United States v. Charmar Brown

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1378

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United States of America, *

*

Plaintiff–Appellee, *

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v. *

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Charmar Brown, *

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Defendant – Appellant. *

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Appeals from the United States

No. 08-1384 District Court for the

___________ District of Nebraska.

United States of America, *

*

Plaintiff – Appellee, *

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v. *

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Evereada Kouris, *

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Defendant – Appellant. *

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No. 08-1385

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United States of America, *

*

Plaintiff – Appellee, *

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v. *

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Dale Giles, *

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Defendant – Appellant. *

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Submitted: January 14, 2009

Filed: March 20, 2009

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Before MURPHY and SMITH, Circuit Judges, and LIMBAUGH, District Judge.1

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MURPHY, Circuit Judge.

Dale Giles, Charmar Brown, and Evereada Kouris were convicted by a jury of

conspiracy to distribute more than 1,000 kilograms of marijuana. Giles and Brown

were also convicted of possession with intent to distribute more than 100 kilograms

of marijuana, and three counts of using and carrying a firearm in connection with their

drug trafficking. Giles was convicted on three counts of being a felon in possession

of a firearm. They appeal, all arguing that the government improperly struck jurors

based on their race. Giles and Brown contend that one of the firearm charges was

constructively amended and should have been dismissed. Brown argues that there was

insufficient evidence to support his firearm convictions and that the instructions on

those charges were erroneous, that the district court admitted hearsay, and that it

should have severed his trial and granted his motion to suppress. Giles claims

ineffective assistance of counsel and sentencing error. Kouris challenges the

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the

Eastern District of Missouri, sitting by designation.

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sufficiency of the evidence, the jury instructions on drug quantity, and an obstruction

of justice enhancement. We affirm except on Brown's conviction for Count VII.

I.

Dale Giles and Charmar Brown were in the marijuana trafficking business in

Omaha, Nebraska. As a result of meeting Kenrell Boyston in Phoenix, Arizona, they

began to buy large quantities of marijuana from his supplier, Ulysses Sanchez. The

first sale was for less than 150 pounds, but the amount increased over the next five or

six sales to approximately 600 pounds. Richard McGinnis transported several loads

of marijuana from Phoenix to Omaha as part of the conspiracy, including loads as

large as 800 pounds. McGinnis would pick up the marijuana from Giles and Brown

in Phoenix and then deliver it to properties they controlled in Omaha. McGinnis's

testimony regarding these trips was corroborated by hotel receipts, car maintenance

and cell phone records, and airline tickets for Giles and Brown.

Airline personnel alerted the Nebraska State Patrol that Giles and Brown had

been making frequent flights to Phoenix involving short turnarounds on round trips,

last minute purchases of tickets, and other behavior consistent with drug distribution.

On March 20, 2005, troopers stopped Giles and Brown at the Omaha airport after they

missed a flight to Phoenix. Giles and Brown granted permission for their bags to be

searched, and the troopers discovered and confiscated $47,430 cash. Giles stated that

the money was from his barber shop business and that he was traveling to Phoenix to

purchase a car. Neither was arrested.

Giles and Brown traveled to Atlanta in March 2005 where they met at a

nightclub with Boyston, Sanchez, and Benigno Dominguez to purchase 1,000 pounds

of marijuana. Evereada Kouris, who had a child with Giles and lived with him

occasionally, went to Atlanta during the same period with her two children but she

claims she was visiting family and was not involved with the drug deal. Subsequently

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Boyston arranged to have Dominguez transport 2,000 pounds of marijuana to Omaha.

After that shipment Giles and Brown dealt directly with Sanchez and Dominguez.

On May 3, 2005, Giles called George Moore and asked him to come to a house

on North 65th Street in Omaha. When Moore got there, Giles took him inside where

he saw Brown, three strangers sitting on a couch in the living room, and a large

amount of marijuana. The men on the couch were later determined to be Benigno

Dominguez, Frank Wilkinson, and Faustino Garcia. Moore helped weigh the

marijuana, which came to approximately 3,000 pounds, and then helped load it into

a U-Haul rented by Brown. Giles and Brown drove off in the U-Haul and returned 45

minutes later in Brown's Silverado. Giles sent Moore outside to retrieve a cell phone

from the truck, and while Moore was outside he heard three gunshots. He started to

run away, but Giles came out the front door and asked him to come back. Moore saw

Brown start to leave the house with a gun, but Giles told Brown to go back and "do

yours." After Brown went back inside, Moore heard another gunshot.

Giles, Brown, and Moore then drove to another house where they hid two guns

belonging to Giles and one belonging to Brown. They stopped at a gas station to fill

a gas can before returning to the 65th Street house where they loaded the bodies of

Dominguez, Wilkinson, and Garcia into the bed of the Silverado. The men drove to

a wooded area and burned the bodies. Giles then sent Moore to ask Johnny Newell

for assistance in cleaning up the murder scene. While Newell was cleaning he saw

Giles and Brown haul the couch and carpet away in the Silverado. Several days later,

Brown and Newell discussed how to prevent detection of the blood on the truck, and

had a local body shop operator repaint the truck and replace the existing bed liner.

