U.S. v. Brown

• Decision Date: 01 March 1991
• Docket Number: No. 90-2345,90-2345
• Parties: UNITED STATES of America, Appellee, v. Lonnie James BROWN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 779

926 F.2d 779

UNITED STATES of America, Appellee, v. Lonnie James BROWN, Appellant.

No. 90-2345.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 16, 1991.

Decided March 1, 1991.

Byron Rhodes, Hot Springs, Ark., for appellant.

Steven Snyder, Ft. Smith, Ark., for appellee.

Before McMILLIAN, FAGG and MAGILL, Circuit Judges.

PER CURIAM.

Lonnie James Brown appeals from orders entered in the District Court ¹ for the Western District of Arkansas denying his motions to dismiss the indictment because of double jeopardy, and to stay proceedings pending appeal of the dismissed motions. For the reasons discussed below, we affirm.

An indictment was returned in December 1989 charging Brown and codefendant Russell L. Kook with conspiring to distribute marijuana between May and June 21, 1989. The indictment alleged Kook telephoned Brown on June 11 and 20 to arrange a meeting; on June 21 Kook traveled to Mt. Ida, Arkansas, where he received directions for meeting Brown; and Brown and Kook met at a Safeway grocery store in Hot Springs, Arkansas, on June 21. Brown moved to dismiss the indictment, claiming that the alleged supporting facts--the time period, the places, the persons, and the overt acts--were essentially the same as those for his prior conspiracy convictions under the same statutes, 21 U.S.C. Secs. 841(a)(1) and 846. Brown attached the two prior indictments returned against him in August 1989.

The first indictment charged Brown and Allan R. Thompson with conspiring to distribute marijuana between June 5 and June 21, 1989. The indictment alleged that Brown and Thompson had telephone conversations on June 5 and 7; they met in a Safeway parking lot in Hot Springs on June 21, proceeded to a storage area where 3,000 pounds of marijuana were stored, and inspected the marijuana; and Thompson purchased some for $20,000. The second indictment charged Brown and Sam C. Wainwright with conspiring to distribute marijuana between June 8 and June 21, 1989. The indictment alleged that Wainwright telephoned Brown on June 8 and 13; Brown traveled to Hope, Arkansas, on June 12; Brown discussed the dates the marijuana would be transported to Arkansas and agreed to meet Wainwright at the Safeway in Hot Springs; and they met in the Safeway parking lot on June 21. This indictment also charged Brown with seven counts of distributing marijuana, one count of conspiring with Wainwright to distribute cocaine, three counts of distributing cocaine, and seven counts of possessing firearms and ammunition, all between January 6 and June 21, 1989. The cases under these two prior indictments were consolidated for trial and Brown was found guilty of all charges by a jury in February 1990.

The government's response summarized the testimony presented at that trial as follows in part: Undercover agent Roberts agreed to supply 3,000 pounds of marijuana to Brown, who told Roberts he had buyers in the midwest, Miami and Atlanta. Brown arranged to have the marijuana delivered in Arkansas, and then to have his buyers come to Arkansas. A government informant met Brown, Thompson and Wainwright at Brown's home on June 20. The following day these four persons met Roberts at noon in the Safeway parking lot. Wainwright was arrested in the parking lot while Brown and Thompson were arrested at the storage area.

The government argued that Brown acted as a broker and dealt individually with his buyers, agreeing, for example, to trade 1,000 pounds of marijuana to Wainwright for 15 kilos of cocaine, and to sell 40 pounds of marijuana to Thompson for cash. The government also attached to its response the transcribed telephone conversations between Brown and Kook. These conversations indicate that Kook expected to meet Brown on June 21, 1989, and knew Brown was dealing with other buyers at the same time. They do not indicate that Kook had any relationship with Thompson or Wainwright.

The district court denied Brown's motion, finding the government intended to prove a separate conspiracy because the conduct and persons involved in the present indictment did not duplicate the conduct and persons involved in the prior actions. The court also denied Brown's motion for a stay of proceedings pending appeal, finding it was solely for the purpose of delay. Brown filed this appeal before trial commenced, but he did not request this court to stay proceedings below. Brown was convicted on August 31, 1990.

Initially, it must be determined whether the district court retained jurisdiction to proceed with the trial after Brown appealed the denial of his double jeopardy motion. The denial of a motion to dismiss on double jeopardy grounds may be raised in an interlocutory appeal. Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). We have held, however, that if the district court finds a defendant has failed to make a colorable showing of "previous jeopardy and the threat of repeated jeopardy," the filing of a notice of appeal from the denial of the double jeopardy motion does not divest the district court of jurisdiction. United States v. Grabinski, 674 F.2d 677, 679 (8th Cir.) (en...