U.S. v. Brown

• Decision Date: 10 August 1994
• Docket Number: No. 92-2947,92-2947
• Citation: 29 F.3d 953
• Parties: UNITED STATES of America, Plaintiff-Appellee Appellant-Cross-Appellant, v. Calvin BROWN and Brenda Brown Thurman, Defendants-Appellants Cross-Appellees, and Julio Castro, Defendant-Appellant, Constance Dianne Hendriex, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 953

29 F.3d 953

UNITED STATES of America, Plaintiff-Appellee Appellant-Cross-Appellant, v. Calvin BROWN and Brenda Brown Thurman, Defendants-Appellants

Cross-Appellees,

and

Julio Castro, Defendant-Appellant,

Constance Dianne Hendriex, Defendant-Appellee.

No. 92-2947.

United States Court of Appeals, Fifth Circuit.

Aug. 10, 1994.

Marjorie A. Meyers, Bennett & Secrest, Houston, TX (Court-appointed), for Calvin Brown.

Rosalind A. Kelley, Houston, TX (Court-appointed), for Brenda Thurman.

Robert Augustus Harper, Tallahassee, FL, for Castro.

Paula C. Offenhauser, Jeffery A. Babcock, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, TX, for appellees.

Dola Jean Young, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, TX, for Hendriex.

Appeals from the United States District Court for the Southern District of Texas.

Before WISDOM, DAVIS and DUHE, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellants Julio Castro, Brenda Brown Thurman and Calvin Brown appeal their convictions on drug trafficking charges. Castro also appeals his sentence. The government appeals the sentences imposed against Thurman and Brown, as well as against defendant Constance Dianne Hendriex. For the reasons that follow, we affirm each of the challenged convictions, we affirm the sentence imposed against Castro, and we vacate the sentences imposed against Thurman, Brown and Hendriex.

I.

In February 1992, fourteen defendants were charged in a two-count indictment. Count one charged the defendants with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A) and 846. Count 2 charged the defendants with aiding and abetting the possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A) and 18 U.S.C. Sec. 2. The appeals relating to four of the fourteen defendants--Brown, Thurman, Hendriex and Castro--have been consolidated for presentation to this panel.

Castro's trial was severed and he was tried separately. The court granted Castro's motion to dismiss count one of the indictment on grounds that the conspiracy charge subjected Castro to double jeopardy because of a prior conspiracy prosecution in New York. Castro was then tried and convicted on count two.

Brown, Thurman and Hendriex were tried together. At the close of the government's case, the court granted Thurman's and Hendriex's motions for judgment of acquittal on count two. The jury found Thurman and Hendriex guilty on count one, and Brown guilty on both counts. The court entered judgments of conviction on this verdict.

Juan Mora, an unindicted co-conspirator, was the government's principal witness against Thurman, Hendriex and Brown. Mora described in detail his management and supervision over a distribution network for cocaine shipped from Columbia to the United States. Mora based his operations in Miami, but was responsible for receiving shipments at various locations throughout the United States. Mora hired Jesus Alberto Valencia and his wife Alfreida Brown Valencia, ¹ to transport some of the cocaine to various points throughout the United States. Mora explained that the Valencias employed numerous drivers, among them Brown, Thurman and Hendriex. Mora would pay the Valencias for each "trip," and the Valencias in turn would distribute a portion of that fee to the drivers in their organization.

Mora testified that the Valencias were responsible for supervising the receipt, transportation and delivery of cocaine to Mora's workers in New York. Jesus Valencia would personally meet the loads in New York and orchestrate the transfer from the drivers in his organization to the distribution networkers. Julio Castro and Wilson O'Havaro managed the distribution operation in New York.

Mora also testified that Brown and Hendriex participated in numerous drug smuggling trips, usually between California and New York, New York and Miami, and New York and Houston. Mora stated that Brown had been described by the Valencias as "one of the biggest drug drivers in the United States."

Mora also testified that in September 1990, Thurman and Douglas Medlock, another Valencia driver, flew to Ontario, California and drove a mini-van to the east coast with a hidden load of cocaine. Mora estimated that the vehicle contained between 40 and 60 kilograms of cocaine.

