United States v. Richard Brown, Jr. ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2343
___________________________
United States of America
Plaintiff - Appellee
v.
Richard Ladavid Brown, Jr., also known as Richard Lee David Brown, also known
as Junior Brown
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: June 16, 2023
Filed: December 13, 2023
____________
Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
____________
KELLY, Circuit Judge.
A jury found Richard Lee David Brown guilty of possession with intent to
distribute a controlled substance. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851.
Brown appeals his conviction, alleging multiple pre-trial and trial-related errors. We
affirm.
I.
At about 5:00 a.m. on November 18, 2020, law enforcement executed a search
warrant at an apartment on Clark Street, in Des Moines, Iowa.1 Brown, Kenny Smart,
and Smart’s girlfriend, Dionne Dibble, were present when officers arrived. Lisa
Harper, the tenant of the apartment, was not.
When officers first entered the apartment, they saw a man—Brown—running
towards the kitchen. They secured Brown, and then searched the three-bedroom
apartment.
In the first bedroom, officers found Smart, his tablet, a firearm and
ammunition, over a thousand dollars of cash belonging to Smart, and Dibble’s cell
phone. In the third bedroom, law enforcement found drugs—much of which was
later determined to be cocaine base—and drug paraphernalia. On the bed were drugs
in plastic bags, along with a hat, a jacket, and a cell phone with a blue case. No
fingerprints were found on this evidence, although law enforcement later testified
that finding identifiable prints on drug packaging is “[v]ery, very rare.” In a still shot
from a surveillance video taken of the apartment building the day before, Brown was
seen wearing a hat and jacket that looked like those found on the bed.
Later that day, Special Agent Brandon West interviewed Brown. Brown told
Agent West that he had stayed in the third bedroom the previous night. Brown also
described his cell phone and told Agent West his cell phone number, both of which
matched the phone found on the bed in the third bedroom. In Brown’s pocket, law
enforcement found $590 in cash, which they photographed.
Brown was indicted on one count of possession with intent to distribute
cocaine base. His first attorney was appointed in late November 2020, and Brown
requested—and received—his first continuance soon after his arraignment. Brown’s
1
The facts in this section are drawn from the record before us on appeal.
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first attorney was permitted to withdraw on February 18, 2021, and his second
attorney was appointed that same day. In October 2021, Brown’s second attorney
twice requested that trial be continued, but the district court2 denied these requests.
Brown’s second attorney was allowed to withdraw the following month, and the
court granted Brown a continuance “to provide the reasonable time necessary for
effective preparation.”
On December 1, 2021, Brown’s third attorney—who was ultimately Brown’s
trial counsel—was appointed. He initially represented to the court that he would be
ready for trial on January 31, 2022. But on January 3, 2022, he filed a motion to
continue trial, explaining that he had not appreciated the amount of discovery or the
extent of his client’s requests for additional investigation and in-person meetings.
The court denied the motion.3
Brown’s trial began on January 31, 2022. The government called Lometa
Welch as one of its witnesses. She testified that she went to the Clark Street
apartment on the morning that the search warrant was executed, “not long before”
the police arrived, to buy crack cocaine. She said she waited by the front door while
Lisa Harper got the crack from Brown. Welch claimed that she knew the crack came
from Brown because she heard Harper say his name when Harper went into the
bedroom, and Welch recognized Brown’s voice in response. The government also
introduced evidence of Brown’s two previous controlled substance related
convictions, as well as evidence related to Smart. The jury heard that Smart was
arrested on the day the Clark Street apartment was searched, and that he was charged,
tried, and found guilty of possession of a firearm as a felon and use of a firearm in
furtherance of a drug crime. The jury also heard that Smart not only sold drugs, but
2
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
3
Brown’s third attorney thereafter sought to withdraw, citing a breakdown in
the attorney client relationship, and Brown filed a pro se motion requesting the same.
After a hearing, the defense withdrew its request.
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that he did so out of the Clark Street apartment, where he also cooked cocaine
powder into cocaine base (or crack). As relevant on appeal, the government also
introduced into evidence the photograph of Brown’s cash and the still shot from the
surveillance video taken of the apartment building the day before the search that
captured Brown wearing the hat and jacket that looked like those found in the third
bedroom.
