                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2005

USA v. Briscoe-Bey
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2059




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 04-2059


                          UNITED STATES OF AMERICA

                                          v.

                            CLARENCE BRISCOE-BEY,

                                                                     Appellant


                   On Appeal from the United States District Court
                            for the District of Delaware
                           (D.C. Crim. No. 03-00018-1)
                       Honorable Kent Jordan, District Judge


                                Argued March 7, 2005

    BEFORE: SCIRICA, Chief Judge, and ROTH and GREENBERG, Circuit Judges




                                (Filed: March 29, 2005)


Colm F. Connolly
United States Attorney
Richard G. Andrews (argued)
First Assistant U.S. Attorney
April M. Byrd
Assistant U.S. Attorney
Nemours Building
1007 Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899-2046

   Attorneys for appellee

Christopher S. Koyste (argued)
Assistant Federal Public Defender
704 King Street, Suite 110
Wilmington, DE 19801

   Attorneys for appellant


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before this court on appeal from a judgment of conviction

and sentence entered on April 2, 2004, following appellant Clarence Briscoe-Bey’s

conviction at a jury trial and subsequent sentencing for distribution of more than 500

grams of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Using the

Sentencing Guidelines, the district court calculated Briscoe-Bey’s sentencing range at

between 151 to 188 months and then sentenced him to a 188-month term to be followed

by a four-year term of supervised release. Briscoe-Bey appeals, raising two sentencing

issues arising from the application of the guidelines in the imposition of sentence and the

following contention with respect to his conviction:

       The district court erred in admitting the audiotapes and testimony by case
       agent Hughes regarding the statements of Ernest Morris in that they
       constituted hearsay, for which there is no exception to render them
       admissible, and the district court violated Mr. Briscoe-Bey’s rights under

                                             2
         the confrontation clause to confront the witnesses against him.

Appellant’s br. at 37.

         We first address the issue relating to the conviction which arises from the

circumstance that Briscoe-Bey distributed cocaine to Ernest Morris who at that time was

cooperating with the government but did not testify because neither party called him as a

witness. As Briscoe-Bey sets forth, the court admitted testimony by the case agent

regarding Morris’s statements and admitted audio tapes of conversations between

Briscoe-Bey and Morris at Morris’s residence in Wilmington, Delaware, where Briscoe-

Bey distributed the cocaine. After our review of this matter we find no basis to reverse by

reason of the admission of that testimony but we do comment on four matters with respect

to it.

         First, we address the standard of review. Briscoe-Bey, citing United States v.

Mitchell, 145 F.3d 572, 576 (3d Cir. 1998), contends that our review is plenary as it

involves an interpretation of the Federal Rules of Evidence. The government agrees that

a determination of whether evidence is hearsay and whether it falls within an exception to

the hearsay rule is plenary, but argues that the district court based its decision admitting

the audio tapes on a permissible interpretation of the rules so that we review its decision

for an abuse of discretion citing, inter alia, United States v. Tyler, 281 F.3d 84, 98 (3d

Cir. 2002). We agree with Briscoe-Bey on the standard of review issue as he contends

that some of the evidence to which he objects simply could not be admitted on any basis.



                                               3
Thus, we are exercising plenary review in considering whether there was error in its

admission.

       The second point we mention is that the parties disagree on why certain evidence

was admitted, a significant point because if it was not offered for the truth of the matter

asserted it was not hearsay and thus could not be inadmissible on that basis. Briscoe-Bey

contends that the court erred in not giving a limiting instruction “that the taped

conversations were offered solely to provide context to Mr. Briscoe-Bey’s statements and

were not to be considered for the truth.” Appellant’s br. at 45. The government answers

that it is clear that the statements were not offered “for the truth of the matter asserted,”

appellee’s br. at 29, and that, in any event, Briscoe-Bey in the district court did not

“request” the court to give a limiting instruction as provided in Federal Rule of Evidence

105. We agree with the government on this point. In this regard we find it particularly

significant that in his reply brief Briscoe-Bey does not challenge the government’s

assertion that he did not seek a Rule 105 limiting instruction and at oral argument before

us he confirmed that he had not done so.

       The third point relates to the case agent’s testimony that after the cocaine delivery

at Morris’s residence the agents “obtained a photograph from [sic] Mr. Briscoe-Bey,

showed that photograph to Mr. Morris, who identified Mr. Briscoe-Bey as being the same

individual that entered his house and delivered a kilogram of cocaine.” 1 App. at 223. The

  1
   As Briscoe-Bey indicates in his brief, appellant’s br. at 7, the agents obtained the
photograph from a motor vehicle database. Thus the “from” should have been “of” in the

                                               4
government concedes that “the testimony served no other purpose than one of

identification,” appellee’s br. at 32, but argues that the evidence was harmless as “[t]he

identity of the defendant was not an issue in the trial.” Id. Briscoe-Bey responds that

“the government is simply incorrect that identification was not at issue in this action.”

Appellant’s reply br. at 11.

       Plainly the government is correct on this point. After all, Briscoe-Bey indicates

that “[t]he most important issue in the entire case was whether there in fact was a delivery

of drugs to Ernest Morris on January 29, 2003 at Mr. Morris’ residence.” Id. (emphasis in

original). He then goes on to argue that there was not a delivery and that the entire claim

that he delivered the cocaine was a fabrication. He supports this claim with evidence

tending to show that he was not associated with the drugs, though he does not deny that

he, in fact, visited Morris, following which Morris turned over cocaine to the government.

