7th Circuit upholds life sentence for man in Kentucky, Indiana drug conspiracy

A man sentenced to life in prison for his involvement in a large narcotics conspiracy stemming from Louisville, Kentucky did not persuade the 7th Circuit Court of Appeals to reverse his conviction and sentence.

Terrance Brasher was found guilty and convicted of engaging in a conspiracy to distribute narcotics just one year after joining and participating in a conspiracy that ended after multiple searches and arrests in December 2015. Brasher was specifically found by the jury as responsible for the distribution of 500 grams or more of methamphetamine, at least one kilogram of heroin, and five kilograms or more of cocaine.

At sentencing, the Southern District Court of Indiana found that because Brasher had at least two prior felony drug convictions, he was subject to enhanced statutory sentencing provisions, which in his case dictated a life term in prison. It further found that Brasher was responsible for a murder committed in furtherance of the conspiracy, and that finding resulted in an offense level that also called for life imprisonment under the sentencing guidelines.

But while the conspiracy distributed to dealers in both southern Indiana and Kentucky, the trial record revealed that Brasher did not distribute drugs in Indiana, took no conspiracy-related actions in Indiana, and did not interact with any of the Indiana dealer or spokes.

Thus, in appealing his convictions and sentence, Brasher asserted that there was a fatal variance between the conspiracy as charged and the proof at trial, beause no proof existed that he participated in a conspiracy to distribute drugs in the Southern District of Indiana. But the 7th Circuit rejected his claim, finding he was not operating as an isolated dealer in Kentucky.

“Brasher confined his trafficking activities to Kentucky, but it would have been reasonably foreseeable to him that other members of the conspiracy might be trafficking narcotics in Indiana and/or traveling to Indiana for conspiracy-related purposes. Indeed, it is not at all unusual for conspiracies to cross state and judicial district lines; hence, the law recognizes that such crimes may be prosecuted in any district where one’s coconspirators have acted in furtherance of the conspiracy,” Judge Ilana Rovner wrote for the 7th Circuit.

The panel further rejected Brasher’s claim that the evidence at trial constructively amended the indictment by establishing a conspiracy different from the one charged, thus inviting the jury to convict him for an offense outside the scope of the indictment returned by the grand jury.

The 7th Circuit likewise noted that it could not say that the district court clearly erred in giving credence to the government and finding that its stated reason for striking two potential African American jurors was not pretextual.

Next, the 7th Circuit found as “relatively innocuous” remarks made by the government that Brasher alleged were improper — specifically, statements that vouched for the credibility of its own witnesses and appealing to regional prejudice.

“… [W]e are not convinced they amount to prosecutorial misconduct, let alone an obvious manifestation of misconduct, and certainly not wrongdoing raising the prospect that Brasher was denied a fair trial,” it wrote.

Lastly, the 7th Circuit rejected both of Brasher’s claims regarding the notice of his prior conviction, as well as his assertion that the government violated 18 U.S.C. § 2517(5) by using wiretap discussions at trial and sentencing without judicial approval of the murder of a customer who had a large outstanding drug debt.

The execution of the delinquent drug dealer was part and parcel of (Carlos) Shelton’s narcotics trafficking organization. Shelton ordered the hit in order to make an example of a deadbeat and thus ensure that other dealers would timely pay their debts to him. In the same way that a drug kingpin might order that a rogue subordinate be beaten or killed in order to maintain discipline within the organization, Shelton’s order was in furtherance of the drug conspiracy,” it concluded.

The case is USA v. Terrance Brasher, 18-1997.

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