United States v. Brown

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 9 2005

PUBLISH PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 03-8027

RAYMOND DEAN BROWN,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 00-CR-59-01-D)

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore,

Federal Public Defender, with him on the briefs), Denver, Colorado, for

Defendant-Appellant.

David A. Kubichek, Assistant United States Attorney (Matthew H. Mead, United

States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellee.

Before SEYMOUR, HOLLOWAY and MURPHY, Circuit Judges.

SEYMOUR, Circuit Judge.

Raymond Dean Brown was convicted after a jury trial of being a felon in

possession of a firearm, unlawfully possessing a machine gun, and carrying a

machine gun during and in relation to a drug trafficking crime, in violation of 18

U.S.C. §§ 922, 924, and 18 U.S.C. § 2. He was sentenced to 115 months for the

first two counts and 360 months for the third, to be served consecutively. On

appeal, Mr. Brown asserts (1) there was insufficient evidence to convict him of

carrying a machine gun during and in relation to the manufacture of

methamphetamine; (2) the district court’s jury instructions constructively

amended the indictment to permit conviction for an uncharged crime of using a

gun during and in relation to the underlying drug trafficking offense; (3) the court

erroneously failed to suppress, or grant a hearing regarding, statements Mr.

Brown made in exchange for an implicit immunity agreement with state

authorities; (4) the court erred in leading potential jurors in the Pledge of

Allegiance prior to the commencement of his trial; and (5) the court failed to

consider Mr. Brown’s challenge to various convictions listed in his presentence

report. We affirm Mr. Brown’s conviction and remand with directions that the

district court vacate Mr. Brown’s sentence and resentence him.

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I.

Mr. Brown met Kirsten Lee Worrell in August 1999, in Missouri. As Ms.

Worrell later testified at trial, shortly after they met Mr. Brown showed Ms.

Worrell and others his machine gun and permitted them each to fire it. Mr.

Brown also mixed and cooked materials to manufacture methamphetamine at or

near the trailer Ms. Worrell shared with her former boyfriend, Ricky Huggins.

The parties stipulated Mr. Brown used the “anhydrous ammonia method” to

manufacture methamphetamine, which involves mixing ephedrine or

pseudoephedrine tablets, lithium from batteries, and anhydrous ammonia with

other materials.

Ms. Worrell, Mr. Huggins, Mr. Brown, and his girlfriend subsequently

traveled to California. En route, the group stayed in a trailer owned by Mitchell

Thomas, which was located near Rock Springs, Wyoming. Mr. Brown and his

girlfriend eventually parted ways and he continued on the journey to California

with Ms. Worrell and Mr. Huggins. At some point, Ms. Worrell and Mr. Huggins

also parted ways. Mr. Brown ultimately traveled back to Rock Springs with Ms.

Worrell. They arrived in Wyoming by the end of October 1999, and again stayed

with Mr. Thomas in his trailer. Ms. Worrell testified that Mr. Brown

manufactured methamphetamine in Mr. Thomas’ trailer, which Mr. Thomas

verified. Mr. Thomas also reported seeing Mr. Brown’s machine gun sitting by

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the back door of the trailer, near where Mr. Brown was cooking

methamphetamine. Carmen Kittelson, an acquaintance of Mr. Thomas, testified

that she visited the trailer once and discovered Mr. Brown sitting on the couch

with the machine gun in his lap. Mr. Brown and Ms. Worrell eventually moved

into a motor home owned by Mr. Thomas and relocated it to the nearby Flaming

Gorge Reservoir area. Mr. Brown continued to manufacture methamphetamine in

the motor home.

Ms. Worrell testified that Mr. Brown manufactured methamphetamine

almost continuously from the time they returned to Wyoming at the end of

October until they were arrested in mid-November. Ms. Worrell, Mr. Brown, and

Mr. Thomas took road trips to gather supplies necessary for producing the

methamphetamine, sometimes traveling out of state to collect materials. Ms.

Worrell testified that Mr. Brown always had his gun with him during this time

period.

While shopping for supplies at an Albertsons grocery store in Rock Springs

on November 14, 1999, Mr. Brown and Ms. Worrell noticed police cars in the

store parking lot. Although Mr. Brown’s initial instinct was to escape via

Albertsons’ back exit, Ms. Worrell convinced him to return with her to her van.

Once inside the van, they were surrounded by police, who were seeking Ms.

Worrell on an outstanding arrest warrant. Detective Craig Jackson testified that,

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during the police confrontation, he saw Mr. Brown repeatedly reach down

between the seats where Mr. Brown’s machine gun was later found in an unzipped

bag and loaded with two magazines of bullets. Ms. Worrell testified that Mr.

Brown had wanted to retrieve the gun and shoot his way out, but she convinced

him otherwise and he surrendered.

Ms. Worrell was arrested, told the police about the methamphetamine

manufacturing operation, and guided them to the motor home in Flaming Gorge.

