United States v. Korrigan Brown

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10339
________________________
D.C. Docket No. 1:12-cr-20953-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KORRIGAN BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 4, 2015)
Before CARNES, Chief Judge, MARTIN, Circuit Judge, and THAPAR, District
Judge. *
*
Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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PER CURIAM:
After a five-day trial at which he presented a defense of not guilty by reason
of insanity, Korrigan Brown was convicted of conspiracy to commit Hobbs Act
robbery, Hobbs Act robbery, and using a firearm during a crime of violence. He
challenges his convictions and his sentence.
I.
On December 14, 2012, Brown called his childhood friend Lamel Lattimore
and asked him to come over to his house. At Brown’s house Lattimore agreed to
drive the car while they committed a robbery. They drove to another friend’s
house, and Brown borrowed a firearm from him and put it in a backpack. Brown
and Lattimore met up with Nathan Holmes, who had committed armed robberies
with Brown “more than three times” before. Holmes agreed to participate in a
robbery that day, went into his house and retrieved his firearm, and left in the car
with Lattimore and Brown.
They drove to a Chevron station in Miami Beach, but their armed robbery
attempt ended unsuccessfully when an employee summoned the police, causing
them to flee without any money. The Chevron robbery was recorded on
surveillance video.
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Because that robbery attempt was unsuccessful, the three men tried again at
a Wendy’s restaurant in Hialeah. Lattimore parked the car at Wendy’s, and Brown
and Holmes got out with their firearms and the backpack. After they entered
Wendy’s, Brown pointed his firearm at the cashier and told him to open the cash
registers. The cashier handed Brown the money from the registers, which he put in
his backpack. Brown and Holmes ran out of the restaurant. That robbery was also
recorded on surveillance video.
As the three men pulled away in Lattimore’s car, a witness called 911 and
reported that the Wendy’s had just been robbed and the robbers were fleeing in a
gray car. Responding to the 911 call, Officer Orlando Salvat began following
Lattimore’s car and eventually stopped it. The dispatcher confirmed, based on
information from the 911 caller who was watching the events unfold, that it was
the car with the Wendy’s robbers in it. Based on that information, Salvat drew his
gun and ordered everyone in the car to get out and put their hands on the roof of
the car. Lattimore and Holmes complied. Brown exited the car and fled, carrying
the backpack. Salvat and another officer who had arrived at the scene fired shots
at Brown but missed. Brown kept running. He was eventually apprehended by
officers using a K-9 and tasers.
In the truck where Brown had been hiding, there was a backpack, a pair of
gloves, and a cell phone. The cell phone’s call records later showed that it had
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been used to make a call to Lattimore on the morning of the robberies and to make
calls while it was being transported toward the Chevron just before that first
robbery. A t-shirt with a bloodstain was later found in Lattimore’s car; the DNA in
the blood matched Brown’s.
A superseding indictment charged Brown, Lattimore, and Holmes with
conspiracy to commit Hobbs Act robbery (Count 1) as well as the Hobbs Act
robberies of the Chevron (Count 2) and the Wendy’s (Count 4), all in violation of
18 U.S.C. 1951(a), 1 and use of a firearm during a crime of violence (Counts 3 &
5), in violation of 18 U.S.C. § 924(c)(1)(A). Brown pleaded not guilty and
provided notice under Fed. R. Crim. P. 12.2, stating that he intended to rely on an
insanity defense at trial. Lattimore and Holmes pleaded guilty and later testified at
Brown’s trial.
1
Hobbs Act robbery includes an “attempt,” which encompasses a robbery in which the
robber fails to get anything of value, as in the Chevron robbery. The statute provides:
Whoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or threatens physical violence to any
person or property in furtherance of a plan or purpose to do anything in violation
of this section shall be fined under this title or imprisoned not more than twenty
years, or both.
