US v. Jeremy Todd Brown
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:09-cr-00014-REM-JSK-1 Copies to all parties and the district court/agency. [998567275].. [10-4275]
Case: 10-4275
Document: 57
Date Filed: 04/13/2011
Page: 1
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4275
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY TODD BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
Chief District Judge. (2:09-cr-00014-REM-JSK-1)
Submitted:
March 31, 2011
Decided:
April 13, 2011
Before AGEE, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
E. Ryan Kennedy, ROBINSON & MCELWEE, PLLC, Clarksburg, West
Virginia, for Appellant.
William J. Ihlenfeld, II, United
States Attorney, Stephen D. Warner, Assistant United States
Attorney, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Jeremy
Todd
Brown
was
convicted
by
a
jury
of
conspiring during the fall of 2007 to possess with intent to
distribute and manufacture more than 50 grams of methamphetamine
(Count One); aiding and abetting the possession of materials for
the manufacture of methamphetamine in November 2007 (Count Two);
and possession in November 2007 of pseudoephedrine knowing that
it would be used to manufacture methamphetamine (Count Three). 1
Brown
appeals
witness
was
his
convictions
called
to
on
testify
the
ground
out
of
government finished presenting its case.
sentence,
arguing
that
the
district
that
order,
a
defense
before
the
He also challenges his
court
clearly
erred
finding that an obstruction of justice adjustment applied.
Sentencing Guidelines Manual § 3C1.1 (2009).
in
U.S.
Last, he contends
that the $100 special assessment on each count of conviction was
an excessive fine that violated the Eighth Amendment and the
Origination Clause of the Constitution.
At
that
he
Brown’s
was
trial,
involved
in
the
a
We affirm.
government
presented
conspiracy
to
evidence
manufacture
methamphetamine at a trailer home on his mother’s property on
Abbot Road in Upshur County, West Virginia, and other places.
1
Brown was acquitted on Count Four, which charged that he
aided
and
abetted
the possession
of
materials
for
the
manufacture of methamphetamine in February 2009.
2
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In the early hours of November 21, 2007, a search warrant was
executed
at
the
Abbot
Road
trailer.
A
functioning
methamphetamine lab was found in the trailer, which appeared to
have been abandoned during the clean-up after a methamphetamine
cook.
Chris Perry was one of many government witnesses.
He
testified that Brown or someone else cooked methamphetamine at
the trailer at least once a week.
He said he was at the trailer
on November 21, 2007, with a number of people, including Brown,
who cooked methamphetamine that night and was cleaning up when
the
law
enforcement
authorities
arrived.
Perry
said
he
and
Brown and the others left the property by the back way, going
over the hill.
Another
government
witness,
Melissa
Frey,
testified
that she lived with Brown’s girlfriend, Jency Hinkle, during the
time of the charged conspiracy and that for three or four years
Brown regularly supplied Hinkle with methamphetamine at their
apartment.
She said that Brown usually brought “a wad about as
big as a golfball[.]”
Frey also testified that Brown, who was
on pre-trial release at the time, called her the week before his
trial began and suggested to her that “maybe it wasn’t a ball of
crank”
(methamphetamine)
tissues.”
that
she
had
seen,
“maybe
it
was
At the end of the first day of trial, the district
court revoked Brown’s bond, finding that his contact with Frey,
a potential witness, violated the conditions of his release.
3
Case: 10-4275
The
Document: 57
government’s
custody,
arrived
possible
delay
asked
defense
late
in
Date Filed: 04/13/2011
last
witnesses,
the
courthouse.
at
the
trial
Brian
Kornbrath,
who
proceedings,
counsel,
Page: 4
were
Anticipating
the
district
whether
he
willing to call some of his witnesses out of order.
initially said he would prefer not to do that.
the
government
had
put
on
its
only
all
in
a
court
would
be
Kornbrath
However, after
available
witness,
a
discussion was held off the record between the court and the
attorneys.
The court then explained the situation to the jurors
and told them –
So rather than have you sit here with dead time . . .
the defense, Mr. Kornbrath, is going to call one of
his witnesses out of order.
But this witness he is
calling is part of his case which would normally come
after the Government’s case is completed.
But in
order to move things along, he’s going to call this
witness out of order.
Brown’s sister, Sheila Minix, then testified that no
one was living in the trailer at the time the search warrant was
executed, and that a number of people had stayed there on a
temporary basis.
After her testimony, the government presented
its remaining witnesses.
Following
recommended
that
Brown’s
his
conviction,
contact
with
the
Frey
probation
was
an
officer
attempt
to
influence a witness that warranted a two-level adjustment for
obstruction of justice.
sentencing
the
court
Brown objected to the adjustment.
found
that,
4
although
Brown
had
At
not
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Page: 5
explicitly asked Frey to change her testimony, he had made an
implicit
request
that
she
do
so,
and
that
the
adjustment
applied.
The court sentenced Brown to a term of 360 months on
Count One, and concurrent sentences of ten years on Count Two
and twenty years on Count Three.
a
special
assessment
of
$100
The court ordered Brown to pay
for
each
count.
No
fine
was
imposed, but Brown was ordered to pay restitution in the amount
of $6425.
On appeal, Brown contests his conviction on the ground
that his defense witness, Sheila Minix, was called during the
government’s case in chief.
