United States v. Brown ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4679
JAMES ALBERT BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-95-443)
Submitted: March 24, 1998
Decided: April 7, 1998
Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Rene Josey, United States Attorney, Nancy C.
Wicker, First Assistant United States Attorney, Mark C. Moore,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
James Albert Brown appeals his convictions for conspiracy to pos-
sess with intent to distribute and to distribute heroin, cocaine, and
cocaine base;1 possession with intent to distribute and distribution of
heroin, cocaine, and cocaine base;2 and, money laundering.3 He was
sentenced to a term of life imprisonment. Finding no reversible error,
we affirm.
In the first issue on appeal, Brown argues that the district court
committed reversible error when it instructed the jury as follows on
reasonable doubt:
Now, while the Government's burden of proof is a strict or
heavy burden, it is not necessary that the Government must
prove Mr. Brown guilty beyond all possible doubt. The law
only requires that the Government's proof exclude any rea-
sonable doubt in your mind concerning Mr. Brown's guilt.
(Supp. JA at 37). The district court also instructed the jury that,
"under the law, Mr. Brown is presumed to be innocent of the crimes
alleged. And the burden is on the Government to prove to you beyond
a reasonable doubt that he is guilty before you may find him so." (Id.
at 36). The district court indicated that the Government bore this bur-
den throughout the trial by stating, "[Mr. Brown] is not required to
prove innocence or produce any evidence at all. The Government has
the burden of proving guilt beyond a reasonable doubt, and if it fails
to do so, you must acquit Mr. Brown." (Id. at 37). Brown challenges
the "beyond all possible doubt" language that appears in the district
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1 See 21 U.S.C. § 846 (1994).
2 See 21 U.S.C. § 841(a)(1) (1994).
3 See 18 U.S.C. §§ 1956(a)(1)(B)(i), 1957 (1994).
2
court's instructions. According to Brown, this attempt to define rea-
sonable doubt lessened the Government's burden of proof. We find
this argument to be without merit.
We have consistently instructed district courts not to define reason-
able doubt.4 However, the district court's decision to give a reason-
able doubt instruction is not necessarily reversible error. In such a
case, we must examine whether the instruction "taken as a whole . . .
correctly conve[ys] the concept of reasonable doubt to the jury" and
whether there is a "reasonable likelihood" that the jury understood the
instructions to allow a conviction based on proof insufficient to meet
the Winship5 standard. 6
We have previously found that the "beyond all possible doubt"
phrase, as challenged in this appeal, is not an attempt on the part of
the district court to define the concept of reasonable doubt and that
it gives an accurate description of the Government's burden in a crim-
inal proceeding.7 We reject Brown's argument that Adkins should be
revisited in light of the United States Supreme Court's pronounce-
ments in Sullivan v. Louisiana, 508 U.S. 275 (1993), and Cage v.
Louisiana, 498 U.S. 39 (1990). In Sullivan and Cage, the Court found
unconstitutional the trial courts' nearly identical definitions of the rea-
sonable doubt standard because they allowed for"a finding of guilt
based on a degree of proof below that required by the Due Process
Clause."8 However, Sullivan and Cage are both inapposite to this case
because they addressed the trial courts' errors in misdefining and
thereby diluting the reasonable doubt standard, whereas, in this case,
no attempt was made to define reasonable doubt. Moreover, neither
of these cases included instructions that contained the "beyond all
possible doubt" language as found in the present case and in Adkins;
therefore, we find that neither Sullivan nor Cage serve to vitiate or
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4 See United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994).
5 See In re Winship, 397 U.S. 358, 364 (1970) (holding that the govern-
ment must prove beyond a reasonable doubt every element of a charged
offense).
