United States v. Brown

Case: 24-20095 Document: 104-1 Page: 1 Date Filed: 08/12/2025

United States Court of Appeals

for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 24-20095

FILED

August 12, 2025

____________

Lyle W. Cayce

United States of America, Clerk

Plaintiff—Appellee,

versus

Ronald Donell Brown,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CR-567-1

______________________________

Before Wiener, Douglas, and Ramirez, Circuit Judges.

Dana M. Douglas, Circuit Judge:

Defendant-Appellant Ronald Donell Brown appeals the district

court’s denial of his motion to suppress and its grant of the Government’s

motion to dismiss Counts Three and Four of Brown’s indictment. For the

reasons that follow, we AFFIRM the ruling on Brown’s motion to suppress,

VACATE the ruling on the Government’s motion to dismiss Counts Three

and Four, VACATE the sentences as to Counts One and Two, and

REMAND for the district court to make a discretionary determination as to

which convictions—Counts One and Two or Counts Three and Four—

should be dismissed, and to resentence accordingly.

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I

A

Ronald Donell Brown was the leader and manager of a drug

organization that trafficked illegal narcotics, including cocaine and

marijuana, received from suppliers located primarily in Mexico. Brown

arranged for the weekly transport of multi-kilogram shipments of narcotics

from Houston, Texas, to Atlanta, Georgia. Specifically, Brown used

members of his organization to transport drugs and money between the two

states in suitcases and large duffel bags driven in tractor trailers. Brown also

oversaw the operations of his drug trafficking organization by making

frequent trips between Houston and Atlanta on commercial flights, often

traveling under the pseudonym of “Dorsey Robinson.” The total amount of

cocaine distributed by Brown’s organization was well in excess of 100

kilograms.

In April 2014, Eric Williams (“E. Williams”), a co-conspirator in

Brown’s drug trafficking organization, gave one of the tractor-trailer drivers,

David Roberts, two large duffel bags containing approximately fifty-six

kilograms of cocaine that Roberts was to transport to Atlanta. Shortly after

receiving the cocaine, Roberts was robbed by another man, later identified by

Roberts as Marcus Celestine, an associate of Brown and someone Brown had

known since childhood. Brown believed E. Williams and Celestine worked

together to steal the cocaine. In retaliation, Brown sought to murder both

men.

Brown and other members of his drug trafficking organization

kidnapped E. Williams by binding his hands and feet with zip ties and forcing

him into the trunk of a car. Brown planned to drive E. Williams to another

location where he would be murdered. While en route to the intended

murder location, E. Williams broke free of his restraints and escaped from

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the trunk. E. Williams then fled the scene on foot and encountered Richard

Gordon, a good Samaritan and unrelated third party who offered to drive E.

Williams to a place of safety. Brown, who was armed with a handgun,

pursued E. Williams. Brown pulled up alongside Gordon’s car and fired his

weapon, striking E. Williams in the head and Gordon in the upper body.

Despite being shot, both men reached safety and reported the incident to the

police before being transported to the hospital.

After the failed attempt to murder E. Williams, Brown sought the

assistance of Raphael Risher, a person Brown grew up with and who was also

involved in the drug trade, in finding someone to murder Celestine. Risher

contacted Clyde Williams (“C. Williams”), who agreed to murder Celestine.

Brown then provided a handgun to Risher, who passed the handgun to C.

Williams.

Brown later phoned his parole officer to inquire about the date, time,

and location of Celestine’s next appointment with the Office of Probation

and Parole. Although unauthorized to do so, the parole officer told Brown

that Celestine was scheduled to meet his parole officer at the Houston One

District Parole Office on July 1, 2014. Brown informed Risher of Celestine’s

parole meeting, and Risher passed the information along to C. Williams.

On the morning of July 1, 2014, C. Williams shot and killed Celestine

as he sat in his vehicle in the parking lot of the Houston One District Parole

Office. Later that morning, Risher and C. Williams met Brown at a location

on Highway 6 near Richmond, Texas, where Brown gave Risher and C.

Williams approximately $20,000 for murdering Celestine.

Police later arrested Brown in September 2017 on charges unrelated

to the instant case. Brown was subsequently transferred into the custody of

the United States Marshals Service.

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B

A federal grand jury returned a twelve-count superseding indictment

against Brown in November 2018. That indictment also charged C. Williams

on four counts. Relevant to this appeal, Count One of the indictment charged

Brown and C. Williams with conspiracy to commit murder for hire, in

violation of 18 U.S.C. § 1958. Count Two charged them with intentional

killing while engaged in drug trafficking, in violation of 21 U.S.C.

§ 848(e)(1)(A) and 18 U.S.C. § 2. Counts Three and Four charged that

Brown and C. Williams “did aid and abet each other and did knowingly use,

carry, brandish, and discharge a firearm . . . during and in relation to a crime

of violence” causing death by murder, in violation of 18 U.S.C. § 924(c) and

(j) and 18 U.S.C. § 2. The predicate crime of violence for Count Three was

the conspiracy to commit murder for hire as charged in Count One, while

Count Four was based on the murder and intentional killing of Celestine as

charged in Count Two.

1

Before trial, Brown filed a motion to suppress evidence and requested

an evidentiary hearing on taint. In his motion, Brown argued that federal

agents acting through a confidential informant violated attorney-client

privilege by intruding on privileged communications without obtaining court

authorization. Brown further sought to suppress allegedly improperly

obtained attorney-client communications under the Sixth Amendment.

