Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: October 19, 2010
Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
A jury convicted Marco Jeanpierre of one count of conspiracy to distribute 50 grams or more of crack cocaine, nine counts of distribution of crack cocaine, and one count of being a felon in possession of a firearm. Prior to trial, the government filed an information pursuant to 21 U.S.C. § 851 advising Jeanpierre that it intended to seek an enhanced sentence from the statutory mandatory minimum term of ten years to 20 years based on his prior state conviction for a felony drug offense. At sentencing, the district court*fn1 sentenced Jeanpierre to the enhanced statutory mandatory minimum sentence of 20 years' imprisonment. On appeal, Jeanpierre asserts that he is entitled to a new trial because the government repeatedly failed to provide discovery in a timely fashion in violation of Brady v. Maryland, 373 U.S. 83 (1963). He also asserts that the government abused its discretion in filing the information pursuant to § 851 or, in the alternative, exceeded its authority and the intent of the statute because Congress did not intend the sentencing enhancements to apply to a low-to-mid-level retailer or "street-level" offender. We affirm.
Jeanpierre was charged in a superseding indictment with one count of conspiracy to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; numerous counts of distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Prior to trial, the government filed an information notifying Jeanpierre that, pursuant to § 851, it intended to rely on Jeanpierre's May 5, 1998, Hennepin County, Minnesota conviction for a third-degree felony drug offense for the purpose of enhancing his sentence from the statutory mandatory minimum of ten years to 20 years.
To Dismiss During trial, Jeanpierre made two motions to dismiss. The first motion to dismiss stemmed from Jeanpierre's receipt of a wiretap summary prepared by Minneapolis Police Officer John Biederman. The wiretap summary listed the pertinent calls intercepted over the duration of the wiretap investigation. The wiretap summary was a compilation of the wiretap monitoring that Officer Biederman and other officers had conducted. Officer Biederman's wiretap summary contained references to traffic stops. These stops had nothing to do with the ongoing wiretap investigation. Officers not related to the narcotics investigation conducted these stops for unrelated, routine traffic offenses.
During the pretrial phase, Jeanpierre lodged a motion to dismiss alleging that the government failed to provide Computer Assisted Police Record System (CAPRS) reports*fn2 to him regarding the traffic stops mentioned in Officer Biederman's wiretap summary. In response, the government stated that "all the reports that we have relative to this investigation we have disclosed." Indeed, Jeanpierre had received a copy of all of the intercepted calls in which he participated, had access to all intercepted calls involving his co-defendants, and reviewed, via his counsel, the government's file. The court denied the motion to dismiss.
On the third day of trial, anticipating that Jeanpierre would renew his motion to dismiss, the government raised the issue of the CAPRS reports related to the wiretap summary. According to the government, it pulled every report referenced in the wiretap summary and provided those reports to Jeanpierre. The government also prepared a summary of incidents detailed in the reports, indicating whether the traffic stops were random or were directed by officers in the case. Jeanpierre then renewed his motion to dismiss, arguing that the government should have disclosed the CAPRS reports referenced in the wiretap summary because they constituted Jencks Act*fn3 material. The district court asked Jeanpierre's counsel to point to specific reports that contained Jencks Act material. Counsel replied, "Again, I have not read all of these documents. I tried to scan them while I was, here I am listening in one ear to the testimony, trying to review this and go through it like we're going through it now." The court then advised counsel that if he found something in the documents that constituted Jencks Act material, he should advise the court. Additionally, the court stated, "I think we're in agreement this is not Jencks. This name Detrick Giles, telephone, this is not a prior statement given by a witness, so that's not Jencks, but if there's any Jencks in here, let me know." And, the court noted that any CAPRS report relating to Jeanpierre would constitute disclosable material under Federal Rule of Criminal Procedure 16.
After the court afforded Jeanpierre's counsel time to review the reports, the trial resumed. The court then asked counsel if he had anything that he wanted the court to review, to which counsel replied, "No, Your Honor, other than on behalf of Mr. Jeanpierre, we would request an adjournment to further prepare for these proceedings." In response, the government argued that most of the reports were merely traffic stops unrelated to the wiretap initiated for narcotics interdiction. According to the government, they were included simply to provide complete information and did not implicate the Jencks Act. The district court denied counsel's request for an adjournment. Subsequently, Jeanpierre's counsel never conducted any inquiry of any witnesses based on the CAPRS reports.
To Dismiss Jeanpierre's second motion to dismiss related to two fingerprint reports that the government provided to him. The reports concerned two issues: (1) fingerprint analysis for Jeanpierre's prior state felony conviction and (2) fingerprint analysis of two firearms that did not reveal any fingerprint detail. Prior to trial, Jeanpierre agreed to stipulate that he was the person convicted of the prior qualifying predicate felony offense. On the eve of trial, Jeanpierre changed his mind, deciding not to stipulate. He conceded that the government had relied on his agreement to stipulate. The government then provided a copy of the fingerprint report to Jeanpierre.
Jeanpierre's counsel represented to the district court that the government provided the fingerprint reports "not before trial but only during trial." Counsel argued that he needed the reports to assist in examining witnesses. In response, the government stated:
There's reference that counsel didn't get fingerprints until this trial started. That's because he indicated he was going to stipulate. And since he was not going to stipulate, then we decided we needed to provide that information for him. So that's what those fingerprint references were for.
Jeanpierre filed a written motion to dismiss, alleging that the government had "committed several discovery violations." According to Jeanpierre, the government had "repeatedly failed to disclose relevant, exculpatory and impeachment evidence" and had provided him with "a fingerprint report after the Government's witness had testified." In response, the government informed the court that it had provided Jeanpierre with the fingerprint report "prior to any testimony being offered at trial." According to the government, although it did not provide the fingerprint report to Jeanpierre before trial began, "he had possession of the report prior to any testimony on the matter, and [he] used the findings of the fingerprint analyst in cross-examination of the government's first witness. [Jeanpierre] also used these findings in his closing argument to the jury." The government contended that no Brady violation occurred.
At trial, the jury found Jeanpierre guilty on one count of conspiracy to distribute 50 grams or more of crack cocaine, nine counts of distribution of crack cocaine, and one count of felon in possession of a firearm. The jury acquitted him on one count of distribution ...