United States v. Brown , 288 F. App'x 518 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
August 5, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 06-5167
v. N.D. Okla.
GEORGE LEE BROWN, JR., (D.C. No. 06-CR-037-001-HDC)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, HOLLOWAY, and O’BRIEN, Circuit Judges.
Following an accidental gun shot at an apartment, George Lee Brown, Jr.,
was charged with being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 1); and possession of
crack cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(iii) (Count 2). He pled guilty to the firearm charge and a jury found
him guilty of the cocaine charge. Brown claims the district court erred in denying
his motion to suppress evidence, admitting evidence of his gang affiliation and a
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
police report, and enhancing his sentence for obstruction of justice. We affirm.
I. BACKGROUND
As we must, we set forth the evidence in the light most favorable to the
jury’s verdict. See United States v. Lahue, 261 F.3d 993, 996 n.1 (10th Cir.
2001). On February 6, 2006, Brown went to visit his girlfriend, Portia Jones, at
the apartment she shared with her mother in Tulsa, Oklahoma. Accompanied by
his friend Johnny Chin, they arrived at the apartment complex in a maroon Buick
Roadmaster. As they left the vehicle, Brown removed a handgun and took the
keys, but left the car unlocked. Chin walked to a nearby apartment complex to
see his girlfriend.
Brown placed the Buick keys on a table in Jones’ apartment. Although the
specific circumstances are unclear, at some point the firearm discharged. The
bullet shattered a plate glass window in the second story apartment, traveled
across a sidewalk into a first story apartment, and became lodged in a neighbor’s
television set.
Brown went to the neighbor’s apartment to see if anyone was injured and
offered to pay for the broken television. Shortly thereafter, he returned to Jones’
apartment to retrieve the firearm, intending to conceal it in the trash or bushes.
While en route to hide the firearm, Brown saw Chin and told him what happened,
then asked him to hide the firearm. Chin suggested they leave, but Brown wanted
to stay to pay for the damages. Brown went back upstairs and noticed the keys
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were no longer on the table. Looking out the window, Brown noticed the
neighbor motioning to him. He went back down and the neighbor handed him the
bullet retrieved from the television. Brown then went back upstairs, flushed the
bullet down the toilet and waited for the maintenance person.
Approximately twenty minutes later, a number of police officers arrived at
the apartment complex to investigate a report of “shots fired.” (R. Vol. V at 45.)
Looking out the shattered apartment window, Brown made eye contact with a
police officer who called him downstairs to discuss the incident. In the
apartment, Officer Manz interviewed Jones and her mother. Initially, Jones
denied a gun had been in the apartment, but she eventually changed her story and
stated Brown was showing her the gun when he dropped it, causing it to
discharge. She also stated Brown had taken the gun out of the apartment. Manz
obtained written consent from Jones’ mother to search the apartment for the
firearm. Officers did not locate the firearm, but did find an empty shell and a box
of ammunition. They also found a set of keys to a Buick with a remote entry key
fob tucked in a laundry basket. Jones and her mother stated they did not know to
whom the keys belonged. Jones stated Brown owned a yellow Buick or
Bonneville. Unable to find the firearm in the apartment, several officers began to
search around the apartment complex.
Meanwhile, Brown met with the officer who called him downstairs. A pat-
down revealed a digital scale in Brown’s pocket. As questioning continued,
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Brown informed the police he was a felon, but denied having a firearm or having
anything to do with the discharge. Brown also said he was a member of the
Gangster Disciples gang, known to law enforcement as “a violent street gang from
the St. Louis area.” (Appellee’s Br. at 10.)
The keys found in the apartment eventually were shown to Brown; he
denied ownership. An officer then went to the parking lot and began pushing the
unlock button on the key fob to locate the Buick. Another officer questioned
Brown about the location of the firearm, telling Brown he feared a child would
find it in a bush. Brown responded a child would not find it in a bush.
After the police located the Buick, Brown admitted the firearm was located
under the driver’s seat of the car. Two officers entered the car, and without
touching anything, visually verified the firearm’s location. One of the officers
observed a baggie containing what appeared to be crack cocaine in the open
console. The officers returned to Brown and asked him to consent to a search to
recover the firearm and baggie. Brown refused, stating it wasn’t his car. Police
obtained a search warrant and recovered the firearm and a baggie containing 23.1
grams of a substance which tested positive in the field for cocaine. Brown was
transported to the police station for further questioning.