At issue in his motion were two conversations, each involving Brown,

his attorney, Chip Lewis, another attorney, Alicia O’Neil, and a fourth

individual, referred to in this opinion as the “Confidential Informant” or

“CI.” The CI owned a Houston-based tax service and was looking for

investors to help her open a school in Stafford, Texas. The husband of one

of the CI’s clients introduced her to Brown, who told her that he liked the

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idea of investing in the school. According to the CI, she received a call from

Brown on August 4, 2013, asking her to attend a meeting with Brown at his

attorney’s office later that same day.

The CI was under the impression that the meeting would be about

Brown’s investment in the school. But soon after the meeting began, it

became apparent to the CI that this was not the true purpose of the meeting.

Instead, Brown and the attorneys began discussing a large sum of money—

$718,407—that Department of Homeland Security Investigations (“HSI”)

agents in Texas had seized the day before, on August 3, during a traffic stop

of a vehicle driven by Jeffrey Hughes, one of Brown’s drivers. During the

meeting, Brown called Hughes from his cell phone and placed the call on

speaker so the others could listen. Hughes described the traffic stop, the

consensual search of the vehicle, the discovery of a suitcase containing the

money, and law enforcement’s seizure of that money.

After the phone call with Hughes, Brown and Lewis began discussing

how the CI could claim the seized currency as her own in exchange for which

Brown could give the CI a percentage as an investment in her school. Lewis

asked the CI for her contact information and told her that an attorney would

be contacting her about petitioning for the currency.

The CI left the meeting feeling confused and concerned about the

illegality of the plan to recover the seized money. The following day, the CI

contacted an FBI agent whom she previously worked with and told that

agent about what had transpired. The CI then met with HSI Special Agent

Todd Perzigian and FBI Special Agent Jack Walker on September 9, 2013,

and described to them the August 4 meeting with Brown, Lewis, and O’Neil.

The CI told the agents that Brown was the true owner of the $718,407 seized

by HSI agents on August 3, and that Brown and Lewis were conspiring to

obtain the seized money by having the CI file a fraudulent petition. The CI

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also informed the agents that Brown routinely spoke to her about his drug

business, stating that Brown traveled weekly to Atlanta to facilitate the drug

business, he dealt in large quantities of cocaine and marijuana, and Hughes

was not the only driver who worked for Brown. After the September 9

meeting with Agents Perzigian and Walker, the CI began working with

another agent to record her conversations with Brown and the attorneys.

The CI, Brown, Lewis, and O’Neil next met at Lewis’s office on

September 17, 2013, to discuss the CI’s filing of the petition. The CI

recorded that meeting. The attendees discussed possible narratives for

explaining how the CI and Hughes were connected and the CI’s claim to the

money. Lewis also cautioned the CI and Brown that the government would

likely investigate the authenticity of any information provided as justification

for the petition and that the CI could be deposed under oath and subject to

criminal penalties for perjury. After the meeting, and outside the presence

of the two attorneys, Brown and the CI continued their conversation about

the petition.

According to Brown, federal agents acting through the CI violated

attorney-client privilege and the Sixth Amendment by intruding on the

August 4 and September 17 meetings, and certain Government witnesses and

exhibits related to this unlawful intrusion constituted “fruit of the poisonous

tree.” 1 Brown specifically argued in his suppression motion that a violation

of attorney-client privilege occurred when the Government, through the CI,

improperly obtained his admissions of past criminal conduct made to the

attorneys in pursuit of legal advice. This breach, Brown asserted, further led

_____________________

1

Brown sought to suppress Government Witnesses #1–7 and Exhibits #1–6.

Witnesses 1–3, 5, and 6 were law enforcement officers investigating the 2013 money

seizure; Witness 4 was Hughes; and Witness 7 was the CI. The exhibits were documents

related to the August 3 cash seizure.

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to the Government learning of protected attorney-client communications in

violation of the Sixth Amendment right to counsel. Brown therefore sought

to suppress all evidence derived directly and indirectly from the purported

attorney-client privilege breach and Sixth Amendment violation.

The district court denied Brown’s motion, concluding that Brown had

failed to show that the August 4 and September 17 communications at issue

were protected by attorney-client privilege, and that Brown failed to establish

the requisite prejudice for his Sixth Amendment claim. United States v.

Brown, No. H-17-567-1, 2023 WL 5939892, at *3–11 (S.D. Tex. Sept. 12,

2023).

2

Brown’s jury trial commenced in October 2023. 2 Towards the end of

his trial, the Government moved to dismiss Counts Eight through Twelve of

the superseding indictment, which the district court granted. The jury

convicted Brown on all seven remaining counts.

Brown subsequently moved to vacate Count One or Two on double

jeopardy grounds, arguing that the two convictions were multiplicitous and

resulted in impermissible punishment under the Fifth Amendment. The

district court denied Brown’s motion to vacate on the eve of sentencing.

The next day, before Brown’s sentencing hearing, the Government

filed a motion to dismiss Counts Three and Four under Federal Rule of

Criminal Procedure 48(a). It argued that sentencing Brown to the § 924(j)

offenses charged in Counts Three and Four, as well as the lesser-included

crimes of violence charged in Counts One and Two, would likely violate the

_____________________

2

C. Williams pleaded guilty to Count One, conspiracy to commit murder for hire.

He entered into a cooperation agreement with the Government and testified at Brown’s

trial.

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Fifth Amendment Double Jeopardy Clause. Thus, “to avoid litigation risk”

and “cumulative punishment,” the Government sought leave of court to

dismiss the two greater-included § 924(j) offenses.

At sentencing, defense counsel requested a continuance to respond to

the Government’s motion to dismiss. Counsel also sought leave to amend

the previously filed motion to vacate to incorporate the arguments raised in

the Government’s motion. Remarking that the Government had “set out a

completely rational basis” for its motion and that Brown would not “be

prejudiced by the dismissal of Counts [Three] and [Four],” the district court

denied defense counsel’s requested continuance and amendment.