Giles asked McGinnis to melt down two handguns and to transport a third to Phoenix.

Omaha police discovered the bodies on May 4 and identified them based on a

hotel receipt in Wilkinson's pocket. Police recovered five bullets from the bodies, all

of which had been fired from a .44 caliber revolver, though it was unclear whether a

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single weapon had been used. McGinnis later gave police similar .44 caliber

ammunition that Giles had asked him to hide.

In October 2005 Giles and Brown retaliated against two men who had robbed

them. On October 3, Giles shot a man named Monte Williams in the leg outside a

house where his sister Cyrinthia Williams was visiting a relative. She later testified

that Giles had come to the house looking for Monte and identified himself as "Clean."

When she told him that Monte was not home, he got in a burgundy Monte Carlo

parked across the street where he waited with another man whom Cyrinthia could not

identify. It was later ascertained that the Monte Carlo belonged to Brown's girlfriend.

When Monte returned to the house, he and Giles got into an altercation, and Giles shot

Monte. On October 11, Giles and Brown were involved in a shootout near the home

of Clarence Dennis. Dennis had been warned that the two were coming after him so

he shot at their car when they approached. Giles, Brown, and two other men in their

car returned fire, but no one was injured. Both Monte Williams and Clarence Dennis

told police that shortly before the shootings they had robbed Giles and Brown of

approximately 25 pounds of marijuana and other valuable items.

Omaha police began to compile information about Giles's and Brown's financial

accounts, property they rented for personal and business use, and vehicles they owned

or used. Bank records showed deposits of nearly $500,000 within a one year time

period. The two men had purchased three houses in Omaha in the several months

following the May 3 murders, paying approximately $94,400 in cash. Giles also

purchased a house in Arizona in January 2006 and made a $103,000 deposit.

Police obtained search warrants for several of defendants' properties and

conducted the searches on April 3 and 4, 2006. At Milt's Mini Storage, they searched

two storage units rented by Giles and a unit rented by Daramus Brown, Charmar

Brown's cousin. There they found thirteen bags of marijuana and two safes containing

$358,030. Three units rented by Giles at Crown Point Storage turned up an additional

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$164,880 and 715 pounds of marijuana. In a unit rented by Evereada Kouris at Crown

Point Storage, officers found 35 pounds of marijuana, a semiautomatic .223 caliber

rifle, a bullet proof vest, and ammunition.

Other searches were also productive. At Brown's residence police found two

bags of marijuana and $22,290. In an apartment shared by Kouris and Giles on North

40th Street, police found marijuana and a scale. A search of Kouris's apartment at

1214 Applewood Drive produced marijuana, a bullet proof vest, and a video camera

containing footage of Giles and Brown counting thousands of dollars and bragging

about their proceeds, with approximately a pound of marijuana clearly visible. A

warehouse leased by Giles and Brown yielded 260 pounds of marijuana, over $80,000,

and money counting machines. Police also searched Brown's Silverado that was

stored at the warehouse and found a scale, $16,000, a small amount of marijuana, and

a .38 Taurus revolver and ammunition. Other properties were searched and produced

additional contraband and evidence of a conspiracy to distribute marijuana. In total,

police found over 1,000 pounds of marijuana, more than $629,000, fourteen vehicles,

and two firearms.

Giles and Brown were arrested on April 4, 2006 and detained pending trial.

Giles made numerous phone calls from the jail which were recorded and led police to

other conspirators, six of whom were indicted and then entered into plea agreements.

In his calls from jail Giles asked McGinnis to deliver approximately 100 pounds of

marijuana to his cousin and then asked Kouris to collect payment for the delivery.

Giles also asked Kouris to collect money owed him by others, and in later calls she

reported to Giles on her progress. In addition Kouris and Giles discussed the rifle

found in her storage unit at Crown Point, another firearm in Giles's house in Arizona,

and possible alibis for May 3, 2005.

One of Giles's attorneys, Terri Crawford, tried to induce key witnesses to tell

police that Brown was responsible for the murders rather than Giles. Newell testified

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that Crawford asked him to tell police that Brown alone had asked for his assistance

cleaning up the murder scene. Moore testified that Kouris had asked him to meet

Crawford at Giles's house on 40th Avenue. When he arrived, Crawford gave him a

note stating "put everything on Charmar" and suggested that he tell police that Brown

asked him to move the bodies. In recorded phone calls Giles asked Kouris to help

Crawford contact these witnesses.

The grand jury first returned a nine count indictment against Giles and Brown

and later four superceding indictments. The fifth and final indictment charged Giles,

Brown, and Kouris with conspiracy to distribute more than 1,000 kilograms of

marijuana (Count I). 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846. Giles and Brown

were also charged with possession with intent to distribute more than 100 kilograms

of marijuana (Count VI), id. § 841(a)(1), (b)(1)(B)(vii), and with using, carrying, and

possessing a firearm in connection with the drug trafficking conspiracy (Counts II, IV,

VII). 18 U.S.C. § 924(c)(1)(A). Giles was also charged with being a felon in

possession of a firearm (Counts III, V, VIII). Id. § 922(g).

