The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4672
BOBBY JAMES BROWN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4673
THOMAS EDWARD CARTER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4680
JULIUS BROWN,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CR-00-100-MD)
Argued: June 6, 2003
Decided: July 14, 2003
Before WILKINS, Chief Judge, and WILLIAMS and
TRAXLER, Circuit Judges.
2 UNITED STATES v. BROWN
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: William B. Purpura, Baltimore, Maryland; Gary Allen
Ticknor, Baltimore, Maryland, for Appellants. James Gerard Pyne,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: Peter Ward, Towson, Maryland, for Appellant Julius
Brown. Thomas M. DiBiagio, United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Bobby Brown, Julius Brown, and Thomas Carter (Appellants)
appeal from their convictions of conspiring to possess with intent to
distribute and to distribute controlled substances under 21 U.S.C.A.
§ 846 (West 1999), and related offenses. All three Appellants argue
that the district court erred in denying their motions for a mistrial
based on allegedly improper statements made by the prosecutor dur-
ing closing arguments, that the district court erred in applying the
murder cross-reference of United States Sentencing Guidelines
(U.S.S.G.) § 2D1.1(d)(1) (2000) in calculating their sentences, and
that the district court erred in sentencing them for multiple convic-
tions under 18 U.S.C.A. § 924(c) (West 2000) based on a single pred-
icate drug trafficking offense. Bobby Brown objects to the district
court’s application of a two-level obstruction of justice enhancement,
pursuant to U.S.S.G. § 3C1.1 (2000), in the calculation of his offense
level. Finding no reversible error, we affirm.
UNITED STATES v. BROWN 3
I.
On August 8, 2000, Appellants were indicted along with several
other defendants in an eleven-count Second Superseding Indictment
in the United States District Court for the District of Maryland. The
indictment charged Appellants with conspiracy to possess with intent
to distribute and to distribute specified quantities of heroin, cocaine
base, and cocaine, in violation of 21 U.S.C.A. § 846 (Count 1), and
possession of firearms in furtherance of a drug trafficking crime, in
violation of 18 U.S.C.A. § 924(c) (Counts 7 and 8). Julius Brown also
was charged in the indictment with possession with intent to distribute
and distribution of heroin, in violation of 21 U.S.C.A. § 841 (West
1999) (Counts 2, 3, 4, and 5), threatening a grand jury witness, in vio-
lation of 18 U.S.C.A. § 1512(b) (West 2000) (Count 9), attempting to
kill a grand jury witness, in violation of 18 U.S.C.A. § 1512(a) (Count
10), and possessing a firearm while having been previously convicted
of one or more crimes punishable by imprisonment for more than one
year, in violation of 18 U.S.C.A. § 922(g)(1) (West 2000) (Count 11).1
Bobby Brown and Carter also were charged with using or carrying a
firearm during and in relation to a drug trafficking crime, in violation
of 18 U.S.C.A. § 924(c) (Count 6).
At the conclusion of a month-long jury trial, Appellants joined in
a motion for a mistrial based on certain allegedly improper statements
made by the prosecution during its rebuttal closing argument. The dis-
trict court denied the motion, concluding that although some parts of
the prosecution’s closing argument were "very close to the line," and
perhaps even improper, (J.A. at 509-10), those portions of the closing
argument did not warrant a mistrial.
The jury found each Appellant guilty as to Count 1, and made spe-
cific findings that the conspiracy involved 100 grams or more of her-
oin and 50 grams or more of cocaine base. Each Appellant was also
found guilty on Counts 7 and 8, charging possession of firearms in
furtherance of a drug trafficking crime. In addition, Julius Brown was
found guilty on Counts 2, 3, 4, and 5, charging distribution of heroin,
and Count 9, charging the threatening of a grand jury witness. The
1
Count 11 was subsequently dismissed.
4 UNITED STATES v. BROWN
jury acquitted Bobby Brown and Carter on Count 6 and Julius Brown
on Count 10.
Separate sentencing proceedings were held for each Appellant.
Bobby Brown and Carter were each sentenced to life imprisonment
on Count 1, five-years’ imprisonment on Count 7, and twenty-five
years’ imprisonment on Count 8, the sentences to run consecutively.
Julius Brown was sentenced to life imprisonment on Count 1, twenty
years’ imprisonment on Counts 2 through 5, five years’ imprisonment
on Count 7, twenty-five years’ imprisonment on Count 8, and ten
years’ imprisonment on Count 9, the sentences on Counts 1, 7, and
8 to run consecutively, and the remaining sentences to run concur-
rently with the life sentence on Count 1. Each Appellant timely noted
an appeal.
