US v. Kelvin Brown

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--terminating Motion to appoint/assign counsel [999639361-2] Originating case number: 4:13-cr-00110-RGD-TEM-4 Copies to all parties and the district court/agency. [999733240].. [14-4936]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4936

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELVIN BROWN, a/k/a Doom,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:13-cr-00110-RGD-TEM-4)

Submitted:

November 30, 2015

Decided:

January 11, 2016

Before DUNCAN, KEENAN, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Steven P. Hanna, Richmond, Virginia, for Appellant. Joseph Kevin
Wheatley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Howard Jacob Zlotnick, Assistant United States Attorney, Newport
News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kelvin

Brown

appeals

the

district

court’s

judgment

sentencing him to 687 months of imprisonment pursuant to his
convictions for conspiring to distribute powder cocaine, crack
cocaine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(iii), (b)(1)(B), 846 (2012) (Count 1); two counts of
distributing

cocaine,

in

violation

of

§

841(a)(1),

(b)(1)(C)

(Counts 6, 8); possessing with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 10); two
counts

of

possessing

a

firearm

in

furtherance

of

a

drug

trafficking crime, in violation of 18 U.S.C. § 924(c) (2012)
(Counts

9,

11);

and

possessing

a

firearm

while

a

convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2012) (Count 12).
Brown’s

counsel

has

filed

a

brief

California, 386 U.S. 738 (1967).

pursuant

to

Anders

v.

Counsel states that there are

no meritorious grounds for appeal but questions whether (1) the
district

court

should

nickname,

“Doom,”

(2)

have
the

excluded

district

evidence

court

judge

of

Brown’s

should

have

recused himself due to bias arising from Brown’s pro se status
at trial, and (3) the evidence was sufficient to sustain Brown’s
convictions.

2

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Brown filed a pro se brief arguing, in addition, that the
district court erred in (1) giving the jury an Allen 1 charge,
(2) excluding

evidence

of

Brown’s

rap

career,

(3)

admitting

evidence of allegedly intimidating Facebook posts, (4) admitting
evidence of a 2008 police chase, (5) depriving Brown of his
right

to

standby

misconduct,

(7)

rendered

counsel,

compromise

jury

of

a

its

failing

option

to

(6)

order

verdict,
to

tolerating
a

(8)

render

new

trial

prosecutorial
when

the

jury

prematurely

informing

the

a

verdict,

and

partial

(9) instructing the jury, and that (10) the cumulative effect of
these errors warrants reversal, even if no single error warrants
relief. 2

The Government did not file a brief.

We affirm.

I
We review objections to the admissibility of evidence under
Fed. R. Evid. 403 for abuse of discretion.
Forrest, 429 F.3d 73, 79 (4th Cir. 2005).

United States v.
Rule 403 instructs

district courts to exclude otherwise relevant evidence if “its
probative value is substantially outweighed by a danger of . . .
unfair

1

prejudice,

confusing

the

issues,

misleading

the

jury,

Allen v. United States, 164 U.S. 492 (1896).

2

Brown also repeated counsel’s arguments that the evidence
was insufficient to sustain his conviction and that the district
judge should have recused himself due to bias.

3

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undue delay, wasting time, or needlessly presenting cumulative
evidence.”
Evidence of a defendant’s use of an alias or nickname is
admissible if relevant to identification of the defendant in
connection with the crimes alleged.

United States v. Clark, 541

F.2d 1016, 1018 (4th Cir. 1976).

But even when relevant, a

defendant’s alias may be inadmissible if its probative value is
substantially

outweighed

by

the

danger

of

unfair

prejudice.

United States v. Farmer, 583 F.3d 131, 135 (2d Cir. 2009).
Here, we discern no misuse of Brown’s nickname.

Brown’s

identity was at issue, as many of the text messages presented to
the jury provided only a nickname.
“Doom,”

does

trafficking

not

or

suggest

a

to

possess

firearms

Moreover, that nickname,

propensity

to

engage

illegally.

The

in

drug

district

court thus appropriately admitted evidence of Brown’s alias.
II
We review the denial of a motion for recusal for abuse of
discretion.

Kolon Indus. Inc. v. E.I. DuPont de Nemours & Co.,

748 F.3d 160, 167 (4th Cir.), cert. denied, 135 S. Ct. 437
(2014).

A judge must recuse himself when “he has a personal

bias or prejudice concerning a party.”
(2012).
must,

as

28 U.S.C. § 455(b)(1)

In order to disqualify a judge, the “bias or prejudice
a

general

matter,

stem

judicial proceeding at hand.’”

from

‘a

source

outside

the

Belue v. Leventhal, 640 F.3d
4

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567, 572 (quoting Liteky v. United States, 510 U.S. 540, 545
(1994)).

“[J]udicial rulings and ‘opinions formed by the judge

on the basis of facts introduced or events occurring in the
course

of

the

current

proceedings,

or

of

prior

proceedings’

almost ‘never constitute a valid basis for a bias or partiality
motion,’” id. at 573 (quoting Liteky, 510 U.S. at 555), “‘unless
they display a deep-seated favoritism or antagonism that would
make fair judgment impossible,’” United States v. Lentz, 524
F.3d 501, 530 (4th Cir. 2008) (quoting Liteky, 510 U.S. at 555).
Our review of the record discloses no evidence that the
district judge displayed bias or “antagonism that would make
fair

judgment

impossible.”

Lentz,

524

F.3d

at

530.

