United States v. Brooks

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1894
UNITED STATES OF AMERICA,
Appellee,
v.
GODFREY BROOKS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, Chief U.S. District Judge]
Before
Torruella and Lynch, Circuit Judges,
and Lasker,* District Judge.
Rosemary Curran Scapicchio for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.
March 31, 2006
* Of the Southern District of New York, sitting by designation.
LASKER, District Judge. Appellant Godfrey Brooks
(“Brooks") was convicted in January 2004 as a member of a
conspiracy to distribute cocaine and cocaine base in Maine. He was
found guilty of several counts, including: conspiracy to distribute
and possess with intent to distribute cocaine base under 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A) and 846 ("Count II"); distribution and
aiding and abetting the distribution of cocaine base under 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2 ("Counts VII
and VIII"); and possession with intent to distribute at least five
grams of cocaine base and aiding and abetting under 21 U.S.C. §§
841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2 ("Count IX"). The jury
found that the quantity of cocaine base involved in Counts II and
IX equaled five or more grams, but that the amount involved in
Count II did not exceed fifty grams.
Brooks was sentenced to 276 months on Counts II and IX,
and 240 months on Counts VII and VIII, to be served concurrently.
The sentence was based on a finding by the court that Brooks was
responsible for 73.4 grams of cocaine base, that he was the leader
of the conspiracy listed under Count II, and that he had obstructed
justice by persisting with a false identification. As calculated
in the Pre-Sentence Report ("PSR") and by the court, the sentencing
guideline range for his offense level of 38, and a criminal history
category of II, was 262-327 months.
Brooks appeals on six grounds: (1) the sentence is in
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excess of what was authorized by the jury and is based on evidence
not presented at trial, necessitating a remand under United States
v. Booker, 543 U.S. 220 (2005) or United States v. Antonokapolous,
399 F.3d 68 (1st Cir. 2005); (2) disproportionate weight was
attributed to drug quantity during the sentencing process and
constituted a violation of Brooks' Sixth and Fourteenth Amendment
rights; (3) the findings upon which sentencing enhancements were
based were clearly erroneous, unsupported by the evidence, as well
as in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely v. Washington, 542 U.S. 296 (2004), and Crawford v.
Washington, 541 U.S. 36 (2004); (4) the court deprived Brooks of
his right to confront witnesses; (5) the trial court failed to give
a multiple conspiracy instruction; and (6) the prosecutor's
improper vouching for the cooperating witnesses affected the
outcome of the trial.
For the reasons stated below, we affirm Brooks'
conviction and sentence.
I. Background
Brooks was indicted in May 2003 as a member of one of two
overlapping conspiracies to distribute cocaine base. Roderick
Allen ("Allen") was the common co-conspirator between one
conspiracy run by Easton Wilson ("Wilson"), and another in which
Brooks was involved. At trial, Allen testified as a cooperating
witness for the Government and provided details about the second
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conspiracy, which included himself, Brooks, Cecile St. Hilaire
("St. Hilaire"), and Linda Williams ("Williams").
In late 2002, Allen and Brooks traveled together from
North Carolina to Maine. Upon arriving in Maine, Brooks and Allen
stayed with Williams before driving back to North Carolina. They
returned to Maine soon thereafter, stopping in Boston to pick up
cocaine for which Brooks paid, and discussing distribution options
to people Allen knew. Williams and Allen testified that they
received cocaine from Brooks, while Donceia Robinson ("Robinson")
testified that she purchased cocaine from either Brooks or Williams
at least five times. Brooks was a guest at Williams' home from
December 2002 to March 2003.
Nancy LeMar ("LeMar"), with whom Allen stayed for a
period, testified that another couple, Josh Arbor ("Arbor") and
Nicole Truman ("Truman"), also bought cocaine from Brooks. Allen
confirmed that Brooks supplied LeMar and her boyfriend with cocaine
and that Brooks also gave crack to someone who lived downstairs
from LeMar. According to LeMar, Brooks was at her house up to five
times a week selling crack.
