United States v. Antonio Brown

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3019

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the District

* of Nebraska.

Antonio Brown, *

*

Appellant. *

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Submitted: January 14, 1999

Filed: July 1, 1999

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Before WOLLMAN,1 FLOYD R. GIBSON, Circuit Judges, and TUNHEIM,2 District

Judge.

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FLOYD R. GIBSON, Circuit Judge.

Antonio Brown was convicted of one count of conspiracy to distribute fifty

grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and § 846 (1994).

1

The Honorable Roger L. Wollman became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 24, 1999.

2

The Honorable John R. Tunheim, United States District Judge for the District

of Minnesota, sitting by designation.

The district court3 sentenced Brown to 360 months imprisonment, five years of

supervised release, and $100 in special assessments. Brown contends (1) that the

district court erred in permitting the testimony of several alleged co-conspirators

because these witnesses had cooperation agreements with the government that violated

18 U.S.C. § 201(c)(2) (1994); (2) that the district court erred in denying his motion for

judgment of acquittal because there was insufficient evidence establishing a conspiracy

to distribute cocaine base to support a guilty verdict; and (3) that his trial counsel was

ineffective because counsel failed to object to the testimony of the alleged co-

conspirators and also failed to elicit testimony regarding the weapon allegedly used in

the conspiracy. For the reasons set forth below, we affirm.

I. BACKGROUND

To address the issues raised in this appeal, we need only provide a brief

summary of the case's factual and procedural background. We will discuss more

specific facts as relevant during our analysis.

On July 22, 1997, Brown was charged in a one count indictment with conspiracy

to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and § 846. Brown pleaded not guilty to this charge on August 5, 1997. A jury trial

was held on February 2, 1998. During the trial, the district court admitted testimony

of alleged co-conspirators Bridgette Mann, Yosha Brown, Loma Berens, Conrad

Jasper, and Tony Rutherford. Each of these witnesses had entered into cooperation

agreements with the government in exchange for their testimony. At trial, Brown's

counsel did not object to the admission of the testimony of these alleged co-

conspirators. At the end of the government's evidence, Brown moved for judgment of

acquittal, alleging that the evidence at trial was insufficient to prove that Brown was

3

The Honorable Warren K. Urbom, United States District Judge for the District

of Nebraska.

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involved in a conspiracy to distribute cocaine base. The district court overruled this

motion. After the two-day trial, the jury found Brown guilty of conspiracy to distribute

fifty grams or more of cocaine base. The district court determined that Brown's base

offense level was 41, which included a two point enhancement under U.S.S.G.

§2D1.1(b)(1) because a weapon was allegedly used during one of the offenses.

Accordingly, the district court sentenced Brown to 360 months imprisonment, five

years of supervised release, and $100 in special assessments. Brown appeals.

II. DISCUSSION

A. Cooperating Witnesses' Testimony

Brown argues that the testimony of the government witnesses, who testified

pursuant to cooperation agreements, should have been suppressed because this

testimony was obtained in violation of 18 U.S.C. § 201(c)(2). Brown's trial counsel did

not move to suppress the entirety of these witnesses' testimony; therefore, we review

the admission of the testimony for plain error. See Fed. R. Crim. P. 52(b); United

States v. Millard, 139 F.3d 1200, 1203 (8th Cir.), cert. denied, 119 S. Ct. 376 (1998).

Section 201(c)(2) is a criminal statute and makes it illegal for "whoever" to give

anything of value to another for testimony under oath at trial. Brown argues that

section 201(c)(2) applies to cooperation agreements made by prosecutors. See United

States v. Singleton, 144 F.3d 1343, 1343 (10th Cir. 1998), rev'd en banc, United States

v Singleton, 165 F.3d 1297, 1298, 1302 (10th Cir. 1999), cert. denied, 1999 WL

185874, at *1 (June 21, 1999). However, we recently rejected this same argument in

United States v. Johnson, 169 F.3d 1092, 1098 (8th Cir. 1999). Section 201(c)(2)

"does not sweep so broadly as to prevent prosecutors from offering leniency to an

individual in exchange for truthful testimony." Id. We have previously recognized that

such plea agreements are not unlawful. See United States v. Irons, 53 F.3d 947, 948-

49 (8th Cir. 1995) ("[I]t is not unlawful for the Government to promise favors in return

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for truthful testimony."); United States v. Garcia, 785 F.2d 214, 221 (8th Cir. 1986)

(same). Accordingly, we conclude that the district court did not plainly err, in the

present case, in allowing the testimony of the witnesses who had cooperation

agreements with the government.

