United States v. Brown , 86 F. App'x 749 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 11, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 02-30021
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TIMOTHY D BROWN
Defendant - Appellant
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_____________________
No. 02-30459
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TIMOTHY D BROWN; CHRISTOPHER MICHAEL BROWN
Defendants - Appellants
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_____________________
No. 02-30514
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
KENNETH WAYNE PEARSON; TIMOTHY D BROWN;
CHRISTOPHER MICHAEL BROWN
Defendants - Appellants
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_____________________
No. 03-30375
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TIMOTHY D BROWN; ET AL
Defendants
BETTY L S BROWN; TONGULA VEAL
Claimants - Appellants
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
No. 01-CR-10012-1
_________________________________________________________________
Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
2
The defendants were convicted by a jury on various offenses
related to their participation in a major drug distribution
enterprise. The indictment also included two criminal forfeiture
counts, and after trial the district court ordered the subject
property forfeited to the United States. The three criminal
defendants, together with two claimants to the forfeited
property, now appeal. For the following reasons, we affirm.
I. GENERAL BACKGROUND
These consolidated appeals arise out of the criminal trial
of Timothy D. Brown, his brother Christopher Michael Brown, and
Kenneth Wayne Pearson in the Western District of Louisiana.
Count 1 of the thirteen-count indictment charged all three men
with participation in a major drug distribution conspiracy
stretching from 1993 to 1999 and encompassing parts of Louisiana
and Texas. Other counts of the indictment charged the men with
distributing various amounts of crack cocaine on several discrete
occasions, charged Timothy Brown with money laundering offenses,
and sought the forfeiture of assets connected to the substantive
offenses. Pearson was represented by counsel, but the Browns
represented themselves at trial. After seven days of trial, the
jury found the defendants guilty on all charges, and the trial
judge later found for the government on the forfeiture counts.
The Browns were each sentenced to life imprisonment, plus
additional sentences running concurrently. Pearson, who was
3
charged only on the conspiracy count and one drug distribution
count, received a sentence of 336 months.
All three defendants appeal their convictions. Consolidated
with these appeals is the appeal of Betty L. S. Brown and Tongula
Veal, who unsuccessfully filed innocent-owner claims on some of
the forfeited property. Timothy Brown, Betty Brown, and Tongula
Veal are pro se on appeal. Facts relevant to each of the various
appellants are set forth separately below.
II. CHRISTOPHER BROWN
Christopher Brown’s sole issue on appeal is whether he
validly waived his right to the assistance of counsel at trial.
We review this question de novo. United States v. Joseph, 333
F.3d 587, 589 (5th Cir.), cert. denied, 124 S. Ct. 446 (2003).
A. Relevant facts
At his arraignment on June 7, 2001, Christopher Brown was
represented by his own retained attorney, Dele Adebamiji. A
month later, the government filed a motion to disqualify
Adebamiji on the ground that he had represented one of the
government’s cooperating witnesses in a drug prosecution stemming
from the same investigation that eventually led to Brown’s
indictment. The magistrate judge recommended that Adebamiji be
disqualified and that the defendant be ordered to retain new
counsel within twenty days of the ruling. The district judge
adopted this recommendation on September 21, 2001.
4
The defendant appeared before the magistrate judge on
November 7 without a lawyer and said that he was unaware that he
had been ordered to obtain new counsel. The magistrate judge
told him that he could apply for court-appointed counsel if he
could no longer afford his own. The magistrate judge then
ordered Brown to inform the court, within twenty days, of whether
he had obtained new counsel or instead intended to represent
himself.
The defendant appeared in court again on December 13. He
informed the magistrate judge that he wished to file a motion to
proceed pro se. The motion stated that Adebamiji had been
“unjustly disqualified” and that any court-appointed lawyer would
be “working with the government and not in the defendant’s best
interest.” Brown reiterated this suspicion in open court. The
magistrate judge told him that a court-appointed lawyer would be
chosen by the public defender’s office, which was separate from
the prosecution, but Brown repeated that he did not want a court-
appointed lawyer.
The magistrate judge then engaged Brown in a lengthy
colloquy in which the court inquired into Brown’s mental health
and education,1 explained the charges and possible sentences
Brown would face, told him about the many advantages a lawyer
could offer, and warned that Brown would be held to the same
1
Brown said that he had graduated from high school and
claimed to have attended a semester of college. He said that he
could read and write “very well” and had no mental problems.
5
rules as other parties. Brown admitted at one point during the
exchange that he did not know what “voir dire” meant. The
magistrate judge asked if Brown was interested in having stand-by
counsel appointed, but Brown said that he was not. After
recommending to Brown once more that he not represent himself,
the magistrate judge stated that he felt Brown had made a
knowing, intelligent, and voluntary decision waive his right to
counsel.
After resolving a few pretrial motions filed by Christopher
and his brother Timothy, who was also proceeding pro se, the case
proceeded to trial on January 15.2 While Christopher’s
performance was certainly inferior to that of a skilled lawyer,
he was not passive. He made a brief opening statement at the
beginning of the trial, and most of the government’s witnesses
were cross-examined by both Browns, though Timothy’s cross-
examinations were generally longer. Some of Christopher’s cross-
examinations seriously damaged his own case: for instance, he
elicited testimony that implicated the Browns in a killing and
other crimes about which the jury would not otherwise have
learned. The Browns called over a dozen witnesses in their case,
with most of the direct examinations being performed by Timothy.3
In his own testimony during the defense’s case, Christopher made
2
This opinion will at points refer to the defendants by
their first names when useful to prevent confusion.
