United States vs. Brown

Filing 920071025

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker FO R TH E TENTH CIRCUIT Clerk of Court

October 25, 2007

U N ITED STA TES O F A M ER ICA, Plaintiff-Appellee, v. M A RK ED WA R D BR OWN , Defendant-Appellant. No. 07-5006 (D.C. No. 06-CR-126-HDC) (N.D. Okla.)

OR D ER AND JUDGM ENT *

Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and T YM K O VIC H, Circuit Judge.

M ark Edward Brown was convicted and sentenced to 162 months in prison for attempted robbery, brandishing a firearm during a crime of violence, and possession of a firearm after being convicted of a felony. He appealed, but his attorney filed an Anders brief raising the possible issues that could be presented on appeal and explaining that the issues are frivolous. See Anders v. California,

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After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

386 U.S. 738, 744 (1967). M r. Brown filed a response, citing two other issues for appeal. W e have independently reviewed the record and agree with counsel that the issues presented on M r. Brown's behalf are wholly frivolous. Accordingly, we dismiss the appeal. I. M r. Brown and two other men attempted to rob a grocery store in Tulsa, Oklahoma. M r. Brown remained in his car while his two associates, M ike Curley and a third suspect, entered the store and approached the store's assistant manager. Curley produced a semi-automatic pistol and pointed it at the assistant manager's head. A struggle over the gun ensued until a customer carrying a concealed weapon fired two rounds, wounding Curley. Curley and the third suspect fled from the store in a car driven by M r. Brown. M r. Brown was eventually apprehended and charged as a principal under 18 U.S.C. § 2 with one count of attempted robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a); one count of brandishing a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and one count of possession of a firearm after a former conviction of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was convicted on all counts and sentenced to a total of 162 months in prison. After M r. Brown filed his notice of appeal, his attorney filed an Anders brief asserting three potential, albeit frivolous, appellate issues: (1) w hether there was sufficient evidence to -2-

sustain M r. Brown's convictions; (2) whether certain evidence was improperly admitted; and (3) w hether M r. Brown was denied effective assistance of counsel. M r. Brown responded, alleging that he also was denied his right of self-representation during trial and improperly denied substitute counsel after trial. W e consider counsel's Anders issues first. II. A. Anders Issues 1. Sufficiency of the Evidence Our review for sufficiency of the evidence "is limited to determining whether a reasonable jury could find guilt beyond a reasonable doubt, based on the direct and circumstantial evidence, together w ith the reasonable inferences to be drawn therefrom." United States v. Chisum, __ F.3d __, 2007 W L 2769647, *5 (10th Cir. Sept. 25, 2007) (internal quotation marks omitted). The record before us contains ample evidence to sustain M r. Brown's convictions. The evidence showed that after Curley was shot, he and the third suspect were picked up by M r. Brown in a white O ldsmobile Cutlass. The Oldsmobile w as traced to M r. Brown after police determined that his step-father purchased the car for him and saw him with it the day before or the day of the attempted robbery. M oreover, Curley testified that M r. Brown drove the white Oldsmobile to and from the attempted robbery, knew that Curley had a gun, and agreed to dispose of both the car and the gun after the crime was completed. According to Curley, it -3-

was M r. Brown's idea to rob the grocery store to ensure that "he would have something" on Curley because Curley "had never gone in on the previous things that [they] had done." R. Vol. IV at 279, 281. Curley also testified that M r. Brown entered the grocery store twice just before the attempted robbery to alert them w hen to commit the crime. This testimony was corroborated by M r. Brown's own admission that he was in the grocery store on the day of the attempted robbery, as well as surveillance video from the store's security cameras, which recorded him in the store just minutes before Curley and the third suspect entered. Additionally, an inmate who was incarcerated with M r. Brown testified that M r. Brow n told him he w as being prosecuted for robbing the grocery store because the car's license plate had been seen at the robbery. Further, the inmate reported that someone had been shot inside the grocery store and that M r. Brow n "had to lift him off the sidewalk into the car." Id. at 212. The inmate testified that the man w ho had been shot was named M ike Curley and that M r. Brown had disposed of the car and the gun. Finally, there was evidence that the gun used by Curley and merchandise sold by the store had traveled in interstate commerce. This evidence, when view ed in the light most favorably to the verdict, demonstrates that it would be frivolous to argue that a reasonable jury could not find M r. B rown guilty of the crimes charged beyond a reasonable doubt.