18 U.S.C. § 1951(a) (emphasis added).
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Brown’s trial lasted five days. Defense counsel admitted during voir dire
and in his opening statement that Brown had participated in the robberies, but he
asserted that Brown was insane. Despite counsel’s admission, the parties did not
stipulate to all of the elements of Hobbs Act robbery. They did stipulate that the
Chevron and Wendy’s were businesses operating in foreign commerce and that the
robbery of them had “obstructed, delayed and affected interstate and foreign
commerce.” See 18 U.S.C. § 1951(b)(3) (defining “commerce” as used in the
statute as interstate or foreign commerce).
The government called ten witnesses: employees from the Chevron station
and the Wendy’s, officer Salvat and the K-9 officer, a police ID technician, a
criminologist, an FBI agent, a cell phone records custodian, and Brown’s co-
conspirators Lattimore and Holmes. Defense counsel cross-examined the
government’s witnesses. Most of his questions were related to mental illness and
the insanity defense, but not all of them. Some of them were about factual matters
such as: why Officer Salvat decided to stop the defendants’ car even though it did
not match the description given by dispatch (a Honda, not a Nissan; gray, not
“dark”); whether any firearm, clothing, or “masking equipment” was found in the
police-marked perimeter where Brown had fled after the car was stopped; and
whether the cell phone data revealed who possessed the cell phone that was alleged
to be Brown’s at the time of the robberies. Defense counsel also attempted to
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establish through cross-examination that the firearm Brown was carrying was not
loaded.
Brown moved for a judgment of acquittal at the close of the government’s
case, asserting that it had failed to prove its case. After that motion was denied,
Brown called six witnesses in an attempt to establish his insanity defense: his
stepfather, his mother, his friend, the mother of that friend, and two mental health
experts. Both of the experts testified that they had diagnosed Brown with bipolar
disorder. The government presented a mental health expert who testified that
Brown was malingering and had shown no signs of bipolar disorder.
In his closing argument, defense counsel once again admitted that Brown
had participated in the robberies, said that the only issue was whether he was
insane at the time the crimes were committed, and argued that clear and convincing
evidence established Brown’s insanity. For each of the five counts, the verdict
form contained three options: guilty, not guilty, and not guilty by reason of
insanity. The jury found Brown guilty on all counts. It also specifically found that
Brown used or carried a firearm in relation to the robberies, that he possessed it in
furtherance of the crimes, and that he had brandished it.
Brown was subject to mandatory minimum consecutive sentences on the
firearms convictions. The district court imposed a total sentence of 435 months
imprisonment. This is Brown’s appeal.
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II.
Brown contends that the district court erred in rejecting his proposed jury
instructions about the burden of proof on the insanity defense and about the
mandatory minimum punishment he faced if convicted. “We review a district
court’s refusal to give a requested jury instruction for abuse of discretion.” United
States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir. 2006) (quotation marks
omitted). “A district court’s refusal to give a requested instruction is reversible
error if (1) the requested instruction was a correct statement of the law, (2) its
subject matter was not substantially covered by other instructions, and (3) its
subject matter dealt with an issue in the trial court that was so important that failure
to give it seriously impaired the defendant’s ability to defend himself.” Id.A.
Brown acknowledges that the Insanity Defense Reform Act of 1984
establishes that insanity is an affirmative defense and that a defendant has the
burden of proving it by clear and convincing evidence. See 18 U.S.C. § 17. That
statute, titled “Insanity Defense,” provides:
(a) Affirmative defense. — It is an affirmative defense to a
prosecution under any Federal statute that, at the time of the
commission of the acts constituting the offense, the defendant, as a
result of a severe mental disease or defect, was unable to appreciate
the nature and quality or the wrongfulness of his acts. Mental disease
or defect does not otherwise constitute a defense.
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(b) Burden of proof. — The defendant has the burden of proving the
defense of insanity by clear and convincing evidence.
Id.The district court gave the Eleventh Circuit Pattern Jury Instruction on
the insanity defense, which basically tracks the statute. See 11th Cir. PJI –
Criminal 15 (2010). The district court instructed the jury as follows:
Now, there is an issue about the Defendant’s sanity when the charged
offense occurred. If you find beyond a reasonable doubt that the
Defendant committed the offense, you must consider whether the
Defendant was “not guilty only by reason of insanity.”
