U.S. v. Brown, 89-1836

• Decision Date: 24 April 1990
• Docket Number: No. 89-1836,89-1836
• Citation: 900 F.2d 1098
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barbara BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1098

900 F.2d 1098

UNITED STATES of America, Plaintiff-Appellee, v. Barbara BROWN, Defendant-Appellant.

No. 89-1836.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 9, 1990.

Decided April 24, 1990.

Thomas M. Durkin, Steven Shobat, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Michael G. Logan, Chicago, Ill., for defendant-appellant.

Before COFFEY, FLAUM and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Barbara Brown, an informant for the United States Postal Service, was arrested for wanting too much of a good thing. While being paid to lure persons that stole checks from the mail to postal inspectors, she decided to frustrate the inspectors efforts and make some extra money for herself. The Postal Service caught on to her scheme and she was arrested and convicted for conspiring to possess and for unlawfully possessing the contents of stolen mail. Pursuant to the Sentencing Guidelines, Brown was sentenced to 41 months incarceration based on an Offense Level of 15. Brown alleges that the court improperly enhanced her Offense Level by two levels under Guideline Sec. 3B1.1(c) on the finding that she played an aggravating role in the offense. She also claims the court erred in enhancing an additional two levels under Guideline Sec. 3C1.1 for obstruction. We affirm the district court's sentence.

I.

As part of its inspection service, the United States Postal Service employs postal inspectors who work on an undercover team. These inspectors pose as "fences", i.e., individuals who buy and sell checks stolen from the mail, in an effort to arrest persons who steal checks out of the mail. The inspectors use paid confidential informants who are paid primarily to introduce persons who possess stolen checks to undercover inspectors who buy the checks. After the initial purchase, the inspectors then arrange with the sellers to buy more checks in the future. Under the Service's practice, it is not until after the inspectors buy stolen checks from a seller for the third time that they arrest the sellers.

The defendant, Barbara Brown, was such a paid confidential informant for the postal inspectors from May, 1985, to November, 1987. During much of that period, Brown was a successful informant introducing a number of persons who had stolen checks to the postal inspectors, resulting in numerous arrests. In September, 1987, however, Brown's pattern of introductions began to change. Rather than steadily introducing persons who would make future sales, Brown began introducing persons to the inspectors more frequently who would only meet with the inspectors once. Between September and November of 1987, Brown arranged twelve introductions, none of which resulted in a sufficient number of transactions for the inspectors to make an arrest.

It became apparent to the inspectors that Brown had begun "playing both sides of the fence." Brown had evidently learned a scheme from Jerry Mosley, a former postal informant fired for engaging in this scheme, where Brown would introduce third parties between the actual check thieves and the inspectors. These impostors, rather than meeting with the inspectors several times, as was supposed to occur under the informant's duty, would only meet with the inspectors once or twice, and then new imposters would replace them. Under this practice, Brown was assured that no one would be arrested because she knew of the inspector's practice of arresting only after the third buy. Therefore, and this was the beauty of the scheme for Brown, the inspectors would buy the stolen checks and arrest no one, while Brown on the other hand, would receive money as a paid informant from the inspectors for introducing the alleged source of the stolen checks and would also receive a kick back from the imposter out of the proceeds paid by the inspectors for the checks.

Mosley and Brown worked together on this scheme for some period of time. Their primary sources of stolen checks were John White and Anna Marie Tetter. White in turn received the checks from individuals known only as "Little Al" and "Big Ed." Although the checks were not always received in the same manner, apparently they were usually given to White, who then gave them to Mosley, who in turn gave them to Brown. Brown would then take the checks and enlist someone to pose as a setter of stolen checks to the inspectors, and later she would return to White with the money. Brown occasionally called White on her own to get checks without relying on Mosley. Brown also called Tetter directly for checks about ten times between July and November, 1987.

On October 5, 1987, Brown and an unknown man, (there is some doubt as to whether that man was Jerry Mosley), met with Jerome McElroy who was recruited by them to pass off a check to an inspector. Brown drove McElroy to the meeting site and instructed McElroy on how to respond to the inspectors. After McElroy passed the check he handed the money to Brown, who paid him and dropped him off.

