USA v. Calvin Brown
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6725552-1] [6725552] [15-1475]
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 3, 2015
Decided February 2, 2016
Before
DIANE P. WOOD, Chief Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐1475
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
CALVIN T. BROWN, a/k/a C‐MURDER,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 14‐CR‐00019
Jane E. Magnus‐Stinson,
Judge.
O R D E R
The district court convicted Calvin T. Brown at a bench trial of two counts of
attempted possession with intent to distribute five grams or more of methamphetamine.
He challenges his convictions, arguing that the evidence was insufficient to sustain his
convictions and that the attempt statute under which he was convicted, 21 U.S.C. § 846,
is void for vagueness. For the following reasons, we affirm the district court.
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I.
Background
Calvin Brown was swept up in a large‐scale investigation of a drug distribution
organization run by Wesley Hammond. Hammond used a contraband cell phone to sell
drugs while incarcerated in an Indiana state prison and relied on his associates to
complete sales. Based on the evidence obtained from a wiretap of Hammond’s phone,
Brown was indicted on one count of conspiracy to possess with intent to distribute
methamphetamine and two counts of attempting to possess with intent to distribute five
grams or more of methamphetamine.
At the bench trial, the pertinent evidence consisted of:
1) Several intercepted mobile phone calls and text messages between
Brown and Hammond in which Brown negotiated the purchase and
delivery of two half‐ounces of pure methamphetamine (the deliveries
occurred on February 16 and March 2, 2013);
2) Intercepted calls and messages between Hammond and his supplier,
Ivan VanBuren, as well as his distributor, Dewayne Perry;
3) A package of methamphetamine that was discussed in the
communications, but not meant for Brown;
4) A surveillance video of Brown entering and leaving Perry’s residence
recorded shortly after Brown arranged with Hammond to purchase
methamphetamine at Perry’s residence;
5) The testimony of the FBI agent in charge, Special Agent Edward M.
Wheele, who described the events of the investigation and interpreted
the more obscure communications; and
6) The testimony of two women who also bought drugs from Hammond
and Perry to sell and use, but had no knowledge of Brown.
Brown did not dispute that the evidence showed he made the two purchases of
methamphetamine. But he did dispute that he was involved in a conspiracy to distribute
methamphetamine and that he intended to distribute the drugs he purchased.
The district court acquitted Brown of the conspiracy charge after finding that
there was no evidence that Brown had agreed to participate with Hammond in an
arrangement involving mutual dependence, cooperation, or assistance in distributing
drugs. Specifically, the district court found that there was no evidence of the multiple
large quantity purchases on credit that are quintessential evidence of a conspiratorial
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agreement to distribute drugs. See United States v. Brown, 726 F.3d 993, 1003 (7th Cir.
2013) (involving a different Brown). There was also no physical evidence seized from
Brown such as drug paraphernalia or ledgers; no evidence that Hammond or his
associates warned Brown about police or competitors; no evidence of a relationship
between Brown and VanBuren; no evidence of an agreement to share profits or of
commissions; and no evidence that Hammond instructed Brown on how, where, or to
whom he should sell drugs. There was evidence that Brown agreed with Hammond to
buy drugs on two occasions. But the district court found this agreement, by itself, was
insufficient to support a conspiracy charge even though Hammond knew that Brown
intended to distribute the drugs. See id. at 998.
The two charges of attempted possession with intent to distribute turned out
differently. The district court found that Brown admitted, and the government proved
beyond a reasonable doubt, that Brown attempted and succeeded at purchasing a half
ounce of methamphetamine from Hammond on two occasions. According to the district
court, these purchases constituted the substantial step necessary for attempt. See United
States v. Morris, 549 F.3d 548, 550 (7th Cir. 2008). For its finding that Brown made the
purchases with the intent to distribute the drugs, the district court relied on the
testimony of Special Agent Wheele and the two women who also bought drugs from
Hammond and Brown’s own words. All witnesses testified that the half‐ounce
quantities Brown purchased were inconsistent with personal use. But the district court
relied more on Brown’s own words captured by the wiretap. In conversations with
Hammond about his drug purchases, Brown said: “but no, they supposed to be riding
down on me, too”; “and what time you going to have cuz get at me because I got some
[expletive]s on deck too”; and “white boy slides through, give him a quad, like, man.”