3
Pearson, who was represented by counsel, did not call
any witnesses.
6
statements about past run-ins with the police that opened the
door to cross-examination on numerous prior arrests. Christopher
delivered a closing argument, but he may have cut his argument
short in the mistaken belief that his brother would be able to
use any leftover time.
On appeal, Christopher Brown is now represented by appointed
counsel.
B. Analysis
The Sixth Amendment gives a criminal defendant the right to
conduct his or her own defense, so long as the accused’s waiver
of the right to counsel is knowing and intelligent. Faretta v.
California, 422 U.S. 806, 835-36 (1975). For a defendant who
will stand trial, this court has required the trial court to
engage in a colloquy with the accused in which the judge warns of
the dangers of self-representation. See United States v. Davis,
269 F.3d 514, 518-19 (5th Cir. 2001). In assessing whether the
accused has made a knowing and intelligent waiver, the court must
consider all of the circumstances of the individual case,
including
the defendant’s age and education, and other background,
experience, and conduct. The court must ensure that the
waiver is not the result of coercion or mistreatment of
the defendant, and must be satisfied that the accused
understands the nature of the charges, the consequences
of the proceedings, and the practical meaning of the
right he is waiving.
Id. at 518 (quoting United States v. Martin, 790 F.2d 1215, 1218
(5th Cir. 1986)).
7
In this case, the magistrate judge engaged in a colloquy
with the defendant of the type required by our precedents. The
magistrate judge told Brown about the charges that he faced,
about the possible sentences, and about the disadvantages of
self-representation. The magistrate judge determined that the
defendant was mentally competent and had graduated from high
school. During the exchange, the defendant repeatedly indicated
that he understood the magistrate judge’s warnings, and he
unequivocally stated that he wished to represent himself.
While Brown does not dispute that the magistrate judge gave
him numerous warnings and engaged him in a colloquy that might
ordinarily suffice to demonstrate the validity of his decision to
proceed pro se, he contends that his situation possesses several
special features that distinguish it from the usual case. First,
he contends that his inability to understand why the government
disqualified his chosen lawyer, together with his suspicions
about appointed counsel, effectively coerced him into
representing himself.4 Second, he argues that his lack of basic
legal skills shows that his waiver was not knowing and
4
Brown points in particular to the following exchange,
which occurred in a pretrial hearing concerning whether the
government had provided proper discovery:
TIMOTHY BROWN: I wasn’t provided a copy [of the court’s
discovery order].
THE COURT: Well, your lawyer was, Mr. Brown.
CHRISTOPHER BROWN: You fired my lawyer.
THE COURT: I sure did.
Although not reproduced in Brown’s brief, the magistrate judge
followed up one line later with, “And for good cause . . .”
8
intelligent. Third, he points out that some courts have found
that the absence of stand-by counsel undermines the validity of a
waiver; if stand-by counsel had been available, he contends, the
stand-by lawyer might have averted some of his more serious
mistakes and could have prevented him from relying too heavily on
his co-defendant brother Timothy, who was more culpable. Upon
consideration, these contentions do not persuade us that the
district court erred.
Regarding the first argument, it is true that Brown may well
have thought that self-representation was the only way to ensure
a zealous defense, given the disqualification of his first lawyer
and his mistrust of court-appointed counsel. Brown does not
contend that Adebamiji’s disqualification was improper, however,
and he has not directed us to any cases establishing that a
defendant’s suspicion of court-appointed counsel makes his waiver
of the right to counsel into the product of “coercion.” In fact,
the courts not infrequently encounter defendants who object to
court-appointed counsel based on the erroneous belief that such
an attorney would be in league with the prosecution. See, e.g.,
Wise v. Bowersox, 136 F.3d 1197, 1202 (8th Cir. 1998). The
magistrate judge tried to explain that an appointed lawyer would
be a public defender or a private lawyer not associated with the
prosecution, but Brown persisted in his rejection of appointed
counsel. While Brown’s suspicions were to our mind ill-founded,
there is no suggestion here that Brown’s suspicions were the
9
product of any sort of mental incompetence. Given Brown’s
repeated assertions of his desire to represent himself, it would
have been more coercive, and possibly violative of Faretta, if
the trial judge had rejected Brown’s decision and compelled him
to accept the services of an unwanted appointed attorney. “To
force a lawyer on a defendant can only lead him to believe that
the law contrives against him.” Faretta, 422 U.S. at 834.
Brown’s dismal performance at trial, recounted in some
detail in his appellate brief, reveals quite glaringly that his
trial would almost certainly have proceeded better had he been
represented by a proper lawyer. Nevertheless, this does not mean
that he was unable to make a knowing and intelligent waiver. It
is instructive that the trial judge in Faretta had refused to let
the defendant represent himself because the defendant gave
unsatisfactory answers to the judge’s questions concerning the
hearsay rule and voir dire procedures. Id. at 808-10 & n.3.
The Supreme Court, however, was uninterested in “how well or
poorly Faretta had mastered the intricacies of” those rules,
concluding that “technical legal knowledge, as such, [is] not
relevant to an assessment of his knowing exercise of the right to
defend himself.” Id. at 836. Brown was a poor lawyer, but a
defendant who has chosen self-representation cannot thereafter
claim that the quality of his or her own defense amounts to a
denial of effective assistance of counsel. Id. at 834 n.46.
