United States v. Gary Leon Brown

UNPUBLISHED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.

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Affirmed in part, vacated in part, and remanded by unpublished per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.

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*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Unpublished opinions are not binding precedent in this circuit.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).

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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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