U.S. v. Brown

• Decision Date: 20 June 1991
• Docket Number: No. 1391,D,1391
• Citation: 937 F.2d 32
• Parties: UNITED STATES of America, Appellee, v. Gregory V. BROWN, Defendant-Appellant. ocket 90-1682.
• Court: U.S. Court of Appeals — Second Circuit

Page 32

937 F.2d 32

UNITED STATES of America, Appellee, v. Gregory V. BROWN, Defendant-Appellant.

No. 1391, Docket 90-1682.

United States Court of Appeals, Second Circuit.

Argued May 31, 1991.

Decided June 20, 1991.

Bernard J. Malone, Asst. U.S. Atty., N.D.N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Barbara D. Cottrell, Asst. U.S. Atty., N.D.N.Y., Albany, N.Y., of counsel), for appellee.

Jeffrey Francisco, Schenectady, N.Y., (Martin, Harding & Francisco, of counsel), for defendant-appellant.

Before OAKES, Chief Judge, and KAUFMAN and WALKER, Circuit Judges.

Irving R. KAUFMAN, Circuit Judge:

The threat of violence prevailing in our society has proven as destructive to its morale as the commission of retaliatory acts themselves. Aware of this, Congress drafted Section 1513 of the United States Code, Title 18, with the express purpose of deterring offenders from retaliating or threatening to retaliate against government witnesses who provide law enforcement officials with information relating to federal offenses. The law both preserves the public interest by safeguarding the administration of justice, and protects individual witnesses anxious to come forward with potentially incriminating evidence.

In the case before us, we are called upon to determine if sufficient evidence was presented at trial to sustain defendant-appellant Brown's conviction for threatening to cause bodily harm to his former girlfriend, Susan Linehan Salone ("Linehan"), in contravention of 18 U.S.C. Sec. 1513. At trial, the jury found Brown guilty of this offense and fifteen other charges relating to the implementation of various fraudulent schemes. Judge Cholakis of the Northern District of New York sentenced Brown to sixteen concurrent thirty-six month terms of imprisonment. On appeal, Brown contests only the Sec. 1513 conviction.

Appellant contends that the government failed to lay a foundation of evidence sufficient for the jury to have concluded beyond a reasonable doubt that Linehan had provided information to federal law enforcement officials. He further alleges that in the absence of proof establishing his knowledge of Linehan's federal informant status, his intent to retaliate could not properly be inferred by the jury. Finally, Brown claims that an intercepted, taped telephone conversation in which he threatened to "erase" Linehan, establishes at most an intent to influence future testimony, but not an intent to retaliate for past information proffered. Because testimony adduced at trial provides a sufficient foundation for the jury to return a finding of retaliatory intent, and because it was properly within the jury's purview to infer Appellant's intent from the circumstantial evidence provided, we affirm the lower court's opinion.

BACKGROUND

In conforming to our practice to restrict our review to questions of law, it is nonetheless helpful to contextualize the appealable issues by recounting pertinent facts.

Appellant Brown served in the United States Army for eight years, rising to the rank of First Lieutenant prior to his discharge in November of 1988. Though discharged, Brown twice fraudulently managed to obtain active duty military identification cards from the Watervliet Arsenal in Watervliet, New York (the "Arsenal"). Each time, he relied on forged military documents, and falsely represented himself to the identification clerk on duty.

Sometime after his second successful fraudulent request, Brown met and became romantically involved with Linehan. In the course of their tempestuous relationship, Linehan discovered that Brown kept a gun hidden in his home. Without informing him, Linehan brought the gun, and, inter alia, one of his forged active duty military identification cards, to the East Greenbush Town Police Department. Brown subsequently reported the items as stolen. On December 11, 1989, Brown was arrested and charged with criminal possession of the gun. That same day, Linehan--who had since broken off her relations with Brown--departed for a month long vacation to Ireland.

Following his arrest and Linehan's departure, Appellant returned to the Arsenal dressed in a flight suit misleadingly adorned with rank insignia. Again he presented forged military orders, and, claiming his old card had been stolen, initiated a third fraudulent request for an active duty military identification card. This time, however, Brown was questioned with regard to the allegedly stolen card by the security supervisor at the Arsenal, who subsequently traced the card and reported his findings concerning Brown to Louis Vega--a Department of Defense Criminal Investigative Service agent stationed at the Arsenal.

During the month that followed, Brown persistently harassed Linehan in Ireland with unsolicited phone calls. On some occasions, he called twice daily, inquiring who she had been talking to, what trouble he had to expect from her, and if she still was in possession of the items she had taken from his apartment.

Upon her return to the United States, Linehan was contacted by Investigator Vega and agents from the United States Customs Bureau and Bureau of Alcohol, Tobacco, and Firearms. She requested that they install a monitoring device on her home phone to prevent further harassment by Brown. Vega contacted Special Agent Roger Rubrecht of the Federal Bureau of Investigations, who, on January 12, 1990, obtained and executed a federal search warrant for Brown's residence.

Various incriminating items were retrieved during the search, including two United States passports--both issued in Brown's name, a date stamp, a rubber stamp identifying Brown as an Army Captain, blank Department of Army letterhead stationary, and automobile importation documents.

On January 24, 1990, Special Customs Agent Daniel Bologna finally complied with Linehan's request and installed a monitoring device on her telephone. That same day, a call was recorded from Brown in which he stated: "... the bottom line is, none of it, or very little of it would have come to light ... if it weren't for you, and talking to people with things that I trusted you with ... if you do anymore damage to my life in any way, I will ... erase you."

The call was reported by Linehan to Customs agents, who took possession of the tape. The following day, Customs dispatched Bologna to Brown's residence to warn him not to have further contact with Linehan. FBI Agent Rubrecht also interviewed Linehan in connection with that department's investigation of Brown. On January 31, 1990, a criminal complaint was Following a four day jury trial on nineteen different counts, Brown was convicted of misusing military passes, impersonating a federal officer, making false representations to Army officials, converting government property, and unlawfully possessing an identification document with intent to defraud. Appellant was acquitted of the charges of unlawfully importing a firearm, and smuggling. Brown was convicted of the charge of threatening Linehan, in violation of 18 U.S.C. Sec. 1513, which forms the basis for this appeal.

filed, charging Brown with violation of 18 U.S.C. Sec. 1513.

Sentencing was calculated by Judge Cholakis under the standard guidelines, with thirteen three-year and three one-year terms to run concurrently. Though the terms run concurrently, this appeal to reverse Brown's conviction for the eighteenth count is not spurious, since under the Sentencing Guidelines the retaliation conviction placed the defendant in a sentencing range of 33 to 41 months instead of the 4 to 10 month range applied to the most severe of the remaining counts. As we find the evidence abundantly sufficient to sustain the jury's finding of guilt, we affirm the lower court's order.

DISCUSSION

A. Evidentiary Standards

In judging the merits of a case on appeal, it is imperative that the court should not confuse its limited jurisdictional right to pass on the legal question of evidentiary sufficiency, with the jury's more expansive fact-finding right. If, as we here conclude, the government has presented sufficient evidence at trial from which reasonable triers of fact could have determined guilt beyond a reasonable doubt, then we cannot presume to second-guess that judgment.

Though weighing the evidence presented at trial is a function unambiguously reserved for the jury, United States v. Mariani, ...