United States v. Brown

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0321p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 06-1556

v.

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CLARENCE HOWARD BROWN, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-80101—Arthur J. Tarnow, District Judge.

Argued: July 25, 2007

Decided and Filed: August 16, 2007

Before: COLE and GILMAN, Circuit Judges; MARBLEY, District Judge.*

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COUNSEL

ARGUED: Chokwe Lumumba, c/o CURTIS WILLIAMS, Detroit, Michigan, for Appellant.

Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for

Appellee. ON BRIEF: Chokwe Lumumba, c/o CURTIS WILLIAMS, Detroit, Michigan, for

Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,

for Appellee.

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OPINION

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R. GUY COLE, Jr., Circuit Judge. Defendant-Appellant Clarence Howard Brown appeals

his federal conviction for kidnapping, transportation of a minor with intent to engage in criminal

sexual activity, and sex trafficking of children. Brown contends that pre-arrest delay violated his

due-process rights and that post-arrest delay before trial violated his speedy-trial rights. Because

Brown is not entitled to relief, we AFFIRM.

*

The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting

by designation.

1

No. 06-1556 United States v. Brown Page 2

I. BACKGROUND

In October 2001, the victim, thirteen-year-old Tiffany Bender, met nineteen-year-old Mack

Atkins at a high-school football game in Adrian, Michigan. Tiffany lived with her grandmother

because her mother was a drug addict and unable to care for her. On November 9, 2001, Tiffany

told her grandmother that she was going to spend the night with her girlfriend, but she went out with

Atkins. Atkins picked Tiffany up at her house, and they spent the night at Atkins’s father’s house.

The next day, they went to Atkins’s aunt’s house where Tiffany met Atkins’s cousin, twenty-eight-

year-old Defendant-Appellant Brown. Later, Brown and Atkins attempted to drive Tiffany home

in Brown’s car, but it developed mechanical problems, so they went to Brown’s sister’s house in

Ypsilanti, Michigan, where they spent the night. There, Tiffany met Brown’s girlfriend, Holly

Hollis, and her six-year-old son.

The following day, Tiffany accompanied Brown, Atkins, Hollis, and her son to Barkeyville,

Pennsylvania. Over the next few days they stayed at motels, and Hollis would leave for a few hours

at a time. Tiffany assumed, based on Hollis’s appearance, that Hollis engaged in prostitution at

these times. On November 13, the group spent the night at Brown’s brother’s house. Tiffany then

unsuccessfully tried to reach her mother by phone. She again spent the night at Brown’s brother’s

house.

The next day, Hollis told Tiffany that Brown would take Tiffany home. Brown, Tiffany,

Hollis and Hollis’s son—but not Atkins—later got into Brown’s car, and Tiffany thought she was

going home. When she noticed that they had been driving for too long, she asked Brown if he knew

where he was going, and he told her to “shut up” and that she “was his bitch.” (Joint Appendix

(“JA”) 304.) Rather than drive Tiffany home, Brown drove to a Motel 6 in Fort Wayne, Indiana.

Hollis later left the motel to engage in prostitution at a nearby truck stop. Meanwhile, Brown loaded

a gun in front of Tiffany in the motel room, and, that night, he raped her.

The next day, when Tiffany asked why Brown made Hollis prostitute herself, Brown hit

Tiffany and told her she “was going to be doing it soon.” (JA 307.) Hollis helped Tiffany dress and

put on makeup and accompanied her to the truck stop. Hollis told Tiffany that Tiffany was in

“whore training,” and Hollis instructed her on the “rules” of prostitution and what to charge for

sexual favors. (JA 309–310, 327.) Hollis borrowed a trucker’s CB radio to “advertise” herself. (JA

309.) That night, with the customers’ permission, Hollis had Tiffany watch her perform sexual

activities with eleven different “dates.” (JA 310.)

The following day, they followed the same routine, except that Brown directed Tiffany to

engage in prostitution as well. Brown gave Tiffany condoms to use. Tiffany’s first “date,” a truck

driver, refused to allow Hollis to observe. The driver then held a knife to Tiffany and threatened to

perform anal sex on her. When she cried and said she was only fourteen years old, he threw her out

of his truck, and she went back to the motel. When Hollis returned, Brown hit her and yelled at her

for leaving Tiffany alone. That night, Brown raped Tiffany again.