Giles, Brown, and Kouris pled not guilty and were convicted after a sixteen day

jury trial. Giles and Brown were sentenced to life on Counts I and VI, and 720

months on Counts II, IV, and VII, to run consecutive to the life sentence. Giles was

also sentenced to 120 months for his three felon in possession convictions, to run

concurrent to the life sentence. Kouris was sentenced to 135 months. All three

forfeited substantial amounts of property associated with the conspiracy.

On appeal, Giles, Brown, and Kouris argue that the government used two

peremptory challenges to exclude blacks from the jury. Giles and Brown contend that

the district court should have dismissed Count II because the government

constructively amended the charge by presenting evidence about the use of a firearm

on a date different from the one alleged in the indictment. Separately, Brown alleges

insufficiency of the evidence, admission of hearsay, failure to suppress evidence or

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to sever, and incorrect jury instructions. Giles contends that he was denied effective

assistance of counsel and that the district court erred by attributing first degree murder

to him at sentencing. Kouris alleges insufficiency of the evidence, error in the jury

instructions on drug quantity, and improper enhancement of her sentence for

obstruction of justice.

II.

A. Batson Issues

All three appellants argue that the prosecutor struck the only two black

members of the jury panel because of their race in violation of Batson v. Kentucky,

476 U.S. 79 (1986). The prosecutor proffered explanations for each peremptory

strike. The home address provided by one juror indicated that she lived in federally

subsidized housing, which caused the prosecutor to "believe [that she ] does not have

a stake in the community" and that she might be "sympathetic particularly with Ms.

Kouris," who also received public assistance. The prosecutor explained that she

challenged the second juror because she had reported that her son had been

"brutalized" by law enforcement.

Defense counsel argued that there was no public record that the first juror lived

in public housing and that the government had not inquired during voir dire about the

potential bias this created. Defense counsel also contended that because "more blacks

receive public assistance than do whites in Omaha," the prosecutor's challenge

suggested racial bias. The prosecutor responded that an Omaha police officer had

reported that the juror's address corresponded to public housing, unlike those of the

other jurors.

The factors to judge whether a prosecutor impermissibly challenged a potential

juror are "peculiarly within a trial judge's province." Hernandez v. New York, 500

U.S. 352, 365 (1991). The prosecutor proffered race neutral explanations which

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satisfied the district court judge who was conducting the voir dire. See id. at 360. She

said she had exercised peremptory strikes on other members of the jury panel who had

had negative experiences with the police and had challenged the only juror connected

with public housing out of concern that she would be sympathetic to defendant Kouris

who also received public assistance. We cannot conclude on this record that the

district court clearly erred in finding that the prosecutor had exercised her strikes

against the two jurors for race neutral reasons.

B. Motion by Giles and Brown to Dismiss Count II

Count II alleged that Giles and Brown had used, carried, possessed, and

discharged a firearm on or about October 3, 2005—the date Monte Williams was shot.

Giles and Brown claim that the government's evidence focused instead on the shootout

with Clarence Dennis on October 11, and that as a result the jury might have

convicted them based on the latter incident which was not the offense alleged in Count

II.

Giles and Brown moved before trial to dismiss Count II based on their

anticipation that Dennis would testify about October 11, and they raised the issue

again in a motion for judgment of acquittal. The district court denied both motions,

and our review is de novo. United States v. Howell, 531 F.3d 621, 622 (8th Cir. 2008)

(motion to dismiss indictment); United States v. Garcia-Hernandez, 530 F.3d 657, 661

(8th Cir. 2008) (motion for judgment of acquittal). In their briefs Giles and Brown

allege their convictions on Count II amounted to a variance and a constructive

amendment of the grand jury's indictment; at oral argument they focused exclusively

on a constructive amendment theory.

A constructive amendment implicates the defendant's Fifth Amendment right

to be charged by a grand jury. It "occurs when the essential elements of the offense

set forth in the indictment are in effect altered by the prosecutor or the court," such as

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when the jury instructions or evidence presented "allow the jury to convict the

defendant of an offense other than the one alleged in the indictment." United States

v. Gill, 513 F.3d 836, 849 (8th Cir. 2008) (citations omitted).

Count II alleged that on or about October 3, 2005, Giles and Brown used,

carried, possessed, and discharged a firearm during and in connection with the drug

conspiracy. In her opening statement, the prosecutor said that Count II charged

defendants "with the possession, use, carrying, and discharge of a firearm in

connection with the Williams and . . . Dennis shootings." Appellants claim that this

implied that the charged offense encompassed both the October 3 and October 11

shootings. The jury instructions and prosecutor's closing argument referred only to

the October 3 shooting, however. The government presented evidence about the later

shooting in order to establish that Monte Williams was shot "during and in relation to"

the drug trafficking conspiracy. The government's eyewitness to the Williams

shooting, Cyrinthia Williams, knew nothing about the conspiracy, and Monte

Williams died before trial in an unrelated shooting. The government therefore

produced Clarence Dennis to testify that he and Williams had stolen marijuana from

Giles and Brown to show that the shootings on October 3 and 11 were in retaliation

for that robbery. Neither defendant objected to this evidence on grounds of relevance

or unfair prejudice, and Brown's counsel brought out additional evidence from Dennis

about the October 11 shooting. Neither defendant requested an instruction for the jury

to consider the October 11 events only for the purpose of establishing the motive for

the October 3 shooting.