Mr. Brown was also arrested. While he was being questioned by the police, he

tried to escape out of a window at the police office. He was captured after he

hurt himself during the escape and was taken to the hospital, where a one-gram

package of methamphetamine was recovered from his sock. Pursuant to a

warrant, the police conducted a search of the Flaming Gorge location. They

found coffee filters containing methamphetamine residue, acids and solvents

commonly used during methamphetamine manufacture, and a fire pit containing

several burned starter fluid cans and lithium battery wrappers. They also detected

a strong smell of ether. Detective Jackson testified they found a cooler containing

a biphase liquid, with chalky material at the bottom and clear fluid on top, that

consisted of methamphetamine produced via the anhydrous ammonia method.

While state charges were pending, Mr. Brown and his lawyer met with a

state prosecutor in February 2000 in order to determine whether Mr. Brown would

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be given consideration for providing information. According to Special Agent

Dennis Claman, the state prosecutor told Mr. Brown that although any

information he provided would not be used against him in state court, the state

could not bind federal authorities. Before Mr. Brown’s attorney advised him to

say nothing more about his gun, Mr. Brown provided information to the state

agents about a man in Chicago who made and sold guns similar to the one he

owned. Special Agent Claman later told federal agents Mr. Brown might have

information of interest to them. On March 15, 2000, Mr. Brown pled guilty in

Wyoming state court to possession of a controlled substance and operation of an

unlawful clandestine laboratory. He received concurrent sentences of twelve

months, and three to five years.

The week following his state proceedings, a federal grand jury returned an

indictment charging Mr. Brown with three weapons offenses, spanning the time

period of October 1999 through November 14, 1999. Mr. Brown moved to

suppress the statements he made at the February 2000 meeting with the state

prosecutor, arguing that the use of those statements would violate his Wyoming

immunity agreement. The district court stated in a written order that it believed

Mr. Brown understood the agreement did not apply to federal authorities, but

reserved making a ruling until it heard testimony from the law enforcement

personnel involved. Mr. Brown did not renew his suppression motion at trial and

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the government presented his statements through the testimony of Special Agent

Claman without any defense objection.

Before the commencement of Mr. Brown’s trial, the district court asked the

prospective jurors to join in reciting the Pledge of Allegiance. At the culmination

of the proceedings, the court instructed the jury, without objection from the

defense, that it could convict Mr. Brown if he “used or carried” a gun. The jury

ultimately convicted Mr. Brown of all the charges against him.

Finally, before he was sentenced, Mr. Brown objected to the presentence

report because, inter alia, he claimed that several convictions used to calculate

his criminal history had been dismissed. Without addressing these objections, the

district court sentenced Mr. Brown to 115 months for the first two counts and 360

months for the third count, to be served consecutively. Mr. Brown now appeals.

II.

Mr. Brown challenges the sufficiency of the evidence underlying his

conviction for carrying a machine gun during and in relation to the manufacture

of methamphetamine, in violation of 18 U.S.C. § 924(c). To support Mr. Brown’s

conviction under 18 U.S.C. § 924(c), the government had to prove beyond a

reasonable doubt that (1) Mr. Brown committed the underlying drug offense, in

this case “manufacturing methamphetamine,” in violation of 21 U.S.C. §

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841(a)(1); (2) he “carried” the machine gun; and (3) his carriage of the machine

gun was “during and in relation to” his drug trafficking crime. 18 U.S.C. §

924(c).

We review the sufficiency of the evidence de novo. United States v.

Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). “‘[W]e ask only whether

taking the evidence–both direct and circumstantial, together with the reasonable

inferences to be drawn therefrom–in the light most favorable to the government, a

reasonable jury could find the defendant guilty beyond a reasonable doubt.’”

United States v. Radcliff, 331 F.3d 1153, 1157 (10th Cir. 2003) (quoting United

States v. McKissick, 204 F.3d 1282, 1289 (10th Cir. 2000)). We do not assess the

credibility of witnesses or weigh conflicting evidence since these tasks are

exclusively those of the jury. Castorena-Jaime, 285 F.3d at 933. We may reverse

“‘only if no rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” United States v. Haslip, 160 F.3d 649, 652

(10th Cir. 1998) (quoting United States v. Wacker, 72 F.3d 1453, 1462-63 (10th

Cir. 1995)). This “standard requires this court to review the trial record to

determine if there is evidence to support the verdict.” United States v. Austin,

231 F.3d 1278, 1283 (10th Cir. 2000).

Mr. Brown has conceded the government proved he manufactured

methamphetamine at Mr. Thomas’ trailer and at his motor home. Aplt. Br. at 21,

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23. Indeed, the evidence proving this fact was overwhelming.

First, the results of the police search executed on Mr. Thomas’ motor home

at the Flaming George Reservoir demonstrated the existence of an ongoing

methamphetamine manufacturing operation. The police recovered coffee filters,

acids, solvents, and fluid wrappers from lithium batteries, all of which are used in

the methamphetamine manufacturing process. Most damaging, the officers

located a batch of methamphetamine – the biphase liquid methamphetamine in the

cooler – that was in the process of becoming the finished drug product. Second,

Mr. Thomas testified he witnessed Mr. Brown manufacturing methamphetamine

on several occasions. He also reported that he made road trips to the Flaming

Gorge Reservoir to re-supply Mr. Brown with necessary supplies to continue his

drug processing endeavor.