A defendant is “insane” only if the defendant is unable because of
severe mental disease or defect to appreciate the nature and quality or
wrongfulness of an act. But mental disease or defect does not
otherwise constitute a defense.
On the issue of insanity, it is the Defendant who must prove his
insanity by clear and convincing evidence. Clear and convincing
evidence is evidence sufficient to persuade you that the Defendant’s
claim is highly probable. It is a higher standard of proof than a
preponderance of the evidence, but less exacting than proof beyond a
reasonable doubt.
A “preponderance of the evidence” is enough evidence to persuade
you that the Defendant’s claim is more likely true than not true.
If the defendant proves insanity by clear and convincing evidence,
then you must find the Defendant not guilty only by reason of
insanity.
So there are three possible verdicts: Guilty, not guilty, and not guilty
only by reason of insanity.
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The proposed instruction that Brown submitted to the district court, which
the court rejected, was: “On the issue of insanity, the Defendant must be proven
sane at the time of the charged offense beyond a reasonable doubt, as previously
defined in these instructions.” Brown argues that after he produced “some
evidence” to support his insanity defense, the government should have had the
burden of proving beyond a reasonable doubt that he was not insane when he
committed the crimes. He argues that shifting the burden to him after he had
produced some evidence of his insanity was a due process violation because the
government was relieved of having to prove every element of the charged offenses.
Brown’s proposed jury instruction would have put the insanity burden of
proof on the government, which is contrary to the plain language of 18 U.S.C.
§ 17. In effect, the instruction would have made sanity an element of the charged
offenses. Put another way, the instruction he wanted was: The government must
prove beyond a reasonable doubt that Brown was sane at the time he committed
the charged offenses because Brown has presented some evidence that he suffered
from mental illness.
This Court has already held that putting the burden of proof on the defendant
to prove insanity by clear and convincing evidence, as 18 U.S.C. § 17 does, is
constitutionally permissible. United States v. Freeman, 804 F.2d 1574, 1576 (11th
Cir. 1986). The plain language of § 17 and the Freeman decision foreclose
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Brown’s arguments about the jury instructions he requested. The jury instructions
that the court gave did not relieve the government of its burden of proving every
element of the charged crimes (except to the extent of Brown’s stipulation about
interstate or foreign commerce). The district court did not err by refusing to give
Brown’s requested instruction on the burden of proof.
B.
Brown also contends that the district court erred by refusing to give another
instruction he requested, which stated as follows:
You must never consider punishment in any way to decide whether
the Defendant is guilty. If you find the Defendant guilty, the
punishment, aside from any mandatory minimum, is for the Judge
alone to decide later.
If you find the Defendant not guilty only by reason of insanity at the
time of the offenses charged, he will be committed to a suitable
facility until such time as he is eligible for release.
(Emphasis added.) The district court rejected that proposed instruction as an
incorrect statement of the law and instead instructed the jury: “You must never
consider punishment in any way to decide whether the Defendant is guilty. If you
find the Defendant guilty, the punishment is for the judge alone to decide later.”
Except in certain narrow circumstances, a jury should not be instructed on
the consequences of finding a defendant not guilty by reason of insanity. See
United States v. Thigpen, 4 F.3d 1573, 1575 (11th Cir. 1993) (en banc) (holding
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that a defendant is not entitled to an instruction informing the jury of the
commitment procedure in the Insanity Defense Reform Act “unless necessary to
cure an erroneous view of the consequences of a not guilty by reason of insanity
verdict due to inadmissible evidence or improper argument at the defendant’s
trial”); see also Shannon v. United States, 512 U.S. 573, 575, 114 S. Ct. 2419,
2422 (1994) (holding that a district court is not “required to instruct the jury
regarding the consequences to the defendant of a verdict of ‘not guilty by reason of
insanity,’ either under the Insanity Defense Reform Act of 1984 or as a matter of
general federal practice”). Nor should a jury be instructed about a mandatory
minimum sentence. Shannon, 512 U.S. at 586-87, 114 S. Ct. at 2248 (“[A]s a
general matter, jurors are not informed of mandatory minimum or maximum
sentences, nor are they instructed regarding probation, parole, or the sentencing
range accompanying a lesser included offense.”); Thigpen, 4 F.3d at 1577 (“[T]he
punishment provided by law for offenses charged is a matter exclusively for the
court and should not be considered by the jury in arriving at a verdict as to guilt or
innocence.”) (quotation marks omitted).