Mora also testified that he often contacted Thurman regarding organization business via cellular telephone if the Valencias were unavailable. A search of Thurman's residence produced a cellular telephone, whose number had been used on many occasions in connection with Valencia activities.

Walter Perkins ², another member of the Valencia drug smuggling organization, testified that he had made six to eight trips for the Valencias, one with Hendriex. He testified that although he did not know the precise location of the hidden compartments, he knew that he was transporting drugs or drug proceeds on each trip. He testified that a trip would initiate with a phone call from either Jesus or Alfreida, who would instruct him to contact Thurman to obtain travel money. He testified that Thurman had provided him $800-$4500 for travel expenses on several occasions.

Joyce Medlock, another organization driver, testified that in late 1988 or early 1989, she and Brown had knowingly driven a load of cocaine for the organization. She also explained that she performed the function of a switchboard operator for the Valencia organization by apprising Alfreida Valencia of the status and location of organization drivers.

At Castro's trial, Mora explained that Castro was a salaried organization employee involved in Mora's New York City distribution operation. Castro would receive cocaine deliveries from organization drivers, remove the cocaine from the hidden compartments and await direction from Mora about further distribution. Castro would then deliver the cocaine and accept payment for it.

II. THE DEFENDANTS' APPEALS

A. THE APPEAL OF JULIO CASTRO

1.

Castro argues first that the district court erred in using a prior conspiracy conviction in the Southern District of New York to enhance his sentence. The district court relied on the earlier conviction to enhance Castro's sentence to the 20-year mandatory minimum under 21 U.S.C. Sec. 841(b)(1)(A), which provides in pertinent part:

If any person commits [a drug violation involving 5 kilograms or more of cocaine], after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment ... which may not be less than 20 years and not more than life imprisonment.

Castro complains that the government initially prosecuted him for a conspiracy offense in the Southern District of New York for the purpose of enhancing his sentence on the substantive offense he was later tried for in the Southern District of Texas. Stated differently, Castro argues that the government is prohibited from prosecuting a criminal conspiracy separately from the underlying substantive criminal offense for the purpose of obtaining a sentencing enhancement.

We find no merit to Castro's argument. First, a substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes. United States v. Felix, --- U.S. ----, ----, 112 S.Ct. 1377, 1385, 118 L.Ed.2d 25 (1992). Also, the conspiracy prosecution in New York was based on a different transaction than the instant offense. The New York conspiracy offense was related to Castro's involvement in a single substantive offense: transportation of five kilograms of cocaine in February 1991. The instant offense involved Castro's participation in transporting cocaine from Houston to New York in January 1991.

Castro's reliance on Deal v. United States, --- U.S. ----, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993) is misplaced. In Deal, the defendant was convicted of six counts of bank robbery, six counts of carrying and using a firearm in relation to the bank robbery and one count of being a felon in possession of a firearm. With respect to the firearm convictions, the district court applied 18 U.S.C. Sec. 924(c)(1), which provides:

Whoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ..., be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years....

Pursuant to this provision, the district court sentenced the defendant to five years on the first firearms count and to twenty years on each of the other five firearms counts. The Court held that Deal's conviction on counts 2-6, although obtained in a single proceeding, arose "in the case of his second or subsequent conviction" within the meaning of Sec. 924(c)(1). In other words, the Court held that Deal's conviction on the first count could be relied upon as a predicate to enhance the conviction on counts two through six. The Court's reasoning in Deal therefore provides no support to Castro's argument. The district court did not err in using the earlier drug conspiracy conviction to enhance Castro's sentence.

2.

Castro argues next that the district court violated his Sixth Amendment right by restricting his cross-examination of Jeffrey Harbour, one of his co-conspirators who was a government witness. At trial, Castro's attorney asked Harbour on cross-examination "was your wife indicted on this case on the same ..." The prosecutor objected on grounds of relevance and the court sustained the prosecutor's objection. Castro argues that his question regarding Dolly Harbour's indictment status was relevant to Harbour's motive for testifying, and thus, his credibility.

If Castro had tried to determine from Harbour whether the prosecutor had declined to prosecute Dolly as part of the consideration...