II.
Appellants argue that the district court erred in denying their
motion for a mistrial based on the prosecution’s allegedly improper
statements. The denial of a motion for a mistrial is reviewed for abuse
of discretion. United States v. Cole, 293 F.3d 153, 163 (4th Cir. 2002).2
Appellants’ claim of error in the denial of their motion for a mis-
trial rests on an allegation of prosecutorial misconduct, specifically
the assertedly improper remarks contained in the prosecution’s clos-
ing argument. We examine a claim of prosecutorial misconduct to
2
Appellants suggest that our standard of review must be de novo, rely-
ing on United States v. McDonald, 61 F.3d 248 (4th Cir. 1995) (over-
ruled on other grounds by United States v. Wilson, 205 F.3d 720 (4th Cir.
2000) (en banc)). In McDonald, we concluded that the district court’s
denial of a motion to quash the indictment, based on alleged prosecu-
torial misconduct before the grand jury, should be reviewed de novo
where the district court "made no factual findings regarding the existence
of prejudicial misconduct by the government prior to denying [the defen-
dant’s] motion." Id. at 253. McDonald is inapposite because our review
in that case was of a motion to quash an indictment based on alleged mis-
conduct before a grand jury, rather than, as here, a motion for a mistrial
based on alleged misconduct during a month-long trial before the district
court.
UNITED STATES v. BROWN 5
determine whether the alleged misconduct "so infected the trial with
unfairness as to make the resulting conviction a denial of due pro-
cess." United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)
(addressing prosecution’s improper reference to evidence admitted
only against one defendant in closing argument arguing that another
defendant was guilty) (citations and internal quotation marks omit-
ted). "The test for reversible prosecutorial misconduct has two com-
ponents; first, the defendant must show that the prosecutor’s remarks
or conduct were improper and, second, the defendant must show that
such remarks or conduct prejudicially affected his substantial rights
so as to deprive him of a fair trial." Id.
In assessing the second prong of this test, prejudice, this court con-
siders six factors:
(1) the degree to which the prosecutor’s remarks had a ten-
dency to mislead the jury and to prejudice the defendant; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the defendant; (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters; (5) whether the prosecutor’s
remarks were invited by improper conduct of defense coun-
sel; and (6) whether curative instructions were given to the
jury.
Id. at 186. The allegedly improper remarks "must be examined within
the context of the trial to determine whether the prosecutor’s behavior
amounted to prejudicial error." United States v. Young, 470 U.S. 1, 12
(1985).
Appellants place the allegedly improper statements by the prosecu-
tion in this case into five categories: (1) statements misrepresenting
the facts in evidence; (2) statements accusing defense counsel of
engaging in unethical conduct; (3) statements attacking defense coun-
sel’s personal credibility; (4) statements improperly placing a burden
on the defense; and (5) statements "denigrat[ing] the right to a jury
trial." (Appellants’ Br. at 16.)3 We address the allegedly improper
remarks in each of these categories below.
3
Appellants identify a large number of lines in the trial transcript as
containing improper statements by the prosecution, all of them within the
6 UNITED STATES v. BROWN
Appellants identify as statements allegedly misrepresenting the evi-
dence the following: the prosecution’s attempts to explain why a cer-
tain witness hesitated in answering questions or became confused on
cross examination, (J.A. at 446-47) (explaining that witness McGraw
hesitated in identifying a picture of Appellant Carter because of a
momentary "mental block"); the prosecution’s statement that the
absence of wiretap evidence, pointed out by the defense, should not
diminish the force of the proof presented to the jury in light of the dif-
ficulty of obtaining wiretap authorization, (J.A. at 457) ("Agent
Ellington [a prosecution witness] made it clear that it is impossible to
get a wiretap. You have an exhaustion requirement. You need to go
to a judge and say, listen, we have been unable to get evidence against
this guy by any other means and, therefore, we need a wiretap. That
was absolutely impossible in this case."); the prosecution’s suggestion
that negative results on urinalysis tests performed on Bobby Brown
between May of 1998 and June of 1999 did not prove that he had not
been handling drugs during that time, in light of testimony indicating
that he wore a mask and gloves while preparing drugs for sale, (J.A.
at 462); the prosecution’s statement that evidence showed defendant
Carter was wearing jeans at a certain point, rather than sweatpants, as
defense counsel had suggested, and could thus have put a gun in his
waistband, (J.A. at 467); and the prosecution’s rebuttal of defense
counsel’s suggestion that the transcripts of recordings submitted into
evidence were inaccurate by pointing out that the defense could have
prosecution’s rebuttal closing. (Appellants’ Br. at 16.) Only a few of the
statements in question are discussed specifically in the brief, and even
fewer were actually objected to at trial. The Government contends that
as to those statements to which an objection was not raised, we must
review only for plain error. United States v. Loayza, 107 F.3d 257, 262
(4th Cir. 1997) (noting that "[w]here no objection was raised below, the
[prosecutor’s allegedly improper] remarks are reviewed for plain error").