Finally, Ms. Worrell testified the methamphetamine manufacturing

operation was constant and continuous from the time she and Mr. Brown returned

to Rock Springs from California in late October until their arrest in November.

According to Ms. Worrell, there was always some step in the manufacturing

process taking place during this time period.

Q [prosecutor]: How often would the defendant cook

methamphetamine from the time you came back from California in

approximately Halloween of 1999 to the time that you were arrested?

A [Ms. Worrell]: There was usually something going the entire time.

I mean, if it wasn’t sitting – like you can have it sit, and it’ll just like

kind of cook itself a little bit. If it wasn’t that, then there was stuff

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drying out . . . there’s always a step going on from that time until we

got busted. . . .

Q: When you say “always a step going on,” would you explain what

you mean to the jury?

A: There’s steps you have to take in order to - to manufacture

methamphetamine, and it can take anywhere from a couple hours to

do it to a couple days . . . . [T]here was always something going on.

If it wasn’t separating pills to get the ephedrine, it was mixing the

lithium batteries in with the ephedrine and pouring the ether on it.

There was always something happening, always.

Rec., vol. V, at 546-47. It is thus clear that Mr. Brown was manufacturing

methamphetamine in violation of 21 U.S.C. § 841(a)(1).

Conviction under the “carry” prong of § 924(c) requires “possession of a

firearm through dominion and control, and transportation or movement of the

weapon.” United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir. 1996). Mr.

Brown has conceded there was testimony he “carried” his machine gun on various

occasions throughout the period alleged in the indictment. Aplt. Br. at 23-26. In

fact, Mr. Brown admits he was “carrying” the gun within the meaning of § 924(c)

in Ms. Worrell’s van on the day of his arrest. Aplt. Br. at 26; see also Muscarello

v. United States, 524 U.S. 125, 137-39 (1998) (carrying a firearm within the

meaning of § 924(c) includes transporting it in a vehicle, even in a locked glove

compartment or trunk). Again, Mr. Brown’s concession is supported in the record

by overwhelming evidence.

Mr. Brown was observed driving Ms. Worrell’s van into the Albertsons’

parking lot on the day of his arrest. Following Ms. Worrell’s arrest, Mr. Brown’s

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loaded machine gun was discovered between the front seats of the van. As a

result, there is no doubt Mr. Brown carried the machine gun within the meaning

of § 924(c) on the day he was arrested.

In addition, Ms. Worrell’s testimony demonstrated that no matter what Mr.

Brown was doing, he always had the gun close at hand:

Q [prosecutor]: Did he have the gun with him, by the way, the entire

time from Missouri to Wyoming?

A [Ms. Worrell]: Yes, he did.

Q: Where was it?

A: It was usually never too far from his reach. I mean, it’s usually

just like an arm’s length away. . . .

Q: Where was the machine gun, Government Exhibit Number 2,

when you went to California?

A: It was with Ray.

Q: When you say “it was with Ray,” can you describe where it was?

A: Well, it was always in the black bag, and the black bag was

always by the seat. If we were in the van, it was under his seat or on

the seat next to him or somewhere really close to him. . . .

Q: During . . . [the] two weeks from Halloween 1999 until November

14, 1999. Where was Government Exhibit Number 2, the gun?

A: It was with Raymond.

Q: When he was manufacturing methamphetamine out at the motor

home, where was the gun?

A: It was with Raymond.

Q: Where?

A: [I]t was pretty close to him. I mean, it was never pretty far from

him. If he was back in the bathroom [manufacturing

methamphetamine], it was back there with him.

Rec., vol. V, at 540, 543, 551. The general “carrying” prong of § 924(c) is

unquestionably satisfied here.

Thus, the sole issue before us is whether the government proffered

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sufficient evidence to prove Mr. Brown carried the machine gun “during and in

relation to” manufacturing methamphetamine, as required by § 924(c). Mr.

Brown argues that because he was not actually manufacturing methamphetamine

in Ms. Worrell’s van while he was “carrying” the machine gun, and he was not

actually “carrying” the machine gun in Mr. Thomas’ motor home or trailer when

he was manufacturing methamphetamine, the government’s evidence fails to

establish the necessary nexus between his carriage of the weapon and the charged

drug trafficking offense. We disagree.

