United States v. Brown
| Decision Date | 11 June 2003 |
| Docket Number | Nos. 01-2028/2162.,s. 01-2028/2162. |
| Parties | United States of America, <I>Plaintiff-Appellee,</I> <I>v.</I> Brian Brown (01-2028) and Kevin Courtney (01-2162), <I>Defendants-Appellants.</I> |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 99-80035—Gerald E. Rosen, District Judge.
ARGUED:
Suzanna Kostovski, Detroit, Michigan, John K. West, McCOY, WEST, FRANKLIN & BEAL, Lexington, Kentucky, for Appellants. J. Michael Buckley, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF:
Suzanna Kostovski, Detroit, Michigan, John K. West, McCOY, WEST, FRANKLIN & BEAL, Lexington, Kentucky, for Appellants. J. Michael Buckley, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
Before: KENNEDY, SILER, and GILMAN, Circuit Judges.
Defendants-Appellants Brian Brown and Kevin Courtney appeal from their conviction and sentencing for conspiracy to distribute more than 50 grams of cocaine base. Brown also appeals from the district court's denial of his motion for a new trial. We affirm the jury's verdict and the district court's sentence.
Brown and Courtney were indicted by a federal grand jury on January 20, 1999. The indictment alleged that between 1987 and 1999 Brown and Courtney were part of a multi-person conspiracy to distribute cocaine and cocaine base (crack cocaine) in violation of 21 U.S.C. §§ 841(a)(1), 846. Specifically, the government alleged that several persons — including Shawn McKinney (a.k.a. "Click"), Roy Wells (a.k.a. "Joe Joe"), Richard Simpson, Sondra Jackson, Michael Moore, and the Defendants, among others — were involved in a conspiracy to pool their money to purchase powder cocaine, to distribute it, and to cook some of it into cocaine base for distribution. A superseding indictment was filed to include drug quantities exceeding 5 kilograms of cocaine and 50 grams of cocaine base (crack cocaine).
Because the indictment did not list the particular acts forming the basis of Brown's participation in the conspiracy, the district court ordered the government to file a Bill of Particulars. The first Bill of Particulars identified only an alleged drug transaction between April and June of 1992 ("the 1992 transaction") involving Brown and an FBI informant. The 1992 transaction had been the subject of a prior indictment, which had been dismissed with prejudice by the federal district court for violations of Brown's constitutional and statutory right to a speedy trial. United States v. Brown, 985 F. Supp. 722 (E.D. Mich. 1997), aff'd, 169 F.3d 344 (6th Cir. 1999). Brown filed a motion to exclude evidence referring to activities underlying the 1992 indictment, and filed a motion to require the government to furnish more information regarding the alleged conspiracy in the present indictment. The district court ordered the government to file a supplemental Bill of Particulars. The second Bill identified two witnesses, Donnell Simpson and Ronald Simpson, who allegedly would testify to drug transactions in 1992, 1993, and 1994. The district court denied Brown's motion to exclude the evidence relating to the 1992 indictment without prejudice so that Brown could object at trial under Federal Rule of Evidence 404(b) to the government's attempt to introduce such evidence. At trial, Brown succeeded on that motion.
Brown also filed a pre-trial motion to dismiss the indictment based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Although the superceding indictment set forth a specific range of drug quantities (i.e., "more than 50 grams of cocaine base"), Brown argued: (1) that Apprendi required the government to allege a specific quantity, not merely a range; (2) that the jury must be given a special verdict form separating out the cocaine and cocaine base charges; and (3) that Apprendi requires the government to allege the particular subsection of 21 U.S.C. § 841(b) under which it seeks to prosecute. The district court denied this motion shortly before trial. However, it gave the jury a special verdict form.
On January 30, 2001, Brown and Courtney were convicted by a jury of conspiracy to distribute more than 50 grams of cocaine base. They were found not guilty of conspiracy to distribute more than 5 kilograms of powder cocaine.