10
Brown asserts that his waiver of the right to counsel was
suspect because he often relied on his brother Timothy. Timothy
was alleged to be the head of the drug ring and was therefore
more culpable than Christopher. Because of the two defendants’
potentially conflicting interests, joint representation might
have been inappropriate, if undertaken by an actual attorney.
But any impropriety arising out of Timothy’s participation in
Christopher’s case would simply go to the effectiveness of
Christopher’s defense. As stated above, that type of claim is
not available to defendants who proceed pro se at trial.
Brown is correct that some of the more disastrous aspects of
his trial performance might have been averted if stand-by counsel
had been appointed. Stand-by counsel can be appointed even over
the defendant’s objection. McKaskle v. Wiggins, 465 U.S. 168,
184 (1984). Some courts have indicated, as Brown points out,
that the availability of stand-by counsel is a factor to be
considered in determining whether the defendant’s waiver was
knowing and intelligent. See United States v. Sandles, 23 F.3d
1121, 1128 (7th Cir. 1994); Strozier v. Newsome, 871 F.2d 995,
998 (11th Cir. 1989). While this circuit has recognized that
appointment of stand-by counsel is the “preferred practice,”
McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985), we
have not explicitly considered it as a factor that can undermine
the validity of a waiver. Further, the Constitution does not
require the appointment of stand-by counsel even when it is
11
requested, id. at 1178; see also United States v. Bova, 350 F.3d
224, 226-27 (1st Cir. 2003), and here Brown explicitly refused
it.
In sum, having considered all of the relevant circumstances,
we conclude that Christopher Brown’s waiver of the right to
counsel was valid under our precedents.
III. TIMOTHY BROWN
Timothy Brown raises a number of points of error and also
joins in those raised by his co-defendants.
A. Pre-indictment and post-indictment delay
Brown alleges constitutional and statutory violations
traceable to pre-indictment and post-indictment delay. In
particular, he argues first that the government violated his
right to due process by waiting until 2001 to indict him for a
conspiracy that stretched back to 1993. Brown asserts that
because the government delayed for so long, several alibi
witnesses could not be located, two trial witnesses could no
longer remember events from 1995 that presumably would have been
helpful to Brown’s case, and pieces of exculpatory evidence
(namely security tapes and financial records) have been lost.
Brown also argues that the government violated the Speedy
Trial Act and the Sixth Amendment through post-indictment delay.
Brown points out that he was indicted and made his initial court
appearance in May 2001 but was not tried until January 15,
12
2002——a period that far exceeds the Act’s usual seventy-day
limit.
Both of these arguments were raised and rejected in the
district court. We review the district court’s legal conclusions
de novo and its factual determinations for clear error. United
States v. Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002), cert.
denied, 123 S. Ct. 1956 (2003).
1. Due process/pre-indictment delay
Pre-indictment delay can in some cases deprive a defendant
of due process of law. See United States v. Lovasco, 431 U.S.
783 (1977). This court set out the required showing to establish
such a claim in United States v. Crouch, 84 F.3d 1497, 1514 (5th
Cir. 1996) (en banc):
[F]or preindictment delay to violate the due process
clause it must not only cause the accused substantial,
actual prejudice, but the delay must also have been
intentionally undertaken by the government for the
purpose of gaining some tactical advantage over the
accused in the contemplated prosecution or for some other
impermissible, bad faith purpose.
Under Crouch, then, the claim has two essential components: the
delay must cause prejudice and it must have been undertaken for
an improper purpose. The defendant bears the burden of proving
both. United States v. Amuny, 767 F.2d 1113, 1119-20 (5th Cir.
1985).
Regarding the first prong, we have held that “[v]ague
assertions of lost witnesses, faded memories, or misplaced
documents are insufficient” to demonstrate actual prejudice. Id.
13
at 1515 (quoting United States v. Beszborn, 21 F.3d 62, 67 (5th
Cir. 1994) (alteration in original)). In his appellate brief,
Brown does name specific persons and pieces of evidence that he
claims were lost. Even if those assertions were sufficiently
substantiated, however, at no point in Brown’s submissions to
this court or the district court has come close to satisfying
Crouch’s second prong. Brown has accused the government of
tactical delay, but he has never offered any elaboration or
evidentiary substantiation for his bare assertion. We cannot
presume that a delay was undertaken for improper reasons, and
prosecutors are not constitutionally required to bring charges as
soon as they have enough proof to convict, especially in wide-
ranging investigations involving multiple defendants. See
Lovasco, 431 U.S. at 792-95. “[T]o prosecute a defendant
following investigative delay does not deprive him of due
process, even if his defense might have been somewhat prejudiced
by the lapse of time.” Id. at 796.
2. Speedy Trial Act
Under the federal Speedy Trial Act, a criminal defendant’s
trial “shall commence within seventy days from” the date of the
indictment or the defendant’s initial court appearance, whichever
is later. 18 U.S.C. § 3161(c)(1) (2000). The seventy-day limit
is, however, subject to a list of exemptions, including the time
that elapses between the filing of a motion and the hearing on
that motion as well as a period (not to exceed thirty days)
14
during which a matter is under advisement by the district court.
Id. § 3161(h)(1).
The vast majority of the 229 days between Brown’s initial
appearance and his trial were excludable by reason of the
pendency of various motions, many of which were filed by Brown
himself. Based on our review of the district court’s docket
sheet, it appears that 38 nonexcludable days elapsed, a figure
comfortably within the statutory limit.