Brown made no objection at the
time.
of
error. 2
Therefore,
his
claim
error
is
reviewed
for
plain
Under the plain error standard of review, United States
v. Olano, 507 U.S. 725, 732-37 (1993), a defendant must show
that (1) error occurred; (2) the error was plain; and (3) the
error affected his substantial rights.
these
conditions
discretion
to
affect[s]
the
are
notice
satisfied,
this
Court
the
only
if
fairness,
judicial proceedings.@
Id. at 732.
error
integrity
or
the
may
exercise
error
public
Even when
its
Aseriously
reputation
of
Id. (internal quotation marks omitted);
2
Brown asserts that defense counsel’s earlier statement
that he preferred that defense witnesses follow the government’s
case was enough to preserve the issue. However, counsel’s later
failure to object indicates a change of mind.
5
Case: 10-4275
United
States
v.
Document: 57
Massenburg,
Date Filed: 04/13/2011
564
F.3d
337,
Page: 6
342-46
(4th
Cir.
2009) (reviewing unpreserved Fed. R. Crim. P. 11 error).
It is not clear from the record whether the district
court
or
defense
counsel
initiated
the
unrecorded
conference that was held just before Minix testified. 3
bench
In any
case, Brown maintains that having his witness testify out of
order
“erroneously
indicated
to
the
jury
that
[he]
burden to produce evidence or prove his innocence.”
the
district
court
has
discretion
to
“exercise
had
some
However,
reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to . . . make the interrogation and
presentation effective for the ascertainment of the truth . . .
and
avoid
needless
consumption
of
time[.]”
Fed.
R.
Evid.
611(a); see also United States v. Blake, 571 F.3d 331, 349 (4th
Cir. 2009) (Rule 611 gives trial court broad discretion and “a
judge’s ruling will not be the basis for reversal of a criminal
conviction
unless
a
affected.”)
(internal
defendant’s
quotation
substantial
marks
cert. denied, 130 S. Ct. 1104 (2010).
and
rights
citation
are
omitted),
Moreover, the Seventh
Circuit has held that “changing the order in which evidence is
3
The government states in its brief that defense counsel
asked to approach the bench. Brown neither agrees with nor
disputes this statement.
6
Case: 10-4275
presented
does
Document: 57
not
change
Date Filed: 04/13/2011
the
burden
of
Page: 7
proof.”
Mays
v.
611
is
Springborn, 575 F.3d 643, 649 (7th Cir. 2009).
In
his
reply
brief,
Brown
argues
that
Rule
limited by Rule 29 of the Federal Rules of Criminal Procedure,
which presumes that the government will present its case first,
after which the defendant may make a motion for acquittal and
then present evidence if the motion is denied.
Brown presents
no authority for his position that Rule 29 limits the trial
court’s discretion under Rule 611.
We conclude that he has not
shown plain error on the part of the district court.
Brown
also
challenges
the
two-level
sentence
adjustment he received for obstruction of justice.
for
clear
error
a
district
defendant obstructed justice.
court
did
not
determination
that
a
United States v. Hughes, 401 F.3d
540, 560 (4th Cir. 2005).
district
court’s
We review
Here, we are satisfied that the
clearly
err
in
finding
that
Brown’s
suggestion to Frey that she might have seen him bring tissues
rather than methamphetamine to her apartment was an implicit
request
that
she
so
testify
and
an
attempt
to
obstruct
his
prosecution.
Although Brown made no objection to the $100 special
assessment
imposed
by
the
sentencing
court
under
18
U.S.C.
§ 3013 (2006) for each count of conviction, in this appeal he
raises two challenges to the special assessment.
7
Because Brown
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failed to raise these issues in the district court, they are
reviewed for plain error.
First, Brown claims that the special assessment is an
excessive
fine
which
violates
the
Eighth
Amendment.
The
government notes that there was at one time a split in the
circuits as to whether the special assessment required under
§ 3013 was punitive, and thus actually a fine.
The question
arose primarily in cases involving assimilated crimes. However,
§ 3013 was amended in 1987 to apply to assimilated crimes.
18 U.S.C. § 3013(d).
See
Brown lacks current authority to support
his position that the special assessment is a fine.
Moreover,
even if the $100 special assessment on each count were treated
as a fine, it would not be plainly excessive.
Last,
Brown
maintains
that
United
States
v.
Munoz-
Flores, 495 U.S. 385, 398-99 (1990), is no longer controlling
law.
In Munoz-Flores, the Supreme Court held that the special
assessment
did
not
violate
the
Constitution’s
Origination
Clause, even though it was enacted in a bill that originated in
the Senate, because the amount of revenue it raised that went
into the general treasury (rather than the Crime Victims’ Fund)
was
incidental.
Brown
contends
that
the
special
assessment
currently generates enough revenue for the general treasury that
the
revenue
cannot
be
deemed
incidental.
He
relies
on
information contained in a “Fact Sheet” produced by the U.S.
8
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Department of Justice, Office for Victims of Crimes, which he
has submitted as an attachment to his opening brief.
However,
none of the information was presented to the district court.
We
conclude that the district court did not plainly err in imposing
the special assessment.
We
district
facts
court.
and
materials
therefore
legal
before
We
affirm
dispense
the
with
sentence
oral
argument
contentions
are
adequately
the
and
argument
court
imposed
by
the
because
the
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
9
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