To the extent that any of the prosecutorial statements in question were
improper or erroneous, they were not prejudicial, and thus the distinction
between plain and harmless error is immaterial in this appeal. See United
States v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001) (noting that
while the burden of demonstrating prejudice varies, prejudice must be
apparent to merit relief under either plain or harmless error review).
Accordingly, we do not distinguish herein between statements to which
Appellants objected at trial and those to which they did not.
UNITED STATES v. BROWN 7
made its own transcripts, (J.A. at 470). The majority of these state-
ments are most easily described as suggested explanations for evi-
dence presented to the jury, rather than as descriptions of that
evidence. For instance, in explaining McGraw’s hesitation in identify-
ing Carter, the prosecution was conceding that McGraw hesitated, and
attempting to explain why. Similarly, the prosecution conceded that
Bobby Brown’s urinalysis results were negative, and attempted to
explain how that fact could comport with its theory of the case. It is
the role of the jury to sift through competing explanations of this sort
for evidence offered at trial, and it is to a jury that a defendant must
contend that prosecutorial explanations such as these are unconvinc-
ing. See, e.g., Matthews v. Abramajtys, 319 F.3d 780, 790 (6th Cir.
2003) ("The actual resolution of the conflicting evidence, the credibil-
ity of witnesses, and the plausibility of competing explanations is
exactly the task to be performed by a rational jury."). Appellants’ con-
tention that these statements amount to improper "misrepresentations"
is therefore unavailing. Further, to the extent the statements Appel-
lants identify contain factual representations about the evidence
offered at trial, we cannot conclude that any of these statements is
appropriately described as a "misrepresentation" in light of Appel-
lants’ failure to identify the basis for such a conclusion in briefing or
argument to this court. See Scheetz, 293 F.3d at 185 (noting that bur-
den on appeal is on defendant to demonstrate impropriety of allegedly
improper remarks).
As to the prosecution’s statements that Appellants characterize as
accusing defense counsel of "unethical conduct," we view only one
such remark as improper: the prosecution’s suggestion that defense
counsel’s statements while cross-examining witnesses were "[t]he
most dishonest statement[s] that you heard in this entire trial". (J.A.
at 481-82.)4 The district court sustained defense counsel’s objection
to this statement, and admonished the prosecution and the jury that
"[i]t’s not appropriate to say that counsel were lying to the jury." (J.A.
4
The other statements so categorized by Appellants are the prosecu-
tion’s statement that defense counsel was "blatantly wrong" in his
description of witness Joe Davis’s testimony, (J.A. at 452), and the pros-
ecution’s reference to the inconsistency involved in defense counsel’s
encouraging the jury to believe witness Anthony Dickerson for some
purposes, but not others, (J.A. at 477).
8 UNITED STATES v. BROWN
at 482.) The judge’s statement in open court that this remark was
improper, though not a curative instruction, diminished the possibility
that the improper remark would prejudice the jury. More importantly,
the district court noted the impropriety of the statement and deter-
mined that it was sufficiently isolated so as not to constitute grounds
for a mistrial. In this regard the district court properly exercised its
discretion, to which we here defer.
The statements allegedly attacking defense counsel’s personal
credibility, if improper, were not prejudicial. The statements identi-
fied by Appellants in this category are references by the prosecution
to defense counsel’s being "desperate" to establish one proposition or
another, to defense counsel’s attempts to "trick" witnesses,5 to defense
counsel’s being "slick" lawyers, and to other aspects of the way
defense counsel conducted the trial. See (J.A. at 465-66) (prosecution
asserting that defense counsel were "desperate" to paint Count 6 as "a
murder count"); (J.A. at 469) (prosecution commenting on defense
counsel’s habit of laughing at witnesses to show that he didn’t believe
them); (J.A. at 475) (prosecution stating that whatever defense coun-
sel might have suggested about the elements necessary for a conspir-
acy conviction, the jury should follow the district court’s
instructions); (J.A. at 480-81) (prosecution stating that a witness’s
statement "was not a lie. That was [defense counsel] tricking [the wit-
ness]"). Viewed in light of the month-long trial as a whole and the
strength of the evidence against Appellants, we cannot conclude that
these statements were prejudicial to Appellants.