At the conclusion of the government’s case, Brown moved for judgment of
acquittal, which the court denied. He then asked that a “mere presence” instruction
be given to the jury, but the court denied the request. The jury returned a guilty
verdict. The district court denied Brown’s motion for a new trial, and sentenced him
to a 264-month term of imprisonment and 6 years of supervised release. He timely
appeals and raises multiple issues.
II.
As an initial matter, Brown moves to expand the record on appeal and asks us
to consider evidence not presented to the district court. But “[a]n appellate court can
properly consider only the record and facts before the district court and thus only
those papers and exhibits filed in the district court can constitute the record on
appeal.” United States v. Brewer, 588 F.3d 1165, 1171 n.4 (8th Cir. 2009) (quoting
Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556, 559–60 (8th Cir.
2008)); see Faidley v. United Parcel Serv. of Am., Inc., 889 F.3d 933, 942 n.7 (8th
Cir. 2018) (en banc); see also Fed. R. App. P. 10(a) (defining record on appeal).
Because the documents that Brown wants us to consider “were presented for
the first time on appeal, ‘they are not part of the record for our review,’ and we
cannot consider them.” C.N. v. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591
F.3d 624, 629 n.4 (8th Cir. 2010) (quoting Bath Junkie, 528 F.3d at 560); see
Midwest Fence Corp. v. U.S. Dep’t of Transp., 840 F.3d 932, 946 (7th Cir. 2016)
(“As a general rule, we will not consider evidence on appeal that was not before the
district court when it rendered its decision. Adding new evidence would essentially
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convert an appeal into a collateral attack on the district court’s decision.” (citations
omitted)); cf. Fed. R. App. P. 10(e)(2) (allowing errors in, and omissions from, the
record to be remedied in limited circumstances not present here). Consequently, we
deny Brown’s Amended Motion to Expand the Record on Appeal and we examine
his arguments based on the record that was before the district court.
III.
Brown argues that the government improperly introduced statements in which
he described his cell phone and provided his cell phone number to Agent West. He
asserts that their introduction was improper because he made these statements during
a custodial interrogation before he received any Miranda warning.
“[A] motion to suppress evidence [must] ‘be raised by pretrial motion if the
basis [for] the motion is then reasonably available and the motion can be determined
without a trial on the merits.’” United States v. Pickens, 58 F.4th 983, 987 (8th Cir.
2023) (quoting Fed. R. Crim. P. 12(b)(3)(C)) (considering issue in Fourth
Amendment context). When a party fails to show good cause for not raising
suppression in a pretrial motion, “[w]hether this issue is waived, or whether plain-
error review is available, is an unsettled question in our circuit.” Id. at 988(expressing the view that waiver is “the proper answer,” but nonetheless reviewing
suppression argument not raised to district court for plain error); see United States
v. Thornton, No. 22-2790, 2023 WL 4994508, at *2 (8th Cir. Aug. 4, 2023) (per
curiam) (unpublished) (reviewing defendant’s argument to suppress evidence
“under a plain-error standard,” when the argument was neither “raised by pretrial
motion, nor raised at all to the district court”).
Brown’s argument that his pre-Miranda statements should be suppressed was
not raised to the district court, and he has not offered good cause for his failure to do
so. Assuming without deciding that plain error review is available to Brown, we
review for plain error. See Pickens, 58 F.4th at 988 (first citing United States v. Hill,
8 F.4th 757, 760 (8th Cir. 2021) (per curiam); and then citing United States v.
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Bernhardt, 903 F.3d 818, 824 (8th Cir. 2018)). “To obtain relief . . . [Brown] must
show an obvious error that affected his substantial rights and seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Bernhardt, 903 F.3d
at 824–25 (citing United States v. Olano, 507 U.S. 725, 732 (1993)).
Our review of this issue is confined to the record before us on appeal, and
Brown’s argument relies on information outside that record. The evidence at trial—
and before us now—included testimony that soon after the officers entered the Clark
Street apartment, Brown was handcuffed. The record does not indicate when Brown
was given a Miranda warning or whether the Miranda warning was given before or
after the now-challenged statements were made. Because we can “properly consider
only the record and facts before the district court,” Brewer, 588 F.3d at 1171 n.4
(citation omitted), we cannot conclude the district court plainly erred in allowing the
statements into evidence.
IV.