At Courtney's sentencing, the district court assigned a base offense level of 32 and a two-point enhancement for possession of a firearm, resulting in a total base offense level of 34. Courtney was sentenced to 151 months — the bottom of the guidelines range. At Brown's sentencing, the district court initially assigned a base offense level of 32. The district court found by a preponderance of the evidence that Brown's involvement in the 1992 transaction was relevant conduct, and thus attributed an additional fourteen kilograms of cocaine to Brown, raising his base offense level to 34. Brown was sentenced to 188 months — the top of the guidelines range.
After retaining new counsel, Brown filed a motion for a new trial, which was denied.(1) The court also declined to construe Brown's motion for a new trial as a 28 U.S.C. § 2255 motion, reasoning that such a motion should not be considered by the district court while Brown's direct appeal was pending. Courtney filed a motion for new trial based on ineffective assistance of counsel, which was also denied. Defendants' various appeals have been consolidated in this present action.
Brown argues that his trial counsel provided ineffective assistance by failing to raise a defense based on the statute of limitations, by failing to object to jury instructions that constructively amended the indictment, and by permitting adverse testimony to be introduced at trial.(2) Generally, we "do not consider ineffective assistance of counsel claims on direct appeal, because the record usually is not sufficiently developed to permit proper assessment of such claims." United States v. Neuhausser, 241 F.3d 460, 474 (6th Cir. 2001). United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997). The fact-intensive nature of Brown's claim of ineffective assistance weighs in favor of our usual rule. We therefore decline to consider these claims on direct appeal.
Brown argues that the indictment was in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), because it did not specifically reference the penalty provisions of 21 U.S.C. § 841(b). Apprendi requires that all facts that increase the penalty for a crime beyond the statutory maximum be submitted to a jury and proved beyond a reasonable doubt. Based on Apprendi, Brown argues that the penalties under 21 U.S.C. § 841(b) are essential elements of the offense, and, therefore, must be explicitly alleged in the indictment. There is no support in Apprendi for requiring an indictment to reference the penalty provisions of § 841(b) where the indictment properly sets forth specific drug quantities and puts the defendant on notice of all the elements of the offense that would increase the penalty for the crime beyond the statutory maximum. Therefore, there is no Apprendi error.
At trial, it became known that one of the government's witnesses, Donnell Simpson, had sent a letter to DEA Agent James Doby regarding the possibility of providing information concerning this case in exchange for a reduction in his sentence. This letter was lost by the government. Courtney claims that the failure of the government to produce this letter requires reversal of his conviction under Brady v. Maryland, 373 U.S. 83, 87 (1963) (). See also United States v. Bagley, 473 U.S. 667, 676 (1985) (). We review the denial of a Brady claim de novo. United States v. Corrado, 227 F.3d 528, 538 (6th Cir. 2000).
In order to succeed on a Brady claim, the defendant must show that the evidence was "material either to guilt or punishment." Brady, 373 U.S. at 87. Evidence is material where there is a "reasonable probability" that it would have produced a different result. Bagley, 473 U.S. at 678, 682; Kyles v. Whitney, 514 U.S. 419, 434 (1995). Courtney does not make any attempt to demonstrate the materiality of the letter, and there is no obvious indication that the contents of the letter would have produced a not-guilty verdict. Moreover, we have held that there is no Brady violation where the evidence is available from another source. See United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991). Both Agent Doby and Donnell Simpson testified and were cross-examined regarding the contents of the letter. Although it may be true, as Courtney argues, that the letter itself would have been more valuable as impeachment evidence, this marginal comparative benefit is even less likely to have produced a different verdict. Therefore, there is no Brady error.
Just before oral argument, Brown filed a supplemental argument in support of a new trial. Brown's supplemental argument alleges: (a) that the government failed to disclose that it was filing motions under Fed. R. Crim. P. 35 to reduce Ronald and Donnell Simpson's sentence in exchange for their assistance in Brown and Courtney's...
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