U.S. v. Brown

• Decision Date: 10 November 2009
• Docket Number: No. 07-13007.,07-13007.
• Citation: 587 F.3d 1082
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Corey B. BROWN, Gregory J. Hall, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

587 F.3d 1082

UNITED STATES of America, Plaintiff-Appellee, v. Corey B. BROWN, Gregory J. Hall, Defendants-Appellants.

No. 07-13007.

United States Court of Appeals, Eleventh Circuit.

November 10, 2009.

Jody D. Peterman (Court-Appointed), Terry & Peterman, LLP, Valdosta, GA, Stephen R. Scarborough (Court-Appointed), Atlanta, GA, for Defendants-Appellants.

Terry Flynn, E. Bryan Wilson, Tallahassee, FL, for U.S.

Appeals from the United States District Court for the Northern District of Florida.

Before CARNES, FAY and ALARCÓN,^* Circuit Judges.

ALARCÓN, Circuit Judge:

Corey R. Brown and Gregory Hall seek reversal of their convictions following trial by jury. Brown maintains that the district court erred in denying his motion for a severance and in admitting evidence of his prior convictions to prove intent to distribute cocaine and crack cocaine. He also contends that the evidence was insufficient to prove his participation in a drug conspiracy to manufacture, distribute and possess cocaine and crack cocaine, or his possession of a firearm in furtherance of a drug trafficking crime or as a felon.

Hall asserts that there was a material variance between the allegations of conspiracy in the indictment and the evidence produced at trial. He also contends that the district court erred in admitting a copy of an audiotape because it was not properly authenticated. We affirm because we conclude that the district court did not err in rejecting each of these contentions.

I

The Government presented evidence at trial that Hall, Brown and their three co-defendants were cocaine and crack cocaine dealers operating a drug marketplace located within a small neighborhood of Alachua, Florida, enclosed by highway 441, county road 235, and Northwest 133rd Terrace, comprising a rectangular shape of approximately a square mile. Within this marketplace, crack cocaine dealers set up shop at various well-known locales known as "Trees," such as George Bethea's Tree (also known as Big Ike's Tree) and Sammy Lee's Tree. George Bethea's Tree was "just down the street" from Sammy Lee's Tree. Another drug-dealing locale was an elementary school, which was "right next to Sammy's Tree." Corey "Coco" Brown and Milton Brown dealt controlled substances from their mother's house, Ms. Shirley's house, which was one-half mile from the school and the other locales. The drug dealers and their neighbors, friends, and customers socialized by drinking, gambling, and playing cards on the porch of Ms. Shirley's house and under the trees.

Customers would drive up to the Trees' marketplace and look to "score" and "if [the dealers] know you, they'll deal with you." Hall was "normally" around, and, if not, Brown or his brother were available to sell drugs. A parade of witnesses, including Jeffrey Robinson, Marcus Hathcock, Furnell Mitchell Sr., Furnell Mitchell Jr., and Horace Jenkins, testified to buying both from Hall and Brown for resale anything up to a quarter kilogram of cocaine. Twenty-five witnesses testified about their drug-dealing with Hall.

The Trees' marketplace carried on its drug dealing activities between 1997 and 2005. Starting in 2001, the Florida Department of Law Enforcement ("FDLE") began investigating the Trees' marketplace. As part of the investigation, FDLE carried out "controlled buys," where informants wired with recording devices bought drugs from Hall and Brown. The nature of the common enterprise is best demonstrated by an occasion, on August 18, 2004, where police informant Michael James attempted to buy cocaine from a marketplace dealer, Kenji Darling, under Sammy Lee's Tree. Darling, being unable to supply the amount required by his customer, turned to Hall. Hall also did not have the amount of drugs requested by James. After placing a few calls, Hall drove Darling to George Bethea, Hall's supplier. Bethea provided the cocaine to Darling. He resold it at a profit to James. (Id. at 9-15, 60-69.) Bethea paid Hall a commission of $80 for his assistance.

The Government made audio and video recordings of this "controlled buy," recording the conversation of James and Darling through a device James wore. FDLE Agent Beth Torres overheard the conversation remotely using the recording device. Agent Torres used recording equipment to put the conversation on tape.

