United States v. Eddie Jerald Brooks , 270 F. App'x 847 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-11967 March 21, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00187-CR-ORL-31-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE JERALD BROOKS,
a.k.a. Rod,
CHARLES CLARENCE BROOKS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(March 21, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Charles Brooks appeals his convictions and sentences for: (1) conspiracy to
possess with intent to distribute 50 grams or more of crack cocaine (Count I);
(2) possession with intent to distribute crack cocaine on January 13, 2006 (Count
IV); and (3) possession with intent to distribute 5 grams or more of crack cocaine
on January 24, 2006 (Count V). Charles’s son, Eddie Brooks, appeals his
convictions and sentences for: (1) conspiracy to possess with intent to distribute
50 grams or more of crack cocaine (Count I); (2) possession with intent to
distribute crack cocaine on January 13, 2006 (Count IV); and (3) possession with
intent to distribute crack cocaine on February 3, 2006 (Count VII). Charles and
Eddie each assert three issues on appeal, and Eddie adopts Charles’s issues. We
address each of the issues on appeal in turn, and affirm their convictions and
sentences.
I.
Both Charles and Eddie assert the district court abused its discretion by not
granting Charles’s motions to sever. Charles contends the district court erred by
not granting his motions for relief from prejudicial joinder. According to Charles,
the district court admitted several pieces of evidence, admissible against Eddie,
that did not necessarily relate to Charles and that were highly prejudicial, including
Eddie’s testimony regarding the firearms that were found in Eddie’s and Charles’s
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Mathers Street house prior to the start of the conspiracy. Finally, Charles contends
the jury’s split verdict demonstrates its lack of confidence in the evidence. Eddie
adopted this argument in his brief.
“We review a district court’s ruling on a severance motion only for abuse of
discretion.” United States v. Kennard, 472 F.3d 851, 859 (11th Cir. 2006), cert.
denied, 127 S. Ct. 3004 (2007). In order “[t]o reverse a conviction because of an
improper denial of a severance, a defendant must carry the ‘heavy burden’ of
demonstrating that he ‘suffered compelling prejudice’ and received an unfair trial.”
Id. at 858-59.
“The permissibility of joint trials is governed by Rules 8 and 14 of the
Federal Rules of Criminal Procedure.” United States v. Blankenship, 382 F.3d
1110, 1120 (11th Cir. 2004). Pursuant to Rule 8(b):
The indictment or information may charge 2 or more defendants 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. The defendants may be charged in one or more counts
together or separately. All defendants need not be charged in each
count.
Fed. R. Crim. P. 8(b). Rule 14(a) provides: “If the joinder of offenses or
defendants in an indictment, an information, or a consolidation for trial appears to
prejudice a defendant or the government, the court may order separate trials of
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counts, sever the defendants’ trials, or provide any other relief that justice
requires.” Fed. R. Crim. P. 14(a) (emphasis added).
In general, defendants who are jointly indicted, particularly in conspiracy
cases, should be tried together. United States v. Baker, 432 F.3d 1189, 1236 (11th
Cir. 2005). However, “[s]everance may be granted at the discretion of the district
court if the court determines that prejudice will result from the joinder.” Id. “[A]
district court must balance the right of the defendant to a fair trial against the
public’s interest in efficient and economic administration of justice.” Id.
In Zafiro v. United States, 113 S. Ct. 933 (1993), the Supreme Court
established a two-part test for determining whether the defendant is entitled to a
new trial. Blankenship, 382 F.3d at 1122. “First, a defendant must demonstrate
that he was somehow prejudiced by a joint trial.” Id. “This is done by showing
that the jury was unable to make an individualized guilt determination for each
defendant.” United States v. Francis, 131 F.3d 1452, 1459 (11th Cir. 1997).
“‘This is a heavy burden, and one which mere conclusory allegations cannot
carry.’” Id. (citation omitted). “‘[C]autionary instructions to the jury to consider
the evidence separately are presumed to guard adequately against prejudice.’” Id.
(citation omitted). Importantly, “a defendant does not suffer ‘compelling prejudice
simply because much of the evidence at trial is applicable only to his
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codefendants,’ . . . even when the disparity is ‘enormous.’” Baker, 432 F.3d at
1236 (citations omitted). “After finding that a defendant has suffered prejudice
under step one of the Zafiro test, we then turn to the second step–determining
whether severance . . . is the proper remedy for that prejudice.” Blankenship, 382
F.3d at 1122.