3. Sixth Amendment
Brown also appears to assert that the post-indictment delay
violated his constitutional, as opposed to statutory, right to a
speedy trial. As a recent decision observed, “[i]t will be the
unusual case . . . where the time limits under the Speedy Trial
Act have been satisfied but the right to a speedy trial under the
Sixth Amendment has been violated.” Bieganowski, 313 F.3d at
284. In evaluating the constitutional claim, we consider four
factors: (1) the length of the delay, (2) the reason for the
delay, (3) the defendant’s diligence in asserting his Sixth
Amendment right, and (4) prejudice to the defendant resulting
from the delay. United States v. Cardona, 302 F.3d 494, 496 (5th
Cir. 2002) (citing Barker v. Wingo, 407 U.S. 514, 530-33 (1972)).
We generally need not consider factors two, three, and four if
the delay is less than a year. United States v. Bergfeld, 280
F.3d 486, 488 (5th Cir. 2002). Here, Brown was indicted and
initially appeared in May 2001 and was tried beginning in January
15
2002. Even were this a sufficient delay to trigger the right,
the delay was attributable to the complexity of the case and the
numerous pretrial motions, many of which were filed by Brown.
This claim is accordingly without merit.
B. Jurisdictional challenges
Brown contends that the federal government is without
jurisdiction to criminalize his conduct because the federal
government lacks a general police power. According to Brown, the
federal government’s power to regulate private conduct is largely
limited to activities that occur on federal property. Brown is
correct that the federal government lacks a general police power,
but his argument overlooks the Commerce Clause, which permits
Congress to punish the drug offenses charged here on the ground
that they affect interstate commerce, even without proving that
the particular acts at issue affected interstate commerce. See,
e.g., United States v. Lopez, 459 F.2d 949, 950-53 (5th Cir.
1972) (holding that 21 U.S.C. §§ 841 and 846 are constitutional).
The Supreme Court’s recent federalism decisions have not changed
this result. See United States v. Brown, 276 F.3d 211, 214-15
(6th Cir. 2002); United States v. Kallestad, 236 F.3d 225, 230 &
n.29 (5th Cir. 2000).
Brown also argues that the district court never established
its jurisdiction over the case, but this argument is likewise
without merit. The court had jurisdiction by virtue of 18 U.S.C.
§ 3231, which confers jurisdiction over “all offenses against the
16
laws of the United States.” The indictment charged Brown with
such offenses. The underlying drug statutes do not include
elements that require the government to prove jurisdictional
facts, such as a connection with interstate commerce.
C. Waiver of right to counsel
In addition to raising issues of his own, Timothy Brown
joins in the arguments raised by his co-defendants. These shared
claims fail for the same reasons discussed elsewhere in this
opinion. The only shared issue that requires separate comment as
applied to Timothy Brown is the issue whether he made a valid
waiver of his right to counsel.
Timothy Brown appeared at his arraignment in June 2001
represented by retained counsel. Over the course of the next few
months, his lawyer filed several motions related to discovery and
scheduling. In September 2001, Brown filed a motion to proceed
pro se, and his lawyer filed a motion to be removed as counsel of
record. At the time, trial was scheduled for January 2002.
Brown appeared before the magistrate judge on October 25,
2001, for a hearing on his motion to proceed pro se, as well as
hearings on other motions he had filed. The magistrate judge
noted that he had previously determined that Brown did not
financially qualify for appointment of counsel. The magistrate
judge told Brown that defendants have the constitutional right to
represent themselves, but that the magistrate judge had to ensure
that Brown was making a knowing and intelligent decision to do
17
so. At this point Brown stated that he eventually planned to
hire a new attorney, but that he wished to represent himself in
the meantime. The magistrate judge offered to postpone the
hearing on Brown’s several pending motions until he hired a new
lawyer, but Brown said that he wanted to argue the motions
himself. The magistrate judge warned Brown that while there was
no deadline for Brown to hire a new lawyer, he should “do that
immediately if you’re going to do it.”
Recognizing that Brown might still hire a lawyer to
represent him at trial, the magistrate judge nonetheless engaged
Brown in a full colloquy very similar to that described earlier
with respect to his brother Christopher. When asked about his
education, Brown claimed to have graduated from college (although
the pretrial services report indicated that there was no record
of him attending college). Brown also said that he had
represented himself before, winning two out of three cases. The
magistrate judge told Brown that stand-by counsel would not be
provided because Brown did not financially qualify for any court-
appointed attorney. The magistrate judge concluded by telling
Brown to inform the court if and when he hired a new lawyer.
Brown filed a number of pretrial motions and argued them to
the court. He showed an understanding of basic criminal
procedure and terminology; for example, he complained that the
government had failed to turn over Brady and Jencks material.
18
Brown never hired a new lawyer or asked to do so but instead
represented himself throughout the trial.
Timothy’s colloquy with the magistrate judge was
substantially the same as Christopher’s colloquy, and it likewise
satisfies the applicable standards. The factors that complicated
the analysis of Christopher’s case are not present with respect
to Timothy. His waiver of the right to counsel was a fortiori
valid.
D. Other issues
Brown additionally alludes to some dozen purported defects
in his trial, devoting a sentence or two to each of them. These
same complaints were raised in the district court. Even allowing
for the liberality with which we construe pro se briefs, see,
e.g., United States v. Glinsey, 209 F.3d 386, 392 n.4 (5th Cir.