The next day, Hollis and Tiffany returned to the truck stop. That night, Tiffany engaged in

prostitution with about ten men. When she returned to the motel, she gave all the money she earned

to Brown. Hollis explained to Tiffany that Hollis had to earn more than Tiffany because Hollis was

the “top whore” and Tiffany was the “bottom whore.” (JA 319.) They both engaged in prostitution

activity for about a week, from approximately November 21 through November 27, 2001. On one

occasion, Hollis and Tiffany told the motel desk clerk about their business and the prices they would

charge. The desk clerk noted that when Tiffany was in Brown’s presence she appeared terrified, and

Tiffany told the clerk that she feared she might not make it home.

No. 06-1556 United States v. Brown Page 3

On November 27, a female truck driver, Peggy Jones, let Hollis and Tiffany into her truck

to use the CB radio. When Hollis eventually left the truck, Tiffany started crying and told Jones that

she wanted to go home. Jones let Tiffany ride in her truck, and on December 1, 2001, they arrived

at the New Jersey border and called Tiffany’s mother. Jones stayed with Tiffany until the police

arrived. The police brought Tiffany to the police station and then to a safe house for children, where

she stayed until her mother arrived and eventually drove her home to Michigan.

Around December 14, 2001, Tiffany provided Michigan police with a fourteen-page, hand-

written statement describing these events. On January 11, 2002, she gave an oral statement to the

FBI. Three days later Tiffany gave the police a paper bag with twelve condoms that Brown gave

her.

Approximately three years passed before Brown was arrested in January 2005. At that time,

Brown admitted that Atkins was his cousin and that Hollis had been Brown’s girlfriend, but Brown

claimed that he had not seen Hollis since late 2001. Brown also denied knowing Tiffany. At first,

he denied ever traveling with the group to Pennsylvania, but he later admitted staying in

Pennsylvania with Atkins, Hollis, her son, and a “young white female.” (JA 558–63.)

On February 2, 2005, a grand jury returned an indictment charging Brown and Hollis with

kidnapping, in violation of 18 U.S.C. §§ 1201(a) & (g), and transportation of a minor with intent to

engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). On April 20, 2005, the grand

jury added a third count against both defendants of sex trafficking of children, in violation of 18

U.S.C. § 1591.

Brown’s trial commenced on November 8, 2005. The jury convicted him on all three counts.

On April 3, 2006, the district court sentenced Brown to concurrent 240-month terms on counts one

and three, and a sixty-month consecutive sentence on count two. Brown timely appealed.

II. DISCUSSION

Brown contends that his rights were violated by the delay between both (1) the crime and

his arrest, and (2) his arrest and trial. The Sixth Amendment provides that “in all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” U.S. Const. amend

VI. In United States v. Marion, 404 U.S. 307, 321 (1971), the Supreme Court held that the Sixth

Amendment’s speedy-trial guarantee, which explicitly refers to “the accused,” does not apply until

an individual is arrested or indicted. Before that time, due-process rights protect against oppressive

delay. Id. at 324. We address first Brown’s claim regarding pre-arrest delay and then address his

claim regarding post-arrest delay.

A. Pre-Arrest Delay

Brown first contends that the three-year delay between the crime and his arrest violated his

due-process rights. We review de novo this claim, which raises a mixed question of law and fact.

United States v. Sanders, 452 F.3d 572, 576 (6th Cir. 2007) (citing Williams v. Coyle, 260 F.3d 684,

706 (6th Cir. 2001)).

As a threshold matter, Brown has waived this argument. Federal Rules of Criminal

Procedure 12(b)(3)(A) & (B) provide that motions alleging a defect in instituting the prosecution

or in the indictment “must be raised before trial.” Rule 12(e) provides that failure to do so

constitutes a waiver of those objections. Fed. R. Crim. P. 12(e). This Court “strictly applies Rule

12(b), and has repeatedly held that failure to raise 12(b) motions in a timely fashion precludes

appellate review.” United States v. Oldfield, 859 F.2d 392, 396 (6th Cir. 1988). Brown never

moved to dismiss the indictment based on delay. His argument on appeal is therefore waived. See

id.; see also United States v. Pinson, 1 F. App’x 426, 429 (6th Cir. 2001) (“As [the appellant] moved

No. 06-1556 United States v. Brown Page 4

to dismiss based on pre-indictment delay after the trial began, appellate review of the matter is

waived.”).

In any event, this argument also lacks merit. After holding that the Sixth Amendment does

not apply to pre-arrest delay, the Marion Court explained that “‘the applicable statute of

limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.’” 404

U.S. at 322 (quoting United States v. Ewell, 383 U.S. 116, 122 (1966) (alteration in original)).

