U.S. v. Carter

• Decision Date: 08 June 2007
• Docket Number: Docket No. 05-2823-CR.
• Citation: 489 F.3d 528
• Parties: UNITED STATES of America, Appellee, v. Johnny CARTER, Defendant, Micheal Bearam, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

489 F.3d 528

UNITED STATES of America, Appellee, v. Johnny CARTER, Defendant Micheal Bearam, Defendant-Appellant.

Docket No. 05-2823-CR.

United States Court of Appeals, Second Circuit.

Argued: March 6, 2007.

Decided: June 8, 2007.

Steven Weiser, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, on the brief), Brooklyn, NY, for Appellee.

Brian Sheppard, Law Office of Brian Sheppard, Esq., New Hyde Park, NY, for Defendant-Appellant.

Before: CARDAMONE, STRAUB, and WALLACE,^* Circuit Judges.

Judge WALLACE concurs in a separate opinion.

STRAUB, Circuit Judge.

Michael Bearam appeals from an amended judgment entered on June 8, 2005 in the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) convicting him, after a jury trial, of conspiring to distribute cocaine base in violation of 21 U.S.C. §§ 841, 846, operating a business that distributed controlled substances in violation of 21 U.S.C. § 856, and distributing and possessing with intent to distribute controlled substances in violation of 21 U.S.C. § 841. Bearam was sentenced principally to 360 months of incarceration. For the following reasons, we affirm the judgment of the District Court but remand the case for resentencing.

BACKGROUND

On April 21, 2004, after having obtained a search warrant for Sprinkles Restaurant and Bakery ("Sprinkles") at 466 Myrtle Avenue in the Fort Greene area of Brooklyn, New York, agents from the Bureau of Alcohol, Tobacco and Firearms ("ATF") entered and searched Sprinkles. They recovered from a closet in Sprinkles a bag containing a large amount of drugs, including what they believed to be crack cocaine, cocaine, heroin, and marijuana. They subsequently arrested defendant-appellant Michael Bearam, who owned and operated the restaurant.

The second superseding indictment charged that, between October of 2003 and April of 2004, Bearam managed and controlled Sprinkles, where cocaine, cocaine base, heroin, and marijuana were stored and distributed in violation of 21 U.S.C. § 856(a)(2), (b); that he conspired to distribute, and to possess with intent to distribute, 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846; and that he possessed with intent to distribute 50 or more grams of cocaine base and 500 or more grams of cocaine, heroin, and marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), (b)(1)(B)(ii), (b)(1)(C), (b)(1)(D).

On January 20, 2005, the Government filed a prior felony information against Bearam. See 21 U.S.C. § 851(a)(1). It charged that in 1986, Bearam was sentenced to a prison term of two to six years for criminal sale of a controlled substance in the third degree in New York.

Prior to commencement of Bearam's trial, the District Court held a hearing to determine whether the court should suppress two inculpatory statements Bearam made to the authorities. The court suppressed the first statement, which was not preceded by Miranda warnings, but declined to suppress the subsequent statement, which was preceded by warnings. In the unsuppressed statement, Bearam admitted that he sold drugs and that he had known about, and possessed, the bag of drugs recovered from the closet in the restaurant.

The jury returned verdicts of guilty on all counts of the second superseding indictment against Bearam, except that the jury apparently found that heroin was not involved.

On May 12, 2005, the District Court sentenced Bearam to 360 months imprisonment.

I. Suppression Hearing

After jury selection was completed, but prior to the commencement of trial, the government disclosed to defense counsel that it had just discovered that, in addition to an inculpatory statement Bearam made after Miranda warnings had been administered, Bearam had made an inculpatory statement before the warnings were given. The government indicated that it had no intention to use the earlier statement. The court held a hearing on the matter. The relevant facts elicited during the hearing and at trial are as follows.

ATF Agent John Ellwanger, in uniform, and more than five others, some also in uniform, executed the search warrant at Sprinkles. Ellwanger entered a closet in the kitchen and noticed a strong smell of crack cocaine. He discovered a bag containing crack and powdered cocaine, as well as a brown substance which he believed may have been powdered heroin. During this time, Bearam was sitting at a table within arm's length of the closet.

A half hour later, after the search was completed, Ellwanger saw Bearam sitting in front of the restaurant. Two agents were in Bearam's vicinity. Ellwanger asked Bearam, "That brown powder, is that heroin?" Bearam replied, "No, it's bad." Ellwanger then asked, "Bad what?" Bearam replied, "Bad coke."

