United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 01-4799

BRUCE ELLIOT BROWN,

Defendant-Appellee.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4829

BRUCE ELLIOT BROWN,

Defendant-Appellant.



UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4998

BRUCE ELLIOT BROWN,

Defendant-Appellant.



Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CR-00-165-HO)

Submitted: November 20, 2002

Decided: December 12, 2002

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

2 UNITED STATES v. BROWN

No. 01-4799 vacated and remanded, No. 01-4829 affirmed, and No.

01-4998 vacated by unpublished per curiam opinion.

COUNSEL

Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant

United States Attorney, Scott L. Wilkinson, Assistant United States

Attorney, Raleigh, North Carolina, for Appellant. Thomas P. McNa-

mara, Federal Public Defender, George Alan DuBois, Assistant Fed-

eral Public Defender, Jeanette Doran Brooks, Research and Writing

Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

These consolidated appeals concern the jury’s conviction of Bruce

Elliott Brown on eleven counts of bankruptcy fraud, see 18 U.S.C.

§ 152 (2000), for which Brown received a 54-month sentence. In No.

01-4799, the United States appeals the district court’s grant of

Brown’s motion for acquittal as to Count One. In his cross-appeal

from his conviction, No. 01-4829, Brown challenges the district

court’s admission of testimony from one of his former attorneys under

the crime-fraud exception to the attorney-client privilege. In No. 01-

4998, Brown challenges the district court’s civil contempt order based

on his invocation of his Fifth Amendment privilege against self-

incrimination during a bankruptcy proceeding held following his con-

viction. While we affirm Brown’s conviction and sentence in No. 01-

4829, we vacate the district court’s orders in No. 01-4799 and No. 01-

4998 and remand for further proceedings.

In No. 01-4799, the United States challenges the district court’s

grant of Brown’s motion for acquittal as to Count One, which charged

UNITED STATES v. BROWN 3

Brown and his initial attorney, Ryan Dyson, with making fraudulent

statements in Brown’s petition to have Dyson appointed as counsel in

Brown’s Chapter 11 bankruptcy proceeding. Because the jury acquit-

ted Dyson of Count One, the district court determined that "this

inconsistency in the verdict as to Count One evidences the insuffi-

ciency of the evidence presented by the Government as to this count."

(JA 1066). However, although a jury’s verdict may be vacated if there

is insufficient evidence to support it, United States v. Hopkins, ___

F.3d ___, 2002 WL 31375593, at *6 (4th Cir. 2002) (No. 01-4581),

that assessment "should be [made] independent of the jury’s determi-

nation[]" that the evidence was insufficient as to another defendant.

See United States v. Powell, 469 U.S. 57, 67 (1984) (emphasis

added). Because we find there was sufficient evidence to support

Brown’s conviction on Count One independent of its determination

as to Dyson, we vacate the court’s order granting Brown’s motion for

acquittal as to that count and remand for further proceedings.

In No. 01-4829, Brown contests the district court’s order allowing

the attorney Brown retained to replace Dyson, Nelson Harris, to tes-

tify about statements Brown made related to the bankruptcy proceed-

ing. Although Brown’s statements were indeed subject to the

attorney-client privilege, we will not reverse the court’s determination

that the crime-fraud exception to that privilege applied "absent a clear

showing of abuse of discretion." In re Grand Jury Proceedings, 33

F.3d 342, 349 (4th Cir. 1994) (internal quotations omitted). Because

the United States’ proffer indicated that Brown intended to use the

bankruptcy proceeding as a shield from creditors while concealing as

much of his assets as possible from the bankruptcy trustee, we find

the court properly determined that Brown was still actively trying to

defraud his creditors when he retained Harris and that his statements

to Harris bore a sufficiently close relationship to that scheme. See

Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999). Accord-

ingly, the district court properly admitted Harris’ testimony, and we

affirm.

Finally, in No. 01-4998, Brown challenges the district court’s civil

contempt order issued following Brown’s invocation of his Fifth

Amendment privilege in the continuation of his bankruptcy proceed-

ing following his conviction. As the Government concedes, a defen-

dant may invoke his Fifth Amendment privilege in any subsequent

4 UNITED STATES v. BROWN

proceeding related to the underlying conviction until that conviction

becomes final, including any appeals. See Mills v. United States, 281

F.2d 736, 741 (4th Cir. 1960). Brown therefore had "just cause" to

refuse to comply. See 28 U.S.C. § 1826(a) (2000). For that reason, we

vacate the civil contempt order entered by the district court.

Accordingly, we vacate the district court’s order in No. 01-4799

granting Brown’s motion for acquittal as to Count One, vacate its

civil contempt order in No. 01-4998, and affirm Brown’s conviction

in No. 01-4829. These appeals are remanded to the district court for

further proceedings consistent with this opinion. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

No. 01-4799, VACATED AND REMANDED

No. 01-4829, AFFIRMED

No. 01-4998, VACATED