The statements Appellants identify as improperly placing a burden
on them are in fact simply statements pointing out the defense team’s
5
Appellants do not dispute that on a number of occasions during the
trial, defense counsel said to witnesses, "I’m not trying to trick you," or
words to that effect. We note that whether a particular prosecutorial com-
ment was an "invited response," intended to "right the scale" after an
improper remark by defense counsel, is a relevant consideration in
assessing a district court’s denial of a motion for a mistrial. United States
v. Young, 470 U.S. 1, 12-13 (1985). We need not decide here whether the
prosecution’s statements indicating that witnesses were "tricked"
amounted to an "invited response," because these statements were, in any
event, not prejudicial error.
UNITED STATES v. BROWN 9
failure to impeach certain witnesses with grand jury testimony. See,
e.g., (J.A. at 447) (pointing out defense’s failure to identify inconsis-
tencies between grand jury and trial testimony of witness McGraw);
(J.A. at 448) (pointing out that defense counsel managed to identify
only two inconsistencies between grand jury testimony and trial testi-
mony of witness Allen). Appellants have identified no instance in
which the prosecution suggested that it was Appellants’ burden to dis-
prove the charges against them; rather, the prosecution simply pointed
out that the defense had failed to impeach certain witnesses, inviting
the jury to conclude that the witnesses were reliable. We find no
impropriety in these statements.
Finally, Appellants identify two statements as having "denigrat[ed]
the right to a jury trial." They point to a reference during the prosecu-
tion’s closing argument to defense counsel’s earlier emphasis on the
historical importance of juries:
Mr. Ward [defense counsel], as I predicted, referenced the
Magna Carta in his closing statement. He said everything
but Magna Carta, but you know that 800 years ago at Run-
nymede, the Magna Carta was signed with King John. [Mr.
Ward] talked to you about the value of the jury system, how
it is sacred to our society and our system of justice. He said
that you are a jury of peers, and he emphasized that you are
the last hope for these defendants . . . . They kill people,
they beat people, they sell drugs . . . . You are the jury. It’s
up to you. You decide as the last line of defense whether
these three men go back in the streets.
(J.A. at 495-96.) These remarks do not appear necessarily to "deni-
grate" the right to a jury trial. Nevertheless, remarks intended to enlist
a jury as the "conscience of the community" may be improper where
they are calculated to inflame the jury. See United States v. Duffaut,
314 F.3d 203, 211 (5th Cir. 2002) (noting that "a prosecutor may
appeal to the jury to act as the conscience of the community, so long
as the comments are not calculated to inflame" (internal quotation
marks and alterations omitted)); United States v. Beasley, 2 F.3d
1551, 1559-60 (11th Cir. 1993) (concluding that several statements by
prosecution instructing jury that it was a participant in a broad "war
on drugs" were "appeal[s] by the prosecutor for the jury to act as ‘the
10 UNITED STATES v. BROWN
conscience of the community,’" were "calculated to inflame" the jury,
and were thus improper). Even assuming some inflammatory purpose,
and thus impropriety, in these remarks, however, we cannot conclude
that they prejudiced Appellants.
In assessing the district court’s resolution of a motion for a mistrial,
we must "accord the highest degree of respect to the trial judge’s
evaluation of the likelihood that the impartiality of one or more jurors
may have been affected by [an] improper comment." Arizona v.
Washington, 434 U.S. 497, 511 (1978). The able and experienced dis-
trict court here presided over a month-long trial, which was at times
highly contentious, with zealous advocacy apparent on both sides. We
cannot conclude that it abused its discretion in denying the motion for
a mistrial based upon isolated portions of the prosecution’s rebuttal
closing argument.
III.
Appellants next contend that the district court erred in applying the
murder cross-reference of U.S.S.G. § 2D1.1(d)(1) (2000) in calculat-
ing their sentences. Section 2D1.1(d)(1) of the Sentencing Guidelines
states that "[i]f a victim was killed under circumstances that would
constitute murder under 18 U.S.C. § 1111 had such killing taken place
within the territorial or maritime jurisdiction of the United States,
apply § 2A1.1 (First Degree Murder)." Appellants contend that per-
mitting application of this cross-reference permits them to be sen-
tenced for a murder that was not proved to a jury beyond a reasonable
doubt. Appellants’ contention is meritless in light of our conclusion
that "[t]he guidelines direct that in sentencing drug offenders, the
court must enhance the sentence when a killing occurs in the course
of a drug trafficking conspiracy ‘under circumstances that could con-
stitute murder under 18 U.S.C. § 1111.’" United States v. Montgom-
ery, 262 F.3d 233, 249 (4th Cir. 2001) (quoting U.S.S.G. § 2A1.1).