Due to his own cocaine addiction, Allen became less
dependable in the distribution chain and LeMar sometimes dealt with
customers such as St. Hilaire, who estimated that she bought
cocaine from LeMar several times, as well as directly from Allen
and Brooks. St. Hilaire also recalled meeting LeMar's suppliers,
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identified as Brooks and Allen, as well as driving Allen and Brooks
to Boston in order for them to buy cocaine.
About a month after Wilson's arrest, Brooks and Allen
broke off relations and Allen returned to North Carolina. Brooks
continued to live with Williams and to sell crack from LeMar's home
with occasional help from St. Hilaire.
The Maine Drug Enforcement Agency ("MDEA") arranged for
Tom Foss ("Foss") to make controlled crack purchases from Williams
on April 2 and 9, 2003, which were monitored over a body wire on
Foss. Foss first purchased 3.1 grams and then 2.8 grams of crack
that Williams claimed she had obtained from Brooks.
A third deal between Williams and Foss was planned by
MDEA for 5:00 p.m. on April 11, 2003. According to Williams,
Brooks was to provide Williams with $1,000 worth of crack for her
to sell to Foss. On the afternoon of April 11, an MDEA agent saw
Brooks leave Williams' house in a car. The agent requested a stop
by local police in order to identify Brooks. When stopped for
driving without a front license plate, Brooks identified himself as
Dennis Nembhard and presented a New York driver's license with a
photograph that did not resemble him. Brooks was let go with a
warning.
That same day, Williams was arrested upon returning to
her house, where 6.0 grams of crack were found in a kitchen drawer,
and $2,500 in cash was found in a bag. Williams cooperated with
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police and made a phone call to Brooks, which was taped. Brooks
was arrested upon his return to Williams' house, and, by a
subsequent search of his person, was found to possess $1,000 in
small bills inside his shoes.
Brooks was tried together with Stephen McMann ("McMann"),
a member of the Wilson conspiracy, and found guilty on January 13,
2004. The PSR reflects Brooks' objections to the drug quantity
attributed to him as being "insufficiently reliable, based on
evidence not presented at trial, and being contrary to the verdict
returned by the jury." Brooks also objected to the obstruction of
justice and leadership role enhancements. The court ultimately
found Brooks responsible for 73.4 grams of cocaine base and
sentenced him to 276 months, stating:
The Court: I'm not going to give you the
320 months that Mr. Toof thinks
you ought to get, and perhaps
he is correct. I'm also not
going to give you the minimum
because I'm concerned that what
happened in Connecticut in
terms of the outstanding
warrants, I'm concerned with
the international drug
smuggling. I'm going to give
you 276 months, which is toward
the lower end of the guideline
range.
Brooks timely appeals his conviction and sentence on the grounds
specified above.
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II. Discussion
A. Drug Quantity, Leadership Role, and Obstruction of Justice
Enhancements
Brooks contends that remand is required because the
sentence he received was based on judicial fact-finding in
violation of Apprendi, Blakely, and Booker. According to the PSR,
Brooks objected to the drug quantity determination on the grounds
that it was "insufficiently reliable, based on evidence not
presented at trial and ... contrary to the verdict returned by the
jury." Brooks also objected to the court's finding that the
substance was cocaine base, as well as the enhancements premised on
a determination that Brooks played a leadership role and was guilty
of obstruction of justice. Based on his objections, Brooks
maintains that he preserved a Booker error sufficient to require a
remand for resentencing.
The Government argues that Brooks did not in fact present
any Apprendi or Blakely objections. Directing our attention to the
record, the Government states, "Brooks lodged no constitutional
objections based upon Apprendi or Blakely. Thus, he did not
preserve Booker error." The Government maintains that the district
court's determination of drug quantity and imposition of further
enhancements for sentencing purposes were not clearly erroneous
because the findings were based on reliable evidence. The
Government contends that Brooks cannot show that the sentencing
judge would have imposed a lesser sentence under an advisory
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Guidelines system and thus fails to meet the plain error standard
necessary to remand an unpreserved Booker error.
This Court has recently defined a Booker error as, "not
that a judge (by a preponderance of the evidence) determined facts
under the Guidelines which increased a sentence beyond that
authorized by the jury verdict or an admission by the defendant;
the error is only that the judge did so in a mandatory Guidelines
system." Antonakopoulos, 399 F.3d at 75.