2000), some of these claims are presented too obscurely to permit
a proper evaluation.5 To the extent that we can evaluate the
arguments, none of them presents reversible error based on the
record before us. We make the following observations regarding
what appear to be the three strongest arguments that are fairly
discernable from the briefs and the record.
5
Brown’s brief asserts, for instance, that the
government held a press conference that generated prejudicial
pretrial publicity. The allegedly offending statements and news
reports are not part of the record, however, so it is impossible
for us to evaluate Brown’s claim. Similarly, while Brown
complains that the government failed to make required discovery,
his appellate brief does not identify which items used at trial
should have been disclosed or mount any argument as to those
items.
19
First, Brown asserts that the prosecutor misrepresented the
testimony of Bertha Woodfox, a cooperating witness. During
closing arguments, the prosecutor said that Woodfox testified
that she had seen Brown with drugs. Brown made a contemporaneous
objection to that characterization of the evidence, which was
overruled. Having examined Woodfox’s testimony, it appears that
Woodfox in fact testified on cross-examination that she had never
actually seen either of the Browns with drugs. Nonetheless,
Woodfox did testify that she arranged drug deals for the Browns
and transported money for them, and other witnesses testified
that they purchased drugs from the Browns. Given those
circumstances, the prosecutor’s misstatement in no way casts
doubt on the correctness of the verdict. Since the remarks did
not have such an effect, there is no basis for reversal. See
United States v. Kelley, 981 F.2d 1464, 1473 (5th Cir. 1993).
Second, Brown contends that one of the jurors was biased
against him, as reflected in a racist letter to the editor that
appeared in the local paper. The court held a hearing at which
the juror and a newspaper employee testified, and the court
determined that there was clear and convincing evidence that the
juror was not the author of the letter. This finding of fact is
not clearly erroneous.
Third, Brown argues that the government acted in bad faith
in putting on the testimony of Chadrick McNeal, who (according to
Brown) became a police informant in order to get revenge against
20
Brown. On direct examination, the government elicited testimony
that McNeal was a paid informant. On cross-examination,
Pearson’s lawyer and the Browns inquired in some detail into
McNeal’s motives for becoming an informant. We see no
prosecutorial misconduct in presenting the testimony. It is
within the jury’s province to make determinations regarding the
credibility of witnesses, and the jury was entitled to discount
McNeal’s testimony if it so chose.
IV. KENNETH PEARSON
A. Giglio/Napue violation
Pearson’s first argument on appeal is that the government
deprived him of his right to due process when it allowed its
witnesses to materially misrepresent the terms of their plea
agreements. We review this matter de novo.6
1. Relevant facts
The government’s case featured dozens of witnesses,
including fifteen cooperating felons. Pearson asserts that nine
of those cooperating witnesses misrepresented the terms of their
plea agreements with the U.S. Attorney’s Office. The nine
written plea agreements differ in various ways; all but one of
them, however, refer to the possibility of “substantial
6
Pearson argues that de novo review rather than plain
error review is proper even though the matter was not raised
below. The government concedes this point, so we exercise de
novo review.
21
assistance” sentence departures.7 These agreements carefully
state that the government makes no “promises” regarding sentence
reductions. The agreements were made available to the defense at
trial.
The government began the direct examination of most (but not
all) of its cooperating witnesses by eliciting testimony that the
witness had pleaded guilty and agreed to testify as part of his
plea agreement. In some cases the direct examination did not
reveal that the witness could receive a reduced sentence for
testifying. In a few cases the only question related to the
issue of the witness’s reasons for testifying was a question
whether the witness had been “promised anything for testifying,”
which the witnesses answered “no.” The government asked other
witnesses more open-ended questions about their understanding of
whether they would receive anything for their testimony; these
witnesses all said that “no promises” had been made, but some of
them did mention the possibility or hope of receiving more
lenient sentences. On cross-examination, much of which was
conducted by the Brown brothers, the nature of the witnesses’
plea agreements was explored in some detail. Most of the
7
Earl Veal’s plea agreement does not contain any
provisions referring to cooperation or substantial assistance.
We note that while the plea agreements are attached as an
appendix to the government’s appellate brief, only one of them
was put into the record in the district court. Nonetheless, as
both sides seem content to proceed on this basis, we shall assume
that the attachments to the government’s brief are accurate
representations of the cooperating witnesses’ plea agreements.
22
witnesses admitted that they hoped to receive reduced sentences
for testifying.
Pearson’s brief discusses in some detail the testimony of
each of the nine witnesses who, to various degrees, allegedly
misrepresented the nature of their federal plea agreements, but
only three of those nine witnesses provided testimony that
incriminated Pearson (as opposed to his co-defendants). We will
therefore summarize in relevant part the testimony of those three
witnesses.
The first of them, Sedrick Jackson, provided rather weak
testimony against Pearson. Jackson assumed that Pearson bought
crack from the Browns because he saw Pearson leave the Browns’
store (which operated as a front for the drug enterprise) with
the same kind of bag in which Jackson received his crack. He
also testified that Timothy Brown told him that Pearson sometimes
caused problems by not paying all of the money that he was
supposed to pay. Earlier, at the beginning of the direct
examination, the government had elicited testimony that Jackson
had agreed to cooperate and that “[i]t’s a possibility that I may
get a downward departure, but nothing was promised to me, as long
as I give substantial assistance.” The prosecutor asked Jackson
if he knew who would make the final decision on whether his
sentence would be reduced, and Jackson said he believed it was
the judge.