The district court ultimately imposed concurrent sentences of life

imprisonment on Counts One, Two, Five, and Seven, and a consecutive 120-

month prison term on Count Six, followed by five years of supervised release.

By separate written order, the district court dismissed Counts Three and

Four on the Government’s motion. Brown timely appealed, challenging the

district court’s rulings on his motion to suppress and the Government’s Rule

48(a) motion to dismiss. 3

II

We begin with the district court’s denial of Brown’s motion to

suppress. Our review is de novo for legal conclusions and clear error for

factual findings. United States v. Kendrick, 980 F.3d 432, 439 (5th Cir. 2020).

We will affirm the district court’s denial of Brown’s motion “if there is any

_____________________

3

To the extent Brown seeks to challenge the district court’s denial of his motion

to vacate Count One or Two or its denial of his request for an evidentiary hearing, Brown

has failed to adequately brief these arguments, and they are therefore forfeited. See Rollins

v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).

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reasonable view of the evidence to support the denial.” United States v.

Gratkowski, 964 F.3d 307, 310 (5th Cir. 2020) (citation modified).

A

Brown first contends that the district court erred in holding that

communications made during the August 4 meeting were not subject to

attorney-client privilege. 4

“The application of the attorney-client privilege is a question of fact,

to be determined in the light of the purpose of the privilege and guided by

judicial precedents.” United States v. Murra, 879 F.3d 669, 681 (5th Cir.

2018) (internal quotation marks omitted) (quoting In re Auclair, 961 F.2d 65,

68 (5th Cir. 1992)). To be afforded the protections of the attorney-client

privilege, a defendant “must prove: (1) that he made a confidential

communication; (2) to a lawyer or his subordinate; (3) for the primary

purpose of securing either a legal opinion or legal services, or assistance in

some legal proceeding.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th

Cir. 2017) (emphasis omitted) (quoting United States v. Robinson, 121 F.3d

971, 974 (5th Cir. 1997)).

As to the first element, when a communication between attorney and

client occurs in the presence of a third party who is not the attorney’s client,

_____________________

4

Brown does not specifically challenge the district court’s ruling that he is not

entitled to attorney-client privilege for communications made during the September 17

meeting. Rather, Brown argues only that the district court erred in finding that he and the

CI did not share a common legal interest. But the district court premised its ruling with

respect to the September 17 communications on an entirely different finding: that the CI’s

“recording of the September 17, 2013, meeting [was] not a source of the information that

Brown argue[d] breached the attorney-client privilege and violated his [c]onstitutional

rights.” Brown, 2023 WL 5939892, at *8. Brown has thus forfeited any argument

concerning attorney-client privilege and the September 17 communications. See Rollins, 8

F.4th at 397.

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the communication generally is not confidential, and the privilege is waived.

See United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976). As we

explained in Hodges, Grant & Kaufman v. United States, 768 F.2d 719, 721

(5th Cir. 1985): “Because the privilege protects only confidential

communications, the presence of a third person while such communications

are made or the disclosure of an otherwise privileged communication to a

third person eliminates the intent for confidentiality on which the privilege

rests.”

An exception to the waiver-by-third-party-presence rule applies when

“a privileged communication is shared with a third person who has a

common legal interest with respect to the subject matter of the

communication.” Id. This is known as the “common legal interest” or

“joint defense” privilege. In re Santa Fe Int’l Corp., 272 F.3d 705, 710–12

(5th Cir. 2001); In re Auclair, 961 F.2d at 69 & n.8. Under “our circuit

precedents, the two types of communications protected under the [common

legal interest] privilege are: (1) communications between co-defendants in

actual litigation and their counsel; and (2) communications between potential

co-defendants and their counsel.” In re Santa Fe, 272 F.3d at 710 (citations

omitted).

“With respect to the latter category, the term ‘potential’ has not been

clearly defined”; “[h]owever, because the privilege is an obstacle to

truthseeking, it must be construed narrowly to effectuate necessary

consultation between legal advisers and clients.” Id. (citation modified).

Thus, “there must be a palpable threat of litigation at the time of the

communication, rather than a mere awareness that one’s questionable

conduct might some day result in litigation, before communications between

one possible future co-defendant and another . . . could qualify for

protection.” Id. at 711; see also In re Auclair, 961 F.2d at 69 (holding that the

common legal interest privilege extends to communications made among

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persons “who consult an attorney together as a group with common interests

seeking common representation” in the face of imminent litigation).

Brown does not cite evidence suggesting that he and the CI shared a

common interest in the subject matter of the August 4 communication:

i.e., the seized money and Brown’s efforts to reclaim that money.

Conversely, the district court recounted the ample record evidence

supporting the lack of a common legal interest among Brown and the CI.

Brown, 2023 WL 5939892, at *7–8. For instance, the CI’s swift reporting to

and cooperation with the FBI indicates that the CI had no common or joint

interest in Brown’s scheme to reclaim the seized money. See id. at *7. The

lack of common legal interest is also demonstrated by the CI’s interviews

with FBI agents and the prosecution, which, as the district court described,

“show that Brown lured [the CI] to the August 4, 2013, meeting under the

pretense that he was interested in investing in a school that [the CI] was

trying to open and that the discussion with Lewis would be about paperwork

for such an investment.” Id. Because the CI had no prior knowledge of the

meeting’s true purpose, it cannot be said that she shared a common interest

in that purpose. Cf. Wilson P. Abraham Constr. Corp. v. Armco Steel Corp.,

559 F.2d 250, 253 (5th Cir. 1977) (per curiam) (explaining that the common

legal interest privilege applies when “the exchange is made for the limited

purpose of assisting in [a] common cause”).