Brown argues that he falls within an exception to those general rules — an
exception the Supreme Court mentioned in dicta in its Shannon opinion. The
Court observed that, although district courts are generally not required to give an
instruction about the confinement that awaits a defendant found not guilty by
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reason of insanity, there could be circumstances in which some kind of instruction
about it might be necessary. The Court stated:
If, for example, a witness or prosecutor states in the presence of the
jury that a particular defendant would “go free” if found NGI, it may
be necessary for the district court to intervene with an instruction to
counter such a misstatement. The appropriate response, of course, will
vary as is necessary to remedy the specific misstatement or error. We
note this possibility merely so that our decision will not be
misunderstood as an absolute prohibition on instructing the jury with
regard to the consequences of an NGI verdict.
512 U.S. at 587–88, 114 S. Ct at 2428.
Brown contends that certain testimony that was given by a mental health
expert at his trial made necessary his proposed instruction about the consequences
of the jury’s verdict and that the district court abused its discretion by not giving it.
Brown’s own mental health expert, Dr. Holmes, was testifying on cross-
examination about a psychological test (Millon Clinical Multitaxial Inventory) that
is used to determine if a defendant is “malingering or faking.” She testified that
the Millon test, which she gave to Brown, “has built-in validity skills to tell if
somebody is faking good or faking bad, in laymen’s terms.” Then she explained
what that meant, and in the course of that explanation she mentioned “a downward
departure”:
Faking bad is you are faking in criminal court for a downward
departure, for insanity, and you check off every mental illness there is,
which would then spike you on the part that says you are faking bad.
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(Emphasis added.)
Later, after Dr. Holmes had finished testifying, the government’s expert Dr.
Bugias was testifying on direct examination when he mentioned a “downward
departure from the sentencing guidelines”:
Q. What is forensic psychology?
A. Applying psychology to a legal question.
As I mentioned earlier, the more frequent questions that the Court
asks are whether somebody is competent to stand trial, and probably
secondary, whether somebody is insane at the time of the offense, and
to a lesser degree, infrequently, other questions of competency for
Miranda rights, competency for self representation, pro se, risk
assessment.
In State Court those are mitigating circumstances, those things that
would allow for departure down from the sentencing guidelines.
Those are some of the issues.
(Emphasis added.) On cross-examination, Dr. Buigas testified as follows:
Q. You agree with me -- you made the comment earlier “downward
departure from the sentencing guidelines.” Do you recall that?
A. Yes.
Q. What that means in federal criminal court if somebody is
convicted, Judge Cohn or any U.S. District Judge, under appropriate
circumstances, can downward depart from a recommended –
The government objected to that line of questioning, and the court sustained the
objection on relevance grounds.
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This case does not fit within the Shannon opinion’s dicta. Neither Dr.
Holmes nor Dr. Buigas stated or implied that if found not guilty by reason of
insanity Brown would “go free,” Shannon, 512 U.S. at 587–88, 114 S. Ct at 2428.
As a result, the district court did not abuse its discretion in declining to give
Brown’s requested jury instruction about the confinement or punishment
consequences of its verdict. See, e.g., Pope v. United States, 298 F.2d 507, 508
(5th Cir. 1962) (“To inform the jury that the court may impose minimum or
maximum sentence, will or will not grant probation, when a defendant will be
eligible for a parole, or other matters relating to disposition of the defendant, tend
to draw the attention of the jury away from their chief function as sole judges of
the facts, open the door to compromise verdicts and to confuse the issue or issues
to be decided.”).2
III.
