United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4060

NACOE RAY BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CR-01-377-AMD)

Submitted: March 8, 2004

Decided: April 6, 2004

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Kenneth W. Ravenell, SCHULMAN, TREEM, KAMINKOW, GIL-

DEN & RAVENELL, P.A., Baltimore, Maryland, for Appellant.

Thomas M. DiBiagio, United States Attorney, Harry M. Gruber,

Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

2 UNITED STATES v. BROWN

OPINION

PER CURIAM:

Nacoe Ray Brown appeals his conviction and sentence on three

counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d), (f)

(2000), 18 U.S.C. § 2 (2000). He was convicted after an eight day

jury trial. The district court sentenced him to a term of 300 months’

imprisonment. On appeal, he raises several challenges arising out of

the trial of this matter. We have reviewed the record, together with

Brown’s claims on appeal, and find no basis on which to vacate his

conviction or sentence.

First, Brown alleges the district court erred in denying his motion

to suppress evidence seized from his residence. Contrary to Brown’s

assertion, we find there was ample probable cause on which the fed-

eral magistrate based his issuance of the residential search warrant.

This evidence included a ten page, single-spaced warrant application

which detailed extensively Brown and Kevin Hilliard’s course of ille-

gal conduct during the robberies, which was drafted by a trained and

experienced FBI Special Agent with expertise in bank robberies, who

attested specifically to the probability that proceeds from the bank

robberies, as well as other evidence particularly described in an

attached list, would be contained within Brown’s residence. The total

circumstances support a nexus between Brown’s criminal activity and

his residence sufficient to support issuance of the warrant. See Illinois

v. Gates, 462 U.S. 213, 238 (1983).

Brown next contends that the district court erred in admitting into

evidence facts relating to his attempt to escape from jail while await-

ing trial. He relies on Fed. R. Crim. P. 404(b) to support his argument,

claiming specifically that the evidence was unnecessary and that its

probative value was clearly substantially outweighed by unfair preju-

dice. We review the district court’s decision on the admission or

exclusion of Rule 404(b) evidence for abuse of discretion, United

States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990), and the district

court’s determination relative to the probative and prejudicial value

of Rule 403 evidence likewise is entrusted to the sound discretion of

the trial judge. United States v. Morison, 844 F.2d 1057, 1078 (4th

Cir. 1988). We agree with the district court that the attempted escape

UNITED STATES v. BROWN 3

evidence was properly admissible as evidence of consciousness of

guilt, even absent an express admission by Brown of this fact. See,

e.g., United States v. Peoples, 748 F.2d 934, 936 (4th Cir. 1984);

United States v. Bartelho, 129 F.3d 663, 677-78 (1st Cir. 1997).

Brown next challenges the district court’s decision to excuse a

juror over defense objection, a decision this court reviews for abuse

of discretion. United States v. Nelson, 102 F.3d 1344, 1349 (4th Cir.

1996). The district court considered the circumstances, as well as the

time it would take for the juror to get to the courthouse, and deter-

mined that it was not required by the interest of justice to further

delay the trial to wait for this juror. Moreover, there is no suggestion

here, nor does Brown assert, that the juror was excused because she

was African-American. Rather, he merely complains that she hap-

pened to be but one of two African-Americans on his jury panel.

Because there was a legitimate basis for the district court’s decision

to replace the juror at issue, we find this claim to be without merit.

Brown next asserts that the district court abused its discretion in

permitting Hilliard to read a letter to the jury that Brown wrote on the

basis that the letter contained a reference to Brown’s lack of plea

negotiations with the government. The admission of the plea evidence

here was appropriate because Brown’s statements were not made pur-

suant to plea negotiations. See United States v. Porter, 821 F.2d 968,

976-77 (4th Cir. 1987).

Brown raises several related allegations of error by the district

court relative to the fact that in the middle of trial, Brown’s attorney,

Kenneth W. Ravenell, learned his firm had previously represented in

an unrelated case one of the government’s primary witnesses, Kevin

Hilliard. Brown’s counsel moved to withdraw as Brown’s attorney,

sought a continuance to obtain alternate counsel to cross-examine Hil-

liard, and moved for a mistrial relative to this conflict. After being

advised by the trial court and his counsel, Hilliard testified that he

was willing to give up the confidentiality privilege with defense coun-

sel. Following thorough consideration of defense counsel’s motions

for mistrial and to withdraw, the district court denied the motions.

Following the denial, Mr. Ravenell conducted a vigorous cross-

examination that included questioning Hilliard about his prior arrest

history, his statements to Brown, his bias, and possible inconsisten-

4 UNITED STATES v. BROWN

cies in his story. The detailed cross-examination occupies more than

sixty pages of transcript, and Mr. Ravenell used all available informa-

tion, including information originally learned in a privileged capacity,

to dispute and discredit Hilliard’s testimony and credibility.

While the discovery of an attorney’s prior relationship with a wit-

ness in the middle of a trial is unusual, Brown has presented no con-

vincing evidence of an actual conflict or an adverse effect on

performance such that he was denied effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668 (1984), Beaver v. Thompson,

93 F.3d 1186, 1192 (4th Cir. 1996). We find no error in the district

court’s denial of the defense motions for mistrial, for a continuance,

or to withdraw as counsel.

Brown also contends that the district court erred in failing to

declare a mistrial when Hilliard testified that Brown related to him

that Brown’s attorney told Brown he felt he could "beat the case" if

Hilliard did not testify against Brown. We find no extraordinary cir-

cumstances here that would support disturbance of the district court’s

discretionary decision not to grant a mistrial based on the one state-

ment by Brown’s attorney. United States v. Hayden, 85 F.3d 153, 158

(4th Cir. 1996).

Next, Brown challenges the district court’s decision to not allow

testimony from a defense witness who allegedly would have provided

circumstantial evidence that Brown did not commit the robberies. We

find no abuse of the district court’s discretion in excluding this evi-

dence, following its consideration of counsel’s arguments on the

issue. United States v. Carter, 300 F.3d 415, 423 (4th Cir. 2002).

Brown’s final issue on appeal is that the district court erred in giv-

ing a slightly different jury instruction on identification from the

instruction requested by the defense. We review for abuse of discre-

tion the district court’s decision whether to give a particular jury

instruction, and the content of an instruction given. United States v.

Russell, 971 F.2d 1098, 1107 (4th Cir. 1992). Because Brown’s

requested identification instruction was substantially similar to the

charge given and did not seriously impair his ability to conduct his

defense, United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995), we

find no reversible error.

UNITED STATES v. BROWN 5

Accordingly, we affirm Brown’s conviction and sentence. We dis-

pense 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.

AFFIRMED