Submitted: February 14, 2019
from United States District Court for the Western District of
Missouri - Jefferson City
SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
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. 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 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.
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.
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.
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."
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
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
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.
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
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.
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.
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.
Anticipatory Search Warrant
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