Brown argues that, at trial, the government offered and relied on Lometa
Welch’s uncorrected false testimony, in violation of his Due Process rights. Because
he did not raise this issue at trial, we review for plain error. See United States v. Hill,
31 F.4th 1076, 1082–84 (8th Cir. 2022), cert. denied, 143 S. Ct. 1036 (2023).
Welch testified that she interacted with Lisa Harper at the Clark Street
apartment on the morning it was searched. Brown contends that this testimony is
false because, he claims, “Harper was not present at the residence that morning.”
The evidence supports the assertion that Harper was not at the apartment when the
officers executed the search warrant. But no evidence in the record supports the
assertion that Harper was not present at the apartment earlier that morning—before
the search warrant was executed. On this record, Brown has failed to show any error
that was plain.
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V.
Next, Brown challenges four of the district court’s evidentiary rulings. First,
its admission of two of Brown’s prior state convictions under Federal Rule of
Evidence 404(b): a 2014 conviction for possession of a controlled substance
(cocaine base) with intent to deliver, and a 2019 conviction for possession of
cocaine. Second, its exclusion of “reverse” 404(b) evidence about Smart. Third, its
admission of an exhibit showing money that had been returned to Brown before trial.
And fourth, its admission of Agent West’s testimony about the lack of fingerprints
found on contraband seized from the apartment.
A.
For evidence to be admissible under Rule 404(b) it must:
be (1) relevant to a material issue raised at trial, (2) similar in kind and
close in time to the crime charged, (3) supported by sufficient evidence
to support a jury finding the defendant committed the other act, and (4)
of probative value not substantially outweighed by its prejudicial effect.
United States v. LeBeau, 867 F.3d 960, 978–79 (8th Cir. 2017) (quoting United
States v. Halk, 634 F.3d 482, 486–87 (8th Cir. 2011)). “We review the admission of
evidence under Rule 404(b) for abuse of discretion.” United States v. Jones, 74 F.4th
941, 949 (8th Cir. 2023) (quoting United States v. Riepe, 858 F.3d 552, 559 (8th Cir.
2017)). We “revers[e] only when the evidence clearly had no bearing on the case
and was introduced solely to prove the defendant’s propensity to commit criminal
acts.” United States v. Abarca, 61 F.4th 578, 581 (8th Cir. 2023) (quoting United
States v. DNRB, Inc., 895 F.3d 1063, 1068 (8th Cir. 2018)).
Here, the government’s proposed uses of Brown’s prior convictions to prove
knowledge, motive, and intent “were not well-explained, and might prudently have
been omitted.” United States v. Monds, 945 F.3d 1049, 1052 (8th Cir. 2019). But
they were relevant to his “state of mind,” and to the elements of the charge brought
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against him. Jones, 74 F.4th at 950 (quoting United States v. Davis, 867 F.3d 1021,
1029 (8th Cir. 2017)). The convictions “thus had some ‘bearing on the case,’ and
w[ere] not used ‘solely to prove’ his ‘propensity to commit criminal acts.’” Abarca,
61 F.4th at 581 (quoting DNRB, 895 F.3d at 1068). Moreover, the district court’s
decision to provide a cautionary instruction before the 404(b) evidence was
introduced, as well as a final instruction to the same effect, lessened any unduly
prejudicial effect of the convictions. Cf. Monds, 945 F.3d at 1053 (discussing
cautionary instruction). The district court did not abuse its discretion.
B.
The “reverse” 404(b) evidence relates to Kenny Smart, who was present at the
Clark Street apartment on the morning of the search. “[R]everse” 404(b) evidence
“refer[s] to evidence of prior bad acts by a third party, introduced by the defendant
and offered to implicate the third party in the charged crime.” United States v. Battle,
774 F.3d 504, 512 & n.2 (8th Cir. 2014) (citing cases from the Fourth, Tenth,
Seventh, Sixth, Fifth, Ninth, and Third Circuits). Before trial, the district court ruled
that evidence pertaining to Smart that was related to the search at Clark Street was
admissible, but that it would exclude evidence of Smart’s prior convictions. Because
Brown objected to the exclusion of the “reverse” 404(b) evidence, we review the
district court’s decision for abuse of discretion. See Jones, 74 F.4th at 949. We “will
‘revers[e] only when an improper evidentiary ruling affected the defendant’s
substantial rights or had more than a slight influence on the verdict.’” United States
v. Vaca, 38 F.4th 718, 720 (8th Cir. 2022) (quoting United States v. Anderson, 783
F.3d 727, 745 (8th Cir. 2015)).