Brown alternatively offers a different common legal interest that he

and the CI purportedly shared: Brown’s proposed investment in the CI’s

school. The record suggests that insofar as the meeting attendees discussed

the investment at the August 4 meeting, it was in the context of Brown urging

the CI to file a fraudulent petition for the seized money, after which Brown

would give the CI a percentage of the amount as an investment in her school.

But it cannot be said that any significant purpose of the August 4 meeting was

to discuss Brown’s investment in the school. As Brown readily admits, the

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meeting centered on the seized money and Brown’s attempts to reclaim that

money. Any discussion of the investment was in reference only to a potential

workaround for the legal predicament facing Brown, not the CI.

Additionally, at the time of the August 4 meeting, there was no

“palpable threat of litigation” that would make Brown and the CI “potential

co-defendants” in civil or criminal proceedings. In re Santa Fe, 272 F.3d at

710–11. Although Brown and the attorneys may have been aware that the

filing of a fraudulent petition “might some day result in litigation,” id. at 711,

that alone does not give rise to the protections of the common legal interest

privilege. See United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002) (“[A]

cognizable common legal interest does not exist if a group of individuals seeks

legal counsel to avoid conduct that might lead to litigation, but rather only if

they request advice to prepare for future litigation.” (citation modified)).

Accordingly, the district court did not clearly err in finding that Brown’s

communication with attorneys Lewis and O’Neil, in the presence of the CI,

does not fall within the ambit of the common legal interest exception, and he

is not entitled to the protections of the attorney-client privilege.

Despite Brown’s argument to the contrary, our holding comports with

the Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383

(1981). There, the Supreme Court held that communications between

corporate employees and corporate in-house counsel made during the course

of an attorney-led internal investigation were protected by the attorney-client

privilege. Id. at 391–94. The Court observed that, unlike “[i]n the case of

the individual client [where] the provider of information and the person who

acts on the lawyer’s advice are one and the same[,] . . . [i]n the corporate

context, . . . it will frequently be employees . . . who will possess the

information needed by the corporation’s lawyers.” Id. at 391. Extending

attorney-client privilege to those communications between employees and

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corporate counsel, the Supreme Court explained, encourages the “full and

frank” presentation of sound legal advice to corporate clients. Id. at 389, 392.

Unlike in Upjohn, the CI was not Brown’s employee or agent and was

not involved in any fact-finding or internal investigation covered by the

attorney-client privilege. The CI knew nothing about the seized money

discussed at the August 4 meeting, nor is there evidence that the CI provided

attorneys Lewis and O’Neil with information that would have aided in their

representation of Brown. See id. at 390–91. To the extent the CI engaged in

any discussion of the purported scheme to claim the seized currency during

the August 4 meeting, that is not the sort of protected fact-finding

communication Upjohn contemplated. See id. at 389; see also In re Burlington

N., Inc., 822 F.2d 518, 524 (5th Cir. 1987) (“[B]ecause the client has no

legitimate interest in seeking legal advice in planning future criminal

activities, society has no interest in facilitating such communications.”

(citation modified)).

Brown’s reliance on In re Auclair, 961 F.2d 65, is equally unavailing.

That case involved a situation where multiple prospective clients “consult

an attorney together as a group with common interests seeking common

representation.” Id. at 69. We held that under those circumstances, “the

parties and the attorney may reasonably presume that the parties are seeking

representation of a common or joint matter.” Id. at 70. But Auclair

concerned “the scope of the attorney-client privilege in an instance of

declined representation”—an issue not present here. Id. at 69. Lewis

already represented Brown, and the CI did not attend the August 4 meeting

seeking joint legal representation or any legal representation for that matter.

Moreover, Auclair did not modify the general rule that waiver results

from disclosure to third parties who have no common legal interest. As we

previously discussed, Brown acknowledged that the communications made

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during the August 4 meeting concerned the seized money and Brown’s

attempt to reclaim that money. Brown does not contend, nor does the record

suggest, that the CI, in attending the August 4 meeting, sought consultation

with attorneys Lewis and O’Neil on the seized money; rather, she attended

that meeting with the belief that they would discuss Brown’s potential

investment in the school. Thus, unlike in Auclair, the CI here had no interest

in the “legal” matter discussed.

As a disinterested party, the CI’s presence rendered the August 4

meeting non-confidential and placed it outside the scope of the attorney-

client privilege. Finding no clear error, we affirm the district court’s denial

of the motion to suppress with respect to Brown’s assertion of the attorney-

client privilege.

B

Brown next argues that the district court erred in denying his motion

to suppress based on his Sixth Amendment claim concerning the

Government’s purported intrusion into attorney-client communications

without a court order.

The Sixth Amendment provides in pertinent part that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. “A

governmental intrusion ‘through surreptitious electronic means or through

an informant’ upon ‘the confidential relationship between a criminal

defendant and his attorney’ violates the Sixth Amendment right to counsel.”

United States v. Diaz, 941 F.3d 729, 738 (5th Cir. 2019) (per curiam) (quoting

United States v. Zarzour, 432 F.2d 1, 3 (5th Cir. 1970)).

An accused’s right to counsel is, however, “limited by its terms.”

Rothgery v. Gillespie County, 554 U.S. 191, 198 (2008). “[I]t does not attach

until a prosecution is commenced,” meaning “the initiation of adversary

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judicial criminal proceedings—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.” Id. (first quoting McNeil

v. Wisconsin, 501 U.S. 171, 175 (1991); and then quoting United States v.

