U.S.A. v. Brumley, 99-2948

• Decision Date: 12 July 2000
• Docket Number: No. 99-2948,99-2948
• Citation: 217 F.3d 905
• Parties: (7th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BOB BRUMLEY, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 905

217 F.3d 905 (7th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BOB BRUMLEY, Defendant-Appellant.

No. 99-2948

In the United States Court of Appeals For the Seventh Circuit

Argued January 20, 2000

Decided July 12, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 98 CR 146--John D. Tinder, Judge. [Copyrighted Material Omitted]

Before COFFEY, MANION and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

A jury convicted Bob Brumley of conspiracy to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. sec. 841(a)(1). Brumley challenges both his conviction and his sentence on a number of grounds, contending that his confession was involuntary, that he was entitled to a new trial on the basis of newly discovered evidence, that a DEA agent was erroneously allowed to give expert testimony, that the indictment was flawed, and that the disparity between Brumley's sentence and that of his co-conspirators justified a downward departure for his sentence. We affirm.

I.

In January 1997, Bob Brumley introduced Ralph Meade to Jack Bishop at a party at Brumley's home. Later, Brumley asked Meade if he could supply Brumley with methamphetamine, telling Meade that Bishop was capable of selling large quantities of the drug. Meade apparently responded favorably because Brumley then told Bishop that Meade could supply unlimited amounts of methamphetamine. Thereafter, Brumley served as a middleman between Meade and Bishop. On approximately six occasions between January 1997 and October 1998, Brumley supplied Meade with cash and sometimes with rental cars so that Meade could travel to California to purchase methamphetamine. When Meade returned to Indiana, Brumley typically picked the drugs up from Meade's house and delivered them to Bishop, who sold the drugs locally. Brumley was a user as well as a dealer, and accepted both methamphetamine and cash in payment for his role in the arrangement. Apparently, he helped himself to a little too much of the take, and Meade and Bishop decided to cut him out of the loop when they discovered he had withheld three pounds of methamphetamine from Bishop. Meade and Bishop continued to provide Brumley with drugs to keep him quiet, but Meade began making deliveries directly to Bishop. All tolled, Meade transported approximately 28 pounds of methamphetamine from California to Indiana, with 20 pounds being funneled through Brumley and the rest being delivered directly to Bishop.

On Meade's last road trip, a Texas police officer stopped him for exceeding the posted speed limit. The officer asked for consent to search the vehicle, and Meade gave his consent. The officer found in the car two partially opened 5-gallon detergent buckets, each containing individually wrapped plastic bags filled with methamphetamine. Meade was arrested and decided to cooperate with law enforcement. He identified his California source, and agreed to make a controlled delivery to Bishop, but did not mention Brumley out of friendship. Bishop was arrested as a result of the controlled delivery and he also decided to cooperate with law enforcement. Bishop implicated Brumley and told the officers that Brumley carried a gun on occasion when delivering methamphetamine to Bishop's home. Meade ultimately implicated Brumley as well, telling the officers that Brumley acted as a middleman.

Shortly after these arrests, DEA agents executed a search warrant at Brumley's home in Indiana. The agents recovered methamphetamine, scales, cash, and two handguns, one in the house and another in a truck parked in the garage. They also recovered a slip of paper containing the phone number of Meade's source in California. The agents advised Brumley of his Miranda rights, and Brumley was cooperative throughout the search. Brumley was arrested and taken to DEA headquarters. Approximately three and a half hours after the agents began the search at Brumley's home, two agents began to interrogate Brumley. Although Brumley later disputed this point, the agents testified that they read Brumley his Miranda rights once again, and that Brumley then signed the waiver portion of the Miranda form. Thereafter, Brumley made inculpatory statements to the agents that were used against him at trial.