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2. Admission of Evidence Next, we consider counsel's proffered argument that the district court erred in authenticating two unsigned letters purportedly written by M r. Brown to Curley while in prison. W e review the district court's admission of this evidence for an abuse of discretion. See U nited States v. Henry, 164 F.3d 1304, 1309 (10th Cir. 1999). Under Federal Rule of Evidence 901(b)(4), authentication of evidence is proper if its appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances "support a finding that the matter in question is what its proponent claims." United States v. Gutierrez, 576 F.2d 269, 276 (10th Cir. 1978). Here, the letters contained sufficient specific references to the attempted robbery and the individuals involved that they may be properly authenticated as having been written by M r. Brown. Both letters refer to the third suspect by monikers known only to M r. Brown and Curley. M oreover, the first letter mentions as a veiled threat that the gun used in the attempted robbery was not destroyed and therefore Curley should pay M r. Brown's attorney's fees and cell phone bill, as well as bond him out of prison and deposit money in his inmate account. Similarly, the second letter again states that the gun was not destroyed; it also indicates that M r. Brown saved Curley's life and "took the heat" "because of the car." R. Vol. IV at 323-24. Coupled w ith these references was Curley's testimony that he believed M r. Brown authored the letters. See Fed. R. Evid. -5-

901(b)(1). Given the content of the letters and the circumstances surrounding this case, the authentication requirements were clearly satisfied. It would therefore be frivolous to contend that they were not properly admitted. 3. Ineffective Assistance of Counsel The third issue raised by M r. Brown's attorney is that trial counsel was ineffective. But as M r. Brown's attorney correctly points out, ineffective assistance of counsel claims must be brought in collateral proceedings, not on direct appeal. See United States v. Calderon, 428 F.3d 928, 931 (10th Cir. 2005). Indeed, "`[s]uch claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.'" Id., (quoting United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)). Consequently, we agree that this is a frivolous argument. B. Non-Anders Issues W e proceed, then, to consider those issues raised by M r. Brown himself, specifically, whether he was denied the right to self-representation or improperly denied substitute counsel following trial. As for his first proposition, he failed to clearly and unequivocally invoke his right to self-representation. See Faretta v. California, 422 U.S. 806, 835 (1975). Indeed, the record indicates that immediately before trial, M r. Brown sought to represent himself with the help of a new attorney, but when his request for substitute counsel was denied, he opted to retain his appointed counsel, M r. Art Fleak: -6-

THE COURT:

All right, once again, M r. Brown, do you want to represent yourself? W e're going to trial in just a few minutes. Or do you want M r. Fleak to represent you? He'll represent me and if [I] get found guilty I will just appeal this.

THE DEFENDANT:

R. Vol. III at 23. M r. Brown's second proposition ­ that he was improperly denied substitute counsel after trial ­ is equally frivolous because he failed to make a valid request. "To w arrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Porter, 405 F.3d 1136, 1140 (10th Cir. 2005) (internal quotation marks omitted), cert. denied, 546 U.S. 980 (2005). M r. Brown, however, made only a bare demand for new counsel, without providing any rationale at all. Although he insists the court was obligated to investigate why he sought a new attorney, see United States v. Lott, 433 F.3d 718, 725 (10th Cir. 2006) (delimiting four factors courts m ust consider in assessing whether there has been a complete breakdown in communication), cert. denied, 127 S. Ct. 118 (2006), the court's pre-trial inquiry revealed no valid reason for appointing new counsel, and M r. Brown offered nothing to suggest otherwise. M oreover, the additional complaints M r. Brown lodged against M r. Fleak after the court denied his motion likew ise failed to assert a proper basis for relief because "mere strategic disagreement" is

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not good cause for substitution of counsel, Porter, 405 F.3d at 1140. Thus, M r. Brown's failure to offer any valid reason for granting substitute counsel demonstrates that this contention is wholly frivolous. The appeal is D ISM ISSED. Entered for the Court

W ade Brorby Circuit Judge

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