United States v. Brisco

84 F. App'x 691
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 29, 2003
DocketNos. 03-1427, 03-1469
StatusPublished

This text of 84 F. App'x 691 (United States v. Brisco) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brisco, 84 F. App'x 691 (7th Cir. 2003).

Opinion

ORDER

A grand jury charged Bernard Brisco and Ernest Brooks with conspiring to distribute and to possess with the intent to distribute more than five kilograms of cocaine, more than fifty grams of cocaine base, and an unspecified quantity of marijuana, and also with distributing cocaine and cocaine base on six occasions. Brooks pleaded guilty to the conspiracy charge, and a petit jury convicted Brisco on both the conspiracy charge as well as the six substantive distribution charges. The distinct court sentenced Brooks to a prison term of 360 months and ordered Brisco to serve a term of life. Both defendants appeal. Brisco challenges the sufficiency of the evidence underlying his convictions, a variety of statements that the prosecutor made in closing argument, and certain limitations that the district judge imposed on communicating with his counsel while witnesses were being examined. At oral argument, Brisco’s counsel withdrew a claim of attorney ineffectiveness that Brisco had raised in his brief, and we do not address that claim. Brooks contends that the district court calculated his sentence using an incorrect offense level. Finding no merit in any of the appellants’ arguments, we affirm their convictions and sentences.

I.

Background

Briefly, the evidence in this ease indicated that Brisco headed a conspiracy to distribute cocaine, cocaine base, and marijuana in Madison, Wisconsin from August of 1999 until February 2002. Brisco obtained his cocaine from sources in both Chicago and Los Angeles, and often used female acquaintances as couriers to pick up the cocaine and carry it to Madison; in some instances, these couriers also carried large amounts of cash with them from Madison to pay for the cocaine. When the cocaine arrived in Madison, Brisco would cook a substantial portion of it into crack form and then weigh and package the cocaine for distribution to dealers. Brisco supplied a number of dealers with narcotics, including his co-defendant Brooks, and often Brisco did so on a consignment or “front” basis. Brooks and Brisco were quite close, and Brooks often delivered narcotics to Brisco’s other dealers and collected money from them. Brisco used the [694]*694homes of several of his female acquaintances to store as well as cook and package cocaine and cocaine base, and in some instances dealers were directed to those homes in order to obtain their supplies; in exchange, he helped these women with their rent and other bills.

II.

Brisco’s Arguments

A. Sufficiency of the Evidence

Brisco has waived any challenge to the sufficiency of the evidence underlying his conspiracy conviction. In order to preserve such a claim, a defendant must make an appropriate motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. See, e.g., United States v. Pribble, 127 F.3d 583, 590 (7th Cir.1997); United States v. Archambault, 62 F.3d 995, 998 (7th Cir.1995). Although Brisco made such a motion at the close of the government’s case, his motion was confined to the six distribution charges. R. 184 at 51-59. In focusing on those charges to the exclusion of the conspiracy charge, it appears that Brisco intentionally relinquished his right to challenge the evidentiary basis for his conspiracy conviction. See generally United States v. Jacques, 345 F.3d 960, 962 (7th Cir.2003) (distinguishing waiver from forfeiture),1 and thus he waived any challenge to the sufficiency of the evidence underlying the conspiracy charge.

Our review of the sufficiency of the evidence underlying the distribution counts is limited. Although Brisco sought acquittal on those counts at the close of the government’s case (R. 184 at 57), he failed to renew his Rule 29 motion at or after the close of all evidence, thereby forfeiting his sufficiency challenge as to the distribution charges. United States v. Owens, 301 F.3d 521, 527-28 (7th Cir.2002); United States v. Williams, 298 F.3d 688, 692 (7th Cir.2002). Consequently, our review of the sufficiency of the evidence underlying Brisco’s convictions is solely for plain error, “which in this context is present only if his convictions amount to a manifest miscarriage of justice.” Owens, 301 F.3d at 528. ‘“We will reverse only if the record is devoid of evidence pointing to guilt, or if the evidence on a key element of the offense was so tenuous that a conviction would be shocking.’ ” Id., quoting United States v. Taylor, 226 F.3d 593, 597-98 (7th Cir.2000).

Brisco cannot meet this demanding standard. The distribution charges were based on six sales of cocaine or cocaine base that Brooks made to an undercover officer from February to October of 2001. Although it was Brooks who sold the cocaine to the undercover officer on each of these occasions, the jury nonetheless could convict Brisco of aiding and abetting [695]*695Brooks’ distribution of the cocaine (see 18 U.S.C. § 2) if it found that Brisco in some way participated in Brooks’ distribution as something that he wished to make happen and that, by his actions, he sought to make succeed. See United States v. Hatchett, 245 F.3d 625, 631-S2 (7th Cir.2001); United States v. Lewis, 117 F.3d 980, 984-85 (7th Cir.1997). Based on the evidence, the jury reasonably could have found that it was Brisco who supplied Brooks with the cocaine and cocaine base that Brooks in turn distributed to the undercover officer The testimony amply demonstrates that Brooks was one of the people to whom Brisco supplied narcotics, and several witnesses named Brisco (and only Brisco) as Brooks’ supplier. R. 179 at 41, 84-85, 120-21; R. 183 at 58, 190. Indeed, immediately prior to the last of the charged transactions, Brooks stopped off at the residence of Rebecca Rothwell, a woman whose home Brisco used to store narcotics. R. 178 at 226-27. That circumstance bolsters the inference that Brooks was obtaining his cocaine from Brisco. The jury also could have concluded that Brisco was neither ignorant of nor indifferent to what Brooks did with the narcotics that he supplied. Brisco was not a spot supplier to Brooks and his other distributors. He spearheaded a distribution network whose success depended on the street-level sales of his distributors, and Brooks by all accounts was his right-hand man in that network. The record, in sum, is not devoid of evidence pointing to Brisco’s culpability as an aider and abetter in the sales to the undercover officer, and so Brisco’s conviction on the distribution counts cannot be described as a miscarriage of justice.

The bulk of Brisco’s attack on the distribution convictions, and for that matter the conspiracy conviction as well, is focused on the credibility of the government’s witnesses. See Brisco Br. at 30-33. These witnesses were, in most instances, participants in the conspiracy themselves.

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84 F. App'x 691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brisco-ca7-2003.