US v. Kelvin Brown


UNPUBLISHED PER CURIAM OPINION filed.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]

Download PDF
Appeal: 14-4936 Doc: 56 Filed: 01/11/2016 Pg: 1 of 9 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4936 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KELVIN BROWN, a/k/a Doom, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 14-4936 Doc: 56 Filed: 01/11/2016 Pg: 2 of 9 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 Appeal: 14-4936 Doc: 56 Filed: 01/11/2016 Pg: 3 of 9 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 Appeal: 14-4936 Doc: 56 Filed: 01/11/2016 Pg: 4 of 9 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 Appeal: 14-4936 Doc: 56 Filed: 01/11/2016 Pg: 5 of 9 567, 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 5 Appeal: 14-4936 Doc: 56 Filed: 01/11/2016 Pg: 6 of 9 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 6 Appeal: 14-4936 police Doc: 56 Filed: 01/11/2016 observation, that Pg: 7 of 9 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, Appeal: 14-4936 Doc: 56 Filed: 01/11/2016 Pg: 8 of 9 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 8 Appeal: 14-4936 Doc: 56 that time. Filed: 01/11/2016 Pg: 9 of 9 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 9

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?