After a careful review of the record, we conclude that there is not a substantial

likelihood that the jury convicted Giles and Brown of using or carrying a firearm on

October 11 instead of October 3 and that there was no constructive amendment. The

evidence of the later shooting was presented to establish the motive for the attack on

Monte Williams on October 3 and to tie it to the drug conspiracy. Moreover, the jury

instructions clearly stated that Count II pertained to conduct on October 3. We

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conclude that the district court did not err by denying the motions to dismiss and for

judgment of acquittal.

C. Evidentiary Rulings

Brown argues that the district court should not have admitted an out of court

statement Monte Williams made to Officer Chris Perna during investigation of the

October 3 shooting. Williams told Perna that he had been shot by someone that he

knew only as "Clean," who had been accompanied by a man named Charmar. Brown

argued that admission of the statement violated his confrontation rights and moved for

a mistrial, which the district court denied. We review for abuse of discretion. United

States v. Hollins, 432 F.3d 809, 812 (8th Cir. 2005).

Perna repeated Williams's statement to explain how he developed suspects for

the October 3 shooting. Perna entered "Charmar" into a database to help identify

"Clean" and found an incident report linking Giles and Brown. An out of court

statement is not hearsay when offered to explain why an officer conducted an

investigation in a certain way. See United States v. Johnson, 934 F.2d 936, 942 (8th

Cir. 1991). Brown argues that the purported nonhearsay reason was only a

"subterfuge to get Williams statement about Brown before the jury," but he did not

argue at trial that the prejudicial effect of the evidence outweighed its nonhearsay

value. The district court twice told the jury that the evidence was admitted for the

limited purpose of understanding why Perna searched the database for "Charmar," and

we conclude that there was no abuse of discretion in admitting the evidence.

Because Williams's statement was not admitted for the truth of the matter

asserted, it does not implicate the confrontation clause. See Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004); see also United States v. Rodriguez, 484 F.3d 1006, 1013

(8th Cir. 2007) (out of court statement admitted to show the defendant's state of mind

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did not implicate the confrontation clause). The district court therefore did not abuse

its discretion by denying Brown's motion for a mistrial.

Brown also contends that the district court erred by admitting two out of court

statements by Giles under the coconspirator exception to the hearsay rule. Fed. R.

Evid. 801(d)(2)(E). Brown did not object to the evidence at trial, so we will not

reverse unless the district court erred, that error was plain, affected Brown's

substantial rights, and "seriously affect[ed] the fairness, integrity or public reputation

of judicial proceedings." United States v. Olano, 507 U.S. 725, 736 (1993) (quotation

omitted).

One of these statements was a remark made by Giles after Richard McGinnis

asked him on the phone whether he had anything to do with the May 3 murders.

McGinnis heard Giles ask someone at his end: "Do you believe what this man's asking

me?" Brown argues that Giles's remark was not admissible under the coconspirator

exception because it was a question rather than an affirmative statement and was not

made in furtherance of the conspiracy. If Giles's remark was intended to conceal their

involvement with the murders related to their marijuana trafficking activities,

however, it was in furtherance of the conspiracy. Cf. United States v. Garcia, 893

F.2d 188, 190 (8th Cir. 1990). Brown also objects to the introduction of Giles's

statement to the police at the airport that the $23,000 he possessed had been earned

through his barber shop business and was intended for the purchase of a vehicle. At

trial Brown's objection was hearsay but now he claims violation of his confrontation

rights. Giles's explanation for the money was not introduced for the truth of the matter

asserted, but to show that he was lying. See United States v. Hathaway, 798 F.2d 902,

905 (6th Cir. 1986) (statement offered to prove the falsity of the matter asserted not

hearsay). Such statements are not hearsay and do not implicate the confrontation

clause. Crawford, 541 U.S. at 59 n.9. The district court did not plainly err by

admitting either statement.

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D. Motion to Suppress

Brown appeals the denial of his motion to suppress evidence obtained from

searches of his home and businesses, contending that the supporting affidavits relied

heavily on informants and did not establish probable cause. We review for clear error

the district court's factual determinations in support of its denial of a motion to

suppress, see United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008), and give

substantial deference to the determination by the issuing judge that probable cause

existed. Illinois v. Gates, 462 U.S. 213, 236 (1983). The informants against Brown

were not anonymous and provided the basis of their knowledge. See id. at 238. They

revealed that they had engaged in criminal activity, and such disclosures against penal

interest are presumptively credible. See United States v. Tyler, 238 F.3d 1036, 1039

(8th Cir. 2001). Police were able to corroborate details of the tips, also demonstrating

the informants' reliability. See United States v. Edmiston, 46 F.3d 786, 789 (8th Cir.