Here, we need not decide the propriety of the evidentiary ruling because there
is no indication that the exclusion of the “reverse” 404(b) evidence had more than a
slight influence on the verdict. Brown asserts that this exclusion prevented him from
raising questions about who in fact possessed the drugs found on the bed during the
search. As a result, he argues, he could not “sow doubt into the case against [him].”
But the record says otherwise. Smart did not testify at trial, but Brown was able to
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offer ample details about Smart and use that information to “sow doubt” as to who
possessed the drugs. Given the information about Smart that Brown put before the
jury, the exclusion of the “reverse” 404(b) evidence could have had no more than “a
slight influence on the verdict.”
C.
Next, Brown argues that a photograph of $590 in cash that was found in
Brown’s front pocket on the day of the search was improperly admitted. Because
Brown raises this issue for the first time on appeal, we review for plain error. United
States v. Torrez, 925 F.3d 391, 395 (8th Cir. 2019) (citing United States v. Lee, 374
F.3d 637, 649 (8th Cir. 2004)). Brown asserts that because this money was returned
to him before trial, the introduction of a photo of the cash at trial was unfairly
prejudicial. But Brown points to nothing in the record to support the assertion that
this cash was, in fact, returned to him. Even assuming it was, he does not explain
why the photo of the cash should be considered “impermissible . . . 404(b) evidence,”
as he asserts it to be. This rule of evidence limits the use of any “other crime, wrong,
or act.” Fed. R. Evid. 404(b)(1) (emphasis added). Yet the drugs found in the third
bedroom and the money found in Brown’s pocket were both seized on the day the
Clark Street apartment was searched. Brown has not explained how the challenged
evidence is evidence of any “crime, wrong, or act” that is separate from the acts
forming the basis for the charge against him. The district court did not plainly err in
admitting the exhibit.
D.
Brown argues that Agent West should not have been permitted to testify that
it was “[v]ery, very rare” to find identifiable prints on drug packaging. This
evidence, Brown argues, “goes into the territory of expert witness.” Because Brown
did not object to this testimony, we review for plain error. See United States v.
Yarrington, 634 F.3d 440, 447 (8th Cir. 2011) (“To preserve an argument that
evidence was improperly admitted, the party must have made specific objections
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before the district court.” (first citing United States v. Johnson, 450 F.3d 366, 371
n.2 (8th Cir. 2006); and then citing Fed. R. Evid. 103(a)(1))); United States v. Martin,
869 F.2d 1118, 1121–22 (8th Cir. 1989) (applying same standard in context of expert
testimony).
Even if the contested statement qualified as expert testimony, see Daubert v.
Merrell Dow. Pharms., Inc., 509 U.S. 579, 592–95 (1993); Fed. R. Evid. 702, any
error in its admission did not affect Brown’s substantial rights. Contrary to Brown’s
conclusory argument that Agent West’s statement “prevent[ed] the jury from a full
opportunity to fairly assess the actual evidence against [him],” the jury had ample
opportunity to assess the evidence presented at trial, including the fact that the
forensics lab was unable to locate or develop any identifiable fingerprints on this
evidence. There was no plain error.
VI.
Brown asserts the district court erred in denying his request for a “mere-
presence” instruction. We review for abuse of discretion. United States v. Franklin,
960 F.3d 1070, 1072 (8th Cir. 2020) (citing United States v. Solis, 915 F.3d 1172,
1178 (8th Cir. 2019) (per curiam)). “When reviewing jury instructions, we ensure
that the instructions, taken as a whole, fairly and adequately submitted the issues to
the jury.” United States v. Glinn, 863 F.3d 985, 988 (8th Cir. 2017) (citing United
States v. Merrell, 842 F.3d 577, 583 (8th Cir. 2016)). “A defendant is not entitled to
a particularly worded instruction on his theory of defense, but he should be given an
avenue to present his contention.” United States v. Drew, 9 F.4th 718, 725 (8th Cir.
2021) (quoting Franklin, 960 F.3d at 1072).
