United States v. Brewer

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UNITED STATES of America, Plaintiff-Appellee, v. Kyle Michael BREWER, a.k.a. Michael Brewer, etc., Benjamin Brewer, et al., Defendants-Appellants.

No. 96-9210.

United States Court of Appeals, Eleventh Circuit.

Jan. 7, 2000.

1283

fifth criterion does not permit the safety valve to be applied merely because information a defendant chooses to withhold or misrepresent would not, even if fully and accurately disclosed, be of use to the government.

The relevant paragraph begins by mandating use of the safety valve if “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” U.S.S.G. § 5C1.2(5) (emphasis added). This plain language requires a defendant to both truthfully and fully disclose information within her knowledge relating to the crime for which she is being sentenced. At several junctures during the sentencing hearing, the district court made statements clearly indicating that it found Roman’s disclosures incomplete and untruthful. At one juncture, the court stated that it found “aspects of it not credible.” (R.13 at 80.) The court also noted that it did not think Roman’s statement “full” with regard to “what she and Mr. Figueroa were doing ... and how much she knew about it.” (R.13 at 82.) Perhaps most dаmagingly, the court said that it was “not prepared to ... accept everything in [Roman’s] statement.” (R.13 at 83.) Nevertheless, it found the safety valve applicable.

In doing so, the court took pains to point out that it did not believe Roman to havе more information regarding “who was in charge of th[e] importation ... where the drugs came from ... [or] who was up the line in th[e] operation.” (R.13 at 82). It apparently considered absence of knowledge on those “very critical points the government [wa]s interested in” enough to apply the safety valve. Id. Subsection (5), however, does not permit a sentencing court to make so much of the possible utility of any information possessed by the defendant. Following the independent clаuse mandating complete and truthful disclosure, the guideline goes on to state: “but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a dеtermination by the court that the defendant has complied with this requirement.” U.S.S.G. § 5C1.2(5) (emphasis added). We read this text as merely dispelling an interpretation that would require fully and truthfully disclosed information to be helpful to the government before the safety valve could properly be applied. It does not empower the sentencing court to apply the safety valve simply because it concludes that withheld or misrepresented information would not aid further investigation or proseсution even if properly disclosed.

We therefore vacate Roman’s sentence and remand with instructions that the district court resentence Roman in a manner consistent with both this opinion and its own factual findings that she had not completеly and truthfully disclosed all she knew about the underlying crimes.

AFFIRMED in PART; VACATED and REMANDED in PART.

Gregory N. Crawford, Savannah, GA, for Kyle Brewer.

Benjamin P. Brinson, Claxton, GA, for Benjamin Brewer.

William R. Rice, Newton, Smith, Durden, Kaufold & Rice, Vidalia, GA, for Leroy Singleton.

Kathy S. Palmer, Swainsboro, GA, for Willie Outler.

Randolph C. Anderson, Statesboro, GA, for Sylvester Greene.

Robert J. Erb, Savannah, GA, for Donnell Summersett.

George E. Argo, Vidalia, GA, for Larry Johnson.

Charles H. Brown, Statesboro, GA, for Leroy Bethel.

Robert Simmons Lanier, Jr., Statesboro, ‍​​​​​‌‌​‌‌​‌‌​​​‌​‌​‌​‌​​​​​​​‌​​‌​‌‌​​‌‌​​‌​​​‌‍GA, for Cornelius Jones.

Mark D. Johnson, Gilbert, Warrell, Gilbert, Sumerford & Martin, P.C., Brunswick, GA, for Lenard Jenkins.

Harry D. Dixon, U.S. Atty., Karl Irving Knoche, Asst. U.S. Atty., Savannah, GA, Nina Goodman, Crim. Div., App. Section, U.S. Dept, of Justice, Washington, DC, for United States.

Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and NESBITT^*, Senior District Judge.

DUBINA, Circuit Judge:

Ten defendants in a drug conspiracy case appeal their convictions and sentences imposed by the United States District Court for the Southern District of Georgia. We affirm in part, and vacate in part.

I. STATEMENT OF THE CASE

A. Procedural History

A jury convicted all of the defendants, with the exception of Larry Johnson, of conspiring to possess with the intent to distribute and to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 (Count 1). The jury convicted Leroy Bethel on two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts 21 and 22), and on one count of possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). The jury convicted Benjamin Brewer, Lenard Jenkins, and Cornelius Jones of use of a firearm during and in relation to a drug trafficking сrime, in violation of 18 U.S.C. § 924(c) (Count 11). The jury convicted Kyle Michael Brewer on two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts 5 and 6), on one count of employment of a minor to distribute cocaine base, in violation of 21 U.S.C. § 861(a) (Count 8), and on one count of use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 9). The district court entered a judgment of acquittal on another ‍​​​​​‌‌​‌‌​‌‌​​​‌​‌​‌​‌​​​​​​​‌​​‌​‌‌​​‌‌​​‌​​​‌‍cocaine distribution count against Kyle Michael Brewer (Count 7).