Officer Liedorff interviewed Brown at the station. She reviewed a Miranda
rights waiver form with him and had him initial each section as it was read, then
sign the bottom of the form. During the interview, Brown admitted he was a
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member of the Gangster Disciples gang and had caused the firearm to discharge in
the apartment. He also admitted to driving the car to the apartment and giving the
firearm to his friend. Brown told Liedorff he had “work” in the car and wanted to
know if he was going to be charged with it. (R. Vol. VI at 128.) From her
experience, Liedorff understood “work” to mean a quantity of drugs and asked
Brown if it was “powder or rock.” (Id.) Brown replied it was a little more than a
half ounce of crack cocaine. Shortly after the interview, Liedorff wrote a police
report recounting Brown’s statements.
A two count indictment was filed on March 7, 2006. Brown subsequently
filed a motion to suppress the evidence found in the car. He also filed a motion in
limine to “prevent the introduction of evidence . . . that the investigating officers
were . . . affiliated with ‘the gang unit,’ or . . . reference . . . to their [position as]
investigators of gang activity.” (R. Vol. I at Doc. 18.) The district court denied
both motions.
On May 22, 2006, Brown pled guilty to the firearm charge. During trial on
the drug charge, Brown denied: 1) telling the police he was a gang member, 2)
being asked if the keys belonged to him, 3) the console containing the drugs was
open, 4) the police discovered anything (including the digital scale) on his person,
and 5) he made statements attributed to him by Liedorff. He testified the police
did not ask about the gun until after they searched the car. He did admit to lying
to the police about the gun, his knowledge of the car and to flushing the bullet
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down the toilet. The jury returned a verdict of guilty.
At sentencing, the district court found Brown obstructed justice by
impeding the investigation and committing perjury during his testimony.
Accordingly, it adjusted the offense level of both counts upward two levels for
obstruction of justice under §3C1.1 of the United States Sentencing Guidelines. 1
Brown was sentenced to a total of 168 months imprisonment on both convictions.
II. DISCUSSION
A. Motion to Suppress
Brown contends the district court erred in denying his motion to suppress
the gun and drugs, arguing the officers lacked probable cause to seize the car keys
or search the car. “When reviewing a district court’s denial of a motion to
suppress evidence, we accept the district court’s factual findings and
determinations of witness credibility unless they are clearly erroneous.” United
States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002) (quotation omitted). We
may consider evidence introduced at the suppression hearing and at trial,
“veiw[ing] all of the evidence in the light most favorable to the ruling of the
district court.” Id. (citation omitted). However “the ultimate question” of Fourth
Amendment reasonableness is reviewed de novo. Id.Here, all factual disputes arise out of the discrepancies between Brown’s
1
All references to the United States Sentencing Guidelines herein refer to
the 2005 edition unless otherwise indicated.
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version of events and the testimony of other witnesses, principally police officers.
The district court made explicit credibility determinations and resolved those
factual disputes in favor of the government. It concluded the officers lawfully
searched the apartment for the gun after obtaining written consent from Jones’
mother; the search produced a set of Buick car keys which were not identified by
the residents of the apartment. Nevertheless, the officers could, and did,
reasonably believe the Buick keys belonged to Brown despite Brown’s denials of
ownership (Jones told the officers Brown sometimes drove a yellow Buick).
Jones also told the officers Brown had left the apartment with the firearm. Brown
denied knowledge of the gun’s location when first asked.
Conversely, the court determined Brown was not credible. It noted the
fluidity of Brown’s statements throughout the investigation, his attempt to cover
up evidence, and his criminal history – including a felony conviction for false
impersonation. As a result, it found the officers’ testimony established that
Brown abandoned the keys and the Buick by denying ownership, thus foreclosing
his Fourth Amendment claim.
