U.S. v Townsend
| Decision Date | 24 June 1999 |
| Docket Number | 5,9760491 |
| Parties | UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITUNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS BRAXTON TOWNSEND, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Mississippi |
| Court | U.S. Court of Appeals — Fifth Circuit |
BRAXTON TOWNSEND, Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
June 24, 1999
Before KING, Chief Judge, REYNALDO G. GARZA, and JOLLY, Circuit Judges.
I. Factual and Procedural Background
On March12, 1997, the defendant-appellant, Braxton Townsend ("Townsend"), was charged alone in a five-count indictment. Count I charged that on November 14, 1996, Townsend possessed with intent to distribute approximately five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Count II charged that on November 17, 1996, Townsend possessed with intent to distribute four ounces of cocaine base in violation of 21 U.S.C. § 841(a)(1). Count III charged Townsend with carrying a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1). Count IV charged Townsend with conspiring to commit money laundering with drug trafficking proceeds between August 23, 1993 and August 2, 1994, in violation of 18 U.S.C. § 1956(h). Count V charged Townsend with causing a financial institution to fail to file a Currency Transaction Report for a currency transaction in excess of $10,000, in violation of 31 U.S.C. §§ 5313 and 5324(a)(1). The following evidence was presented at trial.
In August of 1993, Townsend began building a home in Lena, Mississippi. Prior to the commencement of the building process, Townsend made arrangements with his cousin, Diane Kincaid ("Kincaid"), to open two accounts at Deposit Guaranty National Bank. Kincaid opened a checking account and a savings account under her name and the name of Townsend's sister, Willie DuPlasser ("DuPlasser"). The purpose of opening the two bank accounts was to permit Kincaid to write checks for expenses related to the construction of Townsend's home in Lena. At the time that the construction began, Townsend lived in Milwaukee, Wisconsin and Kincaid lived in the Lena, Mississippi area.
The arrangement between Townsend and Kincaid encompassed the following: when Townsend wanted Kincaid to make a deposit, he would travel to Mississippi and bring her the cash in a bank bag. Once Townsend had moved to Mississippi and before the construction of the home was completed, Kincaid would pick up the money from Townsend. Townsend would often give Kincaid money in excess of $10,000. Townsend instructed Kincaid, however, that when making bank deposits she should keep each deposit under $10,000. Townsend also told Kincaid to make the deposits at different branches of the bank and to vary the deposits between the savings and checking accounts. Due to Townsend's illiteracy, Kincaid handled all of Townsend's legal and financial matters until the completion of his home in September of 1994.
During the construction process, Townsend would place money in a safe deposit box to pay for the cost of building his home. The contractor testified at trial that he presented receipts for the building materials to Kincaid, who, in turn, would pay him. The contractor explained that the house measured approximately 8,000 square feet and that Townsend spent approximately $380,000 building it.
The Government produced evidence that Townsend had not filed tax returns for the 1990, 1993 and 1994 tax years. In 1991, Townsend failed to report any income and his wife, Lora's reported income was $6,077. In 1992, the Townsends reported an income of $7,000.
An agent with the Internal Revenue Service ("IRS") testified that as early as 1989, Townsend had been receiving food stamps and other governmental assistance from Illinois, Wisconsin and Mississippi. The IRS agent stated that it was her professional opinion that the funds used to build the house came from drug activities. The agent explained that in the course of her investigation, she had checked with authorities and determined that there were open investigations on Townsend for criminal activity involving drugs in other states. The agent stated that her investigation allowed her to gather intelligence information that showed that Townsend had been previously involved in drug activities, that he had no legal sources of income, and that he had large sums of money that legitimately could not be accounted for.
Acting on the information from the IRS, officers with the Mississippi Bureau of Narcotics ("MBN") arranged to make a controlled buy of cocaine from Townsend. The officers used two confidential informants, Sheila Jones ("Jones")(1) and Robert Pollard ("Pollard"), to execute the controlled buy. On the evening of November 14, 1996, Jones, Pollard, and an undercover officer went to Townsend's home in Lena to make the controlled buy. Jones was outfitted with a body transmitter. Upon knocking on his door, Townsend told Jones not to enter his home and directed her to "the corner house," an adjacent building on his property.