       Furthermore, on the identification issue the government points out that Briscoe-

Bey:

       was identified by surveillance agents as being the person who met with the
       defendant [sic] and who talked with the defendant [sic] over the telephone.2
       His cellular telephone reflected the telephone calls between him and the
       informant that were tape-recorded by the Government. Finally, the
       defendant confessed to the transaction in the presence of three law
       enforcement officers.



agent’s testimony as Briscoe-Bey was not cooperating in his own prosecution.
  2
    We believe that the government intended to refer to Morris rather than the “defendant”
in this sentence.

                                              5
Appellant’s br. at 32. Overall, we are satisfied that while there was a question about what

happened on January 29, 2003, at Morris’s residence there is no question about who was

there. In the circumstances, the hearsay error was harmless under any standard. See

Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967); United States v.

Quintero, 38 F.3d 1317, 1331 (3d Cir. 1994).

       The final point with respect to the evidence relates to Crawford v. Washington,

541 U.S. 36, 124 S.Ct. 1354 (2004), dealing with the Sixth Amendment Confrontation

Clause, a case we recently applied in United States v. Hendricks, 395 F.3d 173 (3d Cir.

2005). The government, though addressing Briscoe-Bey’s Confrontation Clause

argument on the merits, contends that he “does not point to any place or time where he

objected to any evidence on the basis of the Confrontation Clause. Therefore the claimed

Confrontation Clause error is not subject to review at all.” Briscoe-Bey agrees that he did

not raise a Confrontation Clause argument in the district court. Nevertheless, we will

entertain Briscoe-Bey’s Confrontation Clause argument on a plain error basis and thus we

reject the government’s contention that we cannot review the Confrontation Clause issue.

See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770 (1993); Government of the

Virgin Islands v. Rosa, 399 F.3d 283, 290 (3d Cir. 2005). But, after making the review,

and considering Crawford and Hendricks, we see no basis to reverse by reason of

anything in either case as there was not a Confrontation Clause violation in this case.

       We have one more point with respect to the conviction. Briscoe-Bey contends that



                                             6
this case was close but that assertion is simply not accurate. In fact, the evidence against

him was overwhelming. While we have not set forth the evidence at length, we do quote

the following conversation between Morris and Briscoe-Bey that was recorded at their

first meeting in Morris’s house which clearly established why they were together:3

       MORRIS: What’s up big time?
       DEFENDANT: All right baby. What’s happening?
       MORRIS: Yeah. I got my little baby man. I can’t, you know what I’m
       saying.
       DEFENDANT: I see she likes you a lot.
       MORRIS: Yeah. That’s my baby man uh, I just wanted to rap to you man.
       DEFENDANT: Okay.
       MORRIS: I talked to, I talked to my man. He ain’t, he ain’t around the
       city. Said he told me to get with you.
       DEFENDANT: No. he out of town. Right.
       MORRIS: And I told him to got, I be having people wanting to grab them
       off of me. I need two of them like immediately. You know what I’m
       saying? I got a nigger that want them right know and shit. So . . .
       DEFENDANT: Ounces?
       MORRIS: The older niggers. Yeah. Not ounces.
       DEFENDANT: You need two keys?
       MORRIS: Yeah. He know I ain’t, you know what I’m saying? I told you
       man.
       DEFENDANT: Yeah, Okay. Uh. . .
       MORRIS: I ain’t never got no ounces off of him. Shit.
       DEFENDANT: I hear you. Uh, I can help you out with one.
       MORRIS: All right. I’ll just have to put him, you know. . .
       DEFENDANT: What did he, what did he give them to you for?
       MORRIS: He give them to me for 25 but I told the boy I’d give them to
       him for 24-5 if he get both of them and I just wasn’t going to make nothing
       off the deal. You see what I’m saying.

  3
    It should be understood that originally the government instructed Morris to make his
purchase from another person who turned out to be out of Wilmington at that time. That
person, however, referred Morris to Briscoe-Bey. We also point out that in the cocaine
business a “key” is a kilogram and the reference to Morris’s “little baby” apparently was
to his fiance!e who was in the house when Briscoe-Bey arrived.

                                              7
       DEFENDANT: Yeah.
       MORRIS: But, I just, I just won’t make nothing. . .
       DEFENDANT: Yeah. I can only get one.
       MORRIS: I’ll just tell him I only got one for 25. You know what I’m
       saying?
       DEFENDANT: Okay. Okay.
       MORRIS: Hey, hey , hey , hey , hey , hey, hey.
       DEFENDANT: Uh, give me about ten minutes.
       MORRIS: All right. [Inaudible] . . .all right. Wo, wo, wo, wo, mama.
       Wo, you okay. Just call when you’re out front or something. All right.
       DEFENDANT: All right.

App. at 136-37. This conversation obviously reflected the initiation of a narcotics

transaction.

       Finally, we determine that the sentencing issues Briscoe-Bey raises are addressed

best by the district court in the first instance. Thus, we will vacate his sentence and will

remand the case to the district court for resentencing.

       For the foregoing reasons the judgment of conviction and sentence will be

affirmed with respect to the conviction but will be vacated with respect to the sentence

and the matter will be remanded to the district court for resentencing.




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