A Booker error is only preserved, however, "if the
defendant below argued Apprendi or Blakely error or that the
Guidelines were unconstitutional." Id. at 76. At a minimum, an
objection sufficient to preserve a Booker error "must fall at least
arguably within the encincture of the constitutional concerns
raised in Apprendi, Blakely, and Booker." United States v.
Martins, 413 F.3d 139, 153 (1st Cir. 2005).
Prior to sentencing, Brooks lodged an objection to the
PSR, arguing that the drug quantity finding was "insufficiently
reliable, based on evidence not presented at trial and ... contrary
to the verdict returned by the jury." At sentencing, Brooks'
objections to the drug quantity determination, as well as the other
sentencing enhancements, were again premised solely on the
sufficiency and reliability of the evidence. These types of
objections do not amount to Apprendi/Blakely or constitutional
arguments that preserve Booker error. See United States v.
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Villafane-Jimenez, 410 F.3d 74, 85 n.13 (1st Cir. 2005); United
States v. Bailey, 405 F.3d 102, 114 (1st Cir. 2005). To preserve
a Booker error, a defendant must assail, "as a constitutional
violation, the imposition of enhancements that bring his sentence
above the maximum sentence authorized by jury fact-finding or
admitted facts." United States v. Fornia-Castillo, 408 F.3d 52, 73
(1st Cir. 2005). By objecting to the use of hearsay and
questioning the credibility of witnesses, Brooks did not present an
Apprendi/Blakely or constitutional argument which satisfies the
Antonakopoulos standard for preserving Booker error.
Unpreserved Booker error is evaluated according to the
plain error standard enunciated in United States v. Olano, 507 U.S.
725, 732 (1993), which consists of four factors: (1) an "error,"
(2) that is "plain," and (3) that "affects substantial rights."
Id. If the first three factors are met, we may exercise our
discretion to correct the error, but (4) only if the error
"seriously affects the fairness, integrity or public reputation of
judicial proceedings." Id. at 736. Any sentence imposed under the
mandatory Guidelines system satisfies the first two Olano prongs.
Antonakopoulos, 399 F.3d at 77. As to the third and fourth prongs,
there must be a "reasonable probability that the district court
would impose a different sentence more favorable to the defendant
under the new 'advisory Guidelines' Booker regime." Id. at 75.
The sentencing judge's comments do not support a finding
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that there is a reasonable probability he would have imposed a more
favorable sentence in the absence of the mandatory Guidelines. The
judge specifically sentenced Brooks above the minimum due to
concerns with Brooks' outstanding warrants and the international
nature of the drug smuggling. Additionally, the judge imposed a
supervised release term significantly longer than was mandatory and
found that the estimates concerning drug quantity were "extremely
conservative." It is unlikely the judge would have imposed a
lesser sentence under an advisory Guidelines system, and "[i]t is
not enough for a defendant merely to argue that his sentence might
have been different had the guidelines been advisory at the time of
sentencing." United States v. Sánchez-Berríos, 424 F.3d 65, 80
(1st Cir. 2005). Brooks does not point to anything "concrete ...
that provides a plausible basis" for a finding that the judge would
have sentenced differently under an advisory Guidelines framework.
United States v. Guzmán, 419 F.3d 27, 32 (1st Cir. 2005). Olano
prongs three and four therefore are not satisfied and we find that
the sentencing based on the judge's findings as to drug quantity
did not constitute plain error.
Nor did the judge's findings as to Brooks' leadership
role in the conspiracy and obstruction of justice constitute clear
error. A leadership role enhancement is appropriate when the
sentencing court finds first, that the defendant has acted as an
organizer or leader of a criminal activity, and second, that the
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activity involved five or more participants or was otherwise
extensive. United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.
1993). Based on the evidence presented, the judge found that
Brooks played a leadership role because he
devised and implemented a plan on how to
distribute [the drugs] in terms of locations
and distribution network, either ordered
others to recruit members of the conspiracy or
recruited them himself and issued orders with
regard to how the drugs were obtained, stored
and distributed.