A firearm is carried “during and in relation to” the underlying crime when

the “defendant avail[s] himself of the weapon and . . . the weapon play[s] an

integral role in the [underlying offense].” United States v. Lampley, 127 F.3d

1231, 1240 (10th Cir. 1997) (quotations omitted). The “during and in relation to”

standard requires the government to prove a direct nexus between the defendant’s

carrying of a firearm and the underlying drug crime. Id. at 1240-41; see also

United States v. Iiland, 254 F.3d 1264, 1274 (10th Cir. 2001) (“our cases make

clear that the ‘during and in relation to’ requirement of section 924(c) necessitates

some direct connection between the firearm and the drug offense”). To establish

this nexus, we require evidence that the defendant intended the firearm to be

available for use in the offense. United States v. Shuler, 181 F.3d 1188, 1190

(10th Cir. 1999) (quotation omitted). “There is no requirement, however, that the

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drug trafficking crime be the sole reason for the possession of the gun.” United

States v. Radcliff, 331 F.3d 1153, 1158-59 (10th Cir. 2003) (citing McKissick, 204

F.3d at 1293-94).

Mr. Brown’s first argument is that there was insufficient evidence to prove

he was actually manufacturing methamphetamine while he admittedly was

carrying the gun in Ms. Worrell’s van. To support this contention, Mr. Brown

notes that the term “manufacture,” as defined by 21 U.S.C. § 802(15), does not

include mere possession of ingredients that might be used to manufacture the

controlled substance. In addition, Mr. Brown asserts Congress could not have

intended that the mere possession of precursor materials be synonymous with

“manufacture,” or possession of precursor materials would not be a separately

punishable offense. See 21 U.S.C. § 841(c)(2) (prohibiting possession of listed

chemicals with intent to manufacture a controlled substance).

If Mr. Brown’s underlying drug trafficking crime had constituted a “point-

in-time” offense, such as the discrete distribution of a controlled substance, his

argument might be persuasive. United States v. Rodriguez-Moreno, 526 U.S. 275,

281 (1999). As we detailed above, however, the evidence overwhelmingly

established not only that Mr. Brown manufactured methamphetamine, but that Mr.

Brown’s methamphetamine manufacture was a continuous and ongoing operation

from late October 1999 until the day of his arrest. The question before us then is

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not whether the evidence demonstrates the machine gun was directly connected to

any particular drug transaction or point in the methamphetamine production

process, but whether the firearm was sufficiently connected to the “continuing

offense” as a whole.

Supreme Court precedent is instructive on this point. In Rodriguez-

Moreno, the Court was faced with the issue of the proper venue for a § 924(c)

offense. 526 U.S. at 276. The defendant had kidnaped his victim in Texas and

transported him to New Jersey and then to Maryland. Id. at 276-77. Once in

Maryland, the defendant brandished a firearm during and in relation to the

kidnaping. Id. at 277. The government conceded that there was no evidence the

defendant used the gun in New Jersey. Id. at 281. Nonetheless, the trial was

venued in New Jersey, and the defendant was convicted. Id. at 277. On appeal,

the defendant argued that the proper venue for the § 924(c) violation was not New

Jersey since he did not use the gun while committing a crime in that state. Id. at

281. The Supreme Court agreed that the venue should be based on where acts

making up part of the crime took place, but ultimately ruled against the defendant.

Id. at 281-82. The Court reasoned that the § 924(c) offense had two basic

conduct elements: (1) “using and carrying” a gun, and (2) the underlying offense.

Id. at 280. Section 924(c) could not be classified as a point-in-time offense where

the underlying crime was a continuing offense. Id. at 281. The underlying crime

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before the Court was a kidnaping, which continued until the victim was released.

Id. Thus, venue of the § 924(c) offense was proper anywhere that a part of the

kidnaping took place. Id. at 282.

Applying the tenets of Rodriguez-Moreno, we hold Mr. Brown “carried” the

machine gun “during” his commission of the underlying crime, i.e., manufacturing

methamphetamine. The government presented overwhelming evidence that the

methamphetamine manufacturing operation was ongoing and continuous from late

October 1999 until Mr. Brown’s November arrest. Thus, Mr. Brown’s concession

that he “carried” the machine gun within the meaning of § 924(c) on the day of

his arrest alone forecloses any argument that the government failed to prove he

carried a firearm “during” the manufacture of methamphetamine. Moreover, the

evidence before the jury supported the inference that Mr. Brown also “carried”

the gun throughout the period alleged in the indictment in connection with his

road trips out of state to obtain anhydrous ammonia, and to Rock Springs for re-

supply of ephedrine pills, lithium batters, starter fluid, and other such items.

These trips occurred “during” the ongoing and underlying crime; indeed, they

were essential to the maintenance of Mr. Brown’s continuous methamphetamine

manufacturing enterprise.

Mr. Brown further contends that even if the government did prove he

“carried” a firearm “during” the commission of the drug trafficking crime, the

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evidence was not sufficient to show that the firearm was carried “in relation to”

that crime. The Supreme Court has held that the phrase “in relation to”

is expansive . . . . [A]t a minimum, [it] clarifies that the firearm must

have some purpose or effect with respect to the drug trafficking

crime; its presence or involvement cannot be the result of accident or

coincidence. As one court has observed, the “in relation to”

language “allay[s] explicitly the concern that a person could be”

punished under § 924(c)(1) for committing a drug trafficking offense

“while in possession of a firearm” even though the firearm’s

presence is coincidental or entirely “unrelated” to the crime. Instead,

the gun at least must “facilitate, or have the potential of facilitating,”

the drug trafficking offense.

