United States v. Brasher

962 F.3d 254

UNITED STATES of America, Plaintiff-Appellee,

v.Terrance BRASHER, Defendant-Appellant.

No. 18-1997

United States Court of Appeals, Seventh Circuit.

Argued January 8, 2020

Decided June 11, 2020

William L. McCoskey, Brian L. Reitz, Bob Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Jeremy Gordon, Attorney, Jeremy Gordon, PLLC, Mansfield, TX, for Defendant-Appellant.

Before Flaum, Rovner, and Scudder, Circuit Judges.

Rovner, Circuit Judge.

A grand jury charged Terrance Brasher and 14 other defendants with engaging in a conspiracy to distribute narcotics in and around the Southern District of Indiana. See 21 U.S.C. §§ 846, 841(a)(1). Only Brasher proceeded to trial, and after hearing the government's evidence, a jury found him guilty. The district court ordered him to serve a term of life in prison. See 21 U.S.C. § 841(b)(1)(A) (2016). Brasher appeals, asserting that there was a material variance between the conspiracy as charged and as proven at trial, that the government's proof at trial constructively amended the indictment, that the government improperly exercised its peremptory challenges to exclude two African American venire members during the jury selection process, that the prosecutor made prejudicial remarks in closing argument, that the government made improper use of evidence obtained via court-authorized wiretaps, and that the district court erroneously precluded him from challenging one of the prior narcotics convictions which triggered his mandatory term of life imprisonment. Finding no merit to any of these arguments, we affirm Brasher's conviction and sentence.

I.

Brasher was one spoke in a large hub-and-spoke narcotics conspiracy centered in Louisville, Kentucky. Defendant Carlos Shelton headed the conspiracy and was therefore at its hub. Terry Martin, an Indiana resident whose Louisville auto supply shop served as the de facto headquarters for the operation, was Shelton's partner in the criminal enterprise, frequently pooling money with Shelton to acquire narcotics. Maycoe Ortiz, who had a mechanic shop in Louisville, Kentucky across the street from Martin's auto shop, became a principal supplier of narcotics for the conspiracy.

It was Martin who introduced Brasher to Shelton. Martin knew Brasher from a previous stint of incarceration. In or about September 2014, Martin supplied Brasher with a small quantity of heroin. Brasher quickly sold the heroin and returned to Martin asking for more. Martin did not think that he would be able to supply Brasher with the quantities Brasher needed, so he introduced Brasher to Shelton, and Brasher became Shelton's customer.

Shelton distributed narcotics to dealers in both Indiana and Kentucky. Louisville is on the northern Kentucky border, directly across the Ohio river from multiple southern Indiana municipalities, including New Albany and Jeffersonville, that are part of the greater Louisville metropolitan area. Brasher himself lived in Louisville, Kentucky, and distributed drugs there. After joining the conspiracy in the Fall of 2014, he remained a participant until authorities brought it to an end with multiple searches and arrests in December 2015. So far as the trial record reveals, Brasher did not distribute drugs in Indiana, took no conspiracy-related actions in Indiana, and did not interact with any of the Indiana dealer/spokes.

As he did with other dealers, Shelton typically "fronted" heroin, cocaine, and methamphetamine to Brasher and accepted payment from the proceeds of Brasher's subsequent re-sales of the substances. Dealers, whether operating in Indiana or Kentucky, typically came to Louisville to pick up their drugs or drop off their payments for Shelton; occasionally, Shelton would meet a dealer in Indiana. Like other dealers, Brasher often picked up his supply of narcotics at Martin's auto supply shop and dropped off cash to reimburse Shelton at the same location (Shelton had a key to Martin's shop). Brasher was Shelton's most reliable dealer: He moved relatively large quantities of narcotics and paid his debts to Shelton on time. Shelton came to consider Brasher his "number one customer" (R. 888 at 299) and developed "a strong relationship based on trust with [him]" (R. 889 at 481). Brasher also on several occasions supplied kilogram quantities of cocaine to Shelton that he obtained from his own supplier in Texas. On one occasion, a multi-kilogram quantity of cocaine that Brasher had purchased with nearly $100,000 of Shelton's money was lost in shipment when the driver was stopped by police. Such was Shelton's trust in Brasher that he accepted Brasher's account of the incident and continued to do business with him.