Brown next contends that the district court erred by limiting his cross-
examination of the government’s mental health expert, Dr. Buigas, on the subjects
of punishment and prison medical records. We review only for an abuse of
discretion whether the district court erred in limiting the scope of a defendant’s
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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cross-examination. United States v. Khan, 794 F.3d 1288, 1301 (11th Cir. 2015).
Even though the Confrontation Clause safeguards confrontation rights, “[d]istrict
courts retain wide latitude to impose reasonable limits on cross-examination based
on concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or only marginally
relevant.” Id. (ellipses and quotation marks omitted). “We review a preserved
Confrontation Clause claim de novo and also review de novo the question of
whether hearsay statements are testimonial for purposes of the Confrontation
Clause.” United States v. Wilson, 788 F.3d 1298, 1316 (11th Cir. 2015) (citation
and quotation marks omitted).
A.
The district court did limit defense counsel’s cross-examination of Dr.
Buigas about his passing reference to “a downward departure from the sentencing
guidelines.” The court ruled that cross-examination on that subject was irrelevant.
“[A] defendant can only cross-examine a prosecution witness if the information
sought to be elicited is relevant.” United States v. Maxwell, 579 F.3d 1282, 1296
(11th Cir. 2009) (alteration and quotation marks omitted). “And the district court
enjoys wide latitude to impose reasonable limits on cross-examination based on,
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among other things, confusion of the issues and interrogation that is repetitive or
only marginally relevant.” Id. (quotation marks omitted).
As we have already explained, it is well established that a jury should not
consider the sentencing consequences of its verdict. See Rogers v. United States,
422 U.S. 35, 40, 95 S. Ct. 2091, 2095 (1975) (stating that a jury has “no sentencing
function and should reach its verdict without regard to what sentence might be
imposed”); United States v. Del Toro, 426 F.2d 181, 184 (5th Cir. 1970) (“The jury
is to find guilt or innocence on the basis of the legal standards set out in the
Judge’s charge, and the consequence in terms of punishment is a matter for
Congress on mandatory sentences or for the Court within limits fixed by the
statute.”). There was no implication in the testimony of any witness that Brown
would “go free” if the jury found him not guilty by reason of insanity. Under the
circumstances, the district court did not abuse its discretion by preventing Brown
from cross-examining Dr. Buigas about the punishment Brown faced if convicted.
B.
Brown also contends that his Sixth Amendment rights were violated when
Dr. Buigas testified that Brown’s prison medical records indicated that during his
interviews with the prison psychologist or medical staff he had not mentioned that
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he suffered from mental illness.3 “We review a preserved Confrontation Clause
claim de novo and also review de novo the question of whether hearsay statements
are testimonial for purposes of the Confrontation Clause.” United States v.
Wilson, 788 F.3d 1298, 1316 (11th Cir. 2015) (citation and quotation marks
omitted).
Dr. Buigas testified on direct examination that he had reviewed Brown’s
Bureau of Prisons file in the course of assessing Brown’s mental health. He
explained that all inmates are given a “psychological intake form” and undergo
screening when they come into the prison. Defense counsel objected, asserting
that Dr. Buigas’ “continuing narrative” was not relevant, and the court sustained
that objection. Then the following exchange occurred:
BY MS. PERWIN [AUSA]:
Q. When the Defendant was interviewed, was it close to when he
arrived at FDC back in December?
A. It was.
Q. Did he report any mental illness?
MR. HOULIHAN: Objection, under Crawford.
3
Brown asserts in passing a Fifth Amendment challenge, but he did not object on that
ground in the district court, and he does not flesh out the argument in his briefs to this Court.
As a result, it is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014).
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MS. PERWIN: This forms part of the records reviewed by this
witness.
THE COURT: Overruled.