The judge also found that the conspiracy clearly involved at least
seven members who helped Brooks "deliver cocaine, helped him re-
supply with cocaine and provided him with transportation." The
record supports the judge's conclusion as to Brooks' leadership
role and because "such 'role in the offense' assessments are fact-
specific, the district court's views must be accorded 'considerable
respect.'" Id. (citing United States v. Ocasio, 914 F.2d 330, 333
(1st Cir. 1990)). We therefore find that no clear error was
committed.
Finally, the obstruction of justice enhancement was not
clearly erroneous. Perjury serves as a trigger for the obstruction
of justice enhancement, United States v. Campbell, 61 F.3d 976, 984
(1st Cir. 1995), and the sentencing judge correctly assessed that
Brooks committed perjury. In continually denying that he sold any
cocaine or was involved in cocaine trafficking in Maine, Brooks
willfully provided false testimony as to a material fact. The
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judge cited a litany of instances from the record in which Brooks
denied selling or trafficking cocaine despite the significant
evidence indicating otherwise. We can overturn the district
court's findings as to the obstruction of justice enhancement only
if they are clearly erroneous, United States v. Tracy, 36 F.3d 199,
202 (1st Cir. 1994), and the record negates such a finding.
In sum, given the lack of plain error under Booker or as
to the weight given to the drug quantity, and the absence of clear
error as to the leadership role and obstruction of justice
enhancements, the sentence is affirmed.
B. Multiple Conspiracy Instruction
Brooks contends that, because he was tried concurrently
with McMann, the distributor for Wilson's conspiracy, a multiple
conspiracy instruction was required and the judge's failure to give
such an instruction resulted in a violation of Brooks' right to a
fair trial. The Government argues that, at trial, Brooks' counsel
requested only standard instructions and, after the judge
instructed the jury, Brooks' counsel failed to object to the
conspiracy instruction or ask for a multiple conspiracy
instruction.
Brooks' counsel did not request a multiple conspiracy
instruction, nor did he object to the conspiracy instructions after
they were explained to the jury. Plain error review therefore
applies. See Ramirez-Burgos v. United States, 313 F.3d 23, 28-29
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(1st Cir. 2002); United States v. Mitchell, 85 F.3d 800, 807 (1st
Cir. 1996).
A court "should instruct on the [multiple conspiracy]
issue ‘if, on the evidence adduced at trial, a reasonable jury
could find more than one such illicit agreement, or could find an
agreement different from the one charged.'" United States v.
Balthazard, 360 F.3d 309, 315-16 (1st Cir. 2004) (quoting United
States v. Brandon, 17 F.3d 409, 449 (1st Cir. 1994)). Plain error
is not evident in the district court's failure to charge multiple
conspiracies, however, because Count I charged a conspiracy
involving McMann and not Brooks, while Count II charged a
conspiracy including Brooks, but not McMann. Furthermore, in his
instructions on conspiracy, the judge correctly instructed the jury
that the Government had to prove beyond a reasonable doubt that
"the agreement specified in the indictment, and not some other
agreement or agreements, existed between at least two people." See
United States v. Gómez-Rosario, 418 F.3d 90, 104-105 (1st Cir.
2005). Counts I and II are largely distinct in time and membership
such that McMann and Brooks cannot be said to have been charged as
members of a single overarching conspiracy and the jury did not
have an opportunity to convict Brooks of the same conspiracy to
which McMann was a party. Given the separate conspiracies with
which McMann and Brooks were charged, a multiple conspiracy charge
was not warranted.
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Furthermore, we find that the jury's verdict - which, by
its differentiation of the drug quantities involved in each
conspiracy reflected the jury's understanding that the two
conspiracies were distinct - is dispositive on the question of
whether the proceedings suffered from unfairness or prejudice. In
finding McMann guilty on Count I, the jury determined that the
first conspiracy was responsible for more than fifty grams of
cocaine base. In finding Brooks guilty on Count II, however, the
jury determined that the second conspiracy was responsible for more
than five grams but less than fifty grams of cocaine base. The
verdict belies Brooks' claim that the jury found him to be part of
a single overarching conspiracy which included McMann. Contrary to
Brooks' assertion that the jury failed to identify more than one
conspiracy, the verdict reveals the jury's clear cognizance that
multiple conspiracies existed and therefore leaves us incapable of
finding that a multiple conspiracy instruction was necessary to
render Brooks' trial fair.