Jones entered the "corner house" and Townsend followed. Jones purchased $200 worth of crack cocaine from Townsend after he retrieved it from a soap box located in a smaller house on Townsend's property. Jones paid Townsend with two marked $100 bills.(2) The agent and Pollard remained in the car during the drug transaction.
Pollard testified that Townsend told Jones not to come to his house at that time of night and that she should go to the "little house." Pollard, then drove the car to the "little house." He explained that Townsend came out of the door with a soap box and then asked Jones who was inside the car. Jones told Townsend that Pollard was her uncle and that the undercover officer was a friend. Townsend approached Pollard, and Pollard asked Townsend "whether he was holding."(3) Townsend replied that "he had some" and that Jones "had to come and get it." Pollard stated that Jones and Townsend went inside the "small house" and into the front room. Pollard testified that Jones received the crack cocaine and returned to the car.
Officer Louis Hawkins ("Hawkins") testified that he participated in the controlled buy. He and Sergeant Faron Gardner provided surveillance for Jones, Pollard and the undercover officer as they executed the controlled buy. Hawkins explained that he overheard the conversation between Townsend and Jones wherein Jones requested that Townsend sell her $200 worth of crack cocaine. Through inadvertence, no tape recording of the conversation was made.
Officer Jimmy Nichols ("Nichols") also testified that he overheard the conversation during the controlled buy and identified Townsend as the individual that he heard selling Jones the crack cocaine. Nichols explained that he was positive that it was Townsend talking on the wire because Townsend had a distinct voice.
Based upon the probable cause resulting from the controlled buy, officers of the MBN obtained a warrant to search Townsend's property. On the morning of November 17, 1996, the search transpired. In the course of the search, a box containing money was discovered in the downstairs master bedroom closet of Townsend's home.(4) MBN agents found a total of approximately four ounces of crack cocaine at Townsend's residence. Approximately three to four grams of cocaine were found in a coat pocket in the upstairs master bedroom's closet. Cocaine was also seized from the trunk of a motorcycle and in a van(5) parked inside the garage. The van and the motorcycle were identified as belonging to Townsend. An additional amount of cocaine was found in a "fake battery" in the storeroom located separately from Townsend's main residence. The key ring that contained the key to the storeroom was identified by Townsend as belonging to him.
The MBN agents also found forty-one guns. These included nineteen handguns and numerous shotguns and rifles. Agents also discovered electronic scales, packing material, and cutting agents in Townsend's storeroom.
At the time that the search warrant was executed, Townsend was in the downstairs master bedroom in bed with his wife and child. Officer Nichols, who first encountered Townsend in the master bedroom, discovered a .32 caliber Derringer handgun in the back pocket of Townsend's jeans. Nichols testified that because Townsend was in his underwear and because a female officer was about to enter the room, he asked Townsend if he wanted to put on his jeans. Townsend's jeans were lying on a hot tub directly across the room from where Townsend and his wife had been sleeping. Nichols, when picking up the jeans from the hot tub, found the pants to be unusually heavy. Nichols reached into the back pocket of the jeans and discovered the handgun. Nichols asked Townsend if the gun was loaded. Townsend stated that it was and that it was used for protection. The gun contained two rounds of ammunition.
Townsend's wife, Lora, testified that her husband had won the Illinois Lottery on several occasions and that the total amount of the winnings was $250,000. She recalled that in 1987 or 1988, Townsend had won $22,500. However, Lora testified later that at that time she and Townsend used the money to satisfy their drug addiction.
Lora also stated that the firearm found on the hot tub belonged to Kita Hoye and that Lora kept it there for her protection. Lora denied that the handgun was in Townsend's pants. Lora stated that she had placed the gun on the hot tub and that Townsend's pants had been laid over the weapon. She testified that it was impossible to lie in bed and reach the handgun on the hot tub. Lora also denied that the cocaine found in the coat pocket belonged to Townsend and stated that the guns belonged to friends who were storing in their home.
The Government presented documentary evidence from the Illinois Department of Lottery establishing that from 1985 to 1997, no prizes in excess of $600 had been awarded to Townsend, his wife, or DuPlasser. Townsend testified on his own behalf.
The...
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