6 Victor v. Nebraska, 511 U.S. 1, 5-6 (1994).
7 See United States v. Adkins, 937 F.2d 947, 950 (4th Cir. 1991).
8 Cage, 498 U.S. at 41; see Sullivan, 508 U.S. at 277.
3
undermine the rationale in Adkins. Further, contrary to Brown's asser-
tions, we find that the district court's instructions on reasonable doubt
were neither misleading nor confusing.9
Finally on this issue, we reject Brown's contention that the district
court's reasonable doubt instructions are unconstitutional in light of
United States v. Colon-Pagan, 1 F.3d 80, 81 (1st Cir. 1993). In
Colon-Pagan, the district court erroneously instructed the jury that the
government was required to prove guilt beyond a reasonable doubt,
which "did not mean guilt ``beyond all possible doubt.' Rather, that
proof meant ``proof of such a convincing character that a person . . .
would be willing to rely and act upon it.'"10 The First Circuit took no
issue with the "beyond all possible doubt" phrase, but found plain
error with the district court's definition of reasonable doubt as proof
that a person "would be willing to rely and act upon."11 The court
found that this definition may have allowed the jury to convict the
defendant on the basis of evidence "no stronger than might reasonably
support a decision to go shopping or to a movie" or any of life's ordi-
nary decisions.12
When read in context with the entire jury instruction, the district
court here repeatedly referred to the Government's obligation to
prove each element of the charges beyond a reasonable doubt; there-
fore, there was no reasonable likelihood that the jury misunderstood
the instruction to allow a conviction based on insufficient proof.13
Accordingly, we reject Brown's challenge to the district court's
instruction on reasonable doubt.
Next, Brown claims that there was insufficient evidence to convict
him of three counts of engaging in monetary transactions in property
derived from specified unlawful activity, in violation of 18 U.S.C.
§ 1957 (1994). At trial, the Government presented evidence that on
three separate days Brown exchanged more than $10,000 for the pur-
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9 See United States v. Love, 767 F.2d 1052, 1060 (4th Cir. 1985).
10 Colon-Pagan, 1 F.3d at 81.
11 Id.
12 Id.
13 See Victor, 511 U.S. at 6; Reives, 15 F.3d at 45.
4
chase of several automobiles. James Wannamaker, an employee of
the South Carolina Department of Transportation responsible for auc-
tioning surplus or used state-owned automobiles, testified that on July
29, 1992, Brown purchased nine cars for $27,195; on September 2,
1992, Brown purchased eighteen cars for $50,190.50; on October 7,
1992, Brown purchased four cars, spending $9135; and, on Novem-
ber 18, 1992, Brown purchased six cars, spending $20,272.50.14
In reviewing whether the evidence was sufficient to convict a
defendant, "the relevant question is whether, after viewing the evi-
dence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt."15 The jury is responsible for weighing the credi-
bility of the evidence and resolving any apparent conflicts.16
The statute under which Brown now challenges his convictions
provides:
Whoever . . . knowingly engages or attempts to engage in
a monetary transaction in criminally derived property that is
of a value greater than $10,000 and is derived from speci-
fied unlawful activity, shall be punished as provided in sub-
section (b).17
Brown does not dispute that he made these purchases or that the prop-
erty was derived from "specified unlawful activity" as defined by the
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14 Only the July 29, September 2, and November 18, 1992 purchases,
in which the total amount spent exceeded $10,000, were charged as vio-
lations of 18 U.S.C. § 1957.
15 Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994).
16 See Murphy, 35 F.3d at 148.
17 18 U.S.C. § 1957(a) (1994); United States v. Campbell, 977 F.2d
854, 859 (4th Cir. 1992). "Monetary transaction" is defined as "the
deposit, withdrawal, transfer, exchange . . . of funds or a monetary instru-
ment . . . by, through, or to a financial institution," and "criminally
derived property" is defined as "property constituting, or derived from,
proceeds obtained from a criminal offense." 18 U.S.C. § 1957(f)(1), (2)
(1994); see United States v. Moore, 27 F.3d 969, 976 (4th Cir. 1994).
5
statute. Brown's argument on appeal is that because he bid on each
car separately, each car purchased was a separate and distinct mone-
tary transaction. Because none of the cars individually cost more than
$10,000, Brown contends that he did not engage in a monetary trans-
action with property of a value greater than $10,000.18 He argues that
it was improper for the Government to aggregate the total amount
spent on a particular day to circumvent the jurisdictional value
requirement and cites United States v. Denemark , 779 F.2d 1559,
1563 (11th Cir. 1986), for support. However, the facts of Denemark,
a structuring case under 18 U.S.C. § 1001, are far removed from this
case and we find the case to be unpersuasive.
