                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2006

USA v. Brown
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2269




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 04-2269
                                     ___________



                           UNITED STATES OF AMERICA,

                                            v.

                                 RENARD BROWN,
                                       a/k/a
                                      NARD,
                                           Appellant
                             ________________________

     ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                EASTERN DISTRICT OF PENNSYLVANIA

                  District Court Judge: The Honorable Stewart Dalzell
                              (Criminal No. 02-00172-21)
                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 2, 2006

     BEFORE: SLOVITER and FUENTES, Circuit Judges, and RESTANI,* Chief
      International Trade Judge.

                                   (March 15, 2006 )

                              _______________________


      *
        Honorable Jane A. Restani, Chief International Trade Judge, sitting by
designation.

                                            1
                                OPINION OF THE COURT
                                _______________________


FUENTES, Circuit Judge.

       Renard Brown appeals from his conviction at trial for conspiracy to distribute

cocaine and cocaine base, possession of cocaine base, and possession of cocaine base

within 1000 feet of a school. Brown also appeals his sentence of 300 months in prison.

Regarding his conviction, Brown argues that the District Court erred in denying his

motion to sever, as well as in its instructions to the jury regarding the concept of a “buyer-

seller relationship.” Brown also argues that the District Court should have granted his

motion for acquittal on the conspiracy charge because the government did not present

evidence sufficient for a conviction. As to his sentence, Brown argues that his case should

be remanded for resentencing in accordance with the Supreme Court’s opinion in United

States v. Booker, 543 U.S. 220 (2005). We reject Brown’s appeal of his conviction but

remand for resentencing in accordance with Booker.

                                      BACKGROUND

                                              I.

       Because we write only for the parties, our summary of the facts is abbreviated. In

October 2002, Brown was indicted along with thirty-six co-defendants for conspiracy to

distribute cocaine and cocaine base. Brown was also charged with possession of cocaine

base and possession of cocaine base within 1000 feet of a school. Due to the large number

of defendants requesting trial, the District Court ordered the government to propose

                                              2
groupings of five or fewer defendants for several smaller trials. The government sent a

letter to the court and all counsel proposing that the first trial consist of Brown and four

co-defendants. No defendants objected to this proposal by the appointed deadline, and the

District Court adopted it. When Brown later filed a motion for severance, the District

Court denied it as moot, and also found that Brown would not be prejudiced by the

proposed joint trial. Brown was tried in January 2004 and was convicted on all counts.

       At sentencing, the District Court applied an enhancement under the Federal

Sentencing Guidelines based on a finding that Brown had been involved in a homicide,

but included a downward departure because Brown’s role was not as significant as that of

other co-conspirators. The District Court calculated a guideline range of 292-365 months

and sentenced Brown to 300 months in prison.

                                        DISCUSSION

                                              I.

       Brown argues that the District Court erred in denying his motion for severance. He

claims that spillover evidence related to his co-defendants was prejudicial to his case at

trial, and that he was therefore deprived of a fair trial.1 This Court reviews the denial of a

pre-trial motion to sever for abuse of discretion. United States v. Hart, 273 F.3d 363, 369

(3d Cir. 2001). Even if a district court abuses its discretion in denying a motion to sever,



       1
        The District Court had jurisdiction over this federal criminal case pursuant to 18
U.S.C. § 3231. This Court has jurisdiction over Brown’s appeal of his conviction and
sentence pursuant to 28 U.S.C. § 1291.

                                               3
the defendant must show “‘clear and substantial prejudice resulting in a manifestly unfair

trial’” to obtain a reversal. United States v. Console, 13 F.3d 641, 655 (3d Cir. 1993)

(quoting United States v. Sandini, 888 F.2d 300, 307 (3d Cir. 1989) (internal citation and

emphasis omitted)).

       Under Federal Rule of Criminal Procedure 8(b), two or more defendants may be

charged in the same indictment if “they are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions, constituting an offense or

offenses.” Generally, there is “a preference in the federal system for joint trials of

defendants who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993).

A district court may sever defendants for trial, however, if consolidation “appears to

prejudice a defendant.” Fed. R. Crim. P. 14(a).

       Here, Brown does not discuss whether the District Court abused its discretion, but

focuses instead on the issue of prejudice. He argues that a significant portion of his trial

dealt with his co-defendants’ relationship with Courtney Carter and James Patterson, two

central figures in the conspiracy. He also states that the government emphasized Brown’s

co-defendants’ lavish lifestyle at trial, suggesting that it was supported by drug sales, but

presented no evidence that he had a similar lifestyle. In addition, he claims that there was

extensive evidence presented at trial of shootings, weapons possession, and drug sales

that were not tied to Brown. Brown claims that all of this evidence unrelated to his

conduct inappropriately led to his conviction.

       According to the government, Brown and his four co-defendants were joined for

                                              4
trial because they all sold drugs at the same critical drug distribution location and shared

the same individual as their source for drugs. The government also contends that these

five defendants were involved in nearly all of the acts of violence committed by the

conspiracy. Based on this connection between the defendants, the District Court did not

abuse its discretion in denying Brown’s pre-trial motion for severance. Cf. United States

v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987) (suggesting that charges may be joined at trial

where they are “sufficiently connected logically or temporally”).