The district court did not abuse its discretion by denying Charles’s and
Eddie’s motions to sever. Both Charles and Eddie were jointly indicted for the
same conspiracy. Because a joint trial is generally appropriate in such a case,
Charles and Eddie bore the “heavy burden” of demonstrating that severance was
nonetheless appropriate because he “suffered compelling prejudice and received an
unfair trial.” See Kennard, 472 F.3d at 858-59; Baker, 432 F.3d at 1236. Charles
claims a significant portion of the evidence presented by the Government was
highly prejudicial and mainly implicated Eddie and not him. However, Charles
cannot demonstrate compelling prejudice by claiming the evidence used at trial
was only applicable against Eddie. See Baker, 432 F.3d at 1236. Further, the bulk
of the evidence to which Charles complains was relevant and admissible against
him to demonstrate the existence and scope of the conspiracy and prove the firearm
charges in Count VIII of the indictment.
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Charles also contends he was prejudiced by Eddie’s testimony, as well as the
Government’s rebuttal evidence, which concerned weapons found in the Mathers
Street house prior to the conspiracy’s start date. However, Charles has not shown
he suffered compelling prejudice with regard to that evidence because the jury
acquitted Charles of the charge relating to the firearms. See Francis, 131 F.3d at
1459. In addition, although Eddie adopted this argument in his brief, his wholesale
adoption of these arguments, many of which were particular to Charles, fails to
meet Eddie’s burden of demonstrating that he too suffered compelling prejudice
and received an unfair trial. Thus, because neither Charles nor Eddie has
demonstrated they suffered compelling prejudice, they have failed to pass the first
step of the Zafiro test, and we need not go to the second step. See Blankenship,
382 F.3d at 1122. Consequently, the district court did not abuse its discretion.
II.
Charles next argues the cumulative effect of the district court’s evidentiary
errors and the denial of his motions to sever rendered his trial fundamentally
unfair. Charles asserts he was prejudiced by the admission of several pieces of
evidence and testimony, and he also contends the district court erred when it
allowed the expert testimony of DEA Agent Baer. Charles contends although the
confidential informant “Lloyd” never mentioned that he purchased crack cocaine
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from Charles or Eddie prior to November 2005, Lloyd did testify that he purchased
the crack cocaine from “Eau Gallie,” and he testified that “Eau Gallie” was the
home of both Charles and Eddie. In addition, according to Charles, coconspirator
Jasper Riles “gave the impression” that he purchased crack cocaine from Charles
prior to November 2005, even though he never mentioned a specific time period.
Eddie adopted this argument in his brief.
A district court’s evidentiary rulings are reviewed for abuse of discretion.
Baker, 432 F.3d at 1202. In addition, “[w]e review for abuse of discretion the
district court’s decisions regarding the admissibility of expert testimony and the
reliability of an expert opinion.” United States v. Frazier, 387 F.3d 1244, 1258
(11th Cir. 2004). “The cumulative impact of multiple evidentiary and instructional
errors are reviewed de novo, although some of the errors might individually be
reviewed for plain error.” United States v. Dohan, 508 F.3d 989, 993 (11th Cir.
2007).
As discussed above, the district court did not abuse its discretion by failing
to grant either Charles’s or Eddie’s motions to sever. Aside from Agent Baer’s
expert testimony, Charles complains of two categories of evidence that he claims
were improperly admitted: (1) evidence that crack cocaine and weapons were being
sold at the Mathers Street house during the course of the conspiracy; and
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(2) evidence that crack cocaine and weapons were being sold at the Mathers Street
house prior to the start of the conspiracy. Because, as discussed below, we
conclude the district court did not abuse its discretion by admitting the evidence
about which Charles complains, we also conclude there was no cumulative error
that rendered Charles’s or Eddie’s trial fundamentally unfair.
A. Evidentiary rulings
Rule 404(b) provides “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b). Such evidence “may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.
For evidence of other crimes or acts to be admissible under Rule
404(b), (1) it must be relevant to an issue other than defendant’s
character; (2) there must be sufficient proof to enable a jury to find by
a preponderance of the evidence that the defendant committed the
act(s) in question; and (3) the probative value of the evidence cannot
be substantially outweighed by undue prejudice, and the evidence
must satisfy Rule 403.
But evidence of criminal activity other than the charged offense is not
extrinsic under Rule 404(b), and thus falls outside the scope of the
Rule, when it is (1) an uncharged offense which arose out of the same
transaction or series of transactions as the charged offense, (2) necessary to
complete the story of the crime, or (3) inextricably intertwined with the evidence
regarding the charged offense.
