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United States v. Brown

United States District Court, N.D. Indiana, South Bend Division

May 2, 2018

UNITED STATES OF AMERICA
v.
GREGORY BROWN

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         Defendant Gregory Brown has pled guilty to Count 1 of the Superseding Indictment in case 3:16-CR-81 for conspiring to distribute over 100 grams of heroin and to Count 1 of the Indictment in case 3:16-CR-93 for committing wire fraud. With respect to the most recent presentence investigation report (“PSR”) [DE 388], [1] the defense's objections and arguments concerning its accuracy have evolved over time. See, e.g., [DE 367; DE 389; DE 389-4; DE 413; DE 417; DE 418; DE 421; DE 429]. As a result, the Court held two status conferences [DE 426; DE 428], so as to pin down the actual disputes requiring resolution by the Court. Thereafter, an evidentiary hearing was held [DE 437], during which the parties presented evidence and argument on the outstanding disputes. The following objections to the guideline calculations exist:

1. The defense's objection to the PSR's application of a 4 level enhancement under guideline § 3B1.1(a) for Brown's role as an organizer or leader of criminal activity that involved 5 or more participants;
2. The defense's objection to the PSR's application of a 2 level enhancement under guideline § 3B1.4 for Brown's having “used or attempted to use a person less than eighteen” to “commit the offense”;
3. The government's objection to the PSR's not providing a 2 level enhancement for obstruction of justice under guideline § 3C1.1;
4. The defense's objection to the PSR's not providing a 2 level reduction for acceptance of responsibility under guideline § 3E1.1(a); and
5. The defense's objection to the PSR's not providing the additional 1 level reduction for acceptance of responsibility under guideline § 3E1.1(b)-which includes a related argument by defense counsel concerning a question of whether the government's refusal to motion for the third level reduction violates Brown's constitutional rights or constitutes bad faith.

         Further, although not impacting the actual guideline calculations, the defense objects to: Brown's being characterized as “the main source of heroin” in the Michigan City area (PSR ¶ 10); Brown's involvement in a drug transaction with Donnie Allison and Eric Smith on April 14, 2016 (PSR ¶ 13, last sentence); Brown's involvement in any drug transactions after his arrest on April 15, 2016 (PSR ¶¶ 15-20); the probation officer's characterization of Brown's statements to police in April and July 2016 (PSR ¶ 21); and the veracity of Allison's statements to police concerning Brown's role in the drug conspiracy (PSR ¶ 22). The Court now resolves the pending disputes, as identified herein.

         A. Organizer or Leader Enhancement

         Brown objects to a 4 level enhancement for being an organizer or leader. Section 3B1.1 provides for various enhancements based on the defendant's role in the offense. If the defendant was an organizer or leader in the criminal activity, then the offense level is increased by 2 levels. § 3B1.1(c). However, if the defendant was an organizer or leader “of a criminal activity that involved five or more participants or was otherwise extensive, ” the offense level is increased by 4 levels. § 3B1.1(a). This same criminal activity might garner only a 3 level increase, if the defendant was only a manager or supervisor, as opposed to an organizer or leader. § 3B1.1(b). In distinguishing a leadership and organizational role from one of mere management or supervision, factors the Court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. § 3B1.1 n. 4. There can be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy. Id.

         To qualify for any enhancement under this section, the defendant must have had a supervisory role over at least one other “participant.” § 3B1.1 n. 2; United States v. Cooper, 767 F.3d 721, 733 (7th Cir. 2014) (“the defendant only has to ‘have had some real and direct influence, aimed at furthering the criminal activity' over one of them.”) (citation omitted). A “participant” is a person “who is criminally responsible for the commission of the offense, but need not have been convicted” or charged. § 3B1.1 n. 1; United States v. Haywood, 777 F.3d 430, 433 (7th Cir. 2015) (“a defendant can be an organizer or leader without knowing every participant”); United States v. Blaylock, 413 F.3d 616, 618 (7th Cir. 2005) (“What matters is that he knowingly aided some part of the criminal enterprise.”) (citation omitted). For the 4 level enhancement to apply, the criminal activity must involve five or more participants-meaning the defendant and four others-or be otherwise extensive. § 3B1.1(a); Haywood, 777 F.3d at 433.

         Brown argues that while he was admittedly involved in a drug conspiracy with co-defendant Donnie Allison, he did not conspire to distribute heroin with the individuals identified in the government's drug conspiracy organizational chart (government's exhibit 2); that is, Jalen Wilson, Eric Smith, Terry Byrd, Daniel Mallet, Jimmy Thomas, and Derek Lott. Brown contends that he lacked sufficient knowledge of the drug activities engaged in by these individuals, apart from Allison. Brown asserts that Allison told the group to lie to the police by indicating that Brown was in charge.

         Consistent with his position, Brown testified at the evidentiary hearing that Allison was the ringleader who got Brown involved in selling heroin in Michigan City in early 2016. Brown initially purchased heroin from Allison, but eventually Brown started making trips to Chicago to retrieve his own heroin. Brown claimed that Allison remained responsible for sending customers to Brown. Relative to Brown's relationship with others in the group and his knowledge of their criminal activity, Brown minimized his role by testifying that: he sold Lott 3-5 grams of heroin every 2-3 days (for about a month), but did not know that Lott was reselling the drugs; he purchased heroin from Byrd only on one occasion; he met Wilson and Smith through Allison, but never engaged in drug transactions with them or knew of their drug activities; and, he never met or knew of Mallet or Thomas until after his arrest. Brown denied having others deal heroin for him, although on cross-examination, he admitted using a drug runner to complete up to 10 drug transactions per day. Moreover, when cross-examined about a particular heroin deal that took place on April 7, 2016, Brown admitted to setting up the heroin deal when the (then unknown) confidential informant (“CI”) called, but Brown denied directing Allison to deliver the drugs. Rather, Brown testified that he simply told the CI where to go, knowing that heroin was typically available in that location.

         Much of Brown's hearing testimony concerning his role in and knowledge of the nature and extent of the drug conspiracy is contradicted by other evidence in the record, [2] including Brown's own statements to police on July 25, 2016, [3] the statements of his co-defendants to police, [4] and the testimony of Detective Willie Henderson of the Michigan City Police Department (which was provided during the evidentiary hearing). For instance, a review of Brown's recorded interview with police in July 2016 shows Brown identifying Allison and Byrd as primarily in charge of the group, with Brown distributing for them, and Lott distributing for Brown (after Brown advised Lott that Allison was cheating him out of money). While Brown denied knowing who Lott sold the drugs to, Brown admitted knowing that Lott wasn't personally using the large amounts that he was purchasing from Brown and that Lott had to be selling the heroin. Brown also confessed to personally getting 40 grams of heroin from Allison every couple of days from January through March, and 20 grams of heroin every couple of days in April, until his arrest on the 15th. Moreover, Brown told police that he knew that Thomas and Smith were getting their heroin from Allison too. Brown explained that he either personally delivered the heroin or sent a runner, including Allison and someone named “Allen, ” to complete roughly 10 heroin transactions per day from January through mid-April.

         Detective Henderson's testimony confirmed that during his investigation into the influx of heroin infiltrating the Michigan City area, the police learned that CIs could set up controlled purchases with “Black” (later identified as Gregory Brown), who sometimes used runners known as “HP” (later identified as Byrd) and “D” (later identified as Allison). The investigation then involved the execution of various undercover purchases (as listed in government's exhibit 1) and the conducting of various interviews [DE 424-1 through DE 424-5]. Detective Henderson's testimony and the reports detailing the interviews reflect significant consistencies with respect to Brown's role in and knowledge of the drug conspiracy's operation. Specifically, Byrd told police that he acquired heroin for resale from Brown, Allison, and Thomas, and that Brown had him (Byrd), Allison, Thomas, and Wilson deliver heroin for him at various times. Wilson also told police that Brown and Allison supplied his heroin for resale, and Wilson even reported a conversation that took place among the three of them concerning the identification of individuals who were “with them” in distributing heroin (at which time, Byrd was named). Allison, Wilson, and Byrd told police that Brown directed them to sell “fronted” heroin to Brown's customers- and Wilson and Byrd reported going to Chicago (either with or for Brown and Allison) to get loads of heroin from Allison's source of supply while using Brown's money to make the purchases. Byrd indicated that on occasion Brown directed Byrd to contact Thomas for more heroin, and Brown even asked Byrd to work as a unit with Thomas and Wilson, which they did. Eric Smith told police that he received his heroin for distribution from Brown, and that he would make drug “runs” for Brown in exchange for cash. Allison similarly admitted to completing drug transactions for Brown in exchange for heroin. Jimmy Thomas told police that he got introduced to Brown from Wilson, and he then regularly purchased heroin from Brown for distribution to approximately 10 customers. After Brown's arrest, the organization continued to run in much the same manner by the group given the use of several common cell phones.

         The Court finds that the government has shown by at least a preponderance of the evidence that, despite Brown's testimony to the contrary, Brown did exercise a sufficient degree of control over the drug conspiracy to qualify as an organizer or leader, that he supervised at least one other participant, and that the criminal activity involved at least five participants. As detailed above, a number of co-conspirators provided consistent accounts of the conspiracy's hierarchy and its ongoing drug trafficking operations, and they admitted various actions taken in response to Brown's directives during the course of the conspiracy. See United States v. Collins, 877 F.3d 362, 366 (7th Cir. 2017). While it may be that Allison initially headed up the Michigan City drug ring in late 2015, it is clear that once Brown got involved in early 2016, CIs knew that they could get heroin from Brown and Brown quickly began playing a leading role in the conspiracy. The Court finds credible the fact that Brown supplied the funds needed (for individuals like Allison and Wilson) to obtain heroin from Chicago, that Brown fronted heroin to Allison, Wilson, and Byrd so that they would resell it, that Brown directed runners (like Allison, Smith, and Allen) to complete drug transactions on Brown's behalf in exchange for money or heroin, and that Brown regularly supplied heroin for resale to known dealers (like Thomas, Smith, and Lott).

         To the extent Brown argues that he may not have always distributed the drugs himself, that he was not directly involved in every transaction, or that he did not know all of the drug ring's customers, this does not negate his individual leadership role in the drug trafficking operation, § 3B1.1(a), nor mean that the transactions were not reasonably foreseeable to him and in furtherance of his jointly undertaken criminal activity. § 1B1.3(a)(1), (a)(1)(B); Blaylock, 413 F.3d at 618. In fact, by February 2016, Wilson described the drug distribution activity as “being on a roll, ” and confirmed that he, Allison, and Brown collectively discussed Byrd as being “with them” in the heroin business. Once Brown ...


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