As the district court noted, the instructions, when taken together, allowed
Brown “the opportunity to argue [] what he [wa]s requesting to argue”: that he did
not knowingly possess the drugs and his mere presence was insufficient to support
conviction. “[T]he ‘unmistakable implication’” of Instruction 13, which addressed
constructive possession, was “that something more than mere presence was required
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in order to convict.” Franklin, 960 F.3d at 1072 (quoting United States v. Vore, 743
F.3d 1175, 1182 (8th Cir. 2014)); Drew, 9 F.4th at 725 (noting proposed mere-
presence instruction would have been duplicative of interlocking constructive- and
joint-possession definitions). And Final Instruction No. 10 required the government
to prove that Brown knowingly possessed a controlled substance and intended to
distribute some or all of it. Taken as a whole, the final instructions adequately
conveyed that more than mere presence was required to convict Brown. See Drew,
9 F.4th at 725; Franklin, 960 F.3d at 1072; United States v. Claxton, 276 F.3d 420,
424 (8th Cir. 2002) (noting “the district court might well have given the mere-
presence portion of the requested instruction,” but based on the circumstances of that
case, did not abuse its discretion in declining to do so).
VII.
Brown argues that he was denied a fair trial when the district court denied his
January 3, 2022, motion to continue the trial. “We review the denial of the motion
for a continuance for a prejudicial abuse of [the district court’s broad] discretion.”
United States v. Woods, 978 F.3d 554, 567 (8th Cir. 2020) (citation omitted); United
States v. Chahia, 544 F.3d 890, 896 (8th Cir. 2008) (recognizing “a ‘district court’s
discretion is at its zenith when the issue [of a continuance] is raised close to the trial
date’” (quoting United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007))).
But we will only reverse if an abuse of discretion occurred “and the moving party
was prejudiced as a result.” See Chahia, 544 F.3d at 896 (quoting United States v.
Wilcox, 487 F.3d 1163, 1172 (8th Cir. 2007)).
Brown’s argument in support of prejudice is twofold. First, he asserts that
“multiple theories of defenses were not explored (including securing the testimony
of Ms. Dionne Dibble).” But in the motion to continue, Brown did not mention
Dibble or any other witnesses or theories that the defense needed time to pursue.
Thus, any speculation now as to what Dibble’s testimony would have added to
Brown’s defense is “insufficient to demonstrate prejudice.” Chahia, 544 F.3d at 897(citations omitted); see United States v. Howard, 540 F.3d 905, 906–07 (8th Cir.
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2008) (determining district court did not err in denying defendant’s motion for
continuance because “[s]peculation is inadequate to establish prejudice”). Moreover,
Brown has failed to explain these unexplored defense theories or how a continuance
would have allowed him to develop them.
Second, Brown argues that prejudice is “illustrate[d]” by “any issues” that this
court finds were unpreserved. This argument is wholly conclusory, failing to
“meaningfully argue” how a continuance would have allowed him to preserve any
of these issues. See United States v. Williams, 39 F.4th 1034, 1045 n.3 (8th Cir.
2022) (citing Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007) (“[P]oints
not meaningfully argued in an opening brief are waived.”)).
Without more, Brown has failed to show that the denial of his motion to
continue resulted in prejudice. See Woods, 978 F.3d at 568.
VIII.
Brown appeals the denial of his motion for judgment of acquittal, which we
review de novo. United States v. Broeker, 27 F.4th 1331, 1335 (8th Cir. 2022). “[W]e
‘view[] the entire record in the light most favorable to the government, resolv[ing]
all evidentiary conflicts accordingly, and accept[ing] all reasonable inferences
supporting the jury’s verdict.’” Id. (quoting United States v. Aungie, 4 F.4th 638,
643 (8th Cir. 2021)). “We will reverse a district court’s denial of a motion for
acquittal only if there is no interpretation of the evidence that would allow a
reasonable jury to find the defendant guilty beyond a reasonable doubt.” Id. (cleaned
up).
“To convict a defendant of possession with intent to distribute a controlled
substance, the government must prove beyond a reasonable doubt that the defendant
‘both knowingly possessed and intended to distribute the drugs.’” United States v.
Campbell, 986 F.3d 782, 807 (8th Cir. 2021) (quoting United States v. Morales, 813
F.3d 1058, 1065 (8th Cir. 2016)). On appeal, Brown’s argument for reversal is
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cursory. It does not convince us that we should displace the role of the jury. See
United States v. Hollingshed, 940 F.3d 410, 417 (8th Cir. 2019). And, reviewing the
record, we are convinced that there was sufficient evidence from which a reasonable
jury could find each element of the offense beyond a reasonable doubt.
