United States v. Brown ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4242
JULEEN BROWN, a/k/a Carol Baxter,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-96-108)
Submitted: January 27, 1998
Decided: February 19, 1998
Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
John A. Gibney, Jr., S. Jane Chittom, SHUFORD, RUBIN & GIB-
NEY, P.C., Richmond, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Juleen Brown appeals her jury conviction on one count each of
conspiracy to distribute crack cocaine, distribution of crack cocaine,
and aiding or inducing the distribution of crack cocaine, in violation
of 21 U.S.C.A. §§ 841, 846 (West 1994 & Supp. 1997), 18 U.S.C.A.
§ 2 (West 1969). Brown received a two-level enhancement as a man-
ager or supervisor of a drug distribution operation, and was sentenced
to 292 months imprisonment. On appeal, she raises four challenges:
(1) the district court's denial of her motion to dismiss count one of
the indictment; (2) sufficiency of the evidence to support the conspir-
acy charge; (3) sufficiency of the evidence to sentence Brown as a
manager/supervisor of the conspiracy; and (4) the district court's
denial of her motion for a pre-sentence mental evaluation. For the rea-
sons set forth below, we affirm Brown's conviction and sentence.
Brown first challenges the district court's denial of her motion to
dismiss count one, the conspiracy charge. Count one charged that
beginning in or about 1994, the exact date being unknown,
and continuing until September 9, 1996, in the Eastern Dis-
trict of Virginia, and elsewhere, . . . JULEEN BROWN. . .
and ISIAH JONES did knowingly, willfully, and unlawfully
combine, conspire, confederate, and agree, together and
with others . . . to distribute and to possess with the intent
to distribute [crack cocaine].
(J.A at 20.) Brown moved for a bill of particulars asking for the place
and time the conspiracy was formed, the date of her alleged entry into
the conspiracy, and the names of other co-conspirators. The trial court
granted in part and denied in part the bill of particulars. The Govern-
ment provided responses to Brown's bill of particulars, as ordered by
the court. On appeal, Brown claims that the particulars supplied by
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the Government under court order did not remedy the deficiencies of
the indictment, and were insufficient to allow her to prepare her
defense.
To the extent Brown challenges count one of the indictment itself,
we find it to be facially adequate and sufficient. See Fed. R. Crim. P.
7(c)(1); Hamling v. United States, 418 U.S. 87, 117 (1974); United
States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990). To the extent her
challenge is to the sufficiency of the bill of particulars, we find that
her claim is without merit. Brown was notified of the identities of the
co-conspirators known to the Government and who testified against
her at trial. In addition, drug distribution transactions in which Brown
engaged with Clive Tomlinson were charged as substantive offenses
in the indictment, and she was provided with access to tape recordings
of her discussions with Tomlinson and Agent Edwardo Alford regard-
ing the distribution of large quantities of crack. Brown was provided
information via the bill of particulars regarding the number of trips
alleged to have been taken to the United States from Jamaica by one
of the co-conspirators, together with the approximate dates of the
trips. She was notified of the approximate range of quantities
involved in the distributions alleged to have taken place in Richmond,
Virginia, the general time range of those distributions, and the fact
that there were a limited number of trips. As the witnesses themselves
had no better recollection of the specifics, the United States could not
provide more specifics to Brown. In addition, the Government pro-
vided Brown with records regarding her trips to the United States,
which records narrowed the timing of the acts in Richmond to a few
possible dates. We find this information sufficient to have enabled
Brown to prepare her defense, and affirm the district court's denial of
Brown's motion to dismiss count one of the indictment.
Brown next claims that the evidence was insufficient to convict her
of conspiracy. In evaluating the sufficiency of the evidence support-
ing a criminal conviction on direct review, "the verdict of the jury
must be sustained if there is substantial evidence, taking the view
most favorable to the Government to support it." See Glasser v.
United States, 315 U.S. 60, 80 (1942). This Court considers circum-
stantial and direct evidence, and allows the Government the benefit
of all reasonable inferences from the facts proven to those sought to
be established. See United States v. Burgos, 94 F.3d 849, 858 (4th Cir.
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1996) (en banc), cert. denied, 117 S. Ct. 1087 (1997); United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In resolving issues
of substantial evidence, this Court does not weigh evidence or review
witness credibility. See United States v. Arrington, 719 F.2d 701, 704
(4th Cir. 1983). Circumstantial evidence need not exclude every rea-
sonable hypothesis of innocence. See United States v. Jackson, 863
F.2d 1168, 1173 (4th Cir. 1989). Even the uncorroborated testimony
of an accomplice may be sufficient to sustain a conviction, see United
States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993), and it is the role
of the jury to judge the credibility of witnesses, resolve conflicts in
testimony, and weigh the evidence, see United States v. Manbeck, 744
F.2d 360, 392 (4th Cir. 1984). This Court may reverse a jury verdict
only when there is not "substantial evidence, viewed in the light most
favorable to the Government, to uphold it." Burks v. United States,
437 U.S. 1, 17 (1978).
The trial evidence fully supports Brown's conviction. Eileen
McCarthy testified that she and other females transported small
"eggs" of cocaine intra-vaginally from Jamaica to New York, and that
Brown delivered cocaine to McCarthy and other females in Jamaica,
for transportation to New York to a man known as"tall man," who
McCarthy believed was Brown's brother. She testified that she
received $1000 per trip. In tape recordings played at trial, Brown
described a very similar transportation system for Richmond-bound
cocaine during her August 21, 1996, conversation with Agent Alford.