Gouveia, 467 U.S. 180, 188 (1984)). Our court has thus held that intrusions

into conversations during “the investigatory phase” but before the defendant

had been charged were not subject to Sixth Amendment protections. E.g.,

Diaz, 941 F.3d at 739 (denying defendant Sixth Amendment protections for

recordings taken about nine months before grand jury subpoena issued);

United States v. Carr, 83 F.4th 267, 274–75 (5th Cir. 2023) (denying

defendant Sixth Amendment protections for recordings of attorney-client

conversations recorded almost a year before grand jury indictment). 5

The conversations at issue in this case took place in 2013, more than

four years before the return of Brown’s grand jury indictment in 2017.

Neither conversation transpired after Brown’s right to counsel had attached,

_____________________

5

Brown argues that Diaz and Carr conflict with the Supreme Court’s rulings in

Black v. United States, 385 U.S. 26 (1966) (per curiam), and Weatherford v. Bursey, 429 U.S.

545 (1977). Neither case cited by Brown lends credence to his argument that the Sixth

Amendment right arises before initiation of adversarial proceedings. In Black, a case that

did not expressly concern the Sixth Amendment, the government belatedly disclosed the

existence of FBI recordings of conversations between Black and his attorney “during the

period the offense was being investigated and beginning some two months before and

continuing until about one month after the evidence in this case was presented to the Grand

Jury.” 385 U.S. at 27. Notably, the Court’s explanatory per curiam opinion did not rule

that a constitutional violation had occurred; the Court simply set aside the case and ordered

a new trial to afford Black “an opportunity to protect himself from the use of evidence that

might be otherwise inadmissible.” Id. at 27–29; see also Weatherford, 429 U.S. at 552 (“It

is difficult to believe that the Court in Black . . . was evolving a definitive construction of

the Sixth Amendment without identifying the Amendment it was interpreting . . . .”). And

in Weatherford, the two pretrial meetings at issue, which the criminal defendant attended

along with an undercover government informant and his trial counsel, occurred after the

criminal defendant’s arrest and indictment. 429 U.S. at 547–48.

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see Rothgery, 554 U.S. at 198, and no Sixth Amendment violation occurred,

see Diaz, 941 F.3d at 738–39; Carr, 83 F.4th at 274–75.

III

We now turn to the district court’s grant of the Government’s motion

to dismiss Counts Three and Four under Federal Rule of Criminal Procedure

48(a).

A

Brown first argues that the district court erred in granting the motion

without Brown’s consent and over defense counsel’s objection. Brown did

not raise this argument before the district court, so plain error review applies.

United States v. Mendez, 885 F.3d 899, 908 (5th Cir. 2018) (citing Fed. R.

Crim. P. 52(b)).

Federal Rule of Criminal Procedure 48(a) provides that the

Government “may, with leave of court, dismiss an indictment, information,

or complaint” but “may not dismiss the prosecution during trial without the

defendant’s consent.” Fed. R. Crim. P. 48(a). A plain reading of the

Rule requires the Government to obtain a defendant’s consent to the motion

only “during trial,” which supports that the Government merely needed

“leave of court” in this case. See id. The Eighth Circuit has held as much,

too. In United States v. Williams, 720 F.3d 674 (8th Cir. 2013), the court

noted that “[a]lthough it is the rare case in which the prosecution will move

to dismiss an indictment after a trial is complete and verdict rendered, Rule

48(a) requires the government to obtain the defendant’s consent to dismiss

the prosecution only ‘during trial.’” Id. at 702–03 (quoting Fed. R. Crim.

P. 48(a)). Because the defendant failed to cite any authority requiring the

government to seek consent after trial, the Eighth Circuit concluded that “all

that the government needed was leave of court, which the district court

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granted.” Id. at 703; see also United States v. Bowser, 318 F. Supp. 3d 154, 167

(D.D.C. 2018) (holding same).

Brown has likewise not cited any authority suggesting that his consent

was a requisite to the court’s granting of the motion made after a complete

trial. The district court therefore did not plainly err in granting the motion

to dismiss without Brown’s consent.

B

Brown next argues that the district court erred in dismissing Counts

Three and Four rather than Counts One and Two.

1

As an initial matter, the parties dispute whether Brown sufficiently

raised the instant challenge before the district court to preserve it for appeal.

Federal Rule of Criminal Procedure 51(b) provides that “[a] party may

preserve a claim of error by informing the court—when the court ruling or

order is made or sought—of the action the party wishes the court to take, or

the party’s objection to the court’s action and the grounds for that

objection.” As the Supreme Court has explained, “[b]y ‘informing the

court’ of the ‘action’ he ‘wishes the court to take,’ a party ordinarily brings

to the court’s attention his objection to a contrary decision.” Holguin-

Hernandez v. United States, 589 U.S. 169, 173 (2020) (citation omitted)

(quoting Fed. R. Crim. P. 51(b)). Thus, for preservation purposes, the

relevant “question is simply whether the claimed error was ‘brought to the

court’s attention.’” Id. at 174 (quoting Fed. R. Crim. P. 52(b)). “The

objection and argument on appeal need not be identical; the objection need

only give the district court the opportunity to address the gravamen of the

argument presented on appeal.” United States v. Rodriguez-Leos, 953 F.3d

320, 325 (5th Cir. 2020) (citation modified); see also United States v.

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Hernandez-Montes, 831 F.3d 284, 290 (5th Cir. 2016) (“Key is whether the

objection is specific enough to allow the court to take evidence and receive

argument on the issue.”).