The district court did not err. “A defendant may not challenge an allegedly
unlawful search or seizure unless he demonstrates that his own constitutional
rights have been violated.” United States v. Rubio-Rivera, 917 F.2d 1271, 1274
(10th Cir. 1990). “[A] district court may not suppress evidence unless the
defendant has met his burden of proving that the challenged search or seizure
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infringed on his personal fourth amendment interests.” Id. We consider two
factors in determining whether Brown met this test: “whether the individual, by
his conduct has exhibited an actual (subjective) expectation of privacy, and
whether the individual’s subjective expectation of privacy is one that society is
prepared to recognize as ‘reasonable.’” Id. (quotations and citations omitted).
Ordinarily, “[w]here the defendant offers sufficient evidence indicating that
he has permission of the owner to use the vehicle, the defendant plainly has a
reasonable expectation of privacy in the vehicle and standing to challenge the
search of the vehicle.” Id. But where, as here, a defendant denies any association
with a vehicle, he cannot then reasonably claim an expectation of privacy in
relation to it. The expectation of privacy is abandoned when the object is
abandoned. See United States v. Burbage, 365 F.3d 1174, 1178 (10th Cir. 2004)
(“The test for abandonment is whether an individual has retained any reasonable
expectation of privacy in the object.” (quotation omitted)). “Subjective intent
aside, one who disclaims ownership is likely to be found to have abandoned
ownership.” See United States v. Denny, 441 F.3d 1220, 1227 (10th Cir. 2006).
Brown claims he did not abandon the keys because he intended to return
for them later. The district court was not convinced and neither are we. Because
Brown abandoned the keys, disavowed ownership of the car, and asserted no
possessory rights to it, he suffered no Fourth Amendment violation. See United
States v. Hernandez, 7 F.3d 944, 947 (10th Cir. 1993) (“A warrantless search and
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seizure of abandoned property is not unreasonable under the Fourth
Amendment.”).
B. Admission of Evidence
Brown argues the district court erred in admitting evidence of gang activity
and admitting the police report of Liedorff. “We review the district court’s
admission of evidence for an abuse of discretion.” United States v. Gwathney,
465 F.3d 1133, 1140 (10th Cir. 2006).
1. Gang Affiliation
Brown filed a liminal motion to prevent evidence of or reference to an
investigation of gang activities claiming “its probative value [was] substantially
outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. He argues the
prosecution’s repeated use of the word “gang” was prejudicial error absent a
strong and direct link between the crimes charged and the current activities of the
Gangster Disciples.
“The decision whether to exclude evidence as unfairly prejudicial under
Rule 403 is one for which the trial judge, because of his familiarity with the full
array of evidence in the case, is particularly suited.” United States v. Keys, 899
F.2d 983, 987 (10th Cir. 1990) (quotation omitted). The district court concluded
the evidence was more probative than prejudicial because drug distribution is a
gang activity related to Brown’s motive and intent to distribute the crack cocaine
found in the vehicle.
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During trial, the government called several officers to testify. As part of
introductory testimony, the government’s attorney asked all but one of the
officers about their occupation. Five officers identified themselves as members
of the Tulsa Police Department’s Organized Gang Unit. Three of those officers
testified that Brown admitted to being a member of the Gangster Disciples gang.
Officer Gatwood told the jury the Gangster Disciples were an organized street
gang based in the Saint Louis, Missouri area, Brown’s former residence. He
stated the Gangster Disciples are tied with narcotic sales and violent crimes.
Gatwood testified members of the gang lived in Tulsa, Oklahoma, and Brown’s
tattoos represented words or symbols relating to the Gangster Disciples gang.
We have permitted the government to introduce evidence of gang activity
in conspiracy cases. See United States v. Brown, 200 F.3d 700, 708 (10th Cir.
1999) (evidence of gang affiliation relevant to issues of identity, joint venture and
existence of a conspiracy); United States v. Sloan, 65 F.3d 149, 151 (10th Cir.
1995) (evidence of gang activity more probative than prejudicial when used to
prove the existence of a conspiracy); United States v. Robinson, 978 F.2d 1554,
1562 (10th Cir. 1992) (“associational evidence may be directly relevant on the
issues of formation, agreement and purpose of a conspiracy”); United States v.
Silverstein, 737 F.2d 864, 866 (10th Cir. 1984) (testimony regarding gang’s
symbols – including evidence of defendant’s gang symbol tattoo – had probative
value regarding defendant’s alleged participation in and motive for murder).
