United States v. Gary Leon Brown ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4252
GARY LEON BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., District Judge.
(CR-89-92)
Submitted: September 8, 1999
Decided: November 2, 1999
Before ERVIN,* WILKINS and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Bryan Gates, Winston-Salem, North Carolina, for Appellant. Walter
C. Holton, Jr., United States Attorney, Harry L. Hobgood, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
*Judge Ervin was assigned to the panel for this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gary Leon Brown was convicted in 1989 of conspiring to possess
cocaine and crack cocaine with intent to distribute between August
and December of 1988, and of distributing 79.7 grams of crack on
December 7, 1988. Brown appealed, but the appeal was dismissed for
lack of prosecution. In 1998, the district court found that Brown had
received ineffective assistance in connection with his appeal, granted
relief on this claim under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1997), and re-entered the original judgment to afford Brown an
opportunity to appeal his conviction and sentence. Brown timely
appealed from the newly entered judgment, contesting the district
court's limitation on his cross-examination of two government wit-
nesses, as well as its enhancement of his sentence on the grounds that
he obstructed justice by giving perjured testimony at trial, see U.S.
Sentencing Guidelines Manual § 3C1.1 (1988), and that he had an
aggravated role in the offense. See USSG§ 3B1.1(c). We affirm the
conviction and the district court's finding concerning Brown's role in
the offense. We vacate the sentence and remand for reconsideration
of the obstruction of justice adjustment.
A defendant has a right under the Confrontation Clause to cross-
examine witnesses who are cooperating with the government about
potential sources of bias. See United States v. Cropp, 127 F.3d 354,
358 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)),
cert. denied, ___ U.S. ___, 66 U.S.L.W. 3491 (U.S. Jan. 26, 1998)
(No. 97-7265). However, the trial court retains discretion to place rea-
sonable limits on cross-examination "based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the wit-
ness' safety, or interrogation that is repetitive or only marginally rele-
vant." Van Arsdall, 475 U.S. at 679. An improper denial of an
opportunity to examine a witness for bias is subject to harmless error
review. See id. at 684.
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Brown contends that the district court abused its discretion in this
case by restricting his cross-examination of government witnesses
Patrick Harris and Victor Gilmer. Brown was prevented from asking
what effect they thought their plea agreements would have on manda-
tory sentences to which they might have been subject. The district
court curtailed this line of inquiry because it believed that the jury had
information sufficient to allow it to weigh the credibility of Harris and
Gilmer in light of any incentive they might have to lie in order to
obtain the benefits of cooperation under their plea agreements. The
court permitted both plea agreements to be read to the jury in their
entirety.
A defendant "is constitutionally entitled to explore . . . what the
witness understands he or she will receive" because "the likelihood
that a prosecution witness is shading or even contriving testimony
adverse to the defendant reasonably can be viewed as directly corre-
lated with the perceived value of such testimony to the witness."
Hoover v. Maryland, 714 F.2d 301, 305 (4th Cir. 1983) (emphasis in
the original). However, "the proper inquiry for a reviewing court is
whether the jury possesses sufficient evidence to enable it to make a
``discriminating appraisal' of bias and incentives to lie on the part of
the witness." Cropp, 127 F.3d at 359 (quoting United States v.
Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995)).
We find that any error committed by the district court in limiting
the cross-examination of Harris and Gilmer was harmless. The factors
that are relevant in determining whether a Confrontation Clause error
is harmless include the importance of the witness' testimony to the
government's case, whether the testimony was cumulative, whether
other evidence corroborated or contradicted the witness' testimony on
material points, the extent of cross-examination permitted, and the
overall strength of the government's case. See Van Arsdall, 475 U.S.
at 684. Here, while the testimony of Harris and Gilmer was the crux
of the government's case, their testimony agreed on all material
points. Harris' testimony was further corroborated by the govern-
ment's introduction of a tape of a telephone conversation he had with
Brown. Both Harris and Gilmer were cross-examined extensively
about all aspects of their testimony.
Moreover, Harris steadfastly maintained (whether correctly or not)
that he had not been advised of any sentencing benefit that he might
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expect under his plea agreement. Gilmer's plea agreement, including
the dismissal of the counts carrying mandatory sentences, had been
finalized before Brown was indicted, and Gilmer was already serving
his sentence when he testified against Brown. We find that additional
questioning of either witness would have been of marginal relevance
and that the possible bases for bias were sufficiently presented to the
jury.
Following Brown's conviction, the probation officer recommended
that he receive a two-level adjustment for obstruction of justice based
on perjured trial testimony. Over Brown's objection, the district court
at sentencing adopted the probation officer's recommendation to give
the obstruction of justice adjustment without making an independent
finding that Brown had committed perjury. The government concedes
that the district court's failure to make an independent finding of per-
jury is inadequate under United States v. Dunnigan, 507 U.S. 87, 95
(1993), which was decided after Brown was sentenced. Consequently,
we find that resentencing is necessary to permit the district court to
reconsider whether the adjustment for obstruction of justice is appro-
priate.
Brown also objected to the probation officer's recommendation
that he receive a two-level role adjustment under§ 3B1.1(c), a recom-
mendation which the district court also adopted without comment. A
two-level adjustment should be made under § 3B1.1(c) if the defen-
dant was an organizer, leader, manager, or supervisor in any criminal
activity that involved fewer than five participants or was not exten-
sive. Harris testified at trial that Brown directed him to make deliver-
ies of crack when Brown was in Miami, to pick up money owed to
Brown, and to get a pager for Brown's use. Because Harris' testimony
established by a preponderance of the evidence that Brown had a
leadership role and the district court evidently found him a credible
witness, the court did not clearly err in making the adjustment. See
United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997) (setting
out standard of review).
We therefore affirm the conviction and the district court's determi-
nation of Brown's aggravated role. We vacate the sentence and
remand for resentencing to permit the district court to reconsider the
obstruction of justice adjustment in light of Dunnigan. We dispense
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with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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