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w . v i l l a no v a . e du/thir dc ir c uit_2010/54NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 10

- 1 0 69

_____________ UNITED STATES OF AMERICA

v. JEROME BROWN, A/K/A ROMEY , Appell ant

.

_______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Crim. Action No. 0 8

- 00 98 ) District Judge: Honorable Gary L. Lancaster

_______________ Submitted Under Third Circuit LAR 34.1(a)

October 2 2 , 2010

_______________ Before: HARDIMAN , GREENAWAY, JR., and NYGAARD, Circuit Judges (Opi nion Filed : 11/19/2010 )

_______________ OPINION

________________ GREENAWAY, JR., Circuit Judge Appellant Jerome Brown (“Brown”) appeal s h is judgment of conviction for unlawful distr ibution of crack cocaine, in violation of 21 U.S.C. § § 841 (a)(1) and2

(b)(1)(A)(iii), b y t he United States District Court for the Western District of Pennsylvania

. Brown contends that: (1) the evidence presented to the jury during his trial did not suppor t its finding of guilt beyond a reasonable doubt; (2) the jury should have been provided with a transcript of Cabbagestalk’s cross

- examination, which i t had requested, before i t reached a verdict; and (3) the District Court erred in its refusal to give jury instructions regarding one of his theories of defense

- - mistaken eyewitness identification

. The District Court sentenced Brown to 240 months ’ of imprisonment on December 15, 2009

. For the following reasons, we will affirm the District Court ’ s j ud gment of conviction

. I. BACKGROUND We write solely for the benefit of the parties . We shall recount only the essential facts

. In June of 2006, Andrea Cabbagestalk (“Cabbagestalk”) approached Officer James Hensell, a member of the Allegheny County Sheriff’s Office assigned to the Drug Enforcement Agency (DEA) Task Force . Cabbagestalk asked him whether she could cooperate with his office as a third

- party on behalf of her husband, who was serving a nearly 20

- year federal sentence for d istri but ing crack cocaine. Cabbagestalk and the authorities a gree d that i f she would identify alleged crack dealers , and then act as a confidential informant to buy crack fro m the m , in exchange, it3

might be possible for her husband’s sentence to be reduced

. Pursuant to this agreement , Cabbagestalk provided Officer Hensell with a list of alleged drug dealers, including
A ppellant, Jerome Brown (“Brown”). On July 17, 2006, Cabbagestalk contacted Brown via telephone, and asked to buy two ounces of crack cocaine for $1800 . Brown agreed to deliver the drugs to Cabbagestalk’s home

. 1 Cabbagestalk’s telephone conve rsation with Brown was recorded by Trooper Michael Warfield, a Pe nnsylvania State Trooper assigned to the DEA Task
Force. Trooper Warfield also g ave Cabbagestalk the money needed for the controlled drug purchase

. Trooper Warfield equipped Cabbagestalk with an audio recorder to wear and set up a surveillance lamp camer a in her living room. H e then searched the immediate area where the buy would occur

– the first floor of the house, including the living room and kitchen. 2 Other DEA agents established surveillance aro und Cabbagestalk’s house later that day

. T he se agent s had also v iewed a photograph of Brown and received a description of the car he would probably be driv ing

. Brown arrived around 6:20 p.m., backed up to Cabbagestalk’s house, and walked towards the back porch. A t this point, the agents lost sight of Brown . He went into the house and stayed two to two and one half minutes, then left. Officer H ensell testified that he was able to see Brown’s face as he (Brown) drove away. At some point in the

1 Previous drug deals involving Cabbagestalk and Brown had taken place at Cabbagestalk’s home. 2 Part of Brown’s defense is that Cabbagestalk retrieved crack from upstairs, which was4

conversation with Brown, Cabbagestalk went upstairs to get the money to purchase the drugs ; in actuality , she was check ing the function ality of the second camera. 3 Cabbagestalk contacted Officer Hensell once the transaction was complete. At his instruction, Cabbagestalk removed the camera from upstairs , and placed it and the drugs, in a suitcase

. Cabbagestalk then met Officer Hensell at a nearby restaurant and provided a written account of the transaction. After a pat