       Regardless, Brown has not established prejudice. The fact that not all of the

government’s evidence at trial was directly tied to Brown does not in itself imply

prejudice. See United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991) (“Prejudice

should not be found in a joint trial just because all evidence adduced is not germane to all

counts against each defendant.”). In addition, because the defendants were charged with

conspiracy, acts committed by one in furtherance of the conspiracy were relevant and

admissible against another. Hart, 273 F.3d at 370. Moreover, the government did present

evidence tying Brown to the actions of his co-defendants, including a homicide, and also

presented evidence that he was the co-lessee of an apartment where weapons and

ammunition were kept. Thus, Brown’s claim based on the District Court’s denial of his

motion to sever must fail.2



       2
         Brown’s claim that the jury failed to distinguish between the different defendants
and various pieces of evidence at trial is also weakened by the fact that two of Brown’s
co-defendants at trial were acquitted of certain charges.

                                              5
                                               II.

       Brown also contends that the District Court did not properly instruct the jury about

the possibility that a “buyer-seller relationship,” rather than a conspiracy, existed between

Brown and his co-defendants. There is no evidence that Brown objected on this basis at

trial, and we therefore review the instructions for plain error. United States v. Guadalupe,

402 F.3d 409, 410 n.1 (3d Cir. 2005). Under that standard, “‘before an appellate court can

correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that

affect[s] substantial rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” United

States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (quoting Johnson v. United States, 520

U.S. 461, 466-67 (1997)).

       Brown asserts that his central defense at trial was that he was not part of a

conspiracy with his co-defendants, but that instead he had only a buyer-seller relationship

with them. Under the precedent of this Circuit, “a simple buyer-seller relationship,

without any prior or contemporaneous understanding beyond the sales agreement itself, is

insufficient to establish that the buyer was a member of the seller’s conspiracy.” United

States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). Brown argues that he was entitled to a

detailed instruction on this principle.

       In its instructions to the jury, the District Court stated:

       With respect to evidence regarding buyer-seller relationship, the existence

                                                6
       of such a relationship is not by itself proof that one is a conspirator in a drug
       conspiracy, but such a relationship may be considered in conjunction with
       other evidence to prove that one is indeed such a conspirator.

Brown does not contend that this instruction was inaccurate, but suggests that the District

Court should have provided more detail. This claim is meritless. In addition to the above

instruction, the District Court also properly described the knowledge requirement in a

conspiracy charge. The Court told the jury that to obtain a guilty verdict as to conspiracy,

the government must prove both “the conspiracy, agreement or understanding to

distribute mixtures or substances containing detectable amounts of cocaine or cocaine

base” and that “the defendant knew the purpose of the agreement and deliberately joined

it with the intent to further its unlawful purpose.” The District Court also gave the

following instruction:

       Now, merely associating with others and discussing common goals, mere
       similarity of conduct between or among such persons or knowing about
       criminal conduct, do not make someone a member of the conspiracy.
       Similarly, just because a defendant may have done something that happened
       to help a conspiracy, does not necessarily make him a conspirator.

Thus, the District Court properly instructed the jury that a guilty verdict would require a

finding that Brown understood the purpose of the conspiracy and decided to join it, and

that other associations, including a buyer-seller relationship, would not in themselves

support a finding of guilt. No further instruction on this point was necessary. Brown has

not established plain error, and we deny his appeal on this ground.

                                             III.

       Next, Brown appeals the District Court’s denial of his motion for acquittal under

                                              7
Rule 29 of the Federal Rules of Criminal Procedure. Brown argues that there was

insufficient evidence for the jury to find him guilty of the conspiracy charge, and that at

best, the government only established a buyer-seller relationship between Brown and

certain of his co-defendants. In considering a challenge based on sufficiency of the

evidence for conviction, we view the evidence in the light most favorable to the

government and “will sustain the verdict if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149

F.3d 180, 187 (3d Cir. 1998) (internal quotation marks and citations omitted). Thus, a

“claim of insufficiency of the evidence places a very heavy burden on an appellant.”

United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation omitted).

       Under this strict standard, Brown’s claim must fail. The government’s evidence

against Brown at trial included, among other things, testimony describing Brown

transferring money regularly to a co-conspirator (SA 93-95); testimony identifying Brown

as one of the “workers” on a block where the conspiracy operated (SA 865-68, 877);

testimony stating that Brown was supervised by and worked directly for individuals in

more senior positions in the conspiracy (SA 456-57, 615-17); testimony suggesting that

Brown was involved in a homicide related to the conspiracy (SA 484, 487, 494-95); and

testimony indicating that Brown was one of several conspirators who attempted to aid

another conspirator in escaping from the police (SA 345). A rational trier of fact could

have found that Brown was a member of the conspiracy alleged by the government based

on this evidence. We therefore deny Brown’s appeal of his conviction on this basis.

                                              8
                                           IV.

      Lastly, Brown appeals his sentence based on the Supreme Court’s decision in

Booker. The District Court sentenced Brown prior to the Booker holding, and increased

Brown’s sentence based on judicial findings of fact under the Federal Sentencing

Guidelines. We therefore remand for resentencing in accordance with Booker. See United

States v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (en banc).




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