Consequently, the district court did not abuse its discretion in
denying Brown’s motion for recusal.
III
We review de novo the district court’s denial of a Fed. R.
Crim. P. 29 motion for judgment of acquittal.
Zayyad, 741 F.3d 452, 462 (4th Cir. 2014).
viewing

the

government,

evidence
“the

in

the

light

conviction

is

United States v.

We will affirm if,

most

favorable

supported

by

to

the

substantial

evidence.”

United States v. Hickman, 626 F.3d 756, 762-63 (4th

Cir.

(internal

2010)

evidence

is

evidence

quotation
that

a

marks

omitted).

reasonable

finder

“Substantial
of

fact

could

accept as adequate and sufficient to support a conclusion of a
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defendant’s guilt beyond a reasonable doubt.”

United States v.

Howard, 773 F.3d 519, 525 (4th Cir. 2014) (internal quotation
marks

omitted).

“A

sufficiency

challenge

presents

a

heavy

burden, which a defendant will only overcome in cases where the
prosecution’s failure is clear.”

Zayyad, 741 F.3d at 462.
A

To

obtain

a

conviction

for

a

drug

conspiracy

under

21

U.S.C. § 846, the government had to show that Brown (1) agreed
with at least one more person to engage in conduct that violated
21

U.S.C.

§

841;

(3) knowingly
Howard,

773

(2)

and

had

knowledge

voluntarily

F.3d

at

525.

of

the

participated
Additionally,

in
“in

conspiracy;
the

and

conspiracy.

order

for

the

statutory maximums and mandatory minimums of § 841(b) to apply,”
the Government must demonstrate “that the threshold drug amount
was reasonably foreseeable” to Brown.
524

F.3d

549,

558

(4th

Cir.

2008)

United States v. Brooks,
(internal

quotation

marks

omitted).
Our review of the record reflects that substantial evidence
supports Count 1, Brown’s drug conspiracy conviction.
officers

observed

confidential
Brown’s

role

marijuana

Brown

sell

informants.
as

within

a
the

seller

drugs

in

Numerous
of

crack

conspiracy.

controlled

coconspirators
and

powder

Altogether,

Multiple
buys

explained

cocaine

the

with

and

Government

presented extensive testimony, corroborated by text messages and
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observation,

that

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was

more

than

sufficient

for

a

reasonable jury to conclude that Brown engaged in the charged
drug conspiracy.
B
Under 21 U.S.C. § 841(a)(1), (b)(1)(C), in order to support
the conviction for Counts 6 and 8, the Government was required
to show that Brown knowingly distributed cocaine.
773 F.3d 526 (defining elements of offense).
the Government satisfied this burden.

See Howard,

We conclude that

As to Count 6, one of

Brown’s coconspirators testified that Brown offered him cocaine
on June 4, 2013, and the next day, that coconspirator purchased
14

grams

of

cocaine

from

Brown

in

a

controlled

buy.

Text

messages, phone recordings, and police observation corroborated
his

testimony.

As

to

Count

8,

when

police

raided

Brown’s

apartment, they found cocaine, a box of cell phones, a digital
scale, and a loaded handgun, all supporting inferences of an
active distribution business.

The district court did not err in

ruling these counts were supported by substantial evidence.
C
To establish Counts 9 and 11, under 18 U.S.C. § 924(c), the
Government
possessed
trafficking

had
a

to

show

firearm
crime.

that

Brown

in

furtherance

We

hold

knowingly

that

of
a

the

unlawfully

specified

reasonable

conclude that the Government met its burden.
7

and

jury

drug
could

As to Count 9,

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while testifying that they witnessed Brown sell cocaine at his
apartment,

two

of

Brown’s

coconspirators

explained

that

his

semiautomatic pistol was on the kitchen counter, next to the
drug scales, during the transaction.

With respect to Count 11,

in a search of Brown’s apartment, police discovered cocaine and
other

paraphernalia

semiautomatic

of

firearm

drug

with

distribution

unique

stitching

Testimony linked the firearm to Brown.

near
on

the

a

loaded
holster.

As to each count, the

evidence sufficed to permit the jury to find as a factual matter
that

Brown

possessed

the

trafficking activities.

firearm

in

furtherance

of

his

drug

See United States v. Moore, 769 F.3d

264, 269-70 (4th Cir. 2014) (identifying elements and standard
of review), cert. denied, 135 S. Ct. 1463 (2015).
D
In order to secure a conviction on Count 12 under 18 U.S.C.
§ 922(g), the Government had to show that Brown had previously
been convicted of a felony punishable by a term of imprisonment
of over one year and had knowingly possessed a firearm that had
traveled in interstate or foreign commerce.

See United States

v. Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc) (defining
offense).

The parties stipulated that Brown was a convicted

felon at the time his residence was searched, and the evidence
described above demonstrates that Brown possessed a firearm at

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Accordingly, the Government satisfied its burden of

proof on Count 12.
In sum, we conclude that substantial evidence supports all
of Brown’s convictions.
IV
In accordance with Anders, we have reviewed the record in
this case and the issues raised in Brown’s pro se supplemental
brief, and have found no meritorious issues for appeal.
therefore

affirm

the

district

court’s

judgment.

This

We
court

requires that counsel inform Brown, in writing, of his right to
petition

the

Supreme

Court

of

the

United

States

for

further

review.

If Brown requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel
may

move

in

representation.

this

and

materials

legal
before

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof

was served on Brown.
facts

court

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

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