- down by Officer Hensell, Cabbagestalk was released. Based on the testimony of three witnesses, including Cabbagestalk , a g rand j ury in the Western District of Pennsylvania indicted Br own on one count of unlawfu l distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii).
Brown was trie d by a jury on August 3 and 4 , 2009 . He was convicted on August 5, 2009

. On December 15, 2009, the District Court sentence d Brown to 240 months of incarceration and 10 years of supervised release

. Brown filed a timely notice of appeal.
II. JURISDICTIO N The Distr ict Court had jurisdiction pursuant to 18 U.S.C. ' 3231

. We have jurisdiction pursuant to 28 U.S.C. ' 1291.

not searched, and used it to incriminate Brown. (App. Vol. II at 95.) 3 Cabbagestalk and her husband had installed this camera, which was pointed towards the driveway of the house.5 III. STANDARD OF REVIEW Our standard of review differs for each of Brown’s claims. We exercise plenary review over Brown’s insufficiency of the evidence claim. “In exercising that review, we must interpret the evidence in the light most favorable to the government as the verdict winner.” United States v. Rieger , 942 F.2d 230, 232 (3d C ir. 1991) (citing Glasser v. United States , 315 U.S. 60, 80 (1942 ))

. We review the trial court’s decision whether or not to supply the jury with copies of written transcripts for abuse of discretion, and may only reverse when abuse is found

. United States v. Bertoli , 40 F.3d 1384, 1400 (3d Cir. 1994).
We review a district court’ s refusal to give a requested jury instruction under an abuse of discretion standard

. United States v. Gross , 961 F.2d 1097, 1101 (3d Cir. 1992), cert. denied , 506 U.S. 965 ( 1992). However, a district court’s refusal to give a jury instruction on a defendant’s theory of his defense is reviewed de novo where the defendant objects to the district court’s refusal to give the requested instruction. Un ited States v. Stewart , 185 F.3d 112, 124 (3d Cir. 1999)

. III. ANALYSIS
A. Sufficiency of the Evidence Brown contends that the evidence presented to the jury did not support a finding of guilt , beyond a reasonable doubt, for selling drugs . Because the conviction relied on uncorroborated testimony by a former crack addict with a criminal record, whose purpose6

was to shorten her husband’s 235 month sentence for dealing drugs , Brown posits that the judgment must be disturbed . (Appellant’s B r. at 27.) [T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt . . . [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reaso nable doubt. Jackson v. Virginia , 443 U.S. 307, 318

- 19 (1979). For the purposes of appellate review of the sufficiency of the evidence supporting

a jury verdict , we must “ presume that the jury properly evaluated [the] credibility of the witnesses

. ” United States v. Iafelice , 978 F.2d 92, 94 (3d Cir. 1992). “W hen deciding whether a jury verdict rests o n legally sufficient evidence it is not for us to weigh the evidence or to determine the credibility of the witnesses. ” United States v. Smith , 294
F. 3d 473, 478 (3d Cir. 2002) (citing United States v. Dent , 149 F.3d 180, 187 (3d Cir. 1998)). Brown contends that Cabbagestalk’s testimony did not prove that he sold drugs, beyond a reasonable doubt, and was thus inadequate to sustain a conviction

.7

Brown’s assertion is meritless. The evidence adduced at trial far surpassed any threshold regarding sufficiency of the evidence. First, t he Government introduced audio tapes of both the initial conversation between Cabbagestalk and Brown, setting up the drug pu rchase, and the body wire capturing the conversation between them during the actual drug purchase. (App. Vol. II 156

- 58.) Second , both Officer Hensell and Trooper Warfield testified about the activities th ey observed th at occurred on July 17 involving
Ca bbagestalk and Brown. (App. Vol. II 1 07

- 10 , and 1 29 .) Third, C abbagestalk testified that Brown was the person in her home that day and the person from whom she purchased the drugs. (App. Vol. II 186.) Last, cross

- examination did not create any issue regarding the credibility of Cabbagestalk or any of the other government witnesses. We find that there was sufficient evidence for a rational trier of fact to find all of the elements for conv iction present beyond a reasonable doubt

. B. Providing Written Transcripts to a Jury upon Request Brown next contends that the jury should have been provided a transcript of Cabbagestalk’s cross