1995). Based on these factors and our review of the record, we conclude that there

was probable cause for the searches and that the district court did not err in denying

Brown's motion to suppress.

Brown also argues that the district court erred by denying him a hearing under

Franks v. Delaware, 438 U.S. 154 (1978), to challenge the veracity of the affidavit

supporting the search warrant for unit 410 at Crown Point Storage. Since the police

did not execute this search warrant because they realized that Brown no longer

controlled the unit, this argument is moot. See United States v. Aleman, 548 F.3d

1158, 1167 (8th Cir. 2008).

E. Motion for Severance

Brown argues that the district court failed to sever his trial from that of Giles

when it became clear that Brown was being prejudiced by the joint trial. Brown did

not seek relief under Fed. R. Crim. P. 14 before or during trial, however, so our review

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is for plain error. Brown must "show not only that there was a Rule 14 violation

affecting [his] substantial rights, but also that there is some extraordinary reason for

us to reverse for such error despite [his] failure to raise the issue in the trial court."

United States v. Thornberg, 844 F.2d 573, 575 (8th Cir. 1988).

Brown argues that he was prejudiced by evidence about Giles's dealings in

which Brown was not directly involved, but much of this evidence would have been

admissible in a severed trial as proof of the scope of the conspiracy. A conspirator's

liability for the foreseeable actions of other conspirators is one reason a joint trial is

favored. United States v. Payne, 923 F.2d 595, 596 (8th Cir. 1991). Brown has not

shown that he was prejudiced within the meaning of Rule 14 and has not offered any

"extraordinary reason" that we should reverse despite his failure to seek severance

below. See United States v. Spotted Elk, 548 F.3d 641, 658 (8th Cir. 2008) (disparity

among conspiracy codefendants in extent of culpability is commonplace and does not

show the kind of prejudice that would require a district court to sever).

F. Jury Instructions

Brown argues that the district court erred in instructing the jury on Counts II,

IV, and VII. These counts charged him with violating 18 U.S.C. § 924(c)(1)(A) on

three different dates. Counts II and IV allege that Brown "used, carried, possessed

and discharged a firearm during and in relation to [the crime charged in Count I]" on

October 3, 2005 and May 3 and 4, 2005, respectively. Count VII charges an offense

on April 3 and 4, 2006 and omits the term "discharge." The jury instructions were

similar for all three counts except that special interrogatories on whether a firearm was

discharged accompanied the charges for Counts II and IV.2 Brown did not object to

2

A finding that a firearm was discharged carries an additional sentence of ten

years, rather than five. 18 U.S.C. § 924(c)(1)(A)(iii).

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the instructions at trial so we review for plain error. United States v. Kent, 531 F.3d

642, 655 (8th Cir. 2008).

Section 924(c)(1)(A) imposes an additional minimum five year sentence for

"any person who, during and in relation to any crime of violence or drug trafficking

crime . . . , uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm." In this section Congress specified the elements for two distinct

crimes connecting guns with either crimes of violence or drug trafficking: (1) using

or carrying a firearm during and in relation to the underlying crime, and (2)

possessing a firearm in furtherance of the underlying crime. United States v. Gamboa,

439 F.3d 796, 810 (8th Cir. 2006); accord United States v. Combs, 369 F.3d 925, 932

(6th Cir. 2004). Contra United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006).

The statute allows a conviction based on possession of a firearm only if the

government proves that it was possessed "to advance or promote the commission of

the underlying offense." H.R. Rep. No. 105-344, at 12 (1997).

The jury was instructed on all three counts that it could find Brown guilty for

"using or carrying a firearm during and in relation to, or possessing a firearm in

furtherance of a drug trafficking crime." The instructions incorrectly defined

"possessed in furtherance of" to mean that "the firearm must have some purpose or

effect with respect to the [drug trafficking crime]; its presence or involvement cannot

be the result of accident or coincidence." This definition is nearly identical to the

Supreme Court's definition of "in relation to," which is not an element of the

possession offense in § 924(c)(1)(A), but of the offense of using or carrying a firearm

during and in relation to (drug trafficking). See Smith v. United States, 508 U.S. 223,

238 (1993). In Kent, we held that it was error to give that particular definition for the

possession offense because it eliminates the distinction between the two distinct

crimes in § 924(c)(1)(A). See Kent, 531 F.3d at 654–55. Here, the jury was

instructed that it could convict Brown of Count VII if he possessed a firearm in

relation to drug trafficking, but the possession crime requires that the firearm was

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possessed in furtherance of the drug trafficking crime, not just in relation to it. See

United States v. Savoires, 430 F.3d 376, 380 (6th Cir. 2005) (holding that an

instruction on "possession during and in relation to" created a risk that the defendant

was convicted of an offense not described in § 924(c)). Because the indictment and

the jury instructions described only the "during and in relation to" standard, the

government was required to prove "use or carry" to obtain a conviction.