IX.
Brown also argues that the district court abused its discretion in denying his
motion for a new trial. “[T]he key question [is] whether a new trial is necessary to
prevent a miscarriage of justice.” Manning v. Jones, 875 F.3d 408, 410 (8th Cir.
2017) (citing Dindinger v. Allsteel, Inc., 853 F.3d 414, 421 (8th Cir. 2017)); see
Broeker, 27 F.4th at 1335 (stating abuse of discretion as standard of review).
“Federal Rule of Criminal Procedure 33(a) provides that a district court ‘may
vacate any judgment and grant a new trial if the interest of justice so requires.’”
Broeker, 27 F.4th at 1335. But such Rule 33 motions are “disfavored,” and we have
instructed district courts to exercise “Rule 33 authority sparingly and with caution.”
Id. (citations omitted). Indeed, new trials are “reserved for exceptional cases in
which the evidence preponderates heavily against the verdict.” United States v.
Stacks, 821 F.3d 1038, 1045 (8th Cir. 2016) (quoting United States v. Knight, 800
F.3d 491, 504 (8th Cir. 2015)). This case does not present us with that exceptional
circumstance.
At the district court, Brown argued he was entitled to a new trial based on the
failure to instruct the jury on “mere-presence” and the 404(b) rulings. We have
already examined these issues. To the extent Brown raises other alleged errors, these
were not presented to the district court. In any event, we have addressed these
arguments as well. Based on the record before us, the evidence does not weigh so
heavily against the verdict such that a miscarriage of justice may have occurred, and
consequently “[t]he jury’s verdict must be allowed to stand.” United States v.
Sturdivant, 513 F.3d 795, 802 (8th Cir. 2008) (quoting United States v. Johnson, 474
F.3d 1044, 1051 (8th Cir. 2007)).
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X.
Brown asserts that his trial counsel provided ineffective assistance. “We
normally defer ineffective-assistance claims to 28 U.S.C. § 2255 proceedings.”
United States v. Oliver, 950 F.3d 556, 566 (8th Cir. 2020) (citing United States v.
McAdory, 501 F.3d 868, 872–73 (8th Cir. 2007)) “There may be cases in which trial
counsel’s ineffectiveness is so apparent from the record that appellate counsel will
consider it advisable to raise the issue on direct appeal.” Massaro v. United States,
538 U.S. 500, 508 (2003). But this is not such a case.
First, the evidence underlying Brown’s ineffective assistance claim is not
sufficiently developed to allow direct appeal review. See Oliver, 950 F.3d at 566
(“A developed record in the ineffective-assistance context requires that ‘the district
court . . . created a record on the specific issue of ineffective assistance.’” (quoting
United States v. Wilder, 597 F.3d 936, 944 (8th Cir. 2010))). Second, Brown’s
ineffective assistance arguments ask this court to evaluate, inter alia, trial counsel’s
strategic decisions both before and during trial. Brown’s “claims, complex and
intertwined with trial strategy, are best left for a 28 U.S.C. § 2255 proceeding.”
United States v. Thompson, 690 F.3d 977, 993 (8th Cir. 2012). “For these reasons,
this is not one of the ‘exceptional cases’ in which an ineffective-assistance claim is
ripe for review on direct appeal.” Oliver, 950 F.3d at 567 (quoting United States v.
Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011)).
XI.
Finally, Brown argues for reversal based on the cumulative effect of his
asserted errors. Where none of a defendant’s “claimed errors is itself sufficient to
require reversal,” we may reverse “where the case as a whole presents an image of
unfairness that has resulted in the deprivation of a defendant’s constitutional rights.”
United States v. Riddle, 193 F.3d 995, 998 (8th Cir. 1999) (citing United States v.
Steffen, 641 F.2d 591, 598 (8th Cir. 1981)); see United States v. Tyerman, 701 F.3d
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552, 565 (8th Cir. 2012). Based on the record before us, such relief is not appropriate
here.
XII.
We affirm the judgment of the district court.
GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.
In Part III, ante at 5-6, the court addresses Brown’s argument that the
Government improperly introduced statements that he made during a custodial
interrogation before he received a Miranda warning. Brown did not file a pretrial
motion to suppress these statements. The court assumes without deciding that we
nevertheless may review for plain error Brown’s suppression arguments first raised
on appeal. Respectfully, I would not make the same assumption.