Here, the record does not reflect that Brown expressly objected to the

Government’s motion to dismiss or the reasoning or arguments set forth

therein. The record is also somewhat equivocal as to whether Brown argued

that, under double-jeopardy principles, the district court had to, or should,

dismiss Counts One and Two instead of Counts Three and Four. But is

Brown to blame for the lack of specificity in his argument given the

Government’s last-minute filing of its motion to dismiss on the morning of

sentencing? We think not.

Defense counsel had only a short window of time to prepare a

responsive argument, and counsel certainly had insufficient time to articulate

his position in the form of a written and filed response before the 2:00 p.m.

sentencing hearing. Indeed, at sentencing, defense counsel requested a

continuance to respond, which the district court denied. By declining Brown

and his counsel a meaningful opportunity to respond, the district court

foreclosed Brown’s ability to more fulsomely and clearly present his

objections to the Government’s motion. See Carroll v. Fort James Corp., 470

F.3d 1171, 1176–77 (5th Cir. 2006) (noting the importance of prior notice and

an opportunity to respond). Under these circumstances, the issue is deemed

preserved for appeal even absent an express objection. See United States v.

Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc) (“[W]e do not review for

plain error when the defendant did not have an opportunity to object in the

trial court.”); United States v. Dean, 940 F.3d 888, 890 (5th Cir. 2019)

(“When a defendant has not been provided a meaningful opportunity to

object, this Court reviews sentencing for an abuse of discretion.”); United

States v. Riojas-Flores, 834 F. App’x 120, 120 (5th Cir. 2021) (per curiam)

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(reviewing for abuse of discretion when defendant “did not have a

meaningful opportunity to object in the district court”).

And regardless, a review of the record with an eye toward preservation

suggests that Brown sufficiently raised the argument now pressed on appeal.

Before the district court denied the requested continuance, defense counsel

asserted that the Government’s motion raised “an issue regarding double

jeopardy.” Specifically, the Government’s motion conceded that based on

the Supreme Court’s ruling in Lora v. United States, 599 U.S. 453 (2023), 6

“logic suggests that the Double Jeopardy Clause prohibits cumulative

punishment for offenses under [18 U.S.C. §] 924(j) and lesser-included

offenses, including predicate crimes of violence or drug trafficking crimes.” 7

So, sentencing Brown to both Counts One and Two, the predicate crimes of

violence, and Counts Three and Four, the § 924(j) offenses, would lead to

potential double-jeopardy concerns, the Government said. Importantly, the

Government asserted that the proper remedy to this multiplicity issue was to

_____________________

6

The Court in Lora considered whether the bar on concurrent sentences in 18

U.S.C. § 924(c) extends to a sentence imposed under § 924(j) and unanimously held that

it did not. 599 U.S. at 455, 459. Although Lora did not address the double-jeopardy

question at issue here, both parties cite that decision for the argument that Congress did

not intend for multiple punishments for a § 924(j) violation and the predicate crime of

violence. Just as subsection (c) includes an express concurrent-sentence bar that

subsection (j) does not, subsection (c) likewise includes an express provision permitting

cumulative sentences that subsection (j) does not. Compare 18 U.S.C. § 924(c) (providing

for imposition of sentence under § 924(c) “in addition to the punishment provided for such

crime of violence or drug trafficking crime”), with id. § 924(j) (authorizing sentence of life

imprisonment or death, without reference to the imposition of any other sentence).

Therefore, in accordance with Lora, the parties assert that § 924(j) should not be read to

permit cumulative punishment. Our recent decision in United States v. Sanders, 133 F.4th

341 (5th Cir. 2025), supports the parties’ reading of Lora. See id. at 370 (holding that a

charged predicate crime of violence “did not require proof of a fact that § 924 did not,”

and so “the offenses fail[ed] the elements test under Blockburger”).

7

ROA.1676.

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dismiss Counts Three and Four (i.e., the greater offenses) and sentence

Brown on Counts One and Two (i.e., the lesser offenses).

Although defense counsel did not expressly object to the

Government’s request to dismiss Counts Three and Four, counsel

reasonably brought that objection to the district court’s attention. Notably,

defense counsel expressed at sentencing his agreement with the logic

underlying the Government’s motion to dismiss: that Counts One and Two

and Counts Three and Four are multiplicitous, and that sentencing Brown

on all four counts would violate the Double Jeopardy Clause. Yet, despite

agreeing with the legal basis for the Government’s requested dismissal,

defense counsel did not simply express no objection to the motion; rather,

defense counsel explicitly requested leave to file a response. This should

have made clear to the district court that defense counsel disputed, at least

implicitly, some aspect of the Government’s motion. And the only portion

of the motion that defense counsel did not express agreement with during

sentencing was the Government’s position that the district court should

dismiss Counts Three and Four. As such, a district judge would “ordinarily

understand” that Brown was making the argument that it should not dismiss

Counts Three and Four at the Government’s behest. See Holguin-

Hernandez, 589 U.S. at 173–74 (finding issue preserved when the judge would

“ordinarily understand that a defendant . . . was making the argument” now

pressed on appeal even though not expressly raised).

Brown also asked to amend his previously filed motion to vacate,

arguing that the Government’s Rule 48(a) motion “directly implicates the

double jeopardy clause under the multiplicity argument” set forth in his

motion. Brown’s request to amend reasonably informed the district court

that he did not wholly agree with the Government’s motion to dismiss;

namely, Brown did not accept that the proper resolution of the purported

multiplicity issue was the dismissal of Counts Three and Four rather than

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Counts One and Two. 8 This is particularly evident given that in the motion

to vacate that he invoked at sentencing and sought leave to amend, Brown

emphasized that the remedy for multiplicitous sentences was that the district

court—not the Government—should decide which conviction to vacate.