The district court relied on its own inferences to find beyond a reasonable doubt that
these statements in context proved Brown’s intent to deliver. The district court found
Brown guilty of both attempt counts.
Although not referenced in the district court’s ruling, the evidence also included a
conversation a few days after Brown’s first purchase in which Brown describes to
Hammond the effect the drugs had on another person: Brown tells Hammond, “So I’m
like [expletive] it, I’m like this bitch tripping, like on nothing cuz, like some dope fiend.”
To which Hammond responded, “This is what I want to tell you, that’s [expletive] uncut,
they can’t make em do that.”1
1 Special Agent Wheele testified that this conversation meant that the methamphetamine provided by
Brown was 100 percent pure, with no inert substances to make it less strong. The two women who also
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II.
Analysis
Brown raises two issues on appeal: 1) whether the government’s evidence of his
intent to distribute methamphetamine and of the substantial step in furtherance of the
crime was insufficient to support his convictions; and 2) whether the statute under
which he was convicted is unconstitutionally vague.
A.
Sufficiency of the Evidence
To succeed on his claim of insufficient evidence, Brown faces a high hurdle: “we
reverse only if, after viewing the evidence in the light most favorable to the government,
we determine that no rational trier of fact could have found the defendant guilty beyond
a reasonable doubt.” United States v. Doody, 600 F.3d 752, 754 (7th Cir. 2010). To obtain
Brown’s convictions for attempted possession with intent to distribute
methamphetamine, the government was required to show that 1) Brown acted with the
specific intent to possess methamphetamine with the intent to distribute it; and 2) Brown
engaged in conduct which constituted a substantial step toward the commission of the
offense. United States v. Stallworth, 656 F.3d 721, 728 (7th Cir. 2011). Brown argues that the
evidence was insufficient to establish both that he had the intent to distribute the drugs
he purchased and that he took a substantial step.
The first question, then, is whether a rational trier of fact could have found
beyond a reasonable doubt that Brown intended to distribute the drugs he purchased.
Brown points to weaknesses in the testimony that his drug purchase amounts were
inconsistent with personal use and to the sparsity of the evidence concerning what he
did with the drugs he purchased. And the evidence was indeed sparse. The government
did not identify “white boy,” the persons who were “riding down” on Brown, the others
who were “on deck too,” or the woman who was “tripping … like some dope fiend.”
Nor did the government present evidence of an intent to distribute to anyone else. In
finding that Brown had the requisite intent, all that the district court had to rely on was
the purchase amounts and the recorded telephone and text message conversations
mentioned above. Nonetheless, after viewing the evidence in the light most favorable to
the government, we hold that it was enough for a rational trier of fact to find beyond a
reasonable doubt that Brown had the intent to distribute. Although the drug quantities
may have been small enough for personal use, the evidence was that this was not likely,
bought drugs from Hammond for personal use and distribution testified that the methamphetamine they
received was likewise pure.
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especially given that there was no evidence that Brown was a serious methamphetamine
user. Furthermore, the government was not required to show that Brown actually
distributed the drugs he purchased, but that he intended to distribute them. Not only do
the conversations support this, they support the finding that Brown distributed the
drugs he successfully purchased from Hammond to at least one woman.
In an effort to demonstrate the insufficiency of this evidence, Brown compares his
case to United States v. Cea, 914 F.2d 881 (7th Cir. 1990). In Cea, there was ample evidence
to support a conspiracy conviction, namely, that Cea agreed to possess cocaine with the
intent to distribute it. Id. at 885–87. However, there was insufficient evidence to support
a conviction for attempt to possess cocaine with the intent to distribute it, because the
evidence of a substantial step was lacking. Cea agreed over the telephone to “be over
shortly” to buy the drugs and was arrested upon leaving his home shortly thereafter. Id.
at 887–89. There was no evidence in Cea of where the deal was to take place, where Cea
was going, where he was arrested, and whether he even had the money on him
necessary to complete the transaction. We held that more evidence of a substantial step
was necessary. Id. at 889. Brown argues that the government should have shown the
same level of intent for his attempt conviction as it did for Cea’s conspiracy conviction.