The jury also convictеd Sylvester Greene on three counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts 12, 13, and 14). The jury convicted Willie Outler on one count of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count 17); the district court entered a judgment of acquittal on another count charging him with possessing a firearm as a convicted felon. (Count 18). The jury convicted Leroy Singleton on one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 15). The jury convicted Donnell Summersett on two counts of distribution оf cocaine base (Counts 2 and 3), and on one count of possession of cocaine base with the intent to distribute it (Count 4), all in violation of 21 U.S.C. § 841(a)(1); the district court entered a judgment of acquittal on another count charging him with use of a firearm during and in relation to a drug trafficking crime (Count 9). The jury also convicted Larry Johnson on one count of possession of cocaine base with the intent to distribute (Count 26), and on one count of distribution of cocaine base (Count 27), both in violation of 21 U.S.C. § 841(a)(1); the distriсt court entered a judgment of acquittal on the conspiracy count.

The district court sentenced all of the defendants to substantial terms of imprisonment in the federal penitentiary and they are all presently incarcerated pending this appeal.

B. Facts

The record in this case demonstrates that in early 1992, Donnell Summersett and Kyle Michael Brewer were the leaders of a conspiracy that distributed cocaine and cocaine base in Toombs County, Georgia. Both defendants, along with Benjamin Brewer, Lenard Jenkins, and Cornelius Jones provided cocaine to individuals for distribution. Kyle Michael Brewer owned a car wash, which was the location for several undercover purchases of cocaine. On two occasions, several of the defendants were involved in an exchange of gunfire due to a problem with a cocaine purchase. In sum, the evidence was overwhelming that these defendants were involved in an extensive cocaine conspiracy.

II. ISSUES

1. Whether the defendants’ convictions are supported by sufficient evidence.
2. Whether the district court’s procedure for designating alternate jurors was error and requires reversal of the defendants’ convictions.
3. Whether the district court abused its discretion ‍​​​​​‌‌​‌‌​‌‌​​​‌​‌​‌​‌​​​​​​​‌​​‌​‌‌​​‌‌​​‌​​​‌‍in denying the defendants’ severance motions.
4. Whether the district court properly sentenced the defendants.
5. Whether the district court abused its discretion in admitting out-of-court statements under the coconspirator exception to the hearsay rule.
6. Whether there was a prejudicial variance between allegations of the indictment and the government’s proof at trial.
7. Whether plea agreements in which the government offers leniency in exchange for a cooperating witness’s testimony violates 18 U.S.C. § 201(c)(2).
8. Whether distribution of cocaine base (21 U.S.C. § 841(a)(1)) is a lesser included offense of employment of a minor to distribute cocaine base (21 U.S.C. § 861(a)).

III. ANALYSIS

After reviewing the record in this case, we conclude that there is no merit tо any of the defendants’ arguments concerning issues numbered 1, 3, 4, 5, 6, and 7. Accordingly, we summarily affirm the defendants’ convictions and sentences relative to those issues without further discussion.¹ We do feel compelled, however, to address briefly issues numbered 2 and 8.

A. Random Procedure to Designate Alternate Jurors

Defendants Kyle Michael Brewer and Donnell Summersett contend that the district court’s procedure for designating alternate jurors requires reversal of their convictions. We evaluate this claim under the de novo standard of review. See

United States v. Register, 182 F.3d 820, 841 (11th Cir.1999).

The parties initially selected 14 jurors to hear the evidence in this case, but the district court did not designate which two would serve as alternates. Just before the jurors retired to deliberate, the district court announced that it was “going to have the сlerk raffle two of you out.” (R15-1066). The district court then designated two of the jurors, Bonnie Fair and Leslie Morris, as alternates. Defense counsel objected to this procedure, stating that two other jurors, “Ms. Busby and Mr. Lewis, being the last two in order, should have been the two that were designated alternates.” (R15-1066). As the defendants correctly point out, the district court’s unusual procedure is clearly inconsistent with Fed.R.Crim.P. 24(c), which provides in pertinent part as follows:

(c) Alternate Jurors. The court may direct that not more than 6 jurors in addition to the regular jury be called and impanellеd to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable ‍​​​​​‌‌​‌‌​‌‌​​​‌​‌​‌​‌​​​​​​​‌​​‌​‌‌​​‌‌​​‌​​​‌‍or disqualified to perform their duties. * * * An altеrnate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.