THE WITNESS: Yes, he was seen by a staff psychologist.
BY MS. PERWIN:
Q. Did he report mental illness?
A. He denied a history of mental illness.
Q. Did he report any hallucinations?
A. He denied auditory and visual hallucinations.
Q. Did he report having grandiose delusions or beliefs?
A. He said delusions were not elicited, no.
Brown’s statements were not testimonial because they were made to medical
and administrative personnel as part of a routine prison intake process and were not
made for the purpose of being used later at trial. See Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309, 129 S. Ct. 2527, 2531 (2009) (stating that the
Confrontation Clause “guarantees a defendant’s right to confront those who bear
testimony against him”) (quotation marks omitted); Crawford v. Washington, 541
U.S. 36, 51–52, 124 S. Ct. 1354, 1364 (2004) (describing categories of testimonial
statements). We have explained that “[t]estimonial statements include statements
that are the functional equivalent of in-court testimony, such as affidavits,
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depositions, prior testimony and statements that were made under circumstances
which would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial.” United States v. Curbelo, 726 F.3d
1260, 1272 (11th Cir. 2013) (quotation marks omitted). Brown’s prison medical
records do not fit into that category of statements. Furthermore, before Dr. Buigas
testified, Brown’s own expert Dr. Holmes testified that none of Brown’s prior
medical or educational records referred to any mental illness. Brown’s
confrontation rights were not violated by the admission of Dr. Buigas’ testimony
about Brown’s prison medical records.
IV.
Brown also contends that the district court plainly erred by not calling on
him to give a rebuttal closing argument, and also by not finding and correcting
prosecutorial misconduct during the government’s closing argument.
A.
Brown contends that the district court violated procedural, fair trial, and due
process requirements because it did not give him a rebuttal closing argument. He
argues that he bore the burden of the sole issue at trial — sanity — and that the
purposes of Fed. R. Crim. P. 29.1 were not served because he had no chance to
respond to the government’s rebuttal argument, giving the government the last
word on the subject on which he bore the burden of proof.
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What Brown really means is that the district court plainly erred by not
calling on him to give a rebuttal (or “surrebuttal”) argument, which he did not
request. Rule 29.1 gives the government the last word in closing arguments, and
there is no precedent from the Supreme Court or this Court holding that Rule 29.1
does not apply just because a defendant asserts an insanity defense. It follows that
any error was not plain. See United States v. Pantle, 637 F.3d 1172, 1174–75
(11th Cir. 2011) (“In order to be plain enough for the plain error rule, an asserted
error must be clear from the plain meaning of a statute or constitutional provision,
or from a holding of the Supreme Court or this Court.”) (quotation marks
omitted).4 We need not address the other requirements of the plain error rule.
B.
Brown contends that the prosecutor made impermissible comments during
her closing argument, demeaned the defense and defense witnesses,
mischaracterized evidence, and vouched for the credibility of government
4
Although it has no bearing on our plain error review, we note that the Second and
Eighth Circuits have held that a district court is not required to give a defendant a rebuttal
closing argument just because he asserts an insanity defense. See United States v. Garcia, 94
F.3d 57, 63 (2d Cir. 1996) (“[A]t the time of the IDRA’s enactment, and during the period of
more than a decade that has passed since, Congress could have provided that a defendant
asserting an insanity defense under the IDRA be afforded rebuttal closing argument had
Congress deemed it appropriate to do so. It did not and we decline to read into the unambiguous
language of Rule 29.1 such a provision.”); United States v. Byrd, 834 F.2d 145, 147 (8th Cir.
1987) (holding that the district court did not err by denying the defendant an opportunity to have
a rebuttal argument on the issue of insanity).
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witnesses. None of which Brown objected to. So we review only for plain error.
See United States v. Merrill, 513 F.3d 1293, 1306-07 (11th Cir. 2008) (“[W]ith
respect to a prosecutor’s statements made during closing where the defendant did
not raise this objection at trial, we review only for plain error that is so obvious that
failure to correct it would jeopardize the fairness and integrity of the trial.”)