A superseding indictment charged that Brasher conspired with Shelton, Martin and others in the Southern District of Indiana and elsewhere to distribute heroin, cocaine, and methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). As we noted at the outset, every named defendant other than Brasher pleaded guilty. Shelton, Martin, and Ortiz testified for the government at Brasher's trial in January 2018, and at the conclusion of a four-day trial, the jury convicted him of the conspiracy charge. In its verdict, the jury specifically found Brasher responsible for the distribution of 500 grams or more of methamphetamine, at least one kilogram of heroin, and five kilograms or more of cocaine.

Prior to the trial, the government filed two notices of Brasher's prior felony drug convictions pursuant to 21 U.S.C. § 851. The first notice referenced a 2000 conviction for, inter alia , drug trafficking, and the second referenced three such convictions in 2013. At sentencing, the district court found that because Brasher had at least two prior felony drug convictions, he was subject to enhanced statutory sentencing provisions which in his case dictated a life term in prison. See 21 U.S.C. § 841(b)(1)(A) (2016).¹ Based on additional testimony and wire intercepts presented at the sentencing hearing, the district court also found that Brasher was responsible for a murder committed in furtherance of the conspiracy, and that finding resulted in an offense level likewise calling for life imprisonment under the Sentencing Guidelines. In compliance with the statutory mandate, the court ordered Brasher to serve a life term.

II.

A. Variance between the indictment and the trial evidence .

Although the superseding indictment charged a conspiracy to distribute drugs that took place in the Southern District of Indiana and elsewhere, Brasher, as discussed above, appears to have operated in Kentucky exclusively. This leads him to argue that he was not involved in the larger conspiracy encompassing Indiana and that the evidence at most established that he was part of a separate conspiracy to distribute narcotics solely in Kentucky. Consequently, he argues, there was a fatal variance between the conspiracy as charged and the proof at trial, as there was no proof that he participated in a conspiracy to distribute drugs in the Southern District of Indiana.

A conspiracy variance claim is essentially a challenge to the sufficiency of the evidence underlying the conviction, United States v. Stevenson , 656 F.3d 747, 752 (7th Cir. 2011) (citing United States v. Womack , 496 F.3d 791, 794 (7th Cir. 2007) ); and to that extent, we must, of course, examine the evidence in the light most favorable to the government, id. If the evidence reveals that there was actually more than one conspiracy, as Brasher contends there was here, we will not find a fatal variance so long as the jury could have found beyond a reasonable doubt that among the multiple conspiracies was the conspiracy charged in the indictment. Womack , 496 F.3d at 794 (citing United States v. Williams , 272 F.3d 845, 862 (7th Cir. 2001) ); see also United States v. James , 540 F.3d 702, 706–07 (7th Cir. 2008).

To sustain its burden of proof on the conspiracy charge, the government was required as a general matter to show that Brasher knowingly joined an agreement to commit a criminal offense. United States v. Green , 648 F.3d 569, 579 (7th Cir. 2011) ; United States v. Johnson , 592 F.3d 749, 754 (7th Cir. 2010) ; United States v. Avila , 557 F.3d 809, 814 (7th Cir. 2009). More specifically, the government had to prove that Brasher embraced a common criminal objective with Shelton and the other co-conspirators—namely, the distribution of narcotics. See United States v. Tello , 687 F.3d 785, 793 (7th Cir. 2012) ; Green , 648 F.3d at 579. But Brasher did not need to know every member of the conspiracy nor did he need to participate in every act of the conspiracy in order to be convicted. Avila , 557 F.3d at 814 ; James , 540 F.3d at 707–08. As long as he was aware of the aim of the conspiracy and made a knowing decision to join it, he may be held to account for each act foreseeably committed in furtherance of the conspiracy by another conspirator. United States v. Thompson , 286 F.3d 950, 964 (7th Cir. 2002).

As we have noted, this was a classic hub-and-spoke conspiracy in which there were many dealers who served as spokes, interacting with certain central figures like Shelton at the hub. To qualify as a single conspiracy, a hub-and-spoke operation must have a "rim" connecting the spokes, namely, "an agreement to further a single design or purpose[.]" Avila , 557 F.3d at 814 (citing United States v. Bustamante , 493 F.3d 879, 885 (7th Cir. 2007) ). Brasher agrees that, as a narcotics dealer, he was a spoke in Shelton's narcotics enterprise, but he contends that there was no such rim uniting him with all of the other dealers Shelton supplied—including in particular the dealers in Indiana—and that consequently this was not one conspiracy but, at a minimum, two conspiracies: one focused on distributing drugs in Kentucky and one doing the same in Southern Indiana.

But especially given Brasher's particular place in the enterprise, the jury readily could have...