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Evidence of gang membership can be relevant to show “a common design or
purpose in crimes committed by a group,” such as conspiracy to possess with
intent to distribute narcotics. John E. Theuman, Annotation, Admissibility of
Evidence of Accused’s Membership in Gang, 39 A.L.R. 4th 775 (1985); e.g.,
United States v. Gibbs, 182 F.3d 408, 430 (6th Cir. 1999) (concluding that gang-
related evidence was highly probative of government’s contention that defendant
was member of a gang and thus was a member of the charged drug conspiracy).
The problem here, however, is that this is not a conspiracy case and the
government has not cited a single case directly on point, i.e., a case where the
defendant was charged with a non-conspiracy drug crime and there were no
factual issues to be determined by the jury regarding defendant’s connections to
alleged gang members. Moreover, independent research has failed to produce a
substantially similar case in which evidence of gang membership was deemed
admissible to establish intent.
Even assuming (charitably) the evidence was relevant, it is not necessarily
admissible. Whether the probative value of this evidence substantially
outweighed the danger of unfair prejudice is a more delicate question. “Evidence
is unfairly prejudicial if it makes a conviction more likely because it provokes an
emotional response in the jury or otherwise tends to affect adversely the jury’s
attitude toward the defendant wholly apart from its judgment as to his guilt or
innocence of the crime charged.” United States v. Rodriguez, 192 F.3d 946, 951
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(10th Cir. 1999) (quotations omitted). The admission of Brown’s gang
membership had the potential to elicit an unfavorable reaction from the jury
increasing the danger of “guilt by association.” See United States v. McKay, 431
F.3d 1085, 1093 (8th Cir. 2005) (holding that evidence of gang membership is not
admissible where it is meant merely to prejudice the defendant or prove his guilt
by association with unsavory characters). We conclude the admission of the gang
evidence in this instance was error. But that does not end the debate because of
the harmless error doctrine.
Under the harmless error analysis, we must ask: “whether the evidence had
a substantial influence on the outcome or leaves one in grave doubt as to whether
it had such an effect.” Gwathney, 465 F.3d at 1140. Here, the evidence of
Brown’s gang affiliation could not have had a substantial influence on the jury’s
determination considering all of the evidence. Brown’s intent to distribute drugs
had clear evidentiary support. Beyond dispute he exercised dominion or control
of the Buick containing the drugs. He possessed a digital scale of the type
associated with sales of narcotics. He possessed a firearm, a drug dealer’s “tool[]
of the . . . trade.” (R. Vol. V at 104.) Further, Brown admitted he had “work”
(crack cocaine) in the car. The quantity of his “work” is typically associated with
distribution rather than individual use. The overwhelming evidence established
Brown possessed the cocaine base with intent to distribute. The evidence of his
gang affiliation could not have had a substantial influence on the jury’s verdict.
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2. Police Report
Brown contends the district court erred in admitting Liedorff’s police report
as a prior consistent statement. He claims it bolstered the officer’s credibility and
shifted the entire focus of the trial to the report. We disagree.
During the government’s case in chief, Liedorff recounted the statements
Brown made to her at the police station. During cross examination, Brown’s
counsel established there was no video or audio recording of Brown’s statements
and Brown did not sign a written statement. Counsel then asked, “Other than
what you said he said, there’s nothing [except her testimony as to Brown’s
statements]; is that right?” (R. Vol. VI at 134.) Liedorff agreed. On redirect, the
government introduced Liedorff’s police report as a prior consistent statement.
Brown objected because “there [had not] been a showing of an inconsistent
statement.” (Id. at 142.) The court overruled the objection, explaining the import
of Brown’s counsel’s questions was “that [Liedorff] was making this up and
[Brown’s] statements were not, in fact, made.” (Id.)
In Tome v. United States, the Supreme Court held Rule 801(d)(1)(B) of the
Federal Rules of Evidence “permits the introduction of a declarant’s consistent
out-of-court statements to rebut a charge of recent fabrication or improper
influence or motive only when those statements were made before the charged
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recent fabrication or improper influence or motive.” 513 U.S. 150, 167 (1995). 2
This rule permits a properly admitted prior statement to be considered for the
truth of the matter asserted and to rehabilitate a witness’ credibility. Albert, 93
F.3d at 1483.