Smith v. United States, 508 U.S. 223, 237-38 (1993) (citations omitted). We are

convinced this test is satisfied here.

“One recognized theory that explains how a gun facilitates a drug

trafficking crime is that the gun deters interference with the crime.” Radcliff, 331

F.3d at 1159; see also United States v. Lott, 310 F.3d 1231, 1248 (10th Cir.

2002). This court has held that

the placement of a loaded, semi-automatic weapon on the driver’s

seat of the car in which the instrumentalities of methamphetamine

manufacturing were also found is sufficient evidence from which a

jury could conclude that the purpose of the gun was to provide

defense or deterrence in furtherance of attempting to manufacture

methamphetamine.

Lott, 310 F.3d at 1248. In this case, Mr. Brown’s loaded machine gun was found

by police in between the front seats of Ms. Worrell’s van. Also found in the van

were various materials used in the manufacturing of methamphetamine, including

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an anhydrous ammonia tank, recently purchased lithium batteries, and empty cans

of starter fluid. Given the ongoing manufacturing process in which Mr. Brown

was engaged, his carriage of the machine gun in between the front seats of a van

in which the instrumentalities of methamphetamine manufacturing were also

found is evidence from which a jury could conclude that the purpose of the gun

was to provide defense or deterrence “in relation to” manufacturing

methamphetamine.

Other facts also support a reasonable inference that Mr. Brown intended his

weapon to deter interference with his methamphetamine manufacturing operation.

For instance, Ms. Worrell testified Mr. Brown kept his machine gun by his side or

within arms reach at all times when involved in manufacturing methamphetamine.

Her statement was corroborated by Mr. Thomas, who testified that while Mr.

Brown was cooking methamphetamine in the backroom of his trailer, he

witnessed the machine gun propped against a door a mere two to three feet away

from the defendant.

Moreover, the evidence concerning Mr. Brown’s actions regarding the gun

on the date of his arrest strongly supports the inference that he carried the weapon

for defense and deterrence in relation to the underlying drug offense. Ms. Worrell

testified that after she and Mr. Brown returned to her van in the Albertsons

parking lot and were surrounded by police:

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Ray had the gun between the seats, and he said he was going to shoot

at the cops and he was going to kill them all. And I just kept telling

him, “No, no; you know, everything will be okay”. . . . And he just

kept going for the gun.

Rec., vol. V, at 557. A detective at the scene of the arrest reported he

could see some type of commotion inside the vehicle. Mr. Brown is

. . . looking around, trying to figure out where these officers are in

exact relationship to where he’s at. There’s a conversation going on

between Mr. Brown and Ms. Worrell inside the vehicle . . . his hands

come down off of . . . the steering wheel down in between the seats.

Something is going on down here on the floor. Then the hands come

back up again.

Rec., vol. IV, at 242. This evidence demonstrates Mr. Brown had every intention

of using his machine gun to prevent interference with his drug crimes and as a

means of defense, particularly when confronted by law enforcement. For the

foregoing reasons, we hold the evidence was sufficient to support Mr. Brown’s §

924(c) conviction.

III.

Raising an issue for the first time on appeal, Mr. Brown also contends the

jury instructions constructively amended his indictment, possibly resulting in the

jury convicting him on an uncharged crime. Mr. Brown was indicted for carrying

a gun under § 924(c), but Instruction 34 directed the jury to convict him if he

either used or carried a gun. It stated: “Mere possession of a machine gun is not

a sufficient nexus or connection to establish guilt . . . the government must prove

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. . . [that the defendant] used or carried a firearm.” Rec., vol. VI, at 746

(emphasis added).

The instruction at issue was given to the jury in a series of instructions

related to the specific offense. First, the district court set forth the charge as

formulated in the indictment. 1 The court then gave Instruction 32, providing the

statutory definition of the offense, which included the phrase “uses or carries.” 2

It then gave Instruction 33, which defined one element of the offense as “the

defendant knowingly carried a firearm during and in relation to that crime.” 3 Id.

1

The court stated in full:

Count Three of the indictment charges that on or about October

1999, through and including November 14, 1999, in Sweetwater

County, in the District of Wyoming, the defendant, Raymond Dean

Brown, knowingly carried a firearm (sic); namely a Norinco MAK90

rifle, bearing Serial number 53438, during and in relation to a drug-

trafficking crime for which he may be prosecuted in a court in the

United States; that is, manufacturing methamphetamine.

Rec., vol. VI, at 745 (emphasis added).

2

In full, Instruction 32 stated: “Section 924(c)(1) of Title 18 of the United

States Code provides, in pertinent part, that: . . . whoever, during and in relation

to any crime of violence or drug-trafficking crime, uses or carries a firearm shall

be guilty of an offense against the United States . . . .” Rec. vol. VI, at 745

(emphasis added).