Accordingly, the district court did not err in applying the cross-
reference in question.
IV.
Appellants’ final joint contention is that the district court erred in
sentencing them for multiple violations of 18 U.S.C.A. § 924(c) based
UNITED STATES v. BROWN 11
on the same predicate drug offense. As with Appellants’ previous
contention, we have rejected precisely this argument. In United States
v. Camps, 32 F.3d 102 (4th Cir. 1994), we were presented with the
argument that "multiple consecutive sentences cannot be imposed for
multiple section 924(c)(1) convictions if those convictions arise out
of the events of a single predicate offense." Id. at 106. We reasoned
that because such a claim amounts to an argument that the defendant
"cannot be punished more than once for having committed only one
offense, [the] claim sounds in Double Jeopardy." Id. at 106. Because
the Double Jeopardy Clause "does no more than prevent the sentenc-
ing court from prescribing greater punishment than the legislature
intended," we examined § 924(c) for congressional intent regarding
multiple, separate acts of "using and carrying"6 a firearm in violation
of that section during a single ongoing drug offense. Id. at 106 (cita-
tions and internal quotation marks omitted). Based on the language of
the statute, we concluded that
a defendant who has engaged in numerous instances of the
precise conduct that Congress has outlawed has committed
more than one criminal offense. A defendant who has
"used" or "carried" a firearm on several separate occasions
during the course of a single continuing offense, therefore,
has committed several section 924(c)(1) offenses.
Id. at 107. Accordingly, such a defendant "properly receive[s] five
years for the first use, [and] [twenty-five7] years consecutive for the
second," as did Appellants here. Id. at 109; see also United States v.
6
At the time of our decision in Camps, § 924(c) criminalized only "us-
[ing] or carr[ying]" a firearm during and in relation to a crime of violence
or drug trafficking crime. After the Supreme Court held in Bailey v.
United States, 516 U.S. 137 (1995), that "use" requires active employ-
ment rather than mere possession, id. at 150, Congress amended § 924(c)
to include a person who, "in furtherance of any such crime, possesses a
firearm." Criminal Use of Guns, Pub. L. 105-386, § 1, 112 Stat. 3469
(1998).
7
When we decided Camps, § 924(c)(1)(C) called for a sentence of
twenty years for a second § 924(c)(1) offense. That section now calls for
a twenty-five year sentence for a second such offense. See
§ 924(c)(1)(C).
12 UNITED STATES v. BROWN
Carter, 300 F.3d 415, 424 (4th Cir. 2002) (noting that this issue was
addressed and decided in Camps, and labeling defendant’s contention
a "non-starter").
V.
Finally, Bobby Brown argues that the district court erred in apply-
ing a two-level obstruction of justice enhancement, pursuant to
U.S.S.G. § 3C1.1, in the calculation of his offense level. The district
court’s determination that the obstruction of justice enhancement in
§ 3C1.1 is applicable is a factual determination that we review for
clear error. United States v. Dove, 247 F.3d 152, 155 (4th Cir. 2001);
United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995). The
obstruction of justice enhancement was applied in calculating Bobby
Brown’s offense level for Count 1, the drug conspiracy charge, and
raised the offense level for that count from 47 to 49.
At offense level 43 or above, the Guidelines require a mandatory
life sentence. U.S.S.G. ch. 5, pt. A (Sentencing Table). A two-level
reduction in Bobby Brown’s offense level for Count 1 would reduce
his offense level only to 47, still mandating a life sentence. Any error
in the district court’s application of the obstruction of justice enhance-
ment was thus harmless. Williams v. United States, 503 U.S. 193, 203
(1992) (noting that a district court’s sentencing error is subject to
harmless error analysis, and remand is not required if "the error did
not affect the district court’s selection of the sentence imposed"); see
also United States v. McCrary, 887 F.2d 485, 489 (4th Cir.1989) (not-
ing that error in calculating criminal history category warrants remand
only when possible sentencing ranges are different). Had we resolved
his contention regarding the murder cross-reference differently, see
Part III, supra, Brown’s argument on this point might bear further
examination, because application of the obstruction of justice
enhancement to the lower base offense level that would then be appli-
cable might affect his sentence. Given our rejection of his murder
cross-reference contention, however, the obstruction of justice
enhancement did not in this case affect the appropriate sentence.
Thus, while Brown understandably exercised his prerogative to raise
the obstruction of justice issue in this forum, we need not consider it.
UNITED STATES v. BROWN 13
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.