Further, Brown arguably raised the core of his appellate argument. He

stated at sentencing that the Government’s motion to dismiss implicated the

Double Jeopardy Clause, multiplicity, and Blockburger, and he specifically

maintained that Counts One and Two were lesser-included offenses of

Counts Three and Four. The district court apparently understood that,

while Brown agreed there were multiplicity issues that prohibited the entry

of judgment on all four counts at issue, he challenged that the proper remedy

was to dismiss Counts Three and Four. The court responded that it

effectively had to grant the Government’s motion absent a showing of bad

faith or disservice to the public interest, that the Government offered a

seemingly valid rationale, and that Brown would not be prejudiced by the

dismissal of Counts Three and Four. 9

Thus, even if Brown was not deprived of a meaningful opportunity to

object, he properly brought the gravamen of his argument to the district

court’s attention, and he has sufficiently preserved this claim of error for

appeal. See Fed. R. Crim. P. 51(b); Holguin-Hernandez, 589 U.S. at

_____________________

8

At sentencing, Brown’s attorney requested to amend the motion to vacate to

address the argument raised in the Government’s motion—i.e., that Counts Three and

Four are the greater-included offenses for Counts One and Two, respectively. The

attorney conceded that he “didn’t quite pick . . . up” on that argument when he initially

filed Brown’s motion to vacate.

9

Notably, the Government also appears to acknowledge that Brown raised some

version of his appellate argument in the district court. See Gov’t Brief at 63 (stating that

Brown’s appellate argument “vastly enlarges . . . the new double jeopardy theory he raised

at sentencing”).

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173–74; Rodriguez-Leos, 953 F.3d at 325. We therefore review his challenge

for abuse of discretion. See United States v. Jones, 664 F.3d 966, 973 (5th Cir.

2011).

2

The crux of Brown’s argument is that the district court erred in

dismissing Counts Three and Four, instead of the lesser-included offenses

charged in Counts One and Two. Brown does not contest whether the

Government made its motion in bad faith, or whether the motion was well

supported and consistent with the public interest. Indeed, both parties agree

that punishing Brown for the § 924(j) offenses as well as the predicate crimes

of violence would violate the Double Jeopardy Clause. Our precedent

supports the parties’ position. See United States v. Sanders, 133 F.4th 341,

370–71 (5th Cir. 2025). So, the only question we must answer is whether the

district court, in granting the Government’s Rule 48(a) motion, properly

dismissed Counts Three and Four, rather than Counts One and Two.

A Rule 48(a) motion implicates the Government’s exercise of its

discretion to decide whether to dismiss a pending prosecution. The

Government’s position concerning whether to end the prosecution of certain

crimes is given deference because it has the prerogative to decide how to

prosecute offenses and when to dismiss charges. See United States v. Cowan,

524 F.2d 504, 513 (5th Cir. 1975). But here, the Government was not simply

exercising its discretion as to what charges to pursue or which offenses to

prosecute. A jury had already convicted Brown of all charged offenses, and

the only remaining question before the district court was on what counts of

conviction he should be sentenced. The record therefore reflects that the

Government filed its motion to dismiss Counts Three and Four not due to

considerations as to whether Brown should be subject to prosecution for

those counts but rather because of concerns as to the punishment that would

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be imposed and the availability of specific sentencing options. If the

Government’s motive had simply been to avoid a potentially cumulative

punishment, dismissal of either Counts One and Two or Counts Three and

Four would have achieved its objective.

Instead, the Government’s motion limited the district court’s

sentencing options. As Brown observes, the counts the Government moved

to dismiss did not require the imposition of a minimum prison term. Offenses

under § 924(j) predicated on murder—such as Counts Three and Four—are

to “be punished by death or by imprisonment for any term of years or for life.”

18 U.S.C. § 924(j)(1) (emphasis added). By contrast, the lesser-included

counts the Government did not move to dismiss each carried a mandatory

prison term. Count One, the offense of conspiracy to commit murder for

hire, has a mandatory sentence of life imprisonment when, as here, death

results. Id. § 1958(a). Count Two, the crime of aiding and abetting an

intentional killing while engaged in drug trafficking, is punishable by “a term

of imprisonment which may not be less than 20 years and which may be up

to life imprisonment.” 21 U.S.C. § 848(a).

By moving to dismiss the greater-included offenses that carry the

term-of-years sentencing option, the Government attempted to take away the

district court’s discretion to sentence Brown to anything but an aggregate life

sentence. See Ball v. United States, 470 U.S. 856, 864 (1985) (recognizing

that “sentencing responsibility resides” with the district court). And the

effect of the greater-offense dismissal was significant. Because Brown was

subject to a mandatory term of life imprisonment for Count One, 18 U.S.C.

§ 1958(a), neither party offered sentencing arguments. Relatedly, the district

court provided no analysis and made no findings as to the appropriate

sentence, did not explain its choice of sentence, did not cite the 18 U.S.C.

§ 3553(a) factors, and did not note whether its choice of life imprisonment

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for Counts Five and Seven was influenced by the fact that Brown was

otherwise subject to a mandatory sentence of life imprisonment. 10

The record also suggests that the district court, by accepting the

rationale of the Government’s Rule 48(a) motion and granting it, removed

itself from the determination as to which of Brown’s convictions should be

invalidated. The Supreme Court has recognized that where, as here, the

presumption against cumulative punishment requires the invalidation of a

conviction, the district court must “exercise its discretion to vacate one of

the underlying convictions.” Ball, 470 U.S. at 864; see also Lanier v. United

States, 220 F.3d 833, 841 (7th Cir. 2000) (“[W]hen the presumption against

double punishment requires invalidation of the conviction for either the

greater or lesser offense, the choice of which conviction to vacate rests with

the sound discretion of the district court.”). The district court in this case

divested itself of its discretionary authority and instead permitted the

Government to identify and determine which convictions to dismiss. 11

In granting the Government’s motion, the district court did not

undertake any analysis of which counts should be dismissed or offer any

indication that it made such a discretionary determination. To the contrary,

_____________________

10

Count Five charged Brown with aiding and abetting kidnapping, in violation of

18 U.S.C. §§ 1201 and 1202, punishable by imprisonment for any term of years to life.

Count Seven charged Brown with conspiracy to distribute and to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1)

and (b)(1)(A), punishable by a term of imprisonment not less than ten years or more than

life.