Brown asserts it was error to admit the police report to bolster Liedorff’s
testimony merely because she had been discredited on cross examination. In
effect, Brown is arguing his questioning was not intended to imply recent
fabrication. Rather, he wished only to highlight Liedorff’s failure to record
Brown’s statements. Brown’s questions to Liedorff were consistent with his cross
examination challenging the procedure used by every officer who testified to
Brown’s statements. However, we need not resolve whether the admission of the
report was proper because the district court’s error, if any, was harmless.
Contrary to Brown’s assertion, the report’s admission did not shift the entire
emphasis of the trial to the police report. Liedorff had already testified Brown
admitted he had “work” in the car and he knew of the amount of crack cocaine
contained therein. As discussed earlier, the evidence of Brown’s guilt was
2
“Under the ‘pre-motive’ requirement, a prior consistent statement is not
admissible unless the prior statement was made before the motive to fabricate
arose.” United States v. Albert, 93 F.3d 1469, 1482 (10th Cir. 1996). While we
recognize that perhaps Liedorff’s motive to fabricate Brown’s statements could
have existed at the time the police report was written, Brown did not raise this
issue to the trial court or on appeal. Therefore, it is waived. See Hernandez v.
Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (a failure to draw attention to an
error below will ordinarily result in waiver).
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overwhelming. The police report was merely cumulative and its admission, even
if error, was not reversible error. See, e.g., United States v. Ramos-Caracalla,
375 F.3d 797, 804 (8th Cir. 2004) (“Where the evidence is at most an extra
helping of what the jury had heard before, the evidence is merely cumulative and
its admission does not result in reversible error.” (quotation and citation
omitted)).
C. Obstruction of Justice
Brown contends the district court erred in applying a two-level obstruction
of justice adjustment to both his counts at sentencing. See USSG §3C1.1. We
review the district court’s factual findings supporting the application of a
particular guidelines provision for clear error and its legal conclusions de novo.
United States v. Chavez, 229 F.3d 946, 954 (10th Cir. 2000).
Section 3C1.1 mandates a two-level offense increase if “the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction . . . .” USSG §3C1.1 Obstruction
of justice can include perjury, the destruction or concealment of material
evidence, or providing a materially false statement to law enforcement impeding
“the official investigation or prosecution of the instant offense . . . .” USSG
§3C1.1, comment. (n.4(b), (d) & (g)). The district court determined Brown
obstructed justice in every possible way during the course of the investigation and
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trial. He destroyed evidence by flushing the bullet down the toilet. During the
investigation, he lied to police officers about the location of the gun and his
ownership of the car keys. During the suppression motion hearing and at trial,
Brown committed perjury when he testified he did not have knowledge of the
cocaine and did not consent to the officer’s entry into the Buick to retrieve the
gun.
Brown argues “[t]he mere fact that a defendant testifies to his or her
innocence and is later found guilty by the jury does not automatically warrant a
finding of perjury.” Chavez, 229 F.3d at 955. Perjury requires finding the
defendant willfully and intentionally gave false testimony under oath concerning
a material matter. See United States v. Cocus, 110 F.3d 1529, 1536 (10th Cir.
1997) (quotation omitted). A court must ensure the false testimony is not a result
of confusion, mistake or faulty memory. Id. In addition, the perjured statement
must be so significant “that, if believed, [it] would tend to influence or affect the
issue under determination.” USSG §3C1.1, comment. (n.6).
While this is an accurate statement of the law, the record reveals much
more than merely “problems in a credibility contest.” (Appellant’s Br. at 43.)
The only consistency in Brown’s story was inconsistency. Ample evidence exists
demonstrating Brown deliberately attempted to obstruct or impede the
administration of justice. The district court did not err by imposing the two-level
enhancement to Brown’s cocaine conviction.
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D. Cumulative Error
In his final issue on appeal, Brown’s entire argument is contained in a
single sentence: “Taken as a whole, the errors should warrant reversal even if one
does not individually.” (Appellant’s Br. at 45.) Our response will be equally
succinct. Even were we to assume there was more than one error in this case, any
such errors were cumulatively harmless and did not substantially influence the
trial.
Affirmed.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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