The opinion
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENO ROMARIO BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
George Jarrod Hazel, District Judge. (8:19-cr-00068-GJH-1)
Submitted: April 29, 2022 Decided: August 9, 2022
Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and KEENAN, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: Alfred Guillaume III, LAW OFFICES OF ALFRED GUILLAUME III,
Greenbelt, Maryland, for Appellant. Dana Jill Brusca, Elizabeth G. Wright, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Keno Romario Brown appeals his convictions and 96-month sentence imposed after
a jury found him guilty of conspiracy to commit wire and mail fraud, in violation of 18
U.S.C. § 1349; four counts of wire fraud, in violation of 18 U.S.C. §§ 1343, 2; and three
counts of mail fraud, in violation of 18 U.S.C. § 1341. On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), finding no meritorious grounds for
appeal but questioning whether the district court erred by denying Brown’s motion to
suppress his statements and certain physical evidence and whether the district court abused
its discretion by permitting a witness to testify that Brown had assaulted her. Brown was
notified of his right to file a pro se supplemental brief, but he did not do so. The
Government declined to file a response brief. After an examination of the record in
accordance with Anders and, for the reasons that follow, we affirm in part, vacate in part,
and remand for resentencing.
Counsel first questions whether the district court erred when it denied Brown’s
motions to suppress. “When reviewing a district court’s ruling on a motion to suppress,
this Court reviews conclusions of law de novo and underlying factual findings for clear
error.” United States v. Fall, 955 F.3d 363, 369-70 (4th Cir. 2020) (cleaned up). “If, as
here, the district court denied the motion to suppress, this Court construes the evidence in
the light most favorable to the government.” Id. at 370 (cleaned up).
Brown challenges the denial of his motion to suppress statements he made to federal
officers. “The Fifth Amendment provides that ‘[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.’” United States v. Azua-Rinconada, 914 F.3d
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319, 325 (4th Cir. 2019) (quoting U.S. Const. amend. V). “And the Supreme Court has
mandated the use of procedural measures to ensure that defendants, when subjected to
custodial interrogations, are advised of their Fifth Amendment rights.” Id. (citing
Miranda v. Arizona, 384 U.S. 436, 444-45 (1966)). “[U]nless a defendant is advised of his
Fifth Amendment rights pursuant to Miranda and voluntarily waives those rights,
statements he makes during a custodial interrogation must be suppressed.” Id. “Coercive
police activity is a necessary finding for . . . a Miranda waiver to be considered
involuntary.” United States v. Giddins, 858 F.3d 870, 881 (4th Cir. 2017). Courts consider
“the totality of the circumstances, including the characteristics of the defendant, the setting
of the interview, and the details of the interrogation.” Id. at 885 (internal quotation marks
omitted).
Our review reveals that the district court did not err when it denied Brown’s motion
to suppress statements. The district court properly determined that Brown was not in
custody during questioning by federal officers and that, even if he was, the federal officers
properly informed Brown of his Miranda rights and Brown waived them. Further, Brown’s
statement was voluntary, as the totality of the circumstances indicated Brown was not
threatened or physically intimidated, he was not particularly vulnerable, and officers told
him that he could leave at any time.
Next, Brown asserts the district court erred by denying his motion to suppress
physical evidence obtained pursuant to a search warrant; he alleges that the probable cause
supporting the warrant was stale. The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
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searches and seizures” and provides that “no Warrants shall issue, but upon probable
cause.” U.S. Const. amend. IV.
The existence of probable cause . . . can’t be determined by simply counting
the number of days between the occurrence of the facts supplied and the
issuance of the affidavit. Instead, like probable cause more generally,
staleness is judged based on all the facts and circumstances of the case,
including the nature of the unlawful activity and the nature of the property to
be seized.
United States v. Bosyk, 933 F.3d 319, 330 (4th Cir. 2019) (cleaned up).
The district court did not err when it denied Brown’s motion to suppress physical
evidence obtained pursuant to a search warrant. The warrant affidavit contained sufficient
evidence detailing Brown’s participation in the conspiracy, and it reliably established that
Brown lived with his mother and had directed victims of the fraud scheme to send payments
to her home address. Based on her experience, the warrant affiant also indicated that
individuals involved in fraud often retained evidence of the scheme at their homes. Further,
as detailed in the warrant affidavit, a package containing a payment was sent by a victim
to Brown’s mother’s home only four months before the warrant was authorized.
Finally, counsel questions whether the district court abused its discretion by
allowing a witness to testify that Brown had physically assaulted her after she disobeyed
him. The witness testified that Brown told her not to open any packages sent to her by
victims of the fraud scheme and that, when she did, Brown hit her. Brown asserted the
testimony was inadmissible under Fed. R. Evid. 404(b). We conclude that the district court
did not abuse its discretion by allowing the witness to testify that Brown assaulted her. See
United States v. Webb, 965 F.3d 262, 266 (4th Cir. 2020) (stating standard of review) The
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witness’ testimony was evidence of Brown’s conduct in furtherance of the conspiracy.
Because the assault was part of, or intrinsic to, the crimes charged, Rule 404(b) did not
apply. See id.
In accordance with Anders, we have reviewed the entire record, and our review
revealed reversible error regarding the imposition at sentencing of the discretionary
conditions of supervised release. Because the discretionary conditions of supervised
release orally announced by the district court are inconsistent with those listed in the
written judgment, 1 in violation of United States v. Rogers, 961 F.3d 291 (4th Cir. 2020),
we vacate the sentence in its entirety and remand for the district court to resentence the
defendant, as explained in United States v. Singletary, 984 F.3d 341, 346 (4th Cir. 2021). 2
We therefore affirm Brown’s convictions, vacate his sentence, and remand for
resentencing. We deny counsel’s motions to withdraw at this juncture. Counsel shall
inform Brown, in writing after entry of judgment, of the right to petition the Supreme Court
of the United States for further review. If Brown requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel may renew in this
court the motion for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Brown.
1
The district court omitted standard condition 12 from its recitation at sentencing.
2
The district court did not have the benefit of Rogers and Singletary when it
sentenced Brown.
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We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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