Brown does not allege that the three-year delay before charges were brought against him violates

the statute of limitations, which has a ten-year duration. See 18 U.S.C. § 3283. The Marion Court

noted, however, “that the statute of limitations does not fully define [a person’s] rights with respect

to the events occurring prior to indictment.” 404 U.S. at 324. The Court explained that due-process

protections “would require dismissal of the indictment if it were shown at trial that the pre-

indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that

the delay was an intentional device to gain tactical advantage over the accused.” Id.

“Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient

element of a due process claim, and that the due process inquiry must consider the reasons for the

delay as well as the prejudice to the accused.” United States v. Lovasco, 431 U.S. 783, 790 (1977).

We have interpreted Marion and Lovasco to hold that both conditions (improper reasons for delay

and prejudice) are necessary for a due-process violation. Sanders, 452 F.3d at 581 n.6. When

assessing whether these conditions are met, we are “to determine only whether the action

complained of . . . violates those fundamental conceptions of justice [that] lie at the base of our civil

and political institutions, and [that] define the community’s sense of fair play and decency.”

Lovasco, 431 U.S. at 790 (internal citations and quotation marks omitted); Sanders, 452 F.3d at 580.

Brown fails to meet either condition.

First, Brown offers no proof that the delay was a deliberate ploy by the Government to gain

a tactical advantage. Brown merely states, without support, that the delay demonstrates that the

authorities’ “motive was to neutralize [Brown’s] ability to build a defense.” (Brown’s Br. 18.)

Second, Brown fails to show that the delay prejudiced him so gravely that his due-process

rights were violated. He says that Atkins, who died before trial and “possibly before [Brown’s]

arrest,” “would have been in a position to describe the relationship[,] if any existed[,] between Mr.

Brown and . . . Tiffany . . . .” (Id. 18.) The record does not reveal when Atkins died. But even

assuming that Atkins would have provided information regarding the relationship between Brown

and Tiffany, that information would not have significantly aided Brown’s defense because Atkins

was not present when Brown took Tiffany in his car and therefore was not present for any of the

events underlying the charges. Cf. United States v. Rogers, 118 F.3d 466, 476 (6th Cir. 1997)

(holding that defendant failed to show prejudice where witness died before trial and it was “unlikely

that his testimony would have affected the outcome of the trial”).

Brown additionally alleges that the delay prejudiced him by causing him to forget certain

events, and this “was used to his disadvantage at trial to make it appear that [he] was trying to hide

important facts when he was interviewed by the FBI.” (Brown’s Br. 18.) The Government responds

that this point is irrelevant because Brown chose not to testify. (Gov’t Br. 17.) But a defendant’s

exercising of his right not to testify should not automatically eliminate any argument that a delay-

induced lack of memory prejudiced his defense—especially where that delay arose from improper

motives of the Government. Yet Brown’s contention here nonetheless fails because his inability to

recall certain facts in the interview did not affect the ultimate outcome of the trial.

In sum, Brown fails to establish a due-process violation for his pre-arrest delay.

No. 06-1556 United States v. Brown Page 5

B. Post-Arrest Delay

Brown also challenges the post-arrest delay, alleging violations of his speedy-trial rights

under (1) the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–74, and (2) the Sixth Amendment.

1. Speedy-Trial Act

Brown contends that the approximately nine-month delay between his indictment on

February 3, 2005, and his trial, which began on November 8, 2005, violated the Speedy Trial Act.

The Act generally requires a federal criminal trial to begin within seventy days after a defendant is

charged or makes an initial appearance, 18 U.S.C. § 3161(c)(1), but the Act contains a detailed

scheme under which certain specified periods of delay are not counted. Zedner v. United States, __

U.S. __, 126 S. Ct. 1976, 1981–1982 (2006). “If a trial does not begin on time, the defendant may

move, before the start of trial or the entry of a guilty plea, to dismiss the charges, and if a meritorious

and timely motion to dismiss is filed, the district court must dismiss the charges, though it may

choose whether to dismiss with or without prejudice.” Id. at 1984. “In making that choice, the court

must take into account, among other things, ‘the seriousness of the offense; the facts and

circumstances of the case [that] led to the dismissal; and the impact of a reprosecution on the

administration of [the Act] and on the administration of justice.’” Id. (quoting § 3162(a)(2)) (second

alteration in original).