She explained that she had individuals transporting cocaine for her,
and that they could only transport 1/4 kilogram at a time.
Isiah Jones, another of Brown's co-conspirators, testified that
Brown asked him in Richmond if he knew any females who could
transport cocaine from Jamaica to the United States for $1000. Also,
the packages of cocaine that Jones saw Brown bring to Richmond
were similar in size and shape as those McCarthy described she
brought into the United States from Jamaica for Brown. In addition,
the period of time of activity described by McCarthy and Jones were
consistent with a single operation involving Brown.*
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*Brown claims on appeal that McCarthy's testimony is incredible due
to her former use of cocaine, heroin, and alcohol, and that she was testi-
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Federal Bureau of Investigation agent David Hulser testified
regarding the search of Clive Tomlinson's residence on September 9,
1996. Brown had stayed at that residence the night before she deliv-
ered a kilogram of freshly cooked crack cocaine to Agent Alford on
the day of the search. Agent Hulser recovered from the residence vari-
ous airplane and bus tickets which supported the inference that Brown
was in Jamaica, went to New York to obtain cocaine transported there
by individuals like McCarthy, and then transported it to Richmond for
distribution to Agent Alford. While circumstantial, we find that this
evidence is sufficient for the jury to have found that McCarthy was
describing the same ongoing conspiracy charged in count one of the
indictment. See Burgos, 94 F.3d at 858.
Moreover, Jones also testified that Brown had been supplying
Tomlinson with crack at least since December 1995. Agent Alford
testified that Tomlinson told him that Brown was his primary sup-
plier, and the only supplier who could provide significant quantities
of crack cocaine. There was evidence at trial that Tomlinson was a
significant participant with Brown in the transactions and negotiations
with Agent Alford. Specifically, Tomlinson was present at each meet-
ing in Virginia, participated in a 1/2 kilogram distribution on August
2, 1996, assisted in cooking one kilogram of crack delivered to Agent
Alford on September 9, 1996, and accompanied Brown to the under-
cover office of Agent Alford on that date. Given the trial testimony
and evidence, and construing that evidence in the light most favorable
to the Government, we find that the evidence was sufficient for a rea-
sonable jury to have found Brown guilty of conspiracy to distribute
crack cocaine, as alleged in count one of the indictment. See Glasser,
315 U.S. at 80.
Brown's third claim on appeal is that the district court erred in
finding that she was a manager or supervisor in the crack distribution
operation and in increasing her base offense level an additional two
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fying as part of a plea agreement. These facts were brought out on cross-
examination, and the jury apparently determined that McCarthy was
credible, despite these facts. This court will not review this credibility
determination. See United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc), cert. denied, 117 S. Ct. 1087 (1997).
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levels. See U.S. Sentencing Guidelines Manual § 3B1.1 (1995). The
trial court's determination that Brown was a manager or supervisor in
the drug operation is a factual determination subject to review only
for clear error. See United States v. Daughtrey , 874 F.2d 213, 217-18
(4th Cir. 1989). We find that evidence at trial, including Brown's con-
versations with Agent Alford in which she adopted a supervisory role
in the drug operation, as well as her attempts to recruit additional
females to transport the cocaine from Jamaica to the United States,
was sufficient to support the trial court's finding that a two-level
enhancement was appropriate.
Finally, Brown claims that the trial judge erred in denying her
motion for a pre-sentence mental evaluation. The bases of her motion
are: (1) she denied criminal responsibility for distribution of cocaine
despite having seen, at trial, videotapes of drug transactions between
herself and Agent Alford; and (2) her claim that she was mentally
incapable of being a manager or supervisor in the drug operation. The
district court's denial of Brown's motion for psychiatric examination
is subject to review for abuse of discretion. See United States v. West,
877 F.2d 281, 285 n.1 (4th Cir. 1989).
The record reveals that the district court had evidence demonstrat-
ing that Brown was mentally competent, including the facts of her
involvement with a long-term, large-scale crack cocaine distribution
network, her understanding of and direction to the female couriers to
hide the drugs inside their body cavities and to have only one courier
at a time travel from Jamaica to the United States in the event that one
was stopped. In addition, the district judge had opportunities to
observe and hear Brown during the numerous recorded meetings in
which she discussed plans for a long-term arrangement for the distri-
bution of large quantities of crack cocaine. Moreover, Brown put on
evidence that her frequent trips between Jamaica and the United
States were required for her ownership and operation of an import
business, in which she negotiated for the acquisition of merchandise
in the United States which she then transported to Jamaica for resale.
Other than Brown's counsel's feeling that Brown's refusal to admit
the obvious must be indicative of mental defect, there is no evidence
in this case to support Brown's contention that she had any problem
being able to understand the nature and consequences of the proceed-
ings against her, or in assisting in her defense. Under these circum-
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stances, we cannot say that the district judge abused his discretion in
denying Brown's pre-sentence motion for psychiatric examination.
Accordingly, we affirm Brown's conviction and sentence. We dis-
pense with oral argument because the facts and legal conclusions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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