3

Instruction 33 stated in full:

In order to sustain its burden of proof for the crime of carrying a

firearm during and in relation to a drug-trafficking crime as charged

in Count Three of the indictment, the United States must prove the

(continued...)

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at 745-46. Finally, Instruction 34 concluded: “If the government does not prove

beyond a reasonable doubt that the Defendant possessed the firearm during and in

relation to a drug trafficking crime, you must find the Defendant not guilty of

Count Three.” 4 Id. at 746 (emphasis added).

Because “using” a gun was not defined for the jury, Mr. Brown asserts the

jury may have thought it was permissible to convict him for some activity other

than carrying the gun, such as having the gun readily available, displaying it, or

3

(...continued)

following two essential elements beyond a reasonable doubt:

One: That the defendant committed the crime of manufacturing

a controlled substance; and

Two: That the defendant knowingly carried a firearm during

and in relation to that crime.

Rec., vol. VI, at 745 (emphasis added).

4

The full text of Instruction 34 states:

As to Count Three of the indictment, Title 18, United States Code,

Section 924(c)(1)(B)(ii), reads: Mere possession of a machine gun is

not a sufficient nexus or connection to establish guilt. For you to

find the defendant guilty of Count Three of the indictment, therefore,

the government must prove beyond a reasonable doubt that the

defendant, Raymond Dean Brown, used or carried a firearm and that

the firearm played an integral role in the underlying offense by

furthering the purpose or the effect of the underlying crime and that

its presence or involvement was not the result of coincidence. If the

government does not prove beyond a reasonable doubt that the

defendant possessed a firearm during and in relation to a drug-

trafficking crime, you must find the defendant not guilty of Count

Three.

Rec., vol. VI, at 745-46 (emphasis added).

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brandishing it. He argues that this error requires an automatic reversal or at least

constitutes plain error. The government concedes that the instructions are

somewhat less than precise since they incorporate both the terms “use” and

“possession” in addition to “carrying.” Nonetheless, the government maintains

that the instructions do not constitute plain error. 5

An indictment is “constructively amended if the evidence presented at trial,

together with the jury instructions, raises the possibility that the defendant was

convicted of an offense other than that charged in the indictment.” United States

v. Apodaca, 843 F.2d 421, 428 (10th Cir. 1988) (citing Stirone v. United States,

361 U.S. 212, 215-19 (1960)). This doctrine is rooted in the Fifth Amendment

right to be tried only for charges upon indictment by a grand jury. U.S. C ONST .

amend. V. Mr. Brown failed to object to the jury instructions or present the

constructive amendment argument to the district court. We review claims of

constructive amendment raised for the first time on appeal under the plain error

5

The government also argues that Mr. Brown’s counsel invited any error

because he agreed to the “use or carry” language during a discussion about

Instruction 34 with the district court and is therefore barred from challenging it

on appeal. We disagree that defense counsel invited the addition of the word

“use” in the jury instructions. The record demonstrates the discussion was

focused on other language in the instruction at the time the “use or carry” phrase

was erroneously inserted. There is neither evidence of inducement of the district

court, United States v. Johnson, 183 F.3d 1175, 1179 n.2 (10th Cir. 1999), nor a

stipulated agreement by defense counsel, Quigley v. Rosenthal, 327 F.3d 1044,

1064-65 (10th Cir. 2003), to add the “use or carry” language. Indeed, the error

appears to be inadvertent.

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standard. United States v. Cavely, 318 F.3d 987, 999 (10th Cir. 2003). 6 Under a

plain error review, reversal is only warranted if there is: (1) an error; (2) that is

plain; (3) that affects substantial rights; and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings. United States v. Olano,

507 U.S. 725, 732 (1993). There is little doubt Mr. Brown can satisfy the first

two prongs of the plain error analysis, and we need not decide whether he can

6

Tenth Circuit precedent establishes some uncertainty as to whether a

constructive amendment of an indictment by jury instructions to which the

defendant did not object is reversible per se or reversible only where the

amendment constitutes plain error and seriously affects the fairness, integrity or

public reputation of judicial proceedings. Compare United States v. Levine, 41

F.3d 607, 617 n.13 (10th Cir. 1994) (reversible per se) with United States v.

Cavely, 318 F.3d 987, 999 (10th Cir. 2003) (applying plain error standard without

citing Levine). After Levine but before Cavely, the Supreme Court decided

United States v. Cotton, 535 U.S. 625 (2002). In Cotton, the Court declined to

notice plain error in a situation where the indictment lacked any reference to

threshold drug quantities, a defect of constitutional magnitude after Apprendi v.