The Act also provides that “[f]ailure of the defendant to move for dismissal prior to

trial . . . shall constitute a wavier of the right to dismissal under this section.” 18 U.S.C.

§ 3162(a)(2); United States v. White, 985 F.2d 271, 274–75 (6th Cir. 1993) (“By failing to raise this

[Speedy Trial Act] issue until the appeal, White waived the right to make this argument.”). Brown

never raised this claim before trial. Brown notes only that, under Zedner, a defendant “may not

prospectively waive the application of the speedy trial act.” (Brown’s Br. 19 (emphasis added).)

But Zedner explains that “there is no reason to think that Congress wanted to treat prospective and

retrospective waivers [such as Brown’s] similarly” under the Act. 126 S. Ct. at 1986. The Court

explicitly stated that “a defendant whose trial does not begin on time is deemed to have waived the

right to move for dismissal of the information or indictment if he or she does not file that motion

prior to trial or entry of a guilty plea.” Id. at 1981. Brown’s claim is therefore waived.

2. Sixth Amendment

Brown next contends that the nearly ten-month delay between his arrest on January 13, 2005,

and his November 2005 trial violates the Sixth Amendment’s speedy-trial guarantee. Unlike the

Speedy Trial Act, which protects against delay from the time of indictment or appearance, the Sixth

Amendment protects against delay from the time of arrest when it precedes the indictment or

appearance. See Dillingham v. United States, 423 U.S. 64, 65 (1975) (measuring delay for Sixth

Amendment claim from time of arrest and noting that “[i]nvocation of the speedy trial provision . . .

need not await indictment, information, or other formal charge”).

In determining whether a defendant’s Sixth Amendment right to a speedy trial has been

violated, we review questions of law de novo and questions of fact under the clearly-erroneous

standard. United States v. Jackson, 473 F.3d 660, 664 (6th Cir. 2007) (internal quotation marks and

citation omitted). The remedy for a Sixth Amendment speedy-trial violation is dismissal with

prejudice. Id. (citation omitted).

The Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), established a four-factor

test for evaluating a Sixth Amendment speedy-trial claim: (1) length of delay; (2) the reason for the

delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. None of these

four factors is “a necessary or sufficient condition to the finding of a deprivation of the right of

speedy trial. Rather, they are related factors and must be considered together with such other

No. 06-1556 United States v. Brown Page 6

circumstances as may be relevant.” Id. at 533. Applying these factors here shows that Brown’s

speedy-trial rights were not violated.

a. Length of Delay

The first factor, length of the delay, is a triggering mechanism: “Simply to trigger a speedy

trial analysis, an accused must allege that the interval between accusation and trial has crossed the

threshold dividing ordinary from ‘presumptively prejudicial’ delay, since, by definition, he cannot

complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case

with customary promptness.” Doggett v. United States, 505 U.S. 647, 651–52 (1992).

The nearly ten-month delay here is likely right at the line to trigger an analysis of the

remaining factors. “This Court has found that a delay is presumptively prejudicial when it

approaches one year.” United States v. Gardner, __ F.3d __, 2007 U.S. App. LEXIS 12203, at *42

(6th Cir. May 25, 2007) (citing United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003)). And

although we have indicated that an eight-month delay would suffice to meet this first factor, see,

e.g., Jackson, 473 F.3d at 665 (quoting law-review article cited in Doggett that states “[t]here seems

general agreement that any delay of eight months or longer is ‘presumptively prejudicial’”), we have

also held that a delay of approximately nine months was not presumptively prejudicial, at least

where the matter involved “multiple defendants and pre-trial motions,” see Gardner, 2007 U.S. App.

LEXIS 12203, at *42. Here, we will assume without deciding that the nearly ten-month delay is

presumptively prejudicial and address the remaining factors, which, as discussed below, outweigh

this presumption.

b. Reason for Delay

“Closely related to length of delay is the reason the government assigns to justify the delay.”

Barker, 407 U.S. at 531. Different weights should be assigned to different reasons. Id. “A

deliberate attempt to delay the trial . . . to hamper the defense should be weighted heavily against

the government. A more neutral reason such as negligence or overcrowded courts should be

weighted less heavily but nevertheless should be considered since the ultimate responsibility for

such circumstances must rest with the government rather than with the defendant.” Id. A valid

reason, “such as a missing witness, should serve to justify appropriate delay.” Id.

Moreover, a court should consider whether some of the delay is attributable to the defendant.

