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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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that time.
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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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