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United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (quotations
omitted). “A defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent, which it
may prove by qualifying Rule 404(b) evidence absent affirmative steps by the
defendant to remove intent as an issue.” United States v. Zapata, 139 F.3d 1355,
1358 (11th Cir. 1998).
1. Evidence of Crack Cocaine and Firearm Transactions During the
Course of the Conspiracy
The indictment alleged that beginning “on or about November 18, 2005, and
continuing through on or about February 3, 2006,” Charles and Eddie conspired
with Riles to distribute and possess crack cocaine. The indictment also charged
that both Eddie and Charles possessed a firearm in furtherance of the conspiracy
charges in Count I. Thus, the evidence that Charles identifies in his brief
concerning drug and firearm transactions that occurred during the course of the
conspiracy was not “[e]vidence of other crimes, wrongs, or acts,” and the district
court did not abuse its discretion in admitting the evidence.
2. Evidence of Crack Cocaine and Firearm Transactions Prior to the
Start of the Conspiracy
The district court did not abuse its discretion by admitting Lloyd’s testimony
regarding purchasing drugs from “Eau Gallie,” which he identified as Eddie and
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Charles’s home during 2004 and 2005. Lloyd’s testimony was not extrinsic to
either Eddie or Charles because it was necessary to complete the story of the crime,
the testimony was probative to establish Lloyd’s history of purchasing drugs, and
the testimony was not substantially outweighed by the danger of unfair prejudice.
See Edouard, 485 F.3d at 1344.
The district court also did not abuse its discretion by admitting Lloyd’s
testimony regarding purchasing firearms from Charles and having been in
Charles’s bedroom on prior occasions for the purpose of obtaining firearms and
cocaine. Lloyd’s testimony was not extrinsic evidence because it was both
necessary to complete the story of the crime and inextricably intertwined with the
evidence regarding the conspiracy and the firearm charges that occurred during the
course of the conspiracy. See id.
Further, the district court did not abuse its discretion by admitting Riles’s
testimony regarding obtaining crack cocaine from Charles prior to the conspiracy’s
start date because (1) Charles placed his intent at issue, (2) Charles failed to
present any evidence to rebut Riles’s testimony, and, therefore, a jury could have
found by a preponderance of the evidence that he committed the extrinsic act, and
(3) the probative value of the evidence was not substantially outweighed by undue
prejudice. See Zapata, 139 F.3d at 1358.
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B. Expert testimony
Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Fed. R. Evid. 702. “‘The operations of narcotics dealers are a proper subject for
expert testimony under Rule 702.’” United States v. Garcia, 447 F.3d 1327, 1335
(11th Cir. 2006) (citation omitted). Further, we have “recognized the
‘well-established’ ‘rule’ that ‘an experienced narcotics agent’ may testify as an
expert to help a jury understand ‘the significance of certain conduct or methods of
operation unique to the drug distribution business.’” Id. (citation omitted).
Moreover, we have “affirmed the admission under Rule 702 of the expert
testimony of a police officer interpreting ‘drug codes and jargon.’” Id. (citations
omitted).
The district court did not abuse its discretion by permitting Agent Baer to
testify as an expert witness. Agent Baer was an “experienced narcotics agent,” and
his testimony could have helped the jury understand the evidence. Further, Agent
Baer’s testimony was probative because it was the type of testimony that could
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help the jury understand “the significance of certain conduct or methods of
operation unique to the drug distribution business.” See id.
III.
Charles’s final argument is that mandatory minimum sentences are
unconstitutional when they provide for exceptions that can only be applied by
motion from the executive branch. Therefore, Charles contends 21 U.S.C. § 841 is
unconstitutional and violates the doctrine of separation of powers. Charles states
he is “[c]ognizant of current precedent contrary to his position,” but wishes to
preserve the issue for further review. Eddie adopted this issue in his brief.
In United States v. Holmes, we held that statutory mandatory minimum
sentences do not violate the separation of powers doctrine, stating “[i]t is for
Congress to say what shall be a crime and how that crime shall be punished.” 838
F.2d 1175, 1178 (11th Cir. 1988) (citation omitted). In light of our binding
precedent, this argument is without merit.
IV.
Eddie asserts the district court erred by failing to grant his motion for
judgment of acquittal for the conspiracy charge in Count I because the
Government’s evidence showed only that there was cocaine in the house that was
occupied at various time by Eddie and others. According to Eddie, in order for the
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jury to have concluded that there was a conspiracy among him and the other
defendants, the jury must have assumed facts that were not in evidence.