- examination , which they had requested , before the y reached a verdict

. (Appellant’s Br. 33.) The District Court instructed the jury before the trial began, that “ [ a ] t the end of the trial, you must make your decision based on what you remember from the evidence. You will not necessarily have a written transcript of the testimony to review. Thus, you must pay close attention to the testimony as it is given in trial.” (App. Vol. II 69

. ) In addition, the District Court did allow the jury to take notes8

if necessary, stating “ [ i ] f you wish, you may take notes to help you remember what witnesses said . . . [N]ote taking is permit ted. It is not required.” Id. The jury began deliberations late in the afternoon of the third day of trial, after hearing three hours of testimony from three witnesses. The next morning, the jury asked to “see the cross

- examination transcripts of Ms. Cabbagestalk.” The District Court responded: “N o. A transcript is not available. Please recall in the beginning of the trial when I instructed you , quote: At the end of the trial you must make your decision based on what you remember of the evidence. You will not have a written transcri pt of the testimony to review. You must pay close attention to the testimony as it is given . . .” (App. Vol. II 283.) Brown objected to the Court’s response, contending that the transcript could have been obtained and the jury should have been told that, if it so desired, it could stay its deliberations pending production of the transcript. Furnishing transcripts to a jury is w ithin the district court ’ s discretion

. United States v. Bertoli , 40 F.3d 1384, 1400 (3d Cir. 1994)

. That discretion, however, is limited by two considerations: (1) whether the requests will slow the trial where the requested testimony is lengthy; and (2) when reading only a portion of the testimony, the jury may give undue weight to that portion. Id. Here, there was n o transcript and no preparations had been made to produce a transcript. No promise had been made that it would be available. We have stated that9

“ w e are not to be understood to be holding that a court when presented with a request for written transcripts from a jury is obliged to require their preparation if they are not otherwise available.” Id. We find that the District Court did not err. No transcript needed to have been provided. There was no abuse of discretion. 4
C. Refusal to Give Certain Jury Instructions Brown also alleges that the District Court erred in its refusal to give jury instructions regarding one of h is theories of defense

- - mistaken eyewitness identi fication . Brown con tends that he requested an instruction on eyewitness identific ation ; specifically , that Officer Hensell was mistaken in his identification of Brown, that the requested instruction was based on a correct statement of the law , and that the instruction was supported by the evidence. ( App ellant’s Br. 38. )
A s a general p roposition, “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Virgin Islands v. Isaac , 50 F.3d 1175, 1180 (3d Cir. 1995) (quoting Matthews v. Uni ted States , 485 U.S. 58, 63 (1988) )

. If the evidence presented at trial indicates a basis for the defense, a court may not refuse a defendant’s request for an instruction on that defense. Id. However, a trial court “need not instruct the jury on any

4 The jury requested only Cabbagestalk’ s cross - examination testimony, not the transcript of the entire trial. We have held that providing portions of witness testimony allows for the danger of giving undue weight to particular testimony. Id. at 1401.10

pri nciple that does not have a factual basis in the evidence. ” Government of the Virgin Islands v. Fonseca , 274 F.3d 760, 767 (3d Cir. 2001).
Here , t he District Court declined to give the requested instruction, stating that “ the instructions were fine the way they were. ” (App. Vol. II 225

. ) The theory of eyewitness mistake was put before the jury on a number of occasions without any evidentiary support

. Officer Hensell repea tedly stated that he saw Brown exiting the car, entering the house, exiting the h ous e and driving away. Id. at 108

. Officer Hensell saw Brown’s face as Brown was leaving Cabbagestalk’s residence. Id. at 109

. Although mistaken eyewitness identification was alluded to in d efense c ounsel’s summation, it was without any support in the evid ence presented. There was not an iota of equivocation by Cabbagestalk or Officer Hensell. We find that the District Court did not err in failing to give a jury instruction on the issue of mistaken eyewitness identi fication

. There was no abuse of discretion.
IV. CONCLUSION As discussed above , we find that: (1) there was sufficient evidence for a rational trier of fact to find all of the elements for conviction , beyond a reasonable doubt ; (2) the District Court did not abuse its discretion in decli n ing to provid e a transcript of Cabbagestalk’s cross

- examination a t tr ial ; and (3) the District Court did not err in declining to give a jury instruction on mistaken eyewitness identi fication

.11

For the foregoing reasons, we will affirm the j udgment of c onviction of the District Court.