Here, the district court properly instructed the jury that if they
found that each car purchased amounted to a separate monetary trans-
action they could not add the value of the property involved in the
separate transactions together and, if so, the value element of the
offense could only be satisfied if the value of the property in a single
transaction was greater than $10,000. However, if the jury found that
the total number of cars purchased on a particular day constituted a
single monetary transaction, they could then add the value of the
property together to determine if the total amount exceeded $10,000.
Viewing the evidence in the light most favorable to the Govern-
ment, we find that the evidence was more than sufficient for the jury
to conclude, as it did, that Brown's purchase of several automobiles
with one lump-sum payment amounted to a single monetary transac-
tion. Further, because there was more than ample evidence that the
value of each of the monetary transactions exceeded the $10,000
jurisdictional amount, we find no ambiguity in the statute's applica-
tion to Brown's conduct and deny his request for lenity.19 Accord-
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18 The Government concedes that Brown bid on each car separately but
maintains that since he paid for the cars at the end of the auction in a
lump-sum payment, there was but a single monetary transaction.
19 See United States v. Jenkins , 58 F.3d 611, 613 (11th Cir. 1995) (con-
cluding the rule of lenity required section 1957 be construed narrowly
because of its ambiguity in addressing "whether[it] applies only to single
transactions exceeding $10,000 or includes a series of transactions that
total more than $10,000." The allegation of error was that the court
"erred in including kickbacks of less than $10,000.").
6
ingly, we affirm Brown's convictions under 18 U.S.C.§ 1957 as
properly supported by sufficient evidence.
In Brown's final claim he asserts that the Government improperly
vouched for the credibility of six witnesses who were unindicted co-
conspirators of Brown by eliciting details regarding the truthfulness
provisions of their plea agreements on direct examination. Brown also
suggests that the district court erred by allowing testimony that tended
to show that several of the witnesses had performed their agreement
satisfactorily and had reaped its rewards. And Brown asserts that
when the district court instructed the jury on the details of guideline
sentencing, including how downward departures are determined, it
impermissibly suggested that the court found these witnesses' testi-
mony to be credible. We disagree.
Brown only challenged the admission of two plea agreements;
therefore, we review the admission of those plea agreements for an
abuse of the district court's discretion,20 and review the admission of
the remaining plea agreements for plain error.21 Further, we review
Brown's claim that the district court itself improperly bolstered the
credibility of the Government's witnesses for abuse of discretion.22
We have generally held that it is error for the Government to bol-
ster or vouch for its own witnesses.23 However, the Government is
allowed to explain its investigation, procedures or relationship with its
witnesses. This includes presenting evidence of the details of the wit-
nesses' plea agreements and their promises to testify truthfully.24
Here, we find that the Government neither bolstered nor vouched
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20 See United States v. Henderson , 717 F.2d 135, 138 (4th Cir. 1983).
21 See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
731-32 (1993).
22 See United States v. Russell , 971 F.2d 1098, 1107 (4th Cir. 1992).
23 See United States v. Samad, 754 F.2d 1091, 1100 (4th Cir. 1984).
24 See Henderson, 717 F.2d at 138 (4th Cir. 1983) (no error in Govern-
ment's eliciting evidence of promise to testify truthfully made in plea
agreement, whether or not defense intends to use plea agreement to
impeach witnesses' credibility).
7
for the credibility of its witnesses. The Government did not derive any
improper advantage from the witnesses' promises to be truthful nor
did it imply to the jury that it possessed special knowledge of the tes-
tifying co-conspirators' veracity. Further, the Government gave no
personal assurances that its witnesses were trustworthy.25 Finally, the
district court's explanation of how the sentencing guidelines deals
with downward departures in no way suggested to the jury that it
found any of the witnesses' testimony credible.
Therefore, finding no reversible error, we affirm Brown's convic-
tion. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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25 See United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993).
8