We review de novo a district court’s denial of judgment of acquittal on
sufficiency of evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12
(11th Cir. 2006) (en banc). In considering the sufficiency of the evidence, we view
all of the evidence “in the light most favorable to the government, with all
inferences and credibility choices drawn in the government’s favor.” United States
v. LeCroy, 441 F.3d 914, 924 (11th Cir. 2006). We “cannot reverse a conviction
for insufficiency of the evidence unless . . . we conclude that no reasonable jury
could find proof beyond a reasonable doubt.” United States v. Jones, 913 F.2d
1552, 1557 (11th Cir. 1990). In addition, at least where some corroborative
evidence of guilt exists for the charged offense, “a statement by a defendant, if
disbelieved by the jury, may be considered as substantive evidence of the
defendant’s guilt.” United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)
(emphasis in original). “To be more specific, we have said that, when a defendant
chooses to testify, he runs the risk that if disbelieved ‘the jury might conclude the
opposite of his testimony is true.’” Id. (citation omitted).
To support a conviction for conspiracy to distribute crack cocaine, the
government must establish (1) an illegal agreement existed to possess with the
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intent to distribute crack cocaine, (2) the defendant knew of the agreement; and
(3) the defendant knowingly and voluntarily joined in the agreement. See United
States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). Further, “[b]ecause the
crime of conspiracy is ‘predominantly mental in composition,’ it is frequently
necessary to resort to circumstantial evidence to prove its elements.” United States
v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998) (citations omitted).
Viewing the evidence in the light most favorable to the Government, the
jury’s determination that Eddie was guilty of conspiracy to possess with intent to
distribute crack cocaine is supported by the evidence. The jury reasonably could
have found that a conspiracy to sell crack cocaine from the Mathers Street house
existed among Charles, Eddie, and Riles because Riles testified he obtained crack
cocaine from Charles at the Mathers Street house, and, on three or four occasions,
Riles sold crack cocaine out of the house on Charles’s behalf. Riles also testified
that others came to the Mathers Street house to buy crack cocaine from Charles.
Eddie participated in conspiracy because: (1) Lloyd bought crack cocaine from
Eddie on at least three separate occasions; (2) Lloyd bought crack cocaine from
both Eddie and Charles on two occasions; and (3) Riles acted as a lookout for
Eddie during the February 3, 2006 transaction. Riles also testified he observed
Eddie “cooking” cocaine at the Mathers Street house “a few times.” Det.
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Mercaldo’s testimony that he observed numerous people, including local
prostitutes, frequent the Mathers Street house, corroborated Lloyd’s and Riles’s
testimony that the house was being used by Eddie, Charles, and Riles to sell crack
cocaine. Although Eddie testified he did not live at the Mathers Street house, and
he denied ever having cooked or sold crack cocaine, the jury was free to disbelieve
him and consider his testimony as substantive evidence of his guilt. See Brown, 53
F.3d at 314. Thus, based on the evidence presented, a jury could have reasonably
inferred that: (1) an illegal agreement existed to possess with intent to distribute
crack cocaine: (2) Eddie knew of the agreement; and (3) Eddie knowingly and
voluntarily joined in the agreement. See Charles, 313 F.3d at 1284. Therefore, the
district court did not err by failing to grant Eddie’s motion for judgment of
acquittal.
V.
Eddie contends the district court erred by holding him responsible for 50
grams or more of crack cocaine because the evidence showed he was responsible
for only 35 to 50 grams of crack cocaine.1
1
After the briefs were filed, Eddie filed a letter of supplemental authority, pursuant to
Fed. R. App. P. 28(j). According to Eddie, application of the changes contained in Amendment
706 of the 2007 version of the Guidelines results in a two-level reduction of his base offense
level. Although Eddie might be eligible for a reduction of his base offense level, this issue is not
before us on this appeal as the district court has made no decision on whether Eddie is or is not
entitled to a reduction.
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We review a sentencing court’s application of the Sentencing Guidelines de
novo. United States v. Edmonds, 348 F.3d 950, 952-53 (11th Cir. 2003). We
review a district court’s drug-quantity determination for clear error. United States
v. Mertilus, 111 F.3d 870, 873 (11th Cir. 1997).
Eddie’s assertion he is responsible for less than 50 grams of crack cocaine is
without merit. The Government presented evidence at trial that Eddie was
responsible for more than 50 grams of cocaine, including testimony from persons
who bought crack cocaine, the crack cocaine itself, tape recordings of drug sales,
and expert testimony establishing the nature and weight of the crack cocaine. As
part of its verdict determination, the jury specifically found beyond a reasonable
doubt that 50 grams or more of crack cocaine were involved in the conspiracy
offense for which they found Eddie guilty. Thus, the district court did not clearly
err in finding him responsible for more than 50 grams of crack cocaine for
purposes of sentencing.
