West (argued and briefed), Mc Coy, West, Franklin & Beal, Lexington, KY, Brian Brown, Lisbon, OH, for Appellants. Courtney was sentenced to 151 months-the bottom of the guidelines range.
OPINIONDefendants-Appellants Brian Brown and Kevin Courtney appeal from their conviction and sentencing for conspiracy to distribute more than 50 grams of cocaine base. Brown filed a motion to exclude evidence referring to activities underlying the 1992 indictment, and filed a motion to require the government to furnish more information regarding the alleged conspiracy in the present indictment. At Brown's sentencing, the district court initially assigned a base offense level of 32. Apprendi requires that all facts that increase the penalty for a crime beyond the statutory maximum be submitted to a jury and proved beyond a reasonable doubt. § 841(b) are essential elements of the offense, and, therefore, must be explicitly alleged in the indictment. Brady Material At trial, it became known that one of the government's witnesses, Donnell Simpson, had sent a letter to DEA Agent James Doby regarding the possibility of providing information concerning this case in exchange for a reduction in his sentence. Courtney claims that the failure of the government to produce this letter requires reversal of his conviction under Brady v.
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The indictment alleged that between 19 Brown and Courtney were part of a multi-person conspiracy to distribute cocaine and cocaine base (crack cocaine) in violation of 21 U. Because the indictment did not list the particular acts forming the basis of Brown's participation in the conspiracy, the district court ordered the government to file a Bill of Particulars. The district court denied Brown's motion to exclude the evidence relating to the 1992 indictment without prejudice so that Brown could object at trial under Federal Rule of Evidence 404(b) to the government's attempt to introduce such evidence. Brown also filed a pre-trial motion to dismiss the indictment based on Apprendi v. After retaining new counsel, Brown filed a motion for a new trial, which was denied. § 2255 motion, reasoning that such a motion should not be considered by the district court while Brown's direct appeal was pending.
The first Bill of Particulars identified only an alleged drug transaction between April and June of 1992 (“the 1992 transaction”) involving Brown and an FBI informant. The court also declined to construe Brown's motion for a new trial as a 28 U. Courtney filed a motion for new trial based on ineffective assistance of counsel, which was also denied.
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