11

Though the Government asserts that the prosecution is empowered to elect

which multiplicitous count(s) to dismiss, the cases it cites are inapposite because, among

other things, they do not involve the type of multiplicity at issue here: i.e., convictions for

greater- and lesser-included offenses. See United States v. Meza, 701 F.3d 411, 432–34 (5th

Cir. 2012); United States v. Osunegbu, 822 F.2d 472, 481 (5th Cir. 1987); United States v.

Greer, 46 F. App’x 225, 225 (5th Cir. 2002) (per curiam) (unpublished table decision).

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the court simply stated that the Government had “set out a completely

rational basis” for its motion and concluded that Brown “certainly” would

not be prejudiced by dismissal of Counts Three and Four. In so doing, the

district court allowed the Government to dictate a choice that, under Ball v.

United States, should have been made by the court alone. See 470 U.S. at 864;

see also United States v. Peel, 595 F.3d 763, 768 (7th Cir. 2010) (“[W]hich

conviction must be vacated . . . is a matter committed to the trial judge’s

discretion because functionally it is a decision concerning the length of the

defendant’s sentence.”); United States v. Hector, 577 F.3d 1099, 1101,

1103–04 (9th Cir. 2009) (noting that district courts must exercise discretion

in determining which counts to vacate, even “where a defendant’s conduct

violated two statutes and the prosecutor decided the case warranted the more

severe charge”). The district court’s failure to exercise its vested discretion

necessitates remand. See Al Rushaid v. Nat’l Oilwell Varco, Inc., 757 F.3d 416,

424–25 (5th Cir. 2014) (“When a district court fails to exercise its discretion

. . . , this court remands the action to allow the district court to exercise it in

the first instance.” (citation modified)).

Brown further argues that the district court endorsed the dismissal of

the wrong counts and that, on remand, the district court must dismiss Counts

One and Two, not Counts Three and Four. As Brown observes, in cases such

as this where the jury has rendered verdicts and found the defendant guilty

of both the greater- and lesser-included offenses within the same indictment,

district courts ordinarily should enter final judgments of conviction on the

greater offenses and vacate the conviction on the lesser offenses. See United

States v. Brito, 136 F.3d 397, 408 (5th Cir. 1998) (indicating that it is “well

settled” that this court dismisses lesser-included offenses in cases of double

jeopardy that arise from simultaneous charging of both greater and lesser-

included offenses); United States v. Michel, 588 F.2d 986, 1001 (5th Cir. 1979)

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(stating that the remedy for convictions on greater and lesser offenses is to

vacate the conviction and sentence of the lesser-included offense).

But this is not a case where the lesser-included offenses carry lesser

penalties. See Peel, 595 F.3d at 768 (“[U]sually it’s the conviction carrying

the lesser penalty that is vacated.”); cf. id. (“[I]n a case in which the lesser-

included offense has fewer elements and is the less serious offense, vacating

the sentence for the graver offense would be an abuse of discretion.”).

Counts One and Two (the lesser-included offenses) carry mandatory prison

terms, 18 U.S.C. § 1958(a); 21 U.S.C. § 848(a), whereas Counts Three and

Four (the greater-included offenses) allow for “imprisonment for any term

of years,” 18 U.S.C. § 924(j)(1). Under these circumstances, the appropriate

remedy is to remand for the district court to exercise its discretion in

selecting which counts—whether the lesser- or greater-included offenses—

to vacate. E.g., Peel, 595 F.3d at 767–68 (remanding case for district judge to

vacate one of two convictions rather than ordering vacatur of the lesser-

included offense when that lesser offense, although “lesser in the sense of

having fewer elements,” carried with it the greater penalty). As the Sixth

Circuit has explained, where an “anomaly in the sentencing guidelines”

produces a longer sentence on a duplicative lesser-included offense than the

greater offense, “it is a decision for the trial court” which offense to vacate.

United States v. Chambers, 944 F.2d 1253, 1269 (6th Cir. 1991). We therefore

express no opinion on which counts the district court “should” dismiss. See

United States v. Maier, 646 F.3d 1148, 1154 (9th Cir. 2011) (recognizing that

although ordinarily a “a district court ‘should’ exercise its discretion to

vacate the lesser-included offense,” there may be “unusual circumstances

and compelling reasons to vacate the greater offense”).

Accordingly, we vacate the district court’s ruling on the

Government’s Rule 48(a) motion, vacate Brown’s sentences as to Counts

One and Two, remand with instructions for the district court to exercise its

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discretion to dismiss either Counts One and Two or Counts Three and Four,

and order resentencing.

IV

Based on the foregoing, we (1) AFFIRM the district court’s denial of

Brown’s motion to suppress; (2) VACATE the district court’s ruling on the

Government’s motion to dismiss Counts Three and Four; (3) VACATE the

sentences as to Counts One and Two; and (4) REMAND for the district

court to make a discretionary determination as to which convictions—

Counts One and Two or Counts Three and Four—should be dismissed, and

to resentence accordingly.

27