VI.
Finally, Eddie contends the district court erred by enhancing his sentence
under U.S.S.G. § 2D1.1(b)(1) because the jury acquitted him of the 18 U.S.C.
§ 924(c)(1) charges contained in Counts VIII and IX.
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“We review the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1)
for clear error, and the application of the Sentencing Guidelines to those facts
de novo.” United States v. Gallo, 195 F.3d 1278, 1280 (11th Cir. 1999).
“Possession of a firearm for sentencing purposes is a factual finding.” United
States v. Geffrard, 87 F.3d 448, 452 (11th Cir. 1996).
A defendant’s offense level should be increased by two levels “[i]f a
dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1).
“The adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1,
comment. (n.3). “The government has the burden under § 2D1.1 to demonstrate
the proximity of the firearm to the site of the charged offense by a preponderance
of the evidence.” United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001).
The government need not prove that the firearm was used to facilitate the
distribution of drugs. Id. “If the government is successful, the evidentiary burden
shifts to the defendant to demonstrate that a connection between the weapon and
the offense was ‘clearly improbable.’” Id. “Relevant conduct of which a defendant
was acquitted . . . may be taken into account in sentencing for the offense of
conviction, as long as the government proves the acquitted conduct relied upon by
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a preponderance of the evidence.” United States v. Barakat, 130 F.3d 1448, 1452
(11th Cir. 1997).
Eddie’s argument the firearm enhancement is inapplicable because the jury
acquitted him of the § 924(c) charges is without merit. The Government was only
required to demonstrate by a preponderance of the evidence that the firearm was
present during the drug transaction. See Audain, 254 F.3d at 1289. Lloyd testified
at trial that Eddie usually carried a gun in his pocket, and he believed Eddie was
carrying a gun in his front pocket during the February 3, 2006, transaction because
Lloyd saw a bulge in Eddie’s front pocket. Lloyd made a controlled purchase of
crack cocaine from Eddie that day using $1,900 worth of bills that were provided
by Det. Mercaldo. Det. Mercaldo testified the bills were photocopied prior to the
transaction. Eddie was arrested shortly after the transaction, and he was found
with a loaded firearm in his pocket and $1,900 worth of bills in his hand.
According to Det. Mercaldo, the serial numbers from the bills Eddie was holding
matched those in the photocopies. Thus, because the Government met its burden
of showing by a preponderance of the evidence a sufficient nexus between the
loaded firearm and the February 3, 2006, drug transaction, Eddie was required to
demonstrate that a connection between the weapon and the offense was clearly
improbable. See id. Eddie failed to meet his burden. Moreover, even though
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Eddie was acquitted of the § 924(c)(1) charges in Counts VIII and IX, his conduct
with regard to the firearm found in his possession that day was relevant for
purposes of sentencing. See Barakat, 130 F.3d at 1452. Therefore, the district
court did not clearly err in applying the § 2D1.1(b)(1) enhancement.
VII.
The district court did not abuse its discretion by denying the motions to
sever because neither Charles nor Eddie demonstrated they suffered compelling
prejudice from the joint trial. Second, neither Charles nor Eddie was entitled to a
new trial because the cumulative effect of evidentiary errors and the denial of the
motions to sever did not render the trial fundamentally unfair. Third, this Court’s
binding precedent precludes Charles’s and Eddie’s argument that the mandatory
minimum provisions of 21 U.S.C. § 841 are unconstitutional on the ground the
provisions violate the doctrine of separation of powers.
Additionally, there was sufficient evidence to support Eddie’s conviction for
conspiracy because a reasonable jury could have concluded beyond a reasonable
doubt that: (1) an illegal agreement existed to possess with intent to distribute
crack cocaine; (2) Eddie knew of it; and (3) Eddie knowingly and voluntarily
joined the agreement. Next, the district court did not clearly err in holding Eddie
responsible for 50 grams of crack cocaine because the jury specifically found that
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50 grams or more of crack cocaine were involved in the conspiracy offense for
which Eddie was convicted. Third, the district court did not clearly err in its
application of the § 2D1.1(b)(1) firearm enhancement, because Eddie did not meet
his burden of showing that a connection between the firearm he possessed at the
time of his arrest and the drug trafficking offense was clearly improbable.
Accordingly, we affirm Charles’s and Eddie’s convictions and sentences.
AFFIRMED.
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