New Jersey, 530 U.S. 466 (2000). See id. at 627-28. The indictment alone would

have yielded a maximum sentence of twenty years, yet the defendants were

sentenced to at least ten years above the maximum due to the district court’s

finding of 500 or more grams of cocaine base. Id. Because the defendants had

not objected below, the Court engaged in plain error review. Id. at 631

(distinguishing Stirone v. United States, 361 U.S. 212 (1960), on basis that

constructive amendment claim there was raised in district court); see also 3

C HARLES A LAN W RIGHT ET AL ., F EDERAL P RACTICE & P ROCEDURE : C RIMINAL 3 D §

516 at 51 & n.16. Although there was constitutional error that was plain and

resulted in substantially increased sentences for the defendants, the Court upheld

the sentences because the uncharged drug quantity was supported by

overwhelming and uncontroverted evidence. Cotton, 535 U.S. at 634. The Court

ruled the “fairness, integrity and public reputation of judicial proceedings” would

be threatened if the sentence were overturned. Id. It is clear, therefore, that the

automatic reversal rule of Levine no longer applies in a constructive amendment

plain error case, ie., where the defendant failed to object in the district court.

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satisfy the third prong because the fourth prong is dispositive. United States v.

Cotton, 535 U.S. 625, 632-33 (2002) (“[W]e need not resolve . . . [the third prong

of the plain error review], because even assuming respondents’ substantial rights

were affected, the error did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings); Johnson v. United States, 520 U.S. 461, 469-

70 (1997) (same).

In Johnson and Cotton, the fourth prong of plain error review was

interpreted to prohibit recognition of plain error when evidence of a defendant’s

guilt on the charged crime is “overwhelming” and “essentially uncontroverted.”

See Johnson, 520 U.S. at 469-70 (finding that error did not satisfy the fourth

prong); see also Cotton, 535 U.S. at 633-34 (same). 7 Therefore, if overwhelming

7

The crime charged in Johnson was violation of 18 U.S.C. § 1623, which

proscribes “knowingly mak[ing] any false material declaration” under oath before

a grand jury. Johnson v. United States, 520 U.S. 461, 461 (1997). The error in

Johnson was the district court’s failure to submit an element of the offense,

materiality, to the petit jury. Id. at 465. Because the evidence of materiality was

“overwhelming” and “essentially uncontroverted” at trial, the Court held that

there was “no basis for concluding that the error ‘seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.’” Id. at 469-70. The crime

charged in Cotton was conspiracy to distribute and to possess with intent to

distribute a “detectable amount” of cocaine and cocaine base. Cotton v. United

States, 535 U.S. 625, 627-28 (2002). The error in Cotton was the omission of

drug quantity, an element of a § 841(b) offense, from the indictment. Id. at 628.

The evidence on the record that the conspiracy involved at least 50 grams of

cocaine base was “overwhelming” and “essentially uncontroverted,” id. at 633,

and the Court therefore held the error did not seriously affect the fairness,

integrity or public reputation of judicial proceedings. Id.

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and essentially uncontroverted evidence exists in the record to support Mr.

Brown’s guilt on the charged crime of carrying a gun under § 924(c), the alleged

constructive amendment cannot satisfy the fourth prong of plain error review.

As detailed earlier in this opinion, after a comprehensive review of the record, we

are confident the government introduced overwhelming and essentially

uncontroverted evidence proving Mr. Brown carried his gun during and in relation

to the underlying drug offense, i.e., manufacturing methamphetamine. 8 “In light

of this evidence, the proceedings resulted in a ‘fair and reliable determination’ of

[Mr. Brown’s] guilt and, even assuming plain error, a reversal would be

unwarranted.” United States v. Fabiano, 169 F.3d 1299, 1305 (10th Cir. 1999).

Indeed, because of the overwhelming and uncontroverted evidence in this case,

“the fairness, integrity, or reputation of the judicial proceedings would” be

threatened if we vacated Mr. Brown’s § 924(c) conviction. Cotton, 535 U.S. at

634 (internal quotation omitted). Therefore, we hold Mr. Brown’s alleged

8

We note there is also overwhelming evidence that Mr. Brown “used” his

gun. “Use” of a gun requires actual employment and can involve displaying or

brandishing it. United States v. Bailey, 516 U.S. 137, 143, 148 (1995). Mr.

Brown’s carriage of the gun in this case involved actively displaying or

brandishing it, since it was visible to others and since the evidence indicates his

purpose was to employ the gun for deterrence and defense. Moreover, Mr.

Brown’s contention that he might have been convicted for merely having the gun

readily available, which is not necessarily a crime under Bailey, see 516 U.S. at

149, is unavailing in light of the overwhelming evidence of the greater offenses

of both using and carrying the gun.

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constructive amendment does not warrant reversal.

IV.

Mr. Brown next claims the district court should have suppressed statements

that he made to Wyoming state authorities on February 3, 2000, and should have

held a hearing on the derivative use of the statements. He maintains that state

authorities implicitly promised, in exchange for his providing information, not to

facilitate other jurisdictions in using the statements against him. He claims that

the state nevertheless passed along his statements to federal authorities, and that

they essentially formed the basis of federal charges against him. Mr. Brown

claims Special Agent Claman’s recounting of his statements at trial helped prove

Mr. Brown knew the gun was a machine gun for the purpose of 18 U.S.C. § 922. 9

Although Mr. Brown filed a motion to suppress the statements, the district court

reserved making a ruling and Mr. Brown did not renew the motion at trial or

object to the introduction of the statements. We therefore engage in plain error

review.