The original audio recording was copied onto a cassette tape the day after the buy. This copy was submitted into evidence as Exhibit 43A. Agent Torres was present during the duplication process, but the copy was made by an unnamed party. The copied tape was not played in order to compare it to the original.¹ The copy was placed into a locked filing cabinet to which only one person had the key. The original was placed into an evidence vault. Agent Torres stated that the duplication process sometimes affected the quality of copies. The original audio disk, admitted as Exhibit 43, sustained moisture damage and could not be played.

The copy of the audiotape was played at trial. Agent Torres testified that the conversation heard on the copy reflected the conversation which she monitored on August 18, 2004. She testified that the audio copy was not altered or changed in any way. Though the videotape was also damaged, the first dozen or so words could be heard and these words matched the first dozen or so words on the audio copy.

Hall objected to the admission of the audio copy. After hearing Agent Torres's testimony regarding the audio copy, the district court admitted it into evidence.

Brown was also involved in the buying and reselling of crack cocaine in large quantities to various individuals. For example, Bethea supplied him with approximately 21 grams of cocaine every two weeks for eight months. Another witness, Jeffrey Robinson, testified that he purchased cocaine from Brown, Milton Brown, and Hall on various occasions prior to 2002. Robinson broke the cocaine down into smaller quantities and resold it. The record shows that several other persons sold crack and powder cocaine to Brown. George Mack testified that Brown sold him cocaine.

Jenita Washington made controlled buys from Brown at his house on January 13, 2005, and January 21, 2005. These buys were tape recorded. The sales involved $300 and $500 in exchange for 1.7 and 4.6 grams of cocaine.

Agent Torres testified that she observed a video tape of Brown conducting a drug deal at his residence on January 28, 2005, prior to the execution of a search warrant.

The FDLE's investigation led to the execution of a search warrant on Ms. Shirley's house on January 28, 2005. The officers found drug paraphernalia, including containers with cocaine residue, about 25 grams of cocaine, and seven firearms. Brown, Hall and three co-defendants were subsequently arrested and indicted.

Before trial, Brown sought to sever his trial from all defendants on the ground that he would be unable to cross-examine co-defendants if their confessions were used against him. The district court denied the motion. At trial, Brown also objected to the admission of his prior convictions. The district court overruled his objection.

The jury convicted Brown of conspiracy to distribute and possess with intent to distribute more than 5 kilograms of crack cocaine or more than 50 grams of cocaine base between August 13, 1997 and January 28, 2005 in violation of 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846; distributing cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii) and 841(b)(1)(C); possession of more than 5 grams of crack cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii); possession of a firearm as a convicted felon in violation of 18 U.S.C §§ 922(g)(1), 924(e); and, possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(e)(1)(A)(I).

Hall was convicted of conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846, and distribution of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii) and 841(b)(1)(C) as alleged in Counts One and Two. He was acquitted of Count Three, which alleged distribution of cocaine base, on a different date.

Three co-defendants, Robinson, Milton Brown, and Michael McLeod pleaded guilty to conspiracy to distribute and possess with intent to distribute more than 50 grams of a mixture and substance containing cocaine base and more than 500 grams of a mixture and substance containing cocaine.

Hall and Brown have timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II

A

Brown first contends that the trial court erred in denying his motion for a severance of his trial pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 permits a trial court to grant a severance if it appears either party will be prejudiced by a joinder of offenses or defendants.² Brown argued before the district court that severance was required because he would not have the opportunity to cross-examine his co-defendants if their confessions were used against him at trial. He relied on Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) for this contention. In this appeal, however, Brown has presented an entirely different argument. Relying on Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), he maintains that "there was overwhelming evidence of [Hall's] wrongdoing which could easily lead the jury to conclude Brown was guilty." (Appellant Brown's Br. 14.) In Zafiro, the Supreme Court noted that in some cases severance would be proper because "evidence of a co-defendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty." Id. The Government argues Brown has forfeited this argument by not raising it before the district court. We agree.

"It is the general rule that a federal appellate court does not consider an issue...