23
Thurston Washington’s testimony began with an admission that
he had entered into a plea agreement. When the prosecutor asked
him about his understanding of his agreement, he stated that he
would probably get the maximum if he did not testify. When asked
whether the judge had the final say on his sentence, he said yes.
Washington then proceeded to testify that he sold crack for the
Browns for about a year. He also testified that he saw Pearson
with crack and that Pearson told him that it came from the
Browns.
The third witness who both incriminated Pearson and
allegedly misrepresented his federal plea agreement was Derrick
Ross, who testified that he bought crack from Pearson nine or ten
times. The direct examination of Ross spans only a few
transcript pages, and the only reference to his status as a
cooperating witness was the question, “Has anyone promised you
anything to get you [to] testify today?” Ross answered, “No,
sir.” That he was testifying pursuant to a plea agreement was
therefore not revealed on direct examination (though it was
explored on cross-examination).
Several other felons also incriminated Pearson, but he does
not argue on appeal that the government misrepresented any plea
agreement they might have had. At the close of the case, the
jury instructions warned the jury to be especially careful in
evaluating the credibility of cooperating witnesses.
2. Analysis
24
The Due Process Clause forbids the government from knowingly
using or failing to correct false testimony, including testimony
about the nature or existence of a cooperating witness’s plea
agreement. Giglio v. United States, 405 U.S. 150, 153-54 (1972);
Napue v. Illinois, 360 U.S. 264, 269 (1959); Unites States v.
Mason, 293 F.3d 826, 828 (5th Cir. 2002). To prove a violation,
the criminal defendant must show that (1) a witness testified
falsely, (2) the government knew that the testimony was false,
and (3) the testimony was material. Mason, 293 F.3d at 828.
Testimony is “material” in this context, and thus a new trial is
required, “if the false testimony could . . . in any reasonable
likelihood have affected the judgment of the jury.” Giglio, 405
U.S. at 154 (internal quotation marks omitted and alteration in
original); see also Barrientes v. Johnson, 221 F.3d 741, 753 (5th
Cir. 2000).8
Pearson’s argument on appeal posits two distinct ways in
which the government allegedly misled the jury. The first
relates to the terms of the written plea agreements themselves.
The cooperating witnesses’ plea agreements are carefully crafted
to state that the government may, but is not required to, file a
8
The government’s brief contends that the standard for
materiality is whether there is a “reasonable probability that
the result would have been different,” which in turn means “a
probability sufficient to undermine confidence in the outcome.”
Pearson is correct, however, that Giglio’s “any reasonable
likelihood” language imposes a somewhat lower burden. See
Barrientes, 221 F.3d at 756 (comparing the different
formulations). In any event, the difference between the
formulations is irrelevant in this case.
25
motion for a substantial assistance sentence departure or
reduction; the agreements also warn that the sentencing judge
ultimately sets the sentence. Pearson claims that the written
agreements themselves misrepresent the true bargain struck with
the witnesses, since cooperating witnesses virtually always
receive the anticipated reductions, as did the cooperating
witnesses in this case. The carefully crafted hedges and
qualifications in the agreements, according to Pearson, merely
allow the government to deny what is in reality a straightforward
promise of leniency in exchange for favorable testimony.
Leaving aside the asserted defects in the written agreements
themselves, Pearson also argues that the government’s examination
of the witnesses gave a misleading impression of their reasons
for testifying. Most of the witnesses (but not Ross) said on
direct examination that they were testifying as required under a
plea agreement, but they also testified in lockstep that they had
not been “promised” anything for their testimony. Pearson claims
that this way of answering the question——often suggested by the
prosecutor’s arguably leading questions——gave the jury a mistaken
impression of what the witnesses really stood to gain by
testifying against Pearson and his associates.
We have little difficulty in rejecting the first part of
Pearson’s argument, namely that the language of the plea
agreements themselves misstates the true deal between the
government and the cooperating defendant. As the government
26
explains, the careful “no promises” language of the written plea
agreements is itself a response to cases holding that agreements
without such hedges strip the government of its discretion over
whether to request a downward departure. See, e.g., United
States v. Watson, 988 F.2d 544, 548, 551-53 (5th Cir. 1993);
United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir. 1991);
see also United States v. Garcia-Bonilla, 11 F.3d 45, 46-47 (5th
Cir. 1993) (contrasting such agreements with an agreement, like
the ones here, that reserves the government’s discretion). The
language reserving the government’s discretion is therefore both
appropriate and accurate, even though the government regularly
requests a downward departure when a defendant renders
substantial assistance.
Pearson’s second type of argument, namely that the
government allowed the witnesses to misrepresent their plea
agreements, is stronger. To be sure, we would not require the
prosecution to pound away at the credibility of its own
cooperating witness by exploring all of the witness’s motives to
curry favor with the government. The testimony of witness Ross
is quite troubling, however, because the only question remotely
touching on that subject was a question whether he had been
promised anything to testify, which Ross answered in the
negative. This tended to convey an improper and misleading
impression that Ross was wholly disinterested. See United States
v. Barham, 595 F.2d 231, 239-41 (5th Cir. 1979) (criticizing a
27
similar style of questioning). His plea agreement stated that
the government may, but was not required to, file a motion for a
downward departure if Ross gave substantial assistance; the
agreement explicitly stated that no promises were made in that
regard. To that extent, Ross’s statement that he had been
promised nothing was at least technically accurate. The
agreement does state, however, that “the United States will
advise the Court of any assistance provided by the Defendant.”
