United States v. Brown , 54 F. App'x 342 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-6-2002
USA v. Brown
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-2150
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 01-2150
_______________
UNITED STATES OF AMERICA
v.
ANDREW BROWN,
a/k/a TYREE BRYANT,
Andrew Brown,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 99-cr-00730)
District Judge: Honorable William H. Yohn, Jr.
Submitted Under Third Circuit LAR 34.1(a)
on June 11, 2002
Before: SLOVITER, ROTH
and MCKEE, Circuit Judges
(Opinion filed: November 6, 2002)
OPINION
ROTH, Circuit Judge:
Andrew Brown, a/k/a Tyree Bryant, appeals his conviction in the United States
District Court for the Eastern District of Pennsylvania of one count of possession of a
firearm by a convicted felon in violation of Title 18, United States Code §§ 922(g)(1) and
924(e). Brown was sentenced to 270 months in prison with a mandatory term of 5 years
supervised release. In addition, he was fined $2,000. Brown raises three issues on his
appeal: (1) The commerce clause element of § 922(g) was not satisfied in the absence of
evidence that the gun had a current effect on commerce, (2) the sentence was excessive
without the statutory authority to supersede the prescribed maximum, and (3) he was
deprived of his right to a fair trial.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 to review the district
court’s judgment of conviction. Because this appeal involves review of legal questions, we
exercise plenary review. United States v. Stewart, 185 F. 3d 112, 123 n.4 (3d Cir.), cert.
denied, 528 U.S. 1063 (1999). Furthermore, because Brown did not challenge government
counsel’s summation in the district court, we review this contention for plain error only.
Fed. R. Crim. P. 52(b); United States v. Brown, 254 F. 3d 454, 458 (3d Cir. 2001). For
the following reasons, we will affirm the judgment of the district court.
The facts of this case are familiar to the parties so we will not repeat them.
First, Brown contends that Section 922(g) was not satisfied because there was no
evidence that the gun had a current effect on commerce. This is an incorrect assumption of
the law. It is not necessary that the weapon have a current effect on interstate commerce if
it had such effect in the past. In United States v. Singletary, 268 F.3d 196, 200 (3d Cir.
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2001), we found that, “the transport of the weapon in interstate commerce, however remote
in the distant past, gives its present intrastate possession a sufficient nexus to interstate
commerce to fall within the ambit of the statute.” See also United States v. Coward, 296
F.3d 176, 183-184 (3d Cir. 2002) (reaffirming the constitutionality of Section 922(g) in
response to similar challenge). Brown stipulated at trial that the firearm was manufactured
outside of Pennsylvania. Therefore, at one point, its effect on interstate commerce was
sufficient to satisfy the requirements of Section 922(g).
Second, Brown claims that, in sentencing him, the District Court incorrectly applied
Title 18, United States Code, § 924(e), the Armed Career Criminal Act (ACCA). This
conclusion is also incorrect. Brown claims that the government “by-passed” § 924(a),
which set out a maximum penalty of ten years imprisonment, for § 924(e), which mandates
a minimum penalty of fifteen years. Brown was subject to the enhanced penalties of §
924(e) based upon his prior criminal record. Section 924(e) provides for a fifteen year
statutory minimum for those who violate § 922(g) and have three prior convictions for
violent felonies or controlled substances. Therefore, the appropriate penalty was imposed
by the District Court.
Brown also raises an Apprendi challenge to his sentence. Apprendi v. New Jersey,
530 U.S. 466 (2000). Apprendi, however, is not applicable to an enhancement imposed for
a prior conviction. The Court, in Apprendi, specifically excluded the fact of a prior
conviction from those elements which must be submitted to a jury. Id. at 490. Here,
Brown’s prior convictions enhanced his punishment so that his sentence fell under the 15
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year provision of § 924(e) rather than the 10 year provision of § 924(a) of the ACCA. In a
similar case, United States v. Mack, 229 F.3d 226 (3d Cir. 2000), we found that a
conviction under 922(g)(1) was subject to the enhanced penalty under § 924(e), based upon
defendant’s prior convictions, so that the Apprendi challenge failed. Id. at 235 n.12.
Although § 924(e) prescribes no statutory maximum penalty, the Supreme Court has
construed it to authorize a life term. See Custis v. United States, 511 U.S. 485 (1994).
Therefore, Brown’s sentence of 270 months falls within the maximum of life
imprisonment and survives the Apprendi challenge.
Brown next argues that he was denied the right to a fair trial. First, he contends that
testimony revealing his aliases tainted the jury. When asked how he was able to identify the
defendant as Andrew Brown, after giving the alias “Tyree Brown,” Detective Brooks
testified that he found the name “to be listed as one of Andrew Brown’s aliases.” Brown
argues that the language referring to Tyree Brown as one of his aliases indicates to the jury
the presence of another prior conviction. This argument is without merit. This testimonial
statement does not indicate Brown had more than one prior conviction. The answer by
Detective Brooks was an evidentiary statement as to how he discovered Brown’s true
identity and was essential to identifying how the investigation was completed. “If the
government intends to introduce evidence of an alias and the use of that alias is necessary
to identify the defendant in connection with the acts charged in the indictment, the
inclusion of the alias is both relevant and permissible . . ..” United States v. Clark, 541
F.2d 1016, 1018 (4th Cir. 1976) (citation omitted). See also United States v. Wilkerson,
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456 F.2d 57, 59 (6th Cir. 1972) (finding “[o]nly when proof of an alias is relevant to
identifying the defendant should a court allow its inclusion in the indictment and its
subsequent introduction at trial.”); United States v. Burton, 525 F.2d 17, 19 (2d Cir.
1975); United States v. Miller, 381 F.2d 529, 536 (2d Cir. 1967); United States v. Kalish,
690 F.2d 1144, 1155 (5th Cir. 1982) (upholding testimony of defendant’s alias where it
was used to conceal identity from officers). We conclude that this statement did not deny
Brown the right to a fair trial.
Second, Brown contends that the government’s summation constituted prosecutorial
misconduct. Brown believes that the closing argument was improper due to government
counsel’s suggestion that, to find the defendant not guilty, the jury would have to believe
that one of the government’s witnesses was lying. In addition, it is argued that counsel for
the government injected personal opinion regarding the credibility of witnesses. These
arguments are incorrect. In order to find prosecutorial misconduct under a plain error
standard, the record must reveal an “egregious error or a manifest miscarriage of justice.”
United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996). Government counsel’s
statements fall short of this standard. Counsel’s statements did not improperly inject
personal opinion or facts not in evidence. See United States v. Saada, 212 F.3d 210, 225
(3d Cir. 2000) (finding two criteria for improper vouching: “(1) the prosecutor must
assure the jury that testimony of a government witness is credible; (2)this assurance must
be based on either the prosecutor’s personal knowledge or other information not contained
in the record”). The statements made in summation were proper and Brown’s right to a fair
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trial was not infringed.
For the foregoing reasons, we will affirm the judgment of the District Court.
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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
S/S Jane R. Roth
Circuit Judge
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