At trial, during direct examination, Ellwanger testified that he had asked Bearam whether he had been given his Miranda warnings, and that Bearam had replied, "I don't know." On cross-examination, Ellwanger testified that after questioning Bearam about the drugs, he asked one of the two agents near Bearam whether Bearam had been given his Miranda warnings, and that the agent responded, "I don't know." Ellwanger replied, "Somebody should make sure he's Mirandized." Ellwanger stated that he questioned Bearam about the drugs solely "out of curiosity," since in his experience, "it was uncommon to have a substance like heroin mixed in with all this cocaine."

Immediately after obtaining the inculpatory statement from Bearam, Ellwanger told one of the two case agents about the statement. Only shortly before the trial did Ellwanger tell the prosecutor about the statement.

ATF Special Agent Thomas Shelton was one of the agents who executed the search warrant. He saw Bearam sitting in the kitchen near the closet from which the drugs were recovered. About 45 to 60 minutes after the search was completed, Shelton took part in a "brief, ten-minute interview" of Bearam in custody at an ATF field office. Also present were Thomas Kelly, the group supervisor, and Detective Chuck Harrison.

To Shelton's knowledge, Harrison had not been involved in the search. Before commencement of the interview, Kelly gave Bearam his Miranda warnings, and Bearam signed a Miranda waiver form. Bearam was not told that the statement he had previously made could not be used against him. During the interview, Bearam admitted that he dealt with drugs and that, the day before, he had received the bag of drugs recovered from the closet.

Shelton testified that it was only a month before trial that he learned of the inculpatory statement Bearam had made to Ellwanger. Shelton admitted that he spoke to Ellwanger throughout the day of the search, but stated that they only discussed the search, not any interviews of Bearam.

The District Court announced at the completion of Shelton's testimony that it would suppress the unwarned statement Bearam made to Ellwanger, but not the statement he made to Shelton during the interview at the ATF office. The court found that the interviewing agents conducted their investigation in good faith, ruling that they did not deliberately utilize a "question-and-answer tactic" or any other tactic to avoid the requirements of Miranda or to "elicit any incriminating material." The court reasoned that the warnings provided to Bearam functioned effectively and "accomplish[ed] their objective."

Turning to the factors enumerated in the plurality's decision in Missouri v. Seibert, 542 U.S. 600, 604-11, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the court noted that the factors supported its finding that Miranda warnings were effectively administered. Specifically, in concluding that the conduct in the present case did not amount to a question-and-answer tactic as described in Seibert, the court found, inter alia, that there was no interrogation by Ellwanger, there was no continuity of personnel, and the second statement was made at least an hour after the first.

II. Sentencing

A presentence report ("PSR") dated March 15, 2005 indicated that, pursuant to the U.S. Sentencing Guidelines, Bearam's offense level was 36, and that, taking into account Bearam's Criminal History Category I, the advisory range was 188 to 235 months imprisonment.

The drug quantity portion of this calculation was based on three crack sales by Bearam's co-defendant, Johnny Carter, and the drugs recovered from the closet in Sprinkles. However, although the Government's forensic chemist, Maureen Craig, testified at trial that 546.6 grams of cocaine base and 760.6 grams of powdered cocaine were recovered from the closet, the PSR stated that the respective amounts were 760.6 grams and 791.2 grams. The PSR further determined that a role adjustment was not warranted.

In a letter to the court dated May 9, 2005, the government raised objections to the PSR. The government argued that, on the basis of Carter's testimony about Bearam's additional drug sales to Carter and about Bearam's sale of larger amounts of drugs to 10 other persons, the drug quantity should be increased, and that Bearam should receive a four-level role enhancement, resulting in a Guidelines level of 42 and an advisory Guidelines range of 360 months to life. Defense counsel objected to the government's letter, arguing that Carter was not credible and that the jury had not made determinations about Bearam's role or the drug quantity.

In an addendum to the PSR, dated May 11, the U.S. Probation Department agreed with the government's objections. In particular, the addendum recognized Bearam's status as the owner and manager of the establishment where the drugs were obtained, and that he was the drug supplier of at least 10 individual dealers.

The court, without making specific factual findings as to drug quantity or defendant's role in the crime, reached the same conclusion about the...