Thus, although Ross certainly was not promised a downward
departure, or even a motion for one, he was at least promised
something. To that extent, his testimony on direct was not only
misleading but false as well, if only in a relatively small way.9
Ross’s testimony differs from the testimony of witnesses Jackson
and Washington, whose testimony on direct examination was
technically accurate and did not misleadingly suggest that they
were wholly disinterested.
9
Similarly false was witness Christopher Larry’s
negative response to the question whether he had been promised
anything for testifying. But unlike the case with Ross, Larry’s
direct testimony at least revealed that he was testifying
pursuant to a plea agreement. His plea agreement said that the
government would inform the court of any assistance and would
consider filing a motion to reduce his sentence. Larry’s plea
agreement was explored in some detail on cross-examination, and
it was put into evidence. Also false was a statement made during
cross-examination by witness Darnell Atkins, who admitted on
direct examination that he was cooperating pursuant to a plea
agreement but then stated at one point during cross-examination
that the government would not even consider a sentence reduction
if he cooperated. Larry and Atkins did not offer testimony
against Pearson, only against the Browns.
28
The existence and terms of Ross’s plea agreement were
explored in some detail on cross-examination. To be sure, this
does not excuse the government from its affirmative duty not to
let its witnesses testify falsely; it is not the defendant’s job
to correct the testimony. Mason, 293 F.3d at 829; United States
v. Sanfilippo, 564 F.2d 176, 178 (5th Cir. 1977). Nonetheless,
since there is no Giglio violation unless the testimony was
material——i.e., unless it could “in any reasonable likelihood
have affected the judgment of the jury”——revelations on cross-
examination can dispel any incorrect impression given to the jury
by the testimony on direct. It is therefore relevant that
Pearson’s lawyer elicited that Ross had a plea agreement and that
he could receive a sentence reduction for substantial assistance.
Indeed, the motives of all nine of the cooperating witnesses
highlighted in Pearson’s brief were explored in some detail in
cross-examination. (For those witnesses who did not testify
against Pearson, this cross-examination was conducted by the
Browns, who were very persistent in this regard.) Thus, whatever
the shortcomings in the direct examinations, the overall effect
of the testimony was not materially misleading to the jury.
A significant feature of Giglio and Napue is that in those
cases the prosecution’s case hinged largely on the testimony of a
single witness whose arrangement with the government was hidden
from the jury. Since the key witnesses in those cases testified
falsely as to their agreements with the government, the jury’s
29
verdict was thrown into doubt. Here, there was testimony against
Pearson from at least seven witnesses. Pearson’s claims of
misrepresentation are directed at only three of them, and we have
concluded that cross-examination repaired the defects in the
direct examinations. Pearson correctly points out that almost
all of the evidence against him came from convicted felons and
paid informants, but this was a matter for the jury to weigh. It
is clear that the jury, through a combination of the trial
testimony and its own common sense, realized that all of the
cooperating witnesses had substantial motives to curry favor with
the prosecution. These witnesses’ motives were brought to the
jurors’ attention again in the jury instructions, in which the
judge warned the jury to take special care when evaluating the
credibility of cooperating witnesses. In sum, while there was
some false testimony offered in this case, we are convinced that
there is no reasonable likelihood that it procured Pearson’s
conviction.10
B. Apprendi issues
Pearson raises two arguments based on the reasoning of the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). First, he argues that the drug quantity used to
determine his sentence must be found by a jury rather than by the
10
We are even more convinced of this conclusion regarding
Timothy Brown, who adopts Pearson’s arguments on this issue.
Although there was some testimony against Brown that we would
fault, see supra note 9, the case against Brown was overwhelming
and included testimony from people other than cooperating felons.
30
sentencing judge, even though the sentence Pearson received was
below the statutory maximum. Second, he contends that 21 U.S.C.
§ 841(b) is unconstitutional. Pearson raises these arguments
here, as he did at trial,11 solely to preserve the issues for
possible further review; he admits that both arguments are
foreclosed by circuit precedent. See, e.g., United States v.
McIntosh, 280 F.3d 479, 484 (5th Cir. 2002) (“[N]o Apprendi
violation occurs where a fact used in sentencing that was not
alleged in an indictment and proved to a jury does not increase
the sentence beyond the statutory maximum.”); United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2001) (rejecting a
constitutional challenge to 21 U.S.C. § 841(b)).
V. FORFEITURE ISSUES
Betty Brown is the Brown brothers’ mother, and Tongula Veal
is Timothy’s common-law wife. Their appeal challenges the
forfeiture of some of the property connected to the Browns’ drug
enterprise. To the extent that their argument involves the
construction and constitutionality of the relevant federal
statutes, our review is de novo. United States v. Perez-Macias,
335 F.3d 421, 425 (5th Cir.), cert. denied, 124 S. Ct. 495
(2003); United States v. Rasco, 123 F.3d 222, 226 (5th Cir.
1997). To the extent that they would have the district court
excuse an untimely filing or permit an amended claim, our review
11
Timothy Brown, who joins in the Apprendi arguments, did
not raise them in the district court.
31
is for abuse of discretion. Cf. S.W. Bell Tel. Co. v. El Paso,
346 F.3d 541, 546 (5th Cir. 2003); Coburn Supply Co. v. Kohler
Co., 342 F.3d 372, 376 (5th Cir. 2003).