B. Sufficiency of the Evidence

Brown next argues that the district court erred in overruling his motion for

judgment of acquittal. Brown claims the government failed to prove that he was

involved in a conspiracy to distribute cocaine base; therefore, the evidence was

insufficient to support his conviction. In particular, Brown contends that, at most, the

evidence at trial showed a buyer-seller relationship between Brown and the other

alleged co-conspirators. See United States v. West, 15 F.3d 119, 121 (8th Cir. 1994)

(circumstances in case supported only a finding that defendant participated in a series

of sales).

When reviewing the sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict and give the government the benefit of all reasonable

inferences. See United States v. Santana, 150 F.3d 860, 864 (8th Cir. 1998). We will

reverse "only if a reasonable jury must have had a reasonable doubt that the elements

of the crime were established." Id. (internal quotations and citations omitted).

To sustain Brown's conviction for conspiracy to distribute cocaine base, the

evidence must establish that a conspiracy existed to distribute cocaine base, and that

Brown knew of and intentionally joined the conspiracy. See United States v. Eastman,

149 F.3d 802, 804 (8th Cir. 1998). In the instant case, we find that the evidence, in

particular the testimony of the other conspirators, was sufficient to prove that Brown

was an active and knowing participant in the conspiracy.

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The evidence reasonably showed that Brown, Mann, and others were involved

in an agreement to obtain cocaine from sources in Kansas City, Missouri and Omaha,

Nebraska for resale in Lincoln, Nebraska. Under this agreement, Mann usually carried

the cocaine on her person and would make the deliveries to those persons with whom

Brown did not have a friendship. Mann obtained the payment from these customers

and returned that money to Brown. In return, Mann received cocaine base for her own

use and sale as well as assistance from Brown with her living expenses. Yosha Brown

corroborated Mann's testimony to the extent that Yosha was aware that Brown and

Mann were making trips to Kansas City and Omaha to buy cocaine base and that Mann

sold cocaine base to Lee Wallace for Brown. Berens testified that her boyfriend,

"Keecee" Washington, made a couple of trips with Mann to buy cocaine base from

Brown. Similarly, Jasper testified that he purchased cocaine base from Brown. Finally,

Rutherford related an incident where Brown and four associates robbed him of cocaine

base and cash. Rutherford testified that Brown was armed with a sawed-off shotgun

during the robbery. Accordingly, after examining this evidence in the light most

favorable to the verdict, giving the government the benefit of all reasonable inferences,

we cannot say that the jury must have entertained a reasonable doubt as to Brown's

guilt on the conspiracy to distribute cocaine base charge.

C. Ineffective Assistance of Counsel

Finally, Brown claims that his trial counsel rendered ineffective assistance by (1)

failing to object to the testimony of government witnesses who testified under

cooperation agreements; (2) failing to object to the testimony of the government

witnesses as hearsay; and (3) failing to submit evidence on the gun enhancement issue

at the time of sentencing. Brown did not raise the issue of ineffective assistance of

counsel to the district court; thus, the district court did not develop a record on this

issue upon which we could make such a determination on direct appeal.

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In general, "an ineffective assistance of counsel claim is not cognizable on direct

appeal. Instead, such a claim is properly raised in a 28 U.S.C. § 2255 action." Millard,

139 F.3d at 1209-10 (internal quotations and citations omitted). We will consider an

ineffective assistance of counsel claim on direct appeal only in exceptional cases where

the district court has developed a record on the ineffectiveness issue or where the result

would otherwise be a plain miscarriage of justice. See Santana, 150 F.3d at 863.

Because this is not such a case, we decline to address the ineffective assistance claim

in this proceeding.

III. CONCLUSION

For the reasons stated above, we affirm Brown's conviction for conspiracy to

distribute cocaine base and the sentence imposed.

AFFIRMED.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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