The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4275
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY TODD BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:09-cr-00014-REM-JSK-1)
Submitted: March 31, 2011 Decided: April 13, 2011
Before AGEE, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
E. Ryan Kennedy, ROBINSON & MCELWEE, PLLC, Clarksburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Stephen D. Warner, Assistant United States
Attorney, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeremy Todd Brown was convicted by a jury of
conspiring during the fall of 2007 to possess with intent to
distribute and manufacture more than 50 grams of methamphetamine
(Count One); aiding and abetting the possession of materials for
the manufacture of methamphetamine in November 2007 (Count Two);
and possession in November 2007 of pseudoephedrine knowing that
it would be used to manufacture methamphetamine (Count Three). 1
Brown appeals his convictions on the ground that a defense
witness was called to testify out of order, before the
government finished presenting its case. He also challenges his
sentence, arguing that the district court clearly erred in
finding that an obstruction of justice adjustment applied. U.S.
Sentencing Guidelines Manual § 3C1.1 (2009). Last, he contends
that the $100 special assessment on each count of conviction was
an excessive fine that violated the Eighth Amendment and the
Origination Clause of the Constitution. We affirm.
At Brown’s trial, the government presented evidence
that he was involved in a conspiracy to manufacture
methamphetamine at a trailer home on his mother’s property on
Abbot Road in Upshur County, West Virginia, and other places.
1
Brown was acquitted on Count Four, which charged that he
aided and abetted the possession of materials for the
manufacture of methamphetamine in February 2009.
2
In the early hours of November 21, 2007, a search warrant was
executed at the Abbot Road trailer. A functioning
methamphetamine lab was found in the trailer, which appeared to
have been abandoned during the clean-up after a methamphetamine
cook. Chris Perry was one of many government witnesses. He
testified that Brown or someone else cooked methamphetamine at
the trailer at least once a week. He said he was at the trailer
on November 21, 2007, with a number of people, including Brown,
who cooked methamphetamine that night and was cleaning up when
the law enforcement authorities arrived. Perry said he and
Brown and the others left the property by the back way, going
over the hill.
Another government witness, Melissa Frey, testified
that she lived with Brown’s girlfriend, Jency Hinkle, during the
time of the charged conspiracy and that for three or four years
Brown regularly supplied Hinkle with methamphetamine at their
apartment. She said that Brown usually brought “a wad about as
big as a golfball[.]” Frey also testified that Brown, who was
on pre-trial release at the time, called her the week before his
trial began and suggested to her that “maybe it wasn’t a ball of
crank” (methamphetamine) that she had seen, “maybe it was
tissues.” At the end of the first day of trial, the district
court revoked Brown’s bond, finding that his contact with Frey,
a potential witness, violated the conditions of his release.
3
The government’s last witnesses, who were all in
custody, arrived late at the courthouse. Anticipating a
possible delay in the trial proceedings, the district court
asked defense counsel, Brian Kornbrath, whether he would be
willing to call some of his witnesses out of order. Kornbrath
initially said he would prefer not to do that. However, after
the government had put on its only available witness, a
discussion was held off the record between the court and the
attorneys. The court then explained the situation to the jurors
and told them –
So rather than have you sit here with dead time . . .
the defense, Mr. Kornbrath, is going to call one of
his witnesses out of order. But this witness he is
calling is part of his case which would normally come
after the Government’s case is completed. But in
order to move things along, he’s going to call this
witness out of order.
Brown’s sister, Sheila Minix, then testified that no
one was living in the trailer at the time the search warrant was
executed, and that a number of people had stayed there on a
temporary basis. After her testimony, the government presented
its remaining witnesses.
Following Brown’s conviction, the probation officer
recommended that his contact with Frey was an attempt to
influence a witness that warranted a two-level adjustment for
obstruction of justice. Brown objected to the adjustment. At
sentencing the court found that, although Brown had not
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explicitly asked Frey to change her testimony, he had made an
implicit request that she do so, and that the adjustment
applied. The court sentenced Brown to a term of 360 months on
Count One, and concurrent sentences of ten years on Count Two
and twenty years on Count Three. The court ordered Brown to pay
a special assessment of $100 for each count. No fine was
imposed, but Brown was ordered to pay restitution in the amount
of $6425.