A. Relevant facts
The indictment included criminal forfeiture counts under 21
U.S.C. § 853 (criminal forfeiture of proceeds of drug crimes) and
18 U.S.C. § 982 (criminal forfeiture of property related to,
inter alia, money laundering offenses). After considering the
jury’s verdict and the evidence at trial, the district judge
found in the government’s favor on the forfeiture counts on
January 25, 2002. An initial order of forfeiture——encompassing
$800,000 in cash, two parcels of real property, and three
cars——was entered on February 4. The court’s order further
provided that any third parties claiming an interest in the
property must file a petition within thirty days of the date of
the final published notice of forfeiture or the date that the
party received actual notice, whichever came earlier. A notice
of the order of forfeiture was sent to Betty Brown by certified
mail on February 6, and she received it on February 8. Notice of
the order of forfeiture was also published in the local newspaper
three times, beginning on February 15 and ending on March 1.
On February 27, Brown and Veal filed separate innocent-owner
petitions on behalf of BLSB, Inc. and WWTO, Inc., respectively.
BLSB’s filing concerned one of the parcels of real property and
two cars; WWTO’s filing concerned one car. The petitions claimed
32
that the corporations were the “100% lawful owner[s]” of the
subject property. Each woman signed her petition on the
corporation’s behalf as “President and Sole shareholder.” The
district court, in an order dated March 5, refused to entertain
these petitions on the grounds that a corporation can only appear
through a licensed attorney. See S.W. Express Co. v. ICC, 670
F.2d 53, 55-56 (5th Cir. 1982). On March 14, Brown and Veal
jointly filed a document styled “Request for Extension of Time to
Employ Counsel.” On March 19, the district judge entered a
handwritten order stating, in full: “No order is required for the
corporations to engage the services of an attorney.”
Brown and Veal filed new innocent-owner petitions over seven
months later, on October 30, but this time in their individual
capacities. The women claimed to be the “100% lawful owner[s]”
of the subject property and stated that, “Property was acquired
lawfully through corporation owned solely by claimant and all
interest in property is vested [in] claimant.” The petitions
were accompanied by certificates of dissolution for BLSB and
WWTO, also dated October 30. The government responded to the new
petitions and, on March 24, 2002, the district court denied
Brown’s and Veal’s October 30 petitions as untimely, since they
were filed well over thirty days after notice of the forfeiture.
B. Analysis
Proceeding pro se on appeal, Brown and Veal argue that the
October 30 filings, in which the women asserted claims to the
33
property as individuals, operated as “amendments” to their
corporations’ timely February 27 filings. The later filings
therefore relate back to the earlier date and are thus also
timely, they contend.
According to the applicable forfeiture statute, a person
claiming a legal interest in property that has been ordered
forfeited “may, within thirty days of the final publication of
notice or his receipt of notice . . . whichever is earlier,
petition the court for a hearing” to adjudicate the claim. 21
U.S.C. § 853(n)(2) (2000).12 After the court rules on any
petitions, or if no such petitions are filed within the thirty-
day period, the government gains clear title to the property.
Id. § 853(n)(7). For Betty Brown, who received individual notice
of the forfeiture order, the thirty-day period began on February
8; for Veal, the period began on March 1. The appellants’
October 30 notices are therefore well outside the thirty-day
period provided in the statute.
It is true that the corporations’ February 27 filings were
within the statutory period, but there does not appear to be any
authority supporting the argument that the October 30 petitions
should be considered “amendments” that relate back to the earlier
filing date. The October 30 filings had nothing to “amend”
12
Only one of the indictment’s two forfeiture counts
arose under 21 U.S.C. § 853. The other forfeiture count arose
under 18 U.S.C. § 982, but it is likewise governed by the
procedures of 21 U.S.C. § 853. See 18 U.S.C. § 982(b)(1) (2000).
34
inasmuch as the original filings were so defective that the court
refused to consider them. Cf. Kansa Reins. Co. v. Cong. Mortgage
Corp. of Tex., 20 F.3d 1362, 1367 (5th Cir. 1994) (explaining, in
a case involving Federal Rule of Civil Procedure 15, that “in
order for an amended pleading to relate back for statute of
limitations purposes, there must be a previous pleading to which
the amendment dates back” (internal quotation marks omitted)).
Brown and Veal contend that were advised by an attorney to
file the original innocent-owner claims in the names of their
corporations. While it may be within the discretion of the
district court to look past an untimely filing when there is
excusable neglect - a matter as to which we express no opinion -
here over seven months passed from the court’s order rejecting
the corporate filings until the filing of the new petitions. The
district court did not err in denying the claims as untimely.
In addition to arguing that their innocent-owner petitions
were timely, Brown and Veal also contend that forfeiture of the
subject assets is unconstitutional because the federal government
lacks a general police power. This argument is without merit.
Since the Commerce Clause gives Congress the authority to punish
drug conspiracies such as the one involved in this case, see
supra III.B, Congress can also enact forfeiture statutes as a
necessary and proper means of effectuating that Commerce Clause
power. U.S. CONST. art. I, § 8, cl. 18; United States v. Curtis,
965 F.2d 610, 616 (8th Cir. 1992).
35
VI. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and
sentences of Christopher Brown, Timothy Brown, and Kenneth
Pearson. We also AFFIRM the district court’s denial of Betty
Brown’s and Tongula Veal’s innocent-owner claims.
36