An exhibit filed by the government in response to Mr. Brown’s motion to

9

Knowledge that a gun is a machine gun is not an element of the third count

against Mr. Brown for carrying a gun during and in relation to a drug trafficking

crime. See United States v. Eads, 191 F.3d 1206, 1212-14 (10th Cir. 1999)

(stating that type of firearm carried is not an element of § 924 offense, but a

sentencing factor).

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suppress included a report by Special Agent Claman, who was present during Mr.

Brown’s discussion with the state. The report noted Mr. Brown was informed that

the purpose of the discussion was to assess what consideration he would be

provided in exchange for his information, and that:

DCA [Deputy County and Prosecuting Attorney] Howard advised

BROWN that information provided would not be used against him in

state court proceedings. DCA Howard specifically stated that the

terms of the proffer/interview were not binding on federal authorities

nor authorities in any other state. DCA Howard further stated he had

no authority to grant immunity in any charges that may be brought by

federal authorities or authorities in any other state. DCA Howard did

state that any state crimes that BROWN admitted to would not be

prosecuted with the exception of any crimes of violence.

Rec., vol. I, doc. 104, ex. 2 at 32-33. During Mr. Brown’s plea discussion in state

court, the parties engaged in the following dialogue with the court:

MR. PROKOS [prosecutor]: While under Wyoming law, your Honor,

we can’t specifically grant immunity, there – there was an agreement

that we would not prosecute for any acts or wrongs that is use or

derivative use of immunity that Mr. Brown testif[ied] to during his

proffer or provided information regarding during his proffer. We

won’t prosecute him for any of those acts that he’s admitted to.

COURT: Is he facing any federal charges?

MR. NELSON [defense counsel]: . . . we’ve had the matter for four

months, and none have come forward, but he certainly could be

charged federally . . . .

COURT: Mr. Brown, is this your understanding of the plea

agreement?

DEFENDANT: Yes, Your Honor, it is.

Id., ex. 5 at 5.

The record thus demonstrates the state prosecutor told Mr. Brown that any

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information he provided would not be used in state proceedings in Wyoming, and

that Mr. Brown would not receive protection from federal charges. Mr. Brown

expressly acknowledged that he understood these terms. His theory that the

state’s active role in passing along information in the face of its informal

immunity agreement with him constitutes a violation of the plea agreement is not

persuasive; here, disclaimers about the lack of federal immunity were clearly

provided and Mr. Brown stated his understanding of such. 10 The district court

therefore did not err by permitting testimony regarding the relevant conversation

or by failing to grant a hearing regarding its derivative use.

V.

Mr. Brown argues the district court’s decision to lead prospective jurors in

the Pledge of Allegiance, with its recitation of loyalty to the “flag of the United

States of America and the Republic for which it stands,” caused the jury to favor

the prosecution. He claims that directly after the pledge was recited, the district

court called the case and asked if the “United States of America” was ready to

10

Mr. Brown’s reliance on United States v. Barone, 781 F. Supp. 1072 (E.D.

Pa. 1991), does not help him. In Barone, the defendant’s nonprosecution

agreement with federal authorities was violated by their assistance in a state

prosecution because the court found that the defendant was not warned of his lack

of state immunity by his attorney or the court and that he did not understand he

could still be subject to charges in other jurisdictions. 781 F. Supp. at 1075,

1078.

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proceed. Rec., vol. III, at 5. Mr. Brown acknowledges that we ruled in United

States v. Wonschik, 353 F.3d 1192, 1198-99 (10th Cir. 2004), that such a claim is

without merit because a jury’s pledge of fealty to the Constitution and our laws

“could just as likely benefit a defendant as to prejudice him.” He nonetheless

advocates we depart from Wonschick and rule in his favor. However, because one

panel of this court cannot overrule another, United States v. Lopez, 327 F.3d

1207, 1212 n.6 (10th Cir. 2004), Mr. Brown cannot succeed on this claim.

VI.

Mr. Brown’s final contention is the district court erred, under F ED . R. C RIM .

P. 32(i)(3), in accepting the presentence report’s assessment of his criminal

record without ruling on his objections that some of his prior charges had in fact

been dismissed. The sentencing transcript nowhere shows that the district court

weighed these objections or sought further hearings regarding them. The

government agrees the district court should have resolved Mr. Brown’s objections

before sentencing him and that this case should be remanded for resentencing.

Since the disputed charges could result in a reduction of Mr. Brown’s criminal

history category, and thus his sentence, we agree that remand is appropriate.

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VII.

For the reasons stated above, we AFFIRM Mr. Brown’s conviction but

REVERSE and REMAND the case for resentencing.

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