Fed.R.Crim.P. 24(c) (emphasis added).

The defendants claim that the district court violated the rule by using a random draw to discharge the alternate jurors, rather than simply discharging the last two jurors selected, and that the violation constitutes reversible error. In our view, the district court, through the use of a random draw, committed error by violating the explicit command of Fed.R.Crim.P. 24(c). The question then becomes whether the district court’s error is reversible error or merely harmless error.

In this circuit we have explicitly rejected a rule of per se reversal for Rule 24(c) violations. See

United States v. Acevedo, 141 F.3d 1421, 1423 (11th Cir. 1998), cert. denied,

— U.S. —, 119 S.Ct. 1048, 143 L.Ed.2d 54 (1999). Instead, reversal is required only if there is a reasonable possibility that the district сourt’s violation of Rule 24(c) actually prejudiced the defendant by tainting the jury’s final verdict. See

Register, 182 F.3d at 842;

United States v. Bendek, 146 F.3d 1326, 1328 (11th Cir.1998), cert. denied,

— U.S. —, 119 S.Ct. 1086, 143 L.Ed.2d 87 (1999).

In seeking to show prejudice, Kyle Michael Brewer asserts that because one of the jurors who was designated as an alternate was black, the district court’s methоd diluted black representation on the jury. That unsupported assertion, without any reference to the racial makeup of the jury panel that convicted the defendants, falls far short of the required showing of a reasonable possibility that the district court’s violation of Rule 24(c) actually prejudiced the defendants by affecting the jury’s final verdict. See

Acevedo, 141 F.3d at 1424 (emphasis added).

Other courts of appeals that have considered a similar Rule 24(c) violation have concluded that the error may be harmless. See

United States v. Love, 134 F.3d 595, 601-03 (4th Cir.), cert. denied,

524 U.S. 932, 118 S.Ct. 2332, 141 L.Ed.2d 705 (1998);

United States v. Olano, 62 F.3d 1180, 1190 n. 3 (9th Cir.1995);

United States v. Sivils, 960 F.2d 587, 593-94 (6th Cir.1992);

United States v. Aguon, 851 F.2d 1158, 1171 (9th Cir.1988)(en banc), overruled on other grounds,

Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992).

Therefore, based on our precedent and other appellate decisions, we hold that even though the district court committed error in the present case, it was harmless.²

B. Double Jeopardy

Kyle Michael Brewer also contends that his convictiоn on Count 6 of the indictment which charged him with distributing cocaine base on November 10, 1993, in violation of 21 U.S.C. § 841(a)(1), and his conviction on Count 8, which charged him with using a minor to distribute cocaine base in connection with the same transaction, in violation of 21 U.S.C. § 861(a)(1), constitute the same offense for double jeopardy purposes. The government confesses error on this issue in its brief and agrees that, under the circumstances of this case, the section ‍​​​​​‌‌​‌‌​‌‌​​​‌​‌​‌​‌​​​​​​​‌​​‌​‌‌​​‌‌​​‌​​​‌‍841(a)(1) violation is a lesser-included offense of the section 861(a) violation. Therefore, we vacate Brewer’s conviction and sentence on Count 6 of the indictment. See

United States v. Freyre-Lazaro, 3 F.3d 1496, 1507 (11th Cir.1993).

In conclusion, we affirm all of the defendants’ convictions and sentences, with the exception of Kyle Michael Brewer’s conviction and sentence on Count 6 of the indictment, which we vacate.

AFFIRMED IN PART, VACATED IN PART.

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UNITED STATES of America, Plaintiff-Appellee, v. Samuel J. HESTER, Defendant-Appellant.

No. 97-9232.

United States Court of Appeals, Eleventh Circuit.

Jan. 7, 2000.

Notes

1

See 11th Cir. R. 36-1.

2

We dо, however, caution the district court not to employ the random draw in future criminal cases. The next time the district court violates the rule, the error may affect a defendant‘s substantial rights and mandate reversal of a criminal conviction.

*

Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the Southern District of Florida, sitting by designation.

Case Details

Case Name: United States v. Brewer

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 7, 2000

Citation: 199 F.3d 1283

Docket Number: 96-9210

Court Abbreviation: 11th Cir.