The government concedes that the instructions were erroneous, and we find that

the error is plain under Gamboa, Gill, and Kent. The government argues that the error

did not affect Brown's substantial rights on Counts II and IV because for those counts

the jury found that the defendants had discharged firearms. Because a firearm that is

discharged has necessarily been used or carried, the jury could and did find the

evidence sufficient to establish that the defendants had used or carried firearms during

and in relation to their drug conspiracy. Thus, the error in the instructions for Counts

II and IV did not substantially affect Brown's rights as to those counts. The situation

is different in respect to Count VII, however.

Count VII alleged that on April 3 and 4, 2006, Brown used, carried, and

possessed two specific firearms during and in relation to drug trafficking. The

erroneous instruction could have affected the verdict on Count VII if the evidence

could not support a finding of use or carry. There was no evidence (or special

interrogatory question) that Brown discharged a weapon on April 3 or 4, and in fact

those were simply the dates on which the two firearms were seized. One of the seized

firearms was a .38 Taurus revolver3 found by law enforcement in Brown's Silverado

in a warehouse rented by Giles and Brown. The other firearm was a .223 rifle found

in Kouris's storage unit. The facts in evidence might support a finding that Brown

possessed these firearms, see United States v. Sanchez-Garcia, 461 F.3d 939, 946–47

3

A .44 caliber revolver was used in the May 3, 2005 murders, but there was no

evidence about the firearm used in either the October 3 or 11, 2005 shootings.

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(8th Cir. 2006), but they would not support a finding that Brown used or carried them

on April 3 or 4.

Possession is not coextensive with either use or carry. See Gamboa, 439 F.3d

at 810; United States v. Ramos-Rodriguez, 136 F.3d 465, 468 (5th Cir. 1998). "Use"

does not include concealment of a firearm in a convenient place so as to be "at the

ready," but requires "active employment." Bailey v. United States, 516 U.S. 137,

148–49 (1995). Even if it could be said that Brown had constructive possession of the

two firearms, that would not satisfy the definition of carry. See id. at 148 ("Storage

of a firearm, without its more active employment, is not reasonably distinguishable

from possession."); United States v. Canady, 126 F.3d 352, 358 (2d Cir. 1997). By

allowing the jury to convict based on possession of a firearm merely "in relation to"

the drug conspiracy, instead of in furtherance of that conspiracy, the instructions likely

affected the verdict on Count VII. We will not reverse, however, unless we find that

the error "seriously affect[ed] the fairness, integrity or public reputation of [Brown's]

judicial proceedings." See Olano, 507 U.S. at 736.

We contrast the error here with that in United States v. McGilberry, 480 F.3d

326 (5th Cir. 2007), in which the court found that an indictment mistakenly charging

the defendant with possessing a firearm during a drug trafficking crime was plainly

erroneous, but did not require reversal because the evidence that McGilberry had used

the firearm was "essentially uncontroverted" and the jury was properly instructed that

it must find that defendant had used or carried the firearm. Id. at 329–31. Here, the

jury instructions incorrectly described the charged offense, there was no evidence that

Brown used or carried the firearms, and the government's closing argument

exacerbated the error in the instructions. We conclude that the error seriously affected

the fairness of Brown's trial on Count VII, and his conviction on that count is therefore

reversed.

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Kouris contends that the jury was incorrectly instructed on how to determine

the drug quantity for which she was responsible. We review for abuse of discretion

and will affirm so long as "the instructions, taken as a whole, fairly and adequately

submitted the issues to the jury." Aleman, 548 F.3d at 1166 (quotation omitted).

Kouris objected at trial that the coconspirator liability instruction "nullifie[d]

reasonable foreseeability as is required under Apprendi," and she now argues that the

jury received conflicting direction on how to determine the quantity attributable to

her.

The drug quantity instruction explained that the jury should attribute to Kouris

all quantities that she possessed for personal use or distribution, and also any amounts

that "fellow conspirators distributed or agreed to distribute, if you find that those

distributions or agreements to distribute were a necessary or natural consequence of

the agreement . . . and were reasonably foreseeable by the defendant." This

instruction did not conflict with the coconspirator liability instruction because both

directed the jury to determine the defendant's culpability based on the acts of other

conspirators done in furtherance of the conspiracy. When the jury asked during

deliberations whether the amounts attributable to each defendant could be different,

the court referred it to the drug quantity instruction, which clearly instructed the jury

to attribute to Kouris amounts distributed by her coconspirators only if she could

reasonably foresee those distributions. We conclude that the jury was properly

instructed on how to determine the drug quantity attributable to Kouris, and that its

finding was a valid basis for her sentence.

G. Sufficiency of the Evidence

Brown contends that there was insufficient evidence to convict him on Counts

II, IV, and VII and that the district court erred by denying his motion for judgment of

acquittal. Since his conviction on Count VII has been reversed for other reasons, we

limit our discussion to the other counts. We review de novo, and will uphold the

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verdict if "there is any interpretation of the evidence that could lead a

reasonable-minded jury to find the defendant guilty beyond a reasonable doubt."

Garcia-Hernandez, 530 F.3d at 661 (quotation omitted).