On appeal, Brown contests his conviction on the ground
that his defense witness, Sheila Minix, was called during the
government’s case in chief. Brown made no objection at the
time. Therefore, his claim of error is reviewed for plain
error. 2 Under the plain error standard of review, United States
v. Olano, 507 U.S. 725, 732-37 (1993), a defendant must show
that (1) error occurred; (2) the error was plain; and (3) the
error affected his substantial rights. Id. at 732. Even when
these conditions are satisfied, this Court may exercise its
discretion to notice the error only if the error Aseriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.@ Id. (internal quotation marks omitted);
2
Brown asserts that defense counsel’s earlier statement
that he preferred that defense witnesses follow the government’s
case was enough to preserve the issue. However, counsel’s later
failure to object indicates a change of mind.
5
United States v. Massenburg, 564 F.3d 337, 342-46 (4th Cir.
2009) (reviewing unpreserved Fed. R. Crim. P. 11 error).
It is not clear from the record whether the district
court or defense counsel initiated the unrecorded bench
conference that was held just before Minix testified. 3 In any
case, Brown maintains that having his witness testify out of
order “erroneously indicated to the jury that [he] had some
burden to produce evidence or prove his innocence.” However,
the district court has discretion to “exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to . . . make the interrogation and
presentation effective for the ascertainment of the truth . . .
and avoid needless consumption of time[.]” Fed. R. Evid.
611(a); see also United States v. Blake, 571 F.3d 331, 349 (4th
Cir. 2009) (Rule 611 gives trial court broad discretion and “a
judge’s ruling will not be the basis for reversal of a criminal
conviction unless a defendant’s substantial rights are
affected.”) (internal quotation marks and citation omitted),
cert. denied, 130 S. Ct. 1104 (2010). Moreover, the Seventh
Circuit has held that “changing the order in which evidence is
3
The government states in its brief that defense counsel
asked to approach the bench. Brown neither agrees with nor
disputes this statement.
6
presented does not change the burden of proof.” Mays v.
Springborn, 575 F.3d 643, 649 (7th Cir. 2009).
In his reply brief, Brown argues that Rule 611 is
limited by Rule 29 of the Federal Rules of Criminal Procedure,
which presumes that the government will present its case first,
after which the defendant may make a motion for acquittal and
then present evidence if the motion is denied. Brown presents
no authority for his position that Rule 29 limits the trial
court’s discretion under Rule 611. We conclude that he has not
shown plain error on the part of the district court.
Brown also challenges the two-level sentence
adjustment he received for obstruction of justice. We review
for clear error a district court’s determination that a
defendant obstructed justice. United States v. Hughes, 401 F.3d
540, 560 (4th Cir. 2005). Here, we are satisfied that the
district court did not clearly err in finding that Brown’s
suggestion to Frey that she might have seen him bring tissues
rather than methamphetamine to her apartment was an implicit
request that she so testify and an attempt to obstruct his
prosecution.
Although Brown made no objection to the $100 special
assessment imposed by the sentencing court under 18 U.S.C.
§ 3013 (2006) for each count of conviction, in this appeal he
raises two challenges to the special assessment. Because Brown
7
failed to raise these issues in the district court, they are
reviewed for plain error.
First, Brown claims that the special assessment is an
excessive fine which violates the Eighth Amendment. The
government notes that there was at one time a split in the
circuits as to whether the special assessment required under
§ 3013 was punitive, and thus actually a fine. The question
arose primarily in cases involving assimilated crimes. However,
§ 3013 was amended in 1987 to apply to assimilated crimes. See
18 U.S.C. § 3013(d). Brown lacks current authority to support
his position that the special assessment is a fine. Moreover,
even if the $100 special assessment on each count were treated
as a fine, it would not be plainly excessive.
Last, Brown maintains that United States v. Munoz-
Flores, 495 U.S. 385, 398-99 (1990), is no longer controlling
law. In Munoz-Flores, the Supreme Court held that the special
assessment did not violate the Constitution’s Origination
Clause, even though it was enacted in a bill that originated in
the Senate, because the amount of revenue it raised that went
into the general treasury (rather than the Crime Victims’ Fund)
was incidental. Brown contends that the special assessment
currently generates enough revenue for the general treasury that
the revenue cannot be deemed incidental. He relies on
information contained in a “Fact Sheet” produced by the U.S.
8
Department of Justice, Office for Victims of Crimes, which he
has submitted as an attachment to his opening brief. However,
none of the information was presented to the district court. We
conclude that the district court did not plainly err in imposing
the special assessment.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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