns were later used by the probation office and the government as the basis for calculating "loss" under U.S.S.G. § 2F1.1. The government also introduced, again over defendants' objections, summary charts comparing the total amount of food stamps redeemed with the food sales amount claimed in the tax returns.

The jury found both defendants guilty of unlawful acquisition of food stamps. At sentencing, defendant Brown objected to the amount of "loss" under U.S.S.G. § 2F1.1 as found by the presentence report ("PSR"). The PSR recommended a loss amount of $427,965.00. This figure was based on deducting one-half of the food sales declared by Brown on his tax returns from the total amount of food stamps redeemed by the defendant over the period of the indictment. Brown argued that the tax returns he filed were estimates, and that he had "the concomitant tendency of a businessman to underreport sales and pay lower taxes." Brief for Brown at 13. Further, Brown argued at sentencing that the government's figure of food stamps redeemed over-represented the amount of actual food sales made, and that it is unreliable to use the tax returns to determine loss. Brown asserted that the court should calculate loss by taking twenty-five percent of the actual food stamps redeemed The court sentenced Brown to a term of 30 months imprisonment on each of the three counts, to be served concurrently, and a three year term of supervised release. The court ordered that as a term of his supervised release, Brown shall not engage in any gambling activities or frequent any gambling establishments. The PSR indicated that Brown was a compulsive gambler, gambling as much as $200 to $2,000 per week. Business ledgers showed his gambling losses to be $25,000 to $30,000.

during the conspiracy. The district court rejected both the government and defendant's asserted mode for calculating loss, and without stating the basis upon which it based its calculation, found the loss caused by defendant's fraudulent activities to be in excess of $315,000.

As for Jenkins, the court sentenced him to 21 months imprisonment on each of the three counts, to be served concurrently, and a two year term of supervised release. Jenkins was also ordered to pay $100,000 in restitution. The court denied Jenkins' motion to reduce his sentence for playing a mitigating role under U.S.S.G. § 3B1.2, citing the fact that he was an active participant in the offense and in the conspiracy. His participation in three food stamp purchases, his position as store manager, and his withdrawal of funds from the bank for one of the undercover sales precluded him from convincingly arguing that he played a minor role in the conspiracy.

Brown and Jenkins now appeal their convictions and sentences. They argue that the district court erred in admitting both the tapes and the summary exhibits, and in calculating the amount of "loss" for sentencing purposes. In addition, Jenkins appeals the district court's refusal to give his requested "good faith" and entrapment instructions and the district court's denial of a mitigating role under U.S.S.G. § 3B1.2. Brown appeals the gambling restriction placed on him during his period of supervised release.

ANALYSIS

A. Admission of Audio Tapes

Appellants argue that the district court committed reversible error by allowing the admission of six audio tapes depicting the undercover sales of food stamps for cash. Specifically, appellants argue that the tapes were admitted without proof of a chain of custody. The government concedes that it failed to establish a chain of custody for the six tapes. However, it argues, and we agree, that such a mistake does not render the tapes inadmissible. We have held that lack of proof regarding a chain of custody does not render tapes inadmissible. United States v. Craig, 573 F.2d 455, 478 (7th Cir.1977). In Craig, the defendant argued, inter alia, that because the government failed to establish a chain of custody, the tape recorded conversations of he and a co-schemer should not have been admitted into evidence. Id. at 477. We disagreed, stating that the purpose of the chain of custody requirement is to insure that the items offered into evidence are in substantially the same condition as they were at the time the proponent came into possession of the evidence. Id. at 478. We went on to note that "the purpose of the rule is served where, as here, a proper foundation demonstrating the accuracy and trustworthiness of the evidence is laid." Id.

We believe that just as the purpose of the chain of custody rule was served it Craig, so is it served here. The government laid a proper foundation for the admission of the tapes at trial. Before offering each tape into evidence, the government questioned Patches, the confidential informant, about the events that occurred during the undercover sales of food stamps to the appellants on each of the six different occasions. Patches testified that he listened to the tapes, that the tapes truly and accurately recorded the conversation that occurred, that his initials were written on each tape, and that the tapes were in the same condition as when he last saw them. Patches also identified the speakers on each tape.

Additionally, Agents Manley and Lienard testified to these same conversations. Agent Manley testified that he listened to the conversations on a wire transmitter as Patches conducted each sale of food stamps to the appellants. He testified that he listened to the conversations during each of the Appellants do not suggest that...