Count II charged the use, carry, possession, and discharge of a firearm during

and in relation to a drug trafficking crime on October 3, 2005, the day Monte Williams

was shot. Cyrinthia Williams's testimony supports the jury's finding that Giles

discharged a firearm on October 3. The jury instructions allowed Brown to be

convicted if the discharge of the firearm was reasonably foreseeable to him and was

in furtherance of the conspiracy—two elements established by Clarence Dennis's

testimony.

Count IV alleged the discharge of a firearm on May 3 and 4, 2005, and refers

to the murders of Wilkinson, Dominguez, and Garcia. Brown argues that the

government's case was flawed because its forensic examiner concluded that a revolver

had been used, but George Moore testified that Brown had carried "the kind [of gun]

that spits bullets." Brown claims that meant a semiautomatic weapon. Any dispute

about the type of firearm used does not cast doubt on his conviction in light of

Moore's highly incriminating testimony about Brown's role in the murders. The

district court did not err by concluding that the jury could reasonably find that Brown

violated § 924(c) as alleged in Counts II and IV, either directly or by the reasonably

foreseeable actions of his coconspirator.

The district court also denied Brown's motion for a new trial, which we review

for a clear and manifest abuse of discretion. United States v. Brown, 956 F.2d 782,

786 (8th Cir. 1992). The court may grant a new trial "if the evidence weighs heavily

enough against the verdict that a miscarriage of justice may have occurred." Id.

Brown contends that the district court failed to weigh the evidence and assess the

credibility of "cooperating witnesses influenced by immense incentive to implicate"

him in the crimes. Brown does not provide any evidence that their testimony was

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rendered unreliable by the unidentified "immense incentives." The district court had

the opportunity to observe the testimony of these witnesses and assess their

credibility, and it did not abuse its discretion in denying Brown's motion for a new

trial.

___________

Kouris challenges the sufficiency of the evidence that she intentionally joined

the conspiracy charged in Count I. Separate proof that she engaged in an overt act in

furtherance of the conspiracy is not necessary, see United States v. Morales, 445 F.3d

1081, 1084 (8th Cir. 2006), and elements of conspiracy may be established by

reasonable inferences from the evidence, see Henderson v. United States, 815 F.2d

1189, 1191–92 (8th Cir. 1987).

Kouris traveled to Atlanta when Giles and Brown went there to negotiate a drug

deal. Kouris's mother testified that she was visiting family, but the jury was entitled

to make its own finding. Kouris also leased a storage unit in which police found 35

pounds of marijuana, a semiautomatic rifle, ammunition, and a bullet proof vest.

Although Kouris contends that Giles made all the payments for the unit4 and that a

Crown Point employee could not recall having seen her visit it, as lessee Kouris had

constructive possession over the unit's contents.

At 1214 Applewood Drive, Kouris's apartment, the police found marijuana, a

bullet proof vest, and a video camera containing footage of Giles and Brown counting

large amounts of cash with more than a pound of marijuana visible on the table. The

police found six ounces of marijuana and a scale when searching a house that she and

Giles shared on 40th Avenue, and another four ounces of marijuana during a second

search after Giles's arrest and Kouris's indictment. Kouris's constructive possession

4

At oral argument the prosecutor referred to cancelled checks showing that

Kouris occasionally paid the rent, but she could not provide an exhibit number.

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of marijuana and trafficking paraphernalia such as a scale, a firearm, ammunition, and

bullet proof vests supports the jury's finding that she joined the conspiracy. See

United States v. Padilla-Pena, 129 F.3d 457, 465 (8th Cir. 1997) (defendant's control

over apartment where heroin and related items were found was "highly suggestive of

his role in the heroin business"); United States v. Lopez, 944 F.2d 33, 39 (1st Cir.

1991) (defendant leased apartment where heroin and packaging paraphernalia was

found); United States v. Brett, 872 F.2d 1365, 1369 (8th Cir. 1989) (possession of key

to a house where cocaine and trafficking paraphernalia were found was sufficient

circumstantial evidence linking defendant to conspiracy).

From jail Giles asked Kouris to collect payment for marijuana deliveries, to

conceal assets, and to contact prospective witnesses. Kouris argues that there was

little corroborating evidence that she performed these tasks, but the jury could

reasonably infer from Giles's apparent trust in her that she was involved in the

conspiracy. Kouris and Giles talked in code, referring to distribution of "petitions"

and soliciting "signatures" on these petitions. The jury could find that Kouris's ability

to communicate in code while speaking to Giles in jail shows her previous

involvement in the conspiracy. See Padilla-Pena, 129 F.3d at 465 (content of phone

conversations with another conspirator revealed the defendant's involvement in a drug

distribution scheme).

McGinnis, Moore, and Boyston testified that they had not dealt with Kouris in

any drug trafficking and did not think Giles would trust her, but the jury could have

found that their testimony was not credible or that they simply did not know about her

role. Kouris contends that most of the government's witnesses provided no evidence

against her, but "a defendant may be convicted for even a minor role in a conspiracy,"

so long as that role is proved beyond a reasonable doubt. United States v. Lopez, 443

F.3d 1026, 1030 (8th Cir. 2006) (en banc). After studying the record and viewing the

evidence in the light most favorable to the verdict, we conclude that the evidence was

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sufficient to support Kouris's conviction. We also conclude that the district court did

not abuse its discretion by denying her motion for a new trial.