On November 3, 1987, Brown, accompanied by her friend Hassan Haaris, went to Tetter's apartment to pick up some checks. After viewing the checks, Brown returned some back to Tetter because they had "hot" zip codes but kept the rest. Brown explained to Haaris, who knew nothing of the scheme, how much the inspectors would pay for the checks. She also described how the introduction would take place, the questions the inspectors would ask, and that the inspector would give the seller a telephone number to use to set up future deals.

On November 4, after learning of the scheme the day before, Haaris asked Brown whether he could pass the checks. Brown and Haaris then travelled to a Burger King restaurant where Brown arranged for a meeting to take place. Once there, Brown met with the postal inspector and informed him that she had a source named Ronnie who had four checks. Brown was then paid by the inspector and returned to Haaris.

Haaris then entered the inspector's vehicle and using the name Ron, produced four checks. The inspector asked whether the source of the checks was an armed robbery or other violent act. Haaris, giving the response coached by Brown, informed him they were from the mail. The inspector then asked if he could get "fresh" checks, to which Haaris responded he could get them right away. The inspector paid Haaris for the checks and gave the arrest signal. Brown and Haaris were arrested.

Following their release on bond, Brown and Haaris returned to the crime scene to retrieve the car they drove to the Burger King. Haaris later testified at trial that Brown took out several checks from the trunk of the car that day and stated to Haaris that "[i]f we would have took [sic] these we would really have been in trouble." She then tore up the checks. White, however, testified at trial that Brown only received three or four checks in the deal. Tetter also testified there were only three to five checks total.

On January 11, 1988, a grand jury returned a two-count indictment against defendants Haaris and Brown. Count One of the indictment charged the defendants with conspiring to possess the contents of stolen mail in violation of Title 18, U.S.C. Sec. 371. Count Two charged both defendants with unlawfully possessing the contents of stolen mail in violation of Title 18, U.S.C. Sec. 1708. Brown entered a plea of not guilty, while Haaris pleaded guilty pursuant to a plea agreement.

On March 23, 1988, after a two-day trial, a jury returned its verdict finding Brown guilty on both counts. The district court entered judgment on the jury verdict and directed the probation department to prepare a presentence investigation report.

After learning of the contents of the presentence report, Brown filed written objections to the Guideline calculations prepared by the Probation Department. Specifically, she objected to the two level enhancement under Sentencing Guideline Sec. 3B1.1(c) for her alleged aggravating role in the offense as an organizer, leader, manager or supervisor. She also objected to the calculation of her Criminal History Category. Finally, she objected to the two level enhancement under Sentencing Guideline Sec. 3C1.1 for obstruction based on the destruction of postal checks.

At sentencing, the district court overruled Brown's objections and found that the two level enhancements for the aggravating role in the offense and for obstruction were appropriate. The defendant's total Offense Level was, therefore, 15 and her Criminal History Category was Category VI. ¹ The applicable Guideline range was 41 to 51 months.

On April 17, 1989, Brown was sentenced to 41 months incarceration for both Counts One and Two, the sentences to run concurrently. She was also required to pay a special assessment of $100 and to serve a term of two years supervised release following her release from custody. Defendant filed a notice of appeal from the sentence and judgment.

II.

Brown appeals the sentencing court's finding that she was an organizer, manager, or leader under Sec. 3B1.1 of the Sentencing Guidelines. Brown claims that the finding was clearly erroneous because she did not set up the scheme, recruit Haaris, steal the checks, or claim a larger share of the profits and, therefore, cannot qualify under Sec. 3B1.1. In fact, she claims her participation was merely that of a pawn and therefore, the two level enhancement was improper.

Section 3B1.1 entitled "Aggravating Role," permits the district court to raise a defendant's Offense Level if the defendant played an aggravating role in the offense. See United States v. DeCicco, 899 F.2d 1531, 1535 (7th Cir.1990). This section provides for different Offense Levels depending on the degree of involvement in the offense and the number of participants. "The reason for distinguishing the various criminal participants' roles, and for classifying some as organizers, leaders, managers, or supervisors, is to assess punishment based on relative...