C. Right to Confront Witnesses
Brooks argues that the admission of out-of-court
statements by his co-conspirators violated his right to a fair
trial. Brooks asserts that on several occasions during the trial,
statements made by witnesses who were not available for cross-
examination were permitted in violation of Crawford v. Washington.
The Government contends that, although Crawford applies to
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testimonial statements, the statements Brooks disputes were made by
co-conspirators "in furtherance of a conspiracy," and therefore
were not testimonial in nature. Id. at 56. Brooks did not raise
this issue below and we therefore review for plain error. See
Mitchell, 85 F.3d at 807.
Brooks' allegation that the statements at issue were
subject to Crawford fails to recognize that we find statements of
co-conspirators to be nontestimonial and thereby not subject to
Crawford. See United States v. Felton, 417 F.3d 97, 103 (1st Cir.
2005) ("[T]he statements [of co-conspirators] fall within a firmly
rooted hearsay exception, so their admission does not violate [the
defendant's] Sixth Amendment rights."). We also fail to see the
relevance of Brooks' objection to the disputed double hearsay
statements - they pertain only to the McMann conspiracy in Count I
and make no mention of Brooks. We therefore do not find the
admission of these statements to constitute error.
D. Improper Vouching for Cooperating Witnesses
Brooks contends that, although witness plea agreements
may be admitted into evidence for purposes of assessing
credibility, United States v. Doherty, 675 F.Supp. 726, 738 (D.
Mass. 1987), the Government's closing statement constituted
improper vouching for each cooperating witness to the extent that
the trial outcome was likely affected. The Government responds
that the prosecutor's statements during the closing argument did
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not constitute improper vouching because "the prosecutor simply
pointed out a fact in evidence - that [the witnesses'] plea
agreement[s] required [them] to testify candidly," United States v.
Millan, 230 F.3d 431, 438 (1st Cir. 2000), and the statements did
not insinuate any personal belief which took advantage of the
prosecutor's status as "a representative of the government."
United States v. Figueroa-Encarnacion, 343 F.3d 23, 28 (1st Cir.
2003).
We have previously held that it is not error for the
prosecutor to "assert reasons why a witness ought to be accepted as
truthful by the jury." United States v. Rodríguez, 215 F.3d 110,
123 (1st Cir. 2000). The prosecutor may properly "admit a witness'
plea agreement into evidence, discuss the details of the plea
during closing arguments, and comment upon a witness' incentive to
testify truthfully." United States v. Bey, 188 F.3d 1, 7 (1st Cir.
1999) (citing United States v. Dockray, 943 F.2d 152, 156 (1st Cir.
1991)). Prosecutorial behavior crosses into the realm of improper
vouching when the prosecutor "places the prestige of the government
behind a witness by making personal assurances about the witness'
credibility." Id. at 7 (quoting United States v. Neal, 36 F.3d
1190, 1207 (1st Cir. 1994)).
In the closing arguments, after summarizing the terms of
the plea agreement, the prosecutor made the following remark:
So you can either take the defense version,
they clearly suggest that these guys will say
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anything in order to convict these men in
order to earn a lower sentence or at least the
recommendation from the government, or they
have to comply with the plea agreement. I'll
leave it at that.
With nothing further, the prosecutor's conduct cannot be found to
constitute an instance of improper vouching. The prosecutor
discussed the details of the agreement and commented upon the
witnesses' motivations stemming from the plea agreements, actions
which we have deemed acceptable. See Millan, 230 F.3d at 438. The
record contains no indication that the prosecutor personally
endorsed the witnesses and therefore no prejudice resulted from a
sense that the Government backed the witnesses. Brooks fails to
provide any other evidence indicating improper vouching that might
have affected the outcome of the trial. United States v. Wihbey,
75 F.3d 761, 771-72 (1st Cir. 1996) ("Improper statements during
closing argument are considered harmful if, given the totality of
the circumstances, they are likely to have affected the trial's
outcome."). We therefore find that the prosecutor's closing
remarks did not constitute improper vouching.
III. Conclusion
For the reasons stated herein, Brooks' conviction and
sentence are affirmed.
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