See, e.g., United States v. Bass, 460 F.3d 830, 837 (6th Cir. 2006) (“[I]t is apparent that the

government was not any more to blame than [the defendant] for this delay . . . .”). Although the

Government here suggests that delay attributable to Brown should be considered under the first

factor (by simply subtracting from the total length of the delay)—an approach we have taken before,

see, e.g., Norris v. Schotten, 146 F.3d 314, 327 (6th Cir. 1998)—commentators have pointed out that

this approach is “inconsistent with Barker,” where the Supreme Court simply looked to the total

period between arrest and trial to assess the first, length-of-delay factor. See 2 David Rudstein et

al., Criminal Constitutional Law ¶ 11.01[1] & n.88 (2006) (citing Norris as an example of the

improper approach). The proper analysis, which we recently employed in Bass and employ here,

is to consider delay attributable to the defendant under the second, reason-for-delay factor.

Here, the reasons for the delay weigh against finding a Sixth Amendment violation. First,

the charges were complex, involving multiple defendants and including kidnapping, transportation

of a minor with the intent to engage in criminal sexual activity, and sex trafficking of children. Cf.

Bass, 460 F.3d at 836 (“Delays due to the complexity of the case and the large number of defendants

support a finding that no Sixth Amendment violation occurred.”). And, as the Government noted

at oral argument, the investigation here involved corroborating Tiffany’s description of the events

through witnesses in multiple states. Second, although the burden of excusing delay rests with the

No. 06-1556 United States v. Brown Page 7

Government, see Rudstein et al., supra, ¶11.01[1] & n.155 (citing Barker, 407 U.S. at 531), “it

cannot be presumed that the government acted with an improper motive,” id. ¶11.01[1], and there

is no indication that the delay was motivated by the Government’s bad faith or attempt to gain

tactical advantage. Third, much of the delay here is attributable to Brown. For example, in May

2005 Brown sought new counsel and stated in open court that he had no objection to the delay

required by the “extra time” new counsel would need to prepare for trial. (JA 99.) Brown then

obtained a stipulation to adjourn a status conference from July 7, 2005, to July 26, 2005, so that he

could have another new counsel substituted as his attorney on that later date. In short, the reasons

for delay do not weigh toward a conclusion that the delay violated Brown’s rights.

c. Defendant’s Assertion of His Right

“The defendant’s assertion of his speedy trial right . . . is entitled to strong evidentiary weight

in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531–32.

The Barker Court “emphasize[d] that failure to assert the right will make it difficult for a defendant

to prove that he was denied a speedy trial.” Id. at 532. As discussed above, Brown never asserted

his speedy-trial rights before this appeal. This factor therefore weighs heavily toward a conclusion

that no Sixth Amendment violation occurred. Indeed, in Barker, the Supreme Court concluded that

the more than five-year delay between arrest and trial there did not amount to a constitutional

violation in part because of the lack of prejudice to the defendant but, “[m]ore important than the

absence of serious prejudice, [was] . . . that Barker did not want a speedy trial.” Id. at 534

(emphasis added). Similarly, Brown—who waited four years less than Barker for trial—also was

apparently unconcerned with how speedily it arrived.

d. Prejudice

The fourth factor, prejudice to the defendant, “should be assessed in light of the interests of

defendants [that] the speedy trial right was designed to protect.” Id. at 532. The Supreme Court in

Barker identified three of these interests: (1) to prevent oppressive pretrial incarceration; (2) to

minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will

be impaired. Id. “Of these, the most serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system.” Id.

Whatever prejudice exists here is minimal. First, no prejudice arose from Brown’s pretrial

incarceration because even if he had not been detained in this case, he would have been in state

custody for two felony armed-robbery cases pending in Mississippi and a felonious-assault case in

Michigan. Second, any anxiety or concern Brown experienced here for ten months would fall short

of that deemed insufficiently prejudicial in Barker, where the defendant waited more than five years

from arrest to trial. Barker, 407 U.S. at 533–34. Third, as discussed above with regard to Brown’s

due-process claim, Brown’s contentions regarding Atkins’s death and his own memory lapses fall

short of establishing the sort of prejudice that triggers Sixth Amendment protection. Cf. Bass, 460

F.3d at 838 (“Bass . . . does not state what testimony any missing witnesses could have provided,

which witnesses’ memories were affected, or how his own memory problems affected his defense.”).

* * *

On balance, the Barker factors show that Brown’s speedy-trial rights were not violated.

Indeed, as discussed, he never even asserted those rights at trial. Accordingly, no Sixth Amendment

violation occurred.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.