(quotation marks omitted).
Brown asserts that it was plain error for the district court to allow the
prosecutor to say in her in closing and in rebuttal closing arguments that his
insanity defense was based on the testimony of experts who were “hired and paid
for” by the defense and that those experts based their diagnosis of mental illness on
Brown’s statements to them, even though he was “the person who stood to gain the
most” from being found insane. All of that was, of course, true. Both the defense
and the government’s experts testified on cross-examination that they were being
paid for their services and that their evaluations were based mainly on statements
made by Brown and his family and friends. And Brown was the one who had the
most to gain from being found insane, which is why he pleaded that defense.
Not only that, but in his closing argument Brown’s counsel attacked the
credibility of the government’s expert, pointing to his testimony that he had made a
mistake in his expert report, he was not board certified, and he was “overworked.”
Counsel argued: “Where does this guy come from? He works for the Federal
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Government, works for insurance companies in private practice. Remember he
told you, independent medical examiner. So he gets people — insurance
companies don’t have to pay for whatever jury they have, okay, he will go along
with it, like he went along with it here.” The district court did not plainly err by
not acting on its own to stop the prosecutor’s arguments about credibility. See
United States v. Eley, 723 F.2d 1522, 1526 (11th Cir. 1984) (“Defense counsel in
this case attacked the credibility of the government’s witnesses and, in response,
the prosecutor was entitled to argue fairly to the jury the credibility of the
government and defense witnesses.”). Brown has shown no “error that is so
obvious that failure to correct it would jeopardize the fairness and integrity of the
trial.” Merrill, 513 F.3d at 1306–07 (quotation marks omitted). 5
V.
Brown also challenges his sentence, contending that the district court clearly
erred by refusing to grant him a two-level reduction in his offense level for
acceptance of responsibility. “The district court’s determination of whether a
defendant is entitled to a reduction for acceptance of responsibility under
§ 3E1.1(a) is a finding of fact that is entitled to great deference on appeal and will
5
Brown also makes a cumulative error argument, but it fails because he has failed to
establish that there were any errors.
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not be disturbed unless clearly erroneous.” United States v. Frank, 247 F.3d 1257,
1259 (11th Cir. 2001).
If a defendant “clearly demonstrates acceptance of responsibility for his
offense,” the district court may choose to reduce the offense level by two levels.
U.S.S.G. § 3E1.1(a). The commentary to that guideline explains: “The sentencing
judge is in a unique position to evaluate a defendant’s acceptance of responsibility.
For this reason, the determination of the sentencing judge is entitled to great
deference on review.” Id. cmt. n.5. And we have held that “[b]ecause
demonstration of whether or not the defendant has personally accepted
responsibility for his criminal conduct requires a consideration of both objective
factors and subjective considerations of the defendant’s demeanor and sincerity,
the district court’s determination will not be overturned unless it is without
foundation.” United States v. Castillo-Valencia, 917 F.2d 494, 500 (11th Cir.
1990).
At Brown’s sentence hearing, the district court specifically stated that it had
a “distinct recollection of the evidence that was presented during [Brown’s] trial.”
The court noted that at trial Brown did not contest most of his actions but he did
contest some factual points about certain aspects of his conduct. The court also
referred to the evidence that Brown had committed prior armed robberies.
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A refusal to grant an acceptance of responsibility reduction cannot be solely
based on a defendant’s decision to go to trial, Castillo-Valencia, 917 F.2d at 500,
but choosing to go to trial is a factor that can be considered, id. at 500–01; see also
U.S.S.G. 3E1.1 cmt. n.2 (“In rare situations a defendant may clearly demonstrate
an acceptance of responsibility for his criminal conduct even though he exercises
his constitutional right to a trial.”) (emphasis added). The district court considered
the evidence presented at trial and the fact that Brown had contested certain factual
aspects of his conduct. The court did not clearly err in not applying an acceptance
of responsibility reduction.
AFFIRMED.
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