In the district court, Brumley moved to suppress his post-arrest statement on the ground that he had not knowingly and voluntarily waived his Miranda rights. The district court held a hearing and found that the agents read Brumley his Miranda rights during the search of his house and later at DEA headquarters. The court also found that Brumley signed the waiver of rights form, and had in fact knowingly and voluntarily waived his Miranda rights. The case proceeded to trial where the district court allowed a DEA agent to testify as an expert on the issue of what quantities of methamphetamine constituted user and dealer amounts. Brumley objected to this testimony on the ground that the agent was not qualified to testify as an expert. After requiring additional voir dire of the witness, the district court allowed the agent to testify as an expert. The jury found Brumley guilty and the court sentenced him to 151 months of incarceration. His co-conspirators, who both cooperated with the government, were sentenced to considerably shorter terms of 71 months for Meade and 63 months for Bishop. Brumley appeals.

II.

On appeal, Brumley contends that his confession should have been suppressed at trial because he did not knowingly and voluntarily waive his Miranda rights and because his statement was made in the course of plea negotiations and was therefore inadmissable under Federal Rule of Criminal Procedure 11(e)(6)(D). He also objects to the DEA agent's expert testimony because the agent's opinion was based on subjective belief and not on any reliable methodology. Brumley asserts that the agent's opinion testimony was highly prejudicial and did not assist the trier of fact. Finally, Brumley complains that the district court erred in sentencing him because his maximum sentence should have been controlled by 18 U.S.C. sec. 371 due to an ambiguity in the indictment, and because the district court refused to recognize that the disparity between his sentence and that of his co-conspirators was a valid basis to depart downward.

A.

"We review de novo a district court's determination of whether a Miranda waiver was knowing and voluntary." United States v. Schwensow, 151 F.3d 650, 659 (7th Cir. 1998), cert. denied, 525 U.S. 1059 (1998). We review findings of historical fact deferentially, however, and reverse only for clear error. Id. Brumley complains that the district court erred in finding that he knowingly and voluntarily waived his Miranda rights. At the suppression hearing, Brumley denied that the agents read him his rights when they executed the search warrant at his home, and testified that he did not recall seeing or signing the Miranda waiver form at the DEA office where he was questioned a few hours later. The agents, of course, told a different story and the district court found the agents more credible.

Normally, that observation would end our inquiry, but here Brumley raises what he characterizes as a newly discovered fact that he claims calls the agents' credibility into question. At the suppression hearing, Brumley admitted that the signature on the Miranda waiver appeared to be a copy of his signature (he was shown a photocopy of the form at the hearing), but denied having signed the form. After trial, he requested that the court allow a handwriting expert to examine the document. Over the government's objection, the court allowed the expert to examine the original waiver form. Brumley's own expert confirmed that the signature on the form was indeed Brumley's, but the expert found other marks on the document that could have been attempts to alter the form. In particular, there was evidence that someone had changed the "taken into custody" time on the form, and there were also ink touch-ups that the expert believed were an attempt to match ink colors. The expert also identified indented writing on the face of the document in three different places, but was unable to identify what the writing said without further testing. Brumley moved for further testing of the document, theorizing that he signed the document, if at all, as part of a stack of documents he signed while in court one day. He also moved for a new trial as a result of this newly discovered evidence. The district court denied the motion for further testing, and also denied the motion for a new trial. Brumley now argues that the district court abused its discretion in refusing to allow further testing of the Miranda form and also erred in refusing his request for a new trial.

The decision whether to grant a new trial is within the discretion of the district court. United States v. Gonzalez, 93 F.3d 311, 315 (7th Cir. 1996). Because he is relying on newly discovered evidence, Brumley must show that he became aware of the evidence only after the trial, that he could not have discovered the evidence by due diligence any sooner, that the evidence is material and that the evidence would probably lead to an acquittal in the event of a new trial. Id.; United States v. Fruth, 36 F.3d 649, 652 (7th Cir. 1994), cert. denied, 513 U.S. 1180 (1995). Brumley's argument fails on at least the first two prongs of the test for newly discovered evidence because Brumley himself surely knew before trial whether or not he had knowingly signed a waiver of his Miranda rights. He knew from the time of the suppression hearing at the latest that the government intended to rely on that written waiver. He could have moved to examine the document before trial but did not do so. The district court generously allowed him to examine the form after trial, but the court was under no obligation to offer even more post- trial...