United States v. Leslie Blair, Craig Brown, Althea Fuller, Alvira Powell, Lenford Titus, Craig Brown

958 F.2d 26, 1992 U.S. App. LEXIS 3056
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 28, 1992
Docket355, Docket 91-1245
StatusPublished
Cited by17 cases

This text of 958 F.2d 26 (United States v. Leslie Blair, Craig Brown, Althea Fuller, Alvira Powell, Lenford Titus, Craig Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. Leslie Blair, Craig Brown, Althea Fuller, Alvira Powell, Lenford Titus, Craig Brown, 958 F.2d 26, 1992 U.S. App. LEXIS 3056 (2d Cir. 1992).

Opinions

LUMBARD, Circuit Judge:

Craig Brown appeals from his conviction, entered in the Western District of New York, on January 14, 1991, for conspiring to distribute cocaine and to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and for distributing cocaine within 1,000 feet of a public school, in violation of 21 U.S.C. §§ 841(a)(1) and 845(a). Judge Larimer sentenced him to 52 [28]*28months for each count, to run concurrently. Brown argues that the district court erred in refusing to order a mistrial following disclosure that the government’s key witness perjured himself. He also argues that the district judge abused his discretion in sentencing. We affirm the judgment.

On August 4, 1988, Craig Brown, Leslie Blair, Althea Fuller, Alvira Powell and Len-ford Titus' were indicted for conspiring to distribute and to possess with intent to distribute cocaine from May 1987 through July 31, 1988; Brown was also indicted for distributing cocaine within 1,000 feet of a public school.1

At Brown’s trial, the government relied heavily on the testimony of Blair, who described a complex drug conspiracy which operated in Rochester from March 1986 through July 1988. Blair testified as follows:

In March 1986, Blair ran into Titus in a Rochester restaurant. Titus was accompanied by several other people, including Brown, and they began discussing the possibility of operating a drug network in the Rochester area. Blair, Titus, Brown, and other members of the group met six more times during March 1986 to plan their operation. During these meetings the conspirators discussed the use of apartments, known as “gatehouses”, from which they would distribute drugs. They also planned special security systems for the apartments and devised methods of transporting cocaine from New York City and Florida to Rochester.

The conspirators operated four gatehouses from March 1986 through July 1988; Brown was responsible for two of them. Blair heard Brown call Titus by beeper, and often witnessed Titus return Brown’s calls, sometimes two or three times a day. He saw Brown at the gatehouses, witnessed Titus deliver cocaine to Brown, and observed Brown bag the drugs. Furthermore, Blair often took orders for cocaine from Brown.

In addition to Blair’s testimony, the government introduced audiotapes of conversations between Titus and Brown regarding the sale of drugs. Police Investigator Robert Urtis, an undercover agent, testified that he purchased cocaine from Brown within 1,000 feet of a public school.

During cross-examination of Urtis, the defense sought to establish that Blair had perjured himself. At sidebar, the defense revealed that Brown had been incarcerated from March through July 1986, and therefore could not have participated in some of the activities described by Blair.

Based on this disclosure, Brown moved for a mistrial. He argued that the prejudicial effect of Blair’s perjured testimony and the indications of prosecutorial misconduct mandated such action. When questioned by Judge Larimer as to whether he was aware that Brown could not have participated in the conspiracy from March through July 1986, the prosecutor admitted seeing Brown’s prison record, and said “I didn’t look at his rap sheet to attempt to determine when he was on the street.” Judge Larimer denied Brown’s motion for a mistrial, deciding instead to “let the proof take its course.”

At the conclusion of the government’s case, the defense introduced a stipulation that Brown could not have participated in the conspiracy from March through July 1986 as Blair had testified because he was incarcerated from July 1984 until July 1986 for a conviction later overturned on appeal. Brown presented no other evidence in his defense.

Following closing arguments, Judge Lar-imer gave the jury a special instruction regarding Blair’s testimony: “If you believe that any witness has been so impeached, contradicted, then it is within your exclusive province to give the testimony of that witness such credibility or weight, if any, that you think it deserves ... You can accept all of the testimony that the witness has given. You can accept some of it and not the rest of it. Or you can reject it all.”

After the jury returned a guilty verdict, the court granted Brown twenty days in [29]*29which to move for a mistrial. Brown made no post-trial motions.

Before sentencing, Judge Larimer rejected the presentence report estimate that Brown sold 183.5 grams of cocaine, and made an independent determination that Brown could have foreseen that the conspiracy would distribute at least twice that amount. He therefore increased Brown’s offense level by two points under the federal sentencing guidelines. Judge Larimer also rejected the report’s finding that Brown accepted responsibility for his crimes and was thereby entitled to a two point decrease in offense level. On April 16, 1991, he sentenced Brown to 52 months on each count, to run concurrently.

On appeal, Brown seeks dismissal of the indictment or a new trial. Alternatively, he argues that the district court erred in its determination of the applicable levels under the federal sentencing guidelines. Because the perjured testimony was discovered at trial and an appropriate jury instruction was given, we find that the perjured testimony did not deprive the defendant of a fair trial. We find no error in the sentence imposed by Judge Larimer, and affirm the judgment.

DISCUSSION

We have always assumed, though never expressly held, that perjured testimony must have remained undisclosed during trial in order to require reversal of a conviction. Cf. United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976) (finding violation of due process when “undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony”) (emphasis added); United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.) (“A new trial is required if the government uses perjured testimony that is uncorrected and reasonably likely to have affected the outcome”) (emphasis added), cert. denied, 482 U.S. 929, 107 S.Ct. 3214, 96 L.Ed.2d 701 (1987). This position is consistent with our long-held view that when perjury is introduced at trial, the subsequent conviction is to be reversed only if there is reason to believe that the verdict was based on the false testimony. See, e.g., Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir.1988); United States v. Stofsky, 527 F.2d 237, 245-46 (2d Cir.1975), cert. denied, Hoff v. United States, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976).

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Cite This Page — Counsel Stack

Bluebook (online)
958 F.2d 26, 1992 U.S. App. LEXIS 3056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leslie-blair-craig-brown-althea-fuller-alvira-powell-ca2-1992.