Suppression issues must “be raised by pretrial motion if the basis for the
motion is then reasonably available and the motion can be determined without a trial
on the merits.” Fed. R. Crim. P. 12(b)(3)(C). If a defendant fails to make a timely
suppression motion, a court may consider the matter “if the party shows good cause.”
Fed. R. Crim. P. 12(c)(3). In this case, it is undisputed that the basis for the
suppression argument Brown raises on appeal was reasonably available pretrial.
Brown also does not attempt to show good cause for failing properly to raise the
issue in the district court.
Before the 2014 amendment to Rule 12, we would have deemed Brown’s
suppression arguments waived and refused to consider them. See, e.g., United States
v. Green, 691 F.3d 960, 963-65 (8th Cir. 2012). This was, in part, because the pre-
amendment version of Rule 12 expressly stated that a party waives an untimely Rule
12(b)(3) argument absent good cause. The 2014 amendment removed this reference
to waiver. Since then, our cases have grappled with whether unpreserved
suppression issues are waived or whether we might review them for plain error. See,
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e.g., United States v. Hill, 8 F.4th 757, 760 (8th Cir. 2021) (assuming without
deciding the availability of plain-error review).
The matter remained unresolved until our decision in United States v. Pickens,
58 F.4th 983 (8th Cir. 2023). In Pickens, we surveyed the history described above,
noted that the issue was “unsettled,” and then decided the question. Id. at 987-89.
We held that, after the amendment to Rule 12, “waiver continues to be the proper
answer.” Id. at 988. We reasoned that applying the waiver rule prevents undesirable
trial gamesmanship: “If a suppression issue is raised and determined before trial,
the trial goes forward with the government introducing whatever evidence is not
suppressed. Here, the trial went forward with evidence Pickens now claims should
have been suppressed, and the remedy he requests for his untimeliness is an
acquittal!” Id.; see also Davis v. United States, 411 U.S. 233, 241 (1973).
The court wrongly discounts Pickens’s resolution of the issue. See ante at 5
(characterizing Pickens as merely “expressing [a] view”). The views of prior panels
bind us. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc)
(“It is a cardinal rule in our circuit that one panel is bound by the decision of a prior
panel.”). I would follow that cardinal rule here. It is true that, after reaching the
conclusion that Pickens’s arguments were waived, we “alternatively review[ed] for
plain error” due to our prior cases’ “inconsisten[cy].” Pickens, 58 F.4th at 988. But
the fact that Pickens conducted plain-error review in the alternative does not render
its holding on the waiver issue any less binding. See Massachusetts v. United States,
333 U.S. 611, 623 (1948) (explaining that where a decision “rested as much upon
the one determination as the other . . . the adjudication is effective for both”); United
States v. Files, 63 F.4th 920, 926 (11th Cir. 2023) (“[A]lternative holdings are as
binding as solitary holdings.” (internal quotation marks omitted)).
Beyond its binding effect, Pickens’s reasoning was sound. The Advisory
Committee made clear that removal of the term “waiver” did not render untimely
suppression motions subject to plain-error review. See United States v. Vance, 893
F.3d 763, 769 n.5 (10th Cir. 2018). Instead, the Advisory Committee’s stated
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purpose was to clarify that, “[a]lthough the term waiver in the context of a criminal
case ordinarily refers to the intentional relinquishment of a known right,” Rule 12
“has never required any determination that a party who failed to make a timely
motion intended to relinquish a defense, objection, or request that was not raised in
a timely fashion.” Advisory Committee’s Notes on 2014 Amendments to Fed. R.
Crim. P. 12.
Reviewing unpreserved suppression issues for plain error would make little
sense, as this case demonstrates. Without a timely motion, the record will rarely be
developed enough for even plain-error review. Here, for example, the court
concludes that the district court did not plainly error in allowing the introduction of
the challenged statements because the “record does not indicate when Brown was
given a Miranda warning or whether the Miranda warning was given before or after
the now-challenged statements were made.” Ante at 6. I would not engage in the
vacuous enterprise of reviewing a nonexistent record for plain error.
In sum, Pickens dictates that Brown waived his suppression arguments.
Because Part III of the court’s opinion does not treat Pickens at controlling, I do not
join it. I concur in the remainder of the court’s opinion and in the judgment.
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