H. Ineffective Assistance of Counsel

Giles argues that his right to counsel was violated because of the ineffectiveness

of his attorney, Terri Crawford, during the early stages of the case. To make out this

claim Giles must show that Crawford's performance was deficient and that this

deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). The parties agree that Crawford tried to influence key witnesses to tell police

that Brown was responsible for certain acts rather than Giles. Brown's trial attorney

questioned witnesses about how their statements to police had changed due to

Crawford's influence, and Giles argues that he was unfairly prejudiced by this

discussion. Although Crawford's conduct may have been unethical and deficient, it

ended six months before trial when she withdrew from representation. Her conduct

did not harm Giles directly—it was not until this evidence was introduced and

discussed at trial, without objection from Giles's trial attorney, that it had the potential

to affect the jury's verdict.

We do not consider ineffective assistance of counsel claims on direct appeal

unless "the record has been fully developed or to avoid a plain miscarriage of justice."

United States v. Cook, 356 F.3d 913, 919–20 (8th Cir. 2004). There is not a sufficient

record of deficient representation or resulting prejudice to permit proper evaluation

of Giles's ineffective assistance claim at this time.

I. Sentencing

In sentencing Giles on Counts I and VI the district court imposed a life sentence

after finding beyond a reasonable doubt that he had committed the first degree murder

of Dominguez, Wilkinson, and Garcia. The district court applied U.S.S.G. §

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2D1.1(d)(1), which permits a sentence for first degree murder if the district court finds

that "a victim was killed under circumstances that would constitute murder." Giles

contends that this sentence violates Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), which held that "any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." Sentencing facts need not be submitted to a jury, however. See

United States v. Garth, 540 F.3d 766, 778 (8th Cir. 2008). Giles's conviction under

21 U.S.C. § 841(b)(1)(A)(vii), based on the jury's finding that he was responsible for

the distribution of more than 1,000 kilograms of marijuana, carries a maximum

statutory sentence of life, so the district court's finding did not result in a sentence

beyond the statutory range authorized by the verdict. Giles argues in the alternative

that the district court should have applied a "clear and convincing evidence" standard.

Since the district court applied a more rigorous standard—beyond a reasonable doubt,

Giles's argument is to no avail.

Giles also challenges his sentences on Counts II and IV, which reflected the

jury's findings that he had discharged a weapon during and in relation to a drug

trafficking offense. Giles argues the instructions did not remind the jury that it must

find discharge beyond a reasonable doubt, but the jury was given a general reasonable

doubt instruction which it presumably applied to the issue of discharge. Giles's

argument that the evidence was insufficient to support a finding that he discharged a

firearm on May 3 and 4, 2005 fails because a reasonable jury could have made this

finding based on the testimony of George Moore and the government's forensic

evidence.

___________

At sentencing the district court found that Kouris had interfered with the

investigation of the case and imposed a two level increase for obstruction of justice

under U.S.S.G. § 3C1.1. We review for clear error a district court's factual findings

for the purpose of sentencing, which it makes using a preponderance of the evidence

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standard. Aleman, 548 F.3d at 1163. The presentence report concluded that Kouris

had attempted to destroy or conceal evidence when she tried to recover a video camera

seized from her apartment on April 4, 2006. On May 10, Giles called Kouris from jail

and told her that the camera contained incriminating footage. Kouris contacted police

on June 21 to request that the camera be returned, explaining that it contained footage

of her family.

Kouris argues that the obstruction finding was in error because she had a

legitimate reason to seek the return of the camera and because she did not actually

succeed in obtaining it. Section 3C1.1 clearly states that attempts to obstruct create

a basis for enhancement. That Kouris did not contact police for the five weeks after

the camera was seized, until Giles told her it contained evidence, supports the district

court's finding that she made the request "for the purpose of eliminating evidence at

the trial." The district court was in a better position to make determinations about

Kouris's "motives and veracity." United States v. Holt, 149 F.3d 760, 762 (8th Cir.

1998). The incriminating footage was material because it would tend to influence the

jury to find that Giles and Brown were engaged in a conspiracy to distribute large

quantities of marijuana. See U.S.S.G. § 3C1.1 cmt. nn. 4(d), 6. The district court's

finding that Kouris obstructed justice was not clearly erroneous.

Kouris also complains that the district court's reliance on information not

contained in the presentence report deprived her of fair notice. The evidence in

question had been presented at trial, however, see Padilla-Pena, 129 F.3d at 468, and

the district court notified the parties before the sentencing hearing that it would take

judicial notice of trial evidence. We conclude that Kouris's argument that she was

denied fair notice is without merit.

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III.

Accordingly, we affirm the judgment of the district court except for Charmar

Brown's conviction on Count VII which we reverse and vacate. Brown's case is

accordingly remanded to the district court for resentencing.

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