We disagree. Cea represents the upper end of the spectrum. The evidence of intent in Cea
demonstrated that “[n]o one could have tried any harder than Cea to culminate the
deal.” Id. at 887. The government was not required to establish the same “untiring effort”
in Brown’s case. Id.
The second question is whether a rational trier of fact could have found beyond a
reasonable doubt that Brown took a substantial step in furtherance of the crime.
According to Brown, the substantial step in his case was his brief visit to Perry’s
residence that was recorded by a surveillance camera, a fact reminiscent of Cea. But
unlike Cea, the government presented not only evidence that Brown told Hammond that
he was going to pick up the drugs, but evidence that Brown arrived at the transaction
location, that he spent five minutes there, and that Perry was present during this time.
Moreover, the district court found that Brown took a more substantial step than his visit
with Perry. Brown also took the substantial step of making all the arrangements to pick
up his two half‐ounce purchases of methamphetamine and actually possessing them.
Brown did not contest that he made these purchases. The district court found that the
government had proved them beyond a reasonable doubt, not only from the
surveillance video, but from the wiretapped telephone and text message conversations
as well. After viewing the evidence in the light most favorable to the government, we
hold that this was enough for a rational trier of fact to find beyond a reasonable doubt
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that Brown took a substantial step in furtherance of the crime. See United States v.
Magana, 118 F.3d 1173, 1198–99 (7th Cir. 1997) (holding that evidence of telephone
conversations and a visit to a dealer’s house that showed the defendant obtained the
cocaine he sought was sufficient to uphold a conviction for attempted possession with
intent to distribute cocaine). The evidence, therefore, was sufficient to support Brown’s
convictions.
B.
Void for Vagueness Challenges
We review a constitutional challenge to a federal statute de novo. United States v.
Wilson, 73 F.3d 675, 678 (7th Cir. 1995). According to Brown, his conviction under 21
U.S.C. § 846, the attempt statute, violates due process because the statute fails to give
notice of the conduct it prohibits, rendering it void for vagueness. A statute must
provide a person of ordinary intelligence fair notice of what is prohibited and provide
enough of a standard that “seriously discriminatory enforcement” is neither authorized
nor encouraged. United States v. Jones, 689 F.3d 696, 700 (7th Cir. 2012), abrogated on other
grounds by Johnson v. United States, 135 S. Ct. 2551 (2015). If a statute does not provide this
clarity, then its vagueness renders it void. Id. Brown claims that § 846 fails to meet this
requirement because it does not define attempt or set forth the elements of an attempt
offense, but only sets out the penalties for committing an attempt offense. Brown further
asserts that since the statute fails to provide a standard, it has improperly delegated the
authority to define attempt crimes to the courts, in violation of the separation of powers
doctrine. See Jones, 689 F.3d at 702.
A simple examination of the statute’s language shows that is not the case: “Any
person who attempts or conspires to commit any offense defined in this subchapter shall be
subject to the same penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.” 21 U.S.C. § 846 (emphasis added).
Clearly, the conduct prohibited by § 846 is attempting to conduct another crime under
the subchapter, in this case § 841. It is § 841 that defines the crime of possession with
intent to distribute. 21 U.S.C. § 841(a)(1). And, it is § 841, not § 846, that ultimately
specifies the penalty for Brown. 21 U.S.C. § 841(b)(1)(B)(viii). The fact that Congress did
not define the word “attempt” in the statute does not render it vague. Congress need not
define every term, and a court may rely on the ordinary and natural meaning of words.
General terms can still give fair and clear warning even if the specific facts at issue are
not specified by the statute. See United States v. Lanier, 520 U.S. 259, 271 (1997); Smith v.
United States, 508 U.S. 223, 228 (1993); United States v. Cueto, 151 F.3d 620, 635 (7th Cir.
1998).
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III. Conclusion
Because the evidence was sufficient to support Brown’s conviction for attempted
possession with intent to distribute five grams or more of methamphetamine, and the
attempt statute under which he was convicted is not unconstitutionally vague, we
AFFIRM the judgment of the district court.
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