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United States v. Brown

United States Court of Appeals, Eighth Circuit

July 16, 2019

United States of America Plaintiff - Appellee
v.
Dijon Rasheed Brown Defendant-Appellant

          Submitted: February 14, 2019

          Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.

          SMITH, CHIEF JUDGE

         Dijon Rasheed Brown was convicted of conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A), for his involvement in a drug distribution operation.[1] Police arrested Brown after conducting a controlled delivery of a methamphetamine-filled package addressed to the duplex where Brown was staying. Brown raises several issues on appeal in connection with his arrest and trial. Specifically, Brown argues that the district court[2] erred in (1) denying his motion to suppress the evidence collected as a result of the controlled delivery; (2) denying his motions for judgment of acquittal on both the conspiracy and possession with intent to distribute charges; (3) admitting certain photographs of him at trial; and (4) denying Brown a two-level minor role reduction at sentencing. We disagree, and we affirm the district court in all respects.

         I. Background

         In September 2015, Zachary Fennell was robbed at 4262 Santa Barbara Dr. in Columbia, Missouri ("the residence"), a duplex rented by his girlfriend, Melissa Guerra. Fennell was a drug dealer. He received methamphetamine from California through the mail at various addresses and then distributed the methamphetamine to others in the Columbia area for sale; Fennell's neighbors, Jeremy and Stephanie Maxwell, sold methamphetamine for Fennell. The men who robbed Fennell in September attacked him and stole drugs, money, and guns. Soon after the robbery, three men arrived from California and began staying with Fennell. One of these men was Brown.

         Then, in October and November 2015, postal inspectors identified several suspicious packages being mailed from the Los Angeles, California area to various Columbia, Missouri addresses. In early November, postal inspectors identified a package from the Los Angeles area addressed to "Martha Guerra" at the residence as suspicious. Postal Inspector Christopher Farmer obtained a warrant for the package and discovered about 456 grams of methamphetamine inside. Inspector Farmer removed 356 grams from the package, leaving 100 grams inside.

         Inspector Farmer then submitted an affidavit in support of an anticipatory search warrant for the residence. In his affidavit, Inspector Farmer explained that he had discovered about 456 grams of methamphetamine inside the package but that he had reinserted about 100 grams for the purpose of a controlled delivery. The affidavit also explained that the controlled delivery would be performed by a law enforcement agent wearing a United States Postal Service uniform. Specifically, the affidavit provided: "Delivery will be made only to an adult willing to accept delivery on behalf of 'Martha Guerra,' to whom the Subject Parcel is addressed. Every effort will be made to make delivery to 'Martha Guerra' and in no event will the package be delivered to a child." United States v. Brown, No. 2:15-cr-04067-SRB, 2017 WL 3275970, at *4 (W.D. Mo. July 21, 2017), report and recommendation adopted, No. 2:15-CR-04067-SRB, 2017 WL 3275719 (W.D. Mo. Aug. 1, 2017). Based on the contents of the package, Inspector Farmer believed there was a fair probability of drug activity on the premises. A magistrate judge agreed and issued an anticipatory warrant for the premises. The warrant included a "triggering event," providing that probable cause to search the residence would be established once "[a]n adult subject transport[ed] some or all of the methamphetamine inside the target address." Id. The warrant also included a notice providing that the "warrant shall be executed only after this act occurs. Otherwise, this warrant shall not be executed." Id.

         Law enforcement scheduled the controlled delivery for November 10. Officers surveilled the residence prior to and during the delivery, and at 9:55 a.m., they observed Brown and another male entering an SUV parked in front of the residence. At 10:04 a.m., an undercover officer attempted delivery at the front door and then left the package near the front door. Inspector Farmer, who was on scene during the controlled delivery, "observed an individual inside of the residence opening and closing the door several times as if they were looking at the package." Trial Tr., Day 1, at 42, United States v. Brown, No. 2:15-cr-04067-SRB (W.D. Mo. Apr. 13, 2018), ECF No. 520. At 10:31 a.m., the SUV drove past the residence, then returned and parked in the driveway. At trial, Inspector Farmer described this activity as "a heat run, which is a countersurveillance maneuver employed by individuals involved in criminal activity to scout for and look for the location of law enforcement in the area." Id. at 42-43. At 10:34 a.m., Brown and another man exited the vehicle and approached the residence. Brown then picked up the package and took it inside the residence.

         Once Brown brought the package inside, Inspector Farmer alerted the officers that the triggering event had occurred. Within two minutes of Brown bringing the package inside, Fennell brought the package back outside onto the front doorstep and left it there. Officers soon entered the residence through the back door after being unable to breach the front door. Brown and others attempted to flee. Brown was later found hiding inside a nearby shed. After execution of the warrant, officers discovered that Brown had written "Return to Sender" on the package before placing it back on the doorstep.

         During their search of the residence, officers discovered evidence of drug trafficking, including several weapons, a drug ledger, and incriminating text messages. Specifically, they discovered a loaded handgun under a bed in Brown's bedroom; a piece of paper with the initials "LT" written on it along with drug quantities and prices (later determined to be a drug ledger); and a text message associated with LT's phone number instructing someone to purchase drugs. Brown's DNA was found on the gun under his bed, and testing also suggested his DNA was on at least one other gun found inside the residence.

         Subsequently, Brown was indicted for conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine; Fennell, Guerra, and other coconspirators were also indicted. Prior to trial, Brown moved to suppress the evidence recovered during the November 10 raid. Brown argued that the anticipatory warrant was not supported by probable cause and that the triggering event to execute the warrant never occurred. The district court denied his motion. The court found the triggering event occurred when Brown brought the package inside the residence. It also found that even if the triggering event did not occur, law enforcement relied on the warrant in good faith. Brown also filed a motion in limine to exclude any evidence of his gang affiliation. The district court granted Brown's motion in part, instructing the government not to mention gang affiliation; however, the court allowed the government to introduce certain pictures of Brown, Fennell, and other codefendants.

         At trial, the government argued that Brown had moved from California to assist Fennell with his drug distribution operation, specifically noting Brown's role in providing protection to Fennell after he had been robbed. The government called several witnesses, including Inspector Farmer, FBI Agent Stacy Banks, Guerra, a female client named Jessie Benedict, and Jeremy Maxwell. During Agent Banks's testimony, the government introduced several pictures of Brown, Fennell, and the other codefendants for the purpose of establishing the relationship among these individuals. Brown claimed these pictures were prejudicial because they allegedly depicted certain gang signs, and he objected to their introduction. However, the government made no mention of gangs or gang affiliation during the trial. Guerra identified Brown as "Little T" and also testified to seeing guns "[e]verywhere" when she visited the residence. Trial Tr., Day 2, at 143, United States v. Brown, No. 2:15-cr-04067-SRB (W.D. Mo. Apr. 13, 2018), ECF No. 521. Benedict stated that Brown sometimes accompanied Fennell when Fennell sold her drugs; she also described an occasion when Brown used her property for target practice. Maxwell testified that, on one occasion, Brown provided Fennell with methamphetamine.

         At the close of the case, Brown moved for a judgment of acquittal, arguing that the evidence was insufficient to find him guilty beyond a reasonable doubt of either charge. The district court denied Brown's motion, and the jury found Brown guilty of both conspiracy to distribute methamphetamine and possession with intent to distribute methamphetamine.

         At sentencing, the district court calculated Brown's Guidelines range as 210 to 262 months' imprisonment, a range reflecting an offense level of 34 and a criminal history category of IV. Brown moved for a two-level minor role reduction, but the court denied the motion after finding that Brown played a "more than [a] de minimis role" in the drug conspiracy. Sent. Tr. at 9, United States v. Brown, No. 2:15-cr-04067-SRB (W.D. Mo. Apr. 16, 2018), ECF No. 526. The district court ultimately sentenced Brown to two concurrent 188-month sentences.

         II. Discussion

         A. Anticipatory Search Warrant

         Brown contends the district court should have suppressed the evidence uncovered during the search of the residence, as the anticipatory warrant allowing the search was not supported by probable cause and not properly executed. "We review the denial of a motion to suppress de novo but review the underlying factual determinations for clear error, giving due weight to the inferences of the district court and law enforcement officials." United States v. Walker, 324 F.3d 1032, 1